United Brotherhood of Carpenters and Joiners of America, Local Union 1030 v. Nepean Roof Truss Limited, 1986 CanLII 1382

[1986] OLRB Rep. September 1287

1496-86-FCA United Brotherhood of Carpenters and Joiners of America, Local Union 1030, Applicant, v. Nepean Roof Truss Limited, Respondent

BEFORE: R. O. MacDo well, Vice-Chairman, and Board Members M. Eayrs and C. A. Ballentine.

APPEARANCES: F. Manoni and Thomas G. Harkness for the applicant; no one appearing for the respondent.

DECISION OF THE BOARD; September 24, 1986

I

1. This is an application under section 40a of the Labour Relations Act which came into force on May 26, 1986. Since this is one of the first applications under the new section, it may be useful to set out its terms and the context in which the present case arises. The relevant provisions of section 40a are as follows:

40a.-(1) Where the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minis­ter has released the report of a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.

(2) The Board shall consider and make its decision on an application under subsection (1) within thirty days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 15 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of,

(a) the refusal of the employer to recognize the bargaining authority of the trade union;

(b) the uncompromising nature of any bargaining position adopted by the res­pondent without reasonable justification;

(c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or

(d) any other reason the Board considers relevant.

(3) Where a direction is given under subsection (2), the first collective agreement between the parties shall be settled by a board of arbitration unless within seven days of the giving of the direction the parties notify the Board that they have agreed that the Board arbitrate the settle­ment.

(4) Where the parties give notice to the Board of their agreement that the Board arbitrate the settlement of the first collective agreement, the Board,

(a) shall appoint a date for and commence a hearing within twenty-one days of the giving of the notice to the Board; and

(b) shall determine all matters in dispute and release its decision within forty-five days of the commencement of the hearing.

(5) Where the parties do not agree that the Board arbitrate the settlement of the first collective agreement, each party, within ten days of the giving of the direction under subsection (2), shall inform the other party of the name of its appointee to the board of arbitration referred to in sub­section (3) and the appointees so selected, within five days of the appointment of the second of them, shall appoint a third person who shall be the chairman.

(17) In arbitrating the settlement of a first collective agreement under this section, matters agreed to by the parties, in writing, shall be accepted without amendment.

(18) A first collective agreement settled under this section is effective for a period of two years from the date on which it is settled and it may provide that any of the terms of the agreement, except its term of operation, shall be retroactive to such day as the Board may fix, but not ear­lier than the day on which notice was given under section 14.

(19) The parties, by agreement in writing, or the Minister may extend any time limit set out in this section, notwithstanding the expiration of such time.

2. It will be seen that the statute envisages a two-stage process: an initial determination by this Board as to whether to direct the settlement of a first collective agreement by arbitration, and, if the Board so directs, a separate arbitration proceeding, either before this Board or an arbitration panel to which the parties nominate their own representative. Each stage is expected to commence aid be completed within stipulated time periods. The statute imposes quite a rigid regimen on the parties and the Board which is expected to hold hearings, digest the evidence and issue a reasoned decision within a period of thirty days from the filing of the application; and, at the same time, the process must comply with both the Statutory Powers Procedure Act and the rules of natural justice. ii the case of the arbitration proceeding, the Board is expected to complete the hearing and issue us decision (which could involve drafting a complete collective agreement) within forty-five days of the commencement of the hearing - however long the hearing itself may be, and however numer­ous or difficult may be the issues in dispute. In practice that means that the Board will have only three or four weeks (including hearing days, and writing time) to resolve issues which, in all likelihood, have occupied the parties' attention for some months. And, since section 40a is applicable to a by bargaining rights acquired after January 1, 1984, there may be "quite a lot of water under the bridge" by the time a dispute makes its way to the Board.

3. In recognition of the need to develop a new procedure to accommodate these concerns, the Board issued the following practice note, pursuant to section 102(13) of the Act:

PRACTICE NOTE NO. 19

SETTLEMENT OF FIRST COLLECTIVE AGREEMENT

BY THE BOARD

1. A notice to the Board that parties have agreed that the Board arbitrate the settlement of a first collective agreement must be in writing and must include the following:

(a) the full name of the trade union and of the employer;

(b) the address and telephone number of the trade union and of the employer for purposes of service; and

(c) a copy of the Board decision directing that a first collective agreement between the trade union and the employer be settled by arbitration.

2. Upon receiving a notice which conforms with paragraph 1, the Registrar will schedule the hearing date or dates and give written notice to the parties of such hearing date or dates.

3. Each party must file with the Board no later than nine days from the date on which the notice under paragraph t was filed with the Board:

(a) a proposed collective agreement that it is prepared to execute;

(b) a list of all those bargaining matters agreed to in writing by the parties and copies of such agreements; and a list of all those bargaining matters which

remain in dispute; and

(c) all of the information, documentation and submissions, that it relies on in support of each bargaining matter which remains in dispute.

4. Copies of all of the material filed with the Board pursuant to paragraph 3 must be delivered by each party to the other, on or before the date on which the material is filed with the Board.

5. Each party must forthwith file with the Board a duly completed certificate of delivery in the following form:

CERTIFICATE OF DELIVERY

I hereby certify that copies of all of the material filed with the Board pursuant to paragraph 3 of Practice Note 19 have been delivered to (Trade Union or Employer) as follows on the — day of ____ ,19___.

Name and Title of officer, official or agent to whom it was

delivered ______________________

Address at which it was

delivered ______________________________________________________

Name: __________

Title: __________

Signature: __________

6. Upon delivery to it of the material from the other party pursuant to paragraph 4, each party must file with the Board and deliver to the other party within six days, a detailed written reply to the other party's position on each of the bargaining matters remaining in dispute.

7. Except with leave of the Board, a party will not be permitted to adduce any evidence or to make any submissions at the hearing, with respect to any matter that was not disclosed in the written material it filed pursuant to paragraphs 3 and 4 or in its reply filed pursuant to paragraph 6.

The practice note requires more extensive pleadings than in other Board proceedings; however, this information is essential for the parties and the Board members if they are to properly prepare for the hearing.

II - Background

4. On November 5, 1984, the Board certified the applicant union as the bargaining agent for "all employees of Nepean Roof Truss Limited in the City of Nepean, save and except foremen, persons above the rank of foreman, office and sales staff and students employed during the school vacation period". Notice to bargain was subsequently given and the union and employer engaged in protracted negotiations. Those negotiations did not, ultimately, result in the conclusion of a col­lective agreement.

5. On May 26, 1986, the "first agreement" legislation came into effect. On June 23, 1986, the union requested the Board to direct the settlement of a first collective agreement by arbitra­tion. The Board held a hearing to consider the request. On July 22, 1986, the Board, by telegram, advised the parties that it had decided to direct the settlement of a first collective agreement by arbitration. On July 24, 1986, the Board issued its formal decision confirming its unanimous opin­ion that arbitration was appropriate in this case [now reported [1986] OLRB Rep. July 1005]. The Board held that:

In all the circumstances, we are satisfied that the process of collective bargaining has been unsuccessful because of the uncompromising nature of the respondent's bargaining position with respect to the term of the agreement, and particularly with respect to its refusal to accept a seniority rights clause, both without reasonable justification. Therefore, the Board directs the settlement of a first collective agreement by arbitration.

We should note that in this "first stage hearing", the employer, although appearing and repre­sented by counsel, decided not to call any evidence. Accordingly, the Board's decision is based upon its interpretation of the statute and the testimony advanced on behalf of the applicant union. For ease of exposition, we will refer to this as the decision of the "Abella panel".

6. On July 29, 1986, the Board received a telegram from counsel for the respondent employer, indicating that the parties had agreed that the Labour Relations Board should arbitrate the agreement. On August 11, 1986, the Board received letters from both parties confirming their agreement. Neither letter conforms precisely to the Practice Note, but the required information can be obtained by a search of the Board's own files, on the assumption that the same counsel would be representing the respondent in the arbitration proceeding, and that his business office was the appropriate address for service. On August 22, 1986, the Board received a formal appli­cation from the applicant with attached documentation. That material was not in conformity with the Practice Note either - with results that we will come to later. The respondent made no reply at all and filed no material. On August 22nd, the Board sent the parties (by courier) a Notice of Hearing, in Form 8, fixing Wednesday, September 10, 1986 as the date for the commencement of tie arbitration proceeding. The Notice of Hearing contains the following warning in bold type:

IF YOU DO NOT ATTEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS.

7 On Friday, September 3, 1986, the Board received the following letter requesting rt consideration of the direction to go to arbitration made on July 24th.

We are solicitors for Nepean Roof Truss Limited, the Respondent employer in the above-cap­tioned matter. By decision dated July 24, 1986 the Board granted the Applicant's request and directed that a first collective agreement between the parties be imposed pursuant to section 40a of the Labour Relations Act. We hereby apply to the Board pursuant to section 106(1) of the Labour Relations Act to reconsider and revoke that order and direction.

The respondent makes this application in light of events which have occurred subsequent to the hearing which events make the initial order of the Board clearly inappropriate. The evidence now available, which was not available at the time of the hearing, is related to the Applicant union's bargaining position.

The Chairman in her reasons for decision in Board File No. 0836-86-FC, notes:

"The use of the word 'process' [in section 40a] imparts into the deliberation an exami­nation of the interaction between the two parties. It is a truism that the negotiation of any contract involves a considerable range of bargaining positions and tactics. It is a dynamic exchange, with each party relying as extensively as possible on those posi­tions most likely to induce the other side to accept a tolerable result. The Board must therefore be sensitive to this bargaining reality when considering how each party has conducted itself. It is the totality of the process that is under scrutiny, and the Board must be cautious not to examine the complaint in a factual vacuum. The conduct of both parties is therefore relevant, not only for understanding why the process has been unsuccessful, but also for assessing whether it has been unsuccessful for any of the enu­merated reasons. This does not intend to suggest that the applicant's conduct will be a bar to the imposed settlement of a first contract, but rather that its conduct is relevant in assessing the reason for the failure of the process.

ii) 'The process... has been unsuccessful because of...'. This language makes it clear that section 40a contemplates a cause-and-effect oriented assessment. Unless the appli­cant can demonstrate that the reason for the unsuccessful process is the... respondent's unreasonably uncompromising bargaining proposals...then notwithstanding the failure to conclude an agreement, the Board is not entitled to direct its imposition." (emphasis added)

In this case, the Union contended, as outlined in paragraph 18 of the decision, that the cause of the unsuccessful negotiations was the employer's bargaining position on two matters:. a) its insistence on a three year term, and b) its insistence on a merit provision" rather than a "job security or seniority rights clause".

Since the decision of the Board in this matter, the parties have received the reasons of the Board in Board Files No. 0480-84-R and 0481-85-ti [sic] (the 'bad faith bargaining complaint') referred to in paragraph 8 of the Board's decision in this matter. Secondly, we have received a copy of Mr. Manoni's letter to the Board dated August 20, 1986 in compliance with Practice Note No. 19. The Respondent submits that together these establish that the failure of the process of collective bargaining in this insistence could not be said to be as a result of the bar­gaining positions taken by the Respondent relating to the term of the agreement and seniority and that in the circumstances the order of the Board was clearly inappropriate.

The Board in its decision in the bad faith bargaining complaint makes the following findings of fact:

The matter that separates the parties from signing a collective agreement relates solely to the protection in a collective agreement of the employees who were previ­ously laid off and ordered reinstated by the Board. The position of the employer in this regard is that it is not prepared to include that matter in the collective agreement itself, but is prepared to give the trade union a letter of understanding on the matter. Mr. Manoni's evidence, however, indicates that on being given that assurance, the union changed its position on the duration of the collective agreement. (emphasis add­ed)

The only issue between the parties at November 5, 1985, prior to the union's change in position regarding the duration of the agreement, was with respect to protection for the employees who were previously laid off. Therefore, to the extent that the disagreement regarding the term of the agreement could be said to have caused the failure of negotiations, the bargaining position which was the effective cause was not the employer's position but rather the union's change in position.

With respect to the "seniority clause" issue the Board concurred with the employer that the individualization of seniority rights was unacceptable as unfair to other bargaining unit employ­ees. However, with respect to the Company's proposed "merit clause" the Board held:

In today's labour relations climate, and given the significance to the labour movement of this basic principle [of seniority], the company ought to have known that the union could not readily accept a broad merit clause in the absence of a seniority rights provi­sion. The protection of seniority rights is such a fundamental part of the scheme of collective bargaining outside the construction industry, that the company's refusal to grant it as a general principle, with or without a merit component, could only be interpreted in this case as an unwillingness to engage in a serious attempt to effect an

agreement." (emphasis added)

This Board in the bad faith bargaining complaint, which dealt with the identical clause and posi­tion stated: "In the present case it is therefore clear that the Respondent employer was prepared to deal with the remaining outstanding issue

Supportive of the Respondent's argument before the Board that its position respecting the term of the agreement and a "merit clause" cannot be said to have caused the process to be unsuc­cessful is the fact that the trade union is now asking this Board to impose an agreement which embodies proposals on these issues which are virtually identical to the respondent's negotiating position.

On August 20, 1986, Mr. Manoni, Representative of the General President of the trade union submitted to this Board the collective agreement which it is prepared to execute. He states: "The Union requested that the parties execute the said agreement with its duration of 3 years as per Article 26 of the same agreement". Thus, not only is the trade union prepared to execute a collective agreement of 3 years duration, as proposed by the respondent during negotiations, it is now requesting that this Board impose such an agreement.

The trade union also states in its submission of August 20, 1986 that it is prepared to execute an agreement in the form attached thereto (the Steenbakker Lumber Co. Ltd/Capital Roof Truss (1984) Ltd. collective agreement) "except for" the stated necessary changes. None of those changes relate to a seniority or merit clause or to the individuals for whom Mr. Manoni claimed the trade union required protection. In fact, the position of the Union is now virtually identical to that maintained by the Respondent during negotiations.

Article 11.01 of the agreement the trade union now proposes that this Board impose provides:

11.01 "In all cases involving vacancies, promotions, transfers, layoffs, recalls, terminations, wages and vacation scheduling, employees shall be considered on the basis of merit. Merit includes among other things, their skill, ability, qualifications, job duties, per­formance, record, potential and experience. The Company shall determine the rela­tive merit as between employees in a given case and take action accordingly. Only in the case where two or more employees are determined by the Company to be of equal merit shall the Company take action in accordance with the length of service of the employees. In determining the merit the Company shall act in a fair and reasonable manner."

The Respondent's proposal during negotiations which the trade union rejected is reproduced in the Board's decision at paragraph I I and provides as follows:

11 .01 "The Company and the Union agree that in all cases involving vacancies, promotions, transfers, layoffs, recalls, terminations, wages and vacation scheduling, employees shall be considered on the basis of merit, including among other things, their skill, ability, qualifications, job duties, performance, record, potential and experience. The Company shall determine the relative merit as between employees in a given case and take action accordingly. In the case where two or more employees are determined by the Company to be of equal merit, the Company shall take action in accordance with the length of service of the employees."

The situation then is as follows: The trade union is seeking to have this Board impose a collec­tive agreement containing provisions virtually identical to those proposed by the employer dur­ing negotiations and which the trade union alleged were the cause of the parties' failure to con­clude an agreement.

It is respectfully submitted that this evidence clearly indicates that this Board must have erred in its finding that "the process of collective bargaining has been unsuccessful because of the uncompromising nature of the respondent's bargaining position with respect to the terms of the agreement, and particularly with respect to its refusal to accept a seniority rights clause, both without reasonable justification.".

It is further submitted that had the trade union advised this Board on the hearing of this appli­cation that it was prepared to accept the employer's proposals regarding the term of the agree­ment and the "merit clause", this Board would most certainly not have directed that a first agreement be imposed upon the parties. Such a direction in the circumstances is clearly inappro­priate and, it is submitted the principles enunciated by this Board in The Journal Publishing Company of Ottawa Limited, [1977] O.C.R.B. [sic] Rep. September 549 support the request for reconsideration.

The respondent respectfully submits that in all the circumstances, the decision of July 24, 1986 ought to be reconsidered and reversed.

All of which is respectfully submitted.

8. The reference to Board Files 0480 and 0481 (actually 0480-85-U and 0481-85-U) relates ~o the decision of another differently constituted panel of the Board which, on the evidence before it, concluded that the respondent had not contravened section 15 of the Labour Relations Act. whose complaints were filed on May 27, 1985, hearings were held on November 5, 6 and 7, and the Board issued a short decision on July 31, 1986. For ease of reference, we will refer to this as the decision of the "Franks panel". Section 106(1) of the Act, mentioned in the respondent's letter, reads as follows:

The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction or ruling.

9. On September 9, 1986, the day before the scheduled hearing, counsel for the respon­dent sent the following telegram to the Registrar of the Labour Relations Board:

This is further to our telephone conversation of September 5, 1986 in which you informed me that the Board could not consider the employer's request for reconsideration of the order of July 24, 1986 directing the settlement of the first collective agreement until after the hearings sched­uled for September 10 and it, 1986 as one of the Board Members on the original panel is on vacation.

We are in receipt of the letter of Mr. Manoni, Representative of the General President, to the Board dated August 20, 1986 outlining the union's position as to the provisions of a collective agreement which it submits ought to be imposed. In light of those representations, the position taken by the trade union and the provisions of section 40a of the Labour Relations Act, the employer shall not be attending the Board hearing scheduled for September 10 and 11, 1986 nor shall the employer be making any representations or submissions on the terms of the first agree­ment which the Board should impose.

The employer does submit that this Board appears to have lost jurisdiction to arbitrate the terms of the first collective agreement. The Board has not commenced a hearing within twenty one days of the giving of the notice to the Board of the parties agreement that the Board arbitrate the settlement, as is required by section 40a(4) of the Labour Relations Act. The employer has not agreed in writting [sicl or otherwise to an extension of that time limit and does not now do so. We are not aware of any extension of the time limit granted by the Minister to extend the time limits pursuant to section 40a(19). If such a request has been made we have not been pro­vided with an opportunity to make representations to the Minister as to whether he ought to extend those limits and would question the validity of such an extension in the circumstances.

All of which is respectfully submitted.

This telegram was apparently not sent to the union, which only received a copy on the morning of the hearing. It was the first indication that the employer had any concerns about expedition or "timeliness -

10. On the day of the hearing no one appeared on behalf of the respondent employer. We did not have the benefit of the employer's submissions on the tricky legal question of "timeliness" (which counsel characterized as "jurisdictional"), nor did we have the benefit of the employer's evidence or representations on any of the other issues arising in this arbitration proceeding. And as we have already noted, this is only the second case under the new procedure, so there is no estab­lished jurisprudence on how the new section should be interpreted and applied. The union was not represented by counsel either, and had some difficulty responding to the legal issues and assem­bling the factual material necessary for the Board's determination.

11. We shall deal first with the effect of the request for reconsideration, then turn to the "timeliness issue" and finally consider the substantive terms of the collective agreement. The Board ruled orally on the first issue and reserved judgement on the other two.

III - The Effect of the Request for Reconsideration

12. Section 106(1) of the Act provides that a Board decision will be "final and conclusive for all purposes", but includes a discretionary power to reconsider, vary or revoke any such deci­sion, at any time, if it considers it advisable to do so. On its face, the language of the statute is broad enough to permit one panel of the Board to reconsider a decision made by another panel (subject to section 102(13) and the rules of natural justice). However, it was our view that we should not do so, nor were we prepared to adjourn the arbitration proceeding pending a review by the "Abella panel".

13. The request for reconsideration involves a comparison of the factual findings made by different panels of the Board, in different proceedings, involving different legal issues, and conducted by the parties in a different way. For example, the Franks panel was considering whether U ere had been a breach of section 15 of the Act and presumably had before it evidence from the parties as to the course of their negotiations (the decision itself is very short). The Abella panel was considering section 40a(2) which is triggered "irrespective of whether section is has been con­travened" and the employer chose to call no evidence. We are in no position to say what was before either panel of the Board, whether there really are conflicting findings of fact or whether it matters in the circumstances. Nor are we in the best position to assess whether the facts raised in the respondent's letter could, or should with due diligence, have been raised earlier. Those are matters which the Abella panel is in the best position to consider. We do observe, parenthetically, date the request for reconsideration would appear to have been made after the date when, accord­ing to the respondent's "timeliness argument", the arbitration proceeding should already have commenced.

IV - Timeliness

14. As we have already mentioned, the respondent identified this legal issue in the telegram sent to the Board the day before the hearing, but advanced no argument and referred to no authorities in support of its position. The respondent simply asserted that, because the Board did not begin the arbitration hearing within 21 days, it had "lost jurisdiction". Is this a sensible interpreta­tion of section 40a? We think some enlightenment can be gleaned from the structure of the Act ii self, and at least one Divisional Court decision which was raised in argument and is quite close to the present case. There are really several related aspects to the question: when does one begin to "mark time"; how does one count "days"; and, most important, what is the legal effect if the hear­ing does not commence or a decision is not issued within the time specified in the statute?

15. In the first place, it must be noted that section 40a does involve quite an extraordinary procedure in which both the hearings and the decision must be completed within a relatively nar­row time frame. In that context, it appears to us that the notification to the Board contemplated by section 40a(3) can be, and here was given by telegram dated July 29, 1986. Indeed, given the seven-day response time and the vagaries of the mail system, the most prudent method of commu­nication to the Board would be by telegram, telex, or courier. Accordingly, time began to run with tie receipt of the telegram on July 29th; and assuming, as we do, that the word "days" in the sec­t on means "calendar days" not "work days" or "days exclusive of holidays", the Board should have given the required Notice and commenced the arbitration hearing no later than Wednesday, August 19th (which, incidentally, is thirteen "working" or "business" days from the date of the tel­egram). Even if we discount the telegram and mark time from the parties' letters received by the Board on August 11th, the September 10th hearing date is still beyond the twenty-one day time limit. And, it is not disputed that the Minister has not extended the time limits. (We do not com­ment upon whether he should do so, or whether, as the telegram suggests, such decision would be in "statutory power of decision" which under the Statutory Powers Procedure Act, or as a matter of fairness, could only be taken after hearing the representations of the parties.)

16. We conclude then, that the Board did not comply with the time limit specified in section 40a(4) of the Act. It is not clear why that happened, i.e., whether it was an administrative over-sight in dealing with a new procedure, or, as appears more likely, the Board was awaiting the fil­ings contemplated by the Practice Note and neither of the parties was pressing for an early hearing date. We need not speculate. What is clear, is that whatever delay there may have been cannot be attributed to the applicant, and no timeliness complaint was raised by the employer until the day before the hearing.

17. Does the Board's failure to commence the hearing within twenty-one days deprive it of jurisdiction to consider this matter; or, to put it another way, does that failure prevent the appli­cant from proceeding in the forum to which both parties have already agreed? Does what is, at best, an administrative oversight, deprive the union, through no fault of its own, of the opportunity of presenting its case before the Board? We do not think so.

18. In our view, the time limits in section 40a(4) are not "mandatory", in the sense that a failure by the Board to meet them deprives the parties of the process which they have already vol­untarily set in motion. We acknowledge the concern for expedition, but cannot accept that the Legislature ever intended that a failure by the Board to respond in a timely way would render the entire process a nullity. There is no prejudice to the employer, which never pressed for an early hearing or even thought to raise the matter until three weeks after, it says, the hearing should have started. In the union's case there is the obvious potential for prejudice, not only because this forum would not be available to it through no fault of its own, but also because it is not obvious, having regard to the terms of the Act, that it has any other place to go. And in this particular case, although the arbitration proceedings started late, it has, in fact, been completed within the total time frame contemplated (i.e., 66 days from July 29). We do not think that the failure of the Board to schedule a hearing within twenty-one days of July 29th deprives us of jurisdiction to consider the substantive issues in dispute.

19. There are several cases to which we might usefully refer. Although they are not directly on all fours with the matter before us, they do provide some insight into how the Courts view simi­lar situations.

20. In Air Care Ltd. v. United Steelworkers et al., 1974 CanLII 200 (SCC), 40 D.L.R. (3d) 467, [1976] 1 S.C.R. 2, it was argued that the award of a board of arbitration was a nullity, because the board had failed to render its award within the time limits specified in a collective agreement. Mr. Justice Dickson, speaking for the Court, was of the view that the submission was without merit:

The right of a party should not be lost or in any way prejudiced as the result of dilatory conduct on the part of a board over which it has little or no control.

21. Re Metropolitan Toronto Board of Police Commissioners and Metropolitan Toronto Police Association (Unit B) et al., 1973 CanLII 677 (ON HCJDC), 37 D.L.R. (3d) 487 (Ont. Div. Ct.) involved an arbitrator appointed pursuant to section 33 of the Police Act, which provides that "the Board of arbitration or arbitrator, as the case may be, shall commence the arbitration proceedings within thirty days after it is constituted or he is appointed and shall deliver the decision or award within sixty days after the commencement of the arbitration proceedings". The board of arbitration failed to deliver its decision within sixty days and the employer challenged the award because of non-compliance with this time limit. The Divisional Court dismissed the application and commented, in part:

In the instant case the duty imposed by the Statute is a public one. Also, the parties to the pro­ceedings have no control over the Board and any difficulty that has arisen is not as a result of any default on their part. In particular they have no direct control over the time in which the award is to be delivered. That is the responsibility of the Board. If it were held that failure to observe the time-limit made the award a nullity, the purposes of the Act might be completely frustrated by events over which the parties have no control. One would be hesitant to attribute such an intention to the Legislature in the absence of explicit and compelling words.

There is much case law on the question of when "shall" is to be construed as imperative and when it is to be construed as directory. The applicant referred to no case where such words were held to be imperative where the duty was a public one and where the parties had no control and where to so hold would cause serious inconvenience or injustice to persons having no control over those entrusted with the duty. In the present case, I repeat, there is no default by the par­ties.

22. Re Lincoln County Roman Catholic Separate School Board and Buchler, (1972) 1 O.R. 54 concerned a board of reference appointed pursuant to the Education Act to consider the pro­priety of a teacher's discharge. The Minister was required to establish the tribunal within thirty days, and when its members were appointed a few days after the thirty-day period, the School Board objected to its jurisdiction. However, Kelly J.A. concluded (for the Court) that:

……it is our opinion that the provision in regard to time in the section is directory only and that the jurisdiction of the Minister to make an appointment is not confined to the 30-day period. In this case no allegation is made that the School Board was in any way prejudiced by the delay nor is it sought to attack the proceeding on this basis.

It is our view that the appointment which was made within a few days of the expiration of the 30-day period is not defective and that the Board of Reference was not on this account thereby without jurisdiction to discharge the duties committed to it.

23. In the instant case there is no default by the trade union and no prejudice to the employer arising from a few days delay. None of the authorities of which we are aware support the draconion interpretation urged upon us by the employer, nor is there any policy reason to lean toward that interpretation. In our opinion, the time limit is directory only. The fact that the heari­ng may have started late does not deprive us of jurisdiction.

24. It is unfortunate that the respondent chose notto appear to address this or any of the other issues arising in this case, however, the Notice of Hearing states, explicitly, that the purpose f the hearing was to entertain the parties' evidence and representations on all issues in dispute. By not appearing, the respondent was taking the chance that the Board would reject its jurisdictional argument (as we do) and proceed to the merits of the case. That is the course of action urged upon by the trade union and the one which we consider most appropriate.

V - The Contents of the Collective Agreement

25. Unlike section 40a(2), section 40a(4) does not specify any particular criteria which the arbitration board should consider in determining the contents of the first collective agreement. The only limitations are in section 40a(18), which prescribes a two-year term of operation if that issue is in dispute, and section 40a(17), which requires the Board to accept, without amendment, any "matters agreed to by the parties, in writing". Section 40a(17) is presumably designed to minimize the degree to which the arbitration proceeding will intrude into the process of free collective bar­gaining; however, it means that the board of arbitration must necessarily decide what the parties have agreed upon in writing and what remains in dispute. Moreover, if there is some question about that, it may be necessary to hear the parties' evidence and representations. That is why the Practice Note, in paragraph 3, specifically requires each party to file with the Board "a list of all those bargaining matters agreed to in writing by the parties and copies of such agreement; and a list of all those bargaining matters which remain in dispute". Here, of course, the employer filed nothing at all and what the union filed did not conform to the Practice Note.

26. In support of its position, the union tendered what was described as the "Steenbakkers" agreement between the union and Steenbakkers Lumber Co. Ltd./Capital Roof Truss (1984) Ltd., dated July 15, 1986. Mr. Manoni testified that these companies were related to the respondent, that there were common principals, and that the nature of the business was similar. Because of these similarities, the Steenbakkers agreement (or its predecessors) had formed the basis or "point of departure" for negotiations with the respondent. Eventually, after protracted bargaining, much reluctance on the union's part, and an unsuccessful strike against Steenbakkers Lumber Co. Ltd./ Capital Roof Truss (1984) Ltd., the parties reached agreement that, with a few exceptions, the terms of the union's collective agreement with the respondent would be identical to those found in the Steenbakkers agreement. The most important exceptions concerned the duration of the collec­tive agreement and a clause relating to employee seniority. The union was not particularly happy with the Steenbakkers agreement, but submitted that, since it was the basis upon which the parties had bargained, it should be the basis of the first collective agreement which we are called upon to impose -

27. We have no reason to doubt the union's evidence concerning the course or basis of the bargaining. Not only is that evidence uncontradicted, but it also appears to be consistent with the findings of the Franks and Abella panels, and the submissions made in the respondent's request for reconsideration. The Board decisions and counsel's letter all suggest that the parties were in agree­ment on many items and that there were only one or two issues remaining in dispute. Unfortunate­ly, neither the decisions nor counsel's letter tell us what had, in fact, been agreed to, nor is there anything before us to establish what matters (if any) had been formally agreed to in writing. Thus, although we think that we have a reasonably reliable picture of the parameters of the parties' dis­pute, the evidence does not establish that there were any "matters agreed to by the parties in writing", which, in accordance with section 40a(17), we must "accept without amendment". That being so, we find that there is no limitation in section 40a(17) on our ability to settle the terms of the parties' first collective agreement. This is not to say that we should ignore what the parties have agreed to, or the basis on which they conducted their negotiations. It is simply that, in the absence of agreement '~in writing" (whatever that might mean in particular cases), the Board is not bound to accept unwritten understandings.

28. The union submits that the situation at the related company established the basis for bargaining and that, insofar as the Board is able to do so, the collective agreement which we impose should mirror the Steenbakkers agreement. That, the union says, requires a three-year term of operation retroactive to July 15, 1986, and a "job security/merit" provision patterned on what is now Article 11 of the Steenbakkers agreement.

29. We are inclined to agree with the union's general proposition, with one exception: in the absence of the parties' agreement on the contract's term of operation, we are bound by section 40a(18) to settle a first agreement "effective for a period of two years from the date on which it is settled". We do not think that we have any jurisdiction to prescribe a longer term. Apart from that, however, the agreement which we hereby settle and set out as Appendix "A" to this decision is modelled substantially on the Steenbakkers agreement with such changes as, in our view, are necessary, having regard, inter alia, to the terms of the certificate, the differences in the respon­dent's operation, the union's submissions on the relationship of the bargaining at the two locations, and the impact of a two-year term on the prescribed wage pattern. We should add (and emphasize) that but for the union's submission that it was content to accept the Steenbakkers agreement as a model, we would not necessarily have imposed those terms, nor would we have drafted those clauses in the way in which they are currently framed. In particular, the agreement should not be considered as a model or precedent for other situations; nor should it necessarily be regarded as either our own, or "a fairly general consensus of what should be in a collective agreement" – to borrow the words of British Columbia Labour Relations Board in London Drugs Ltd., [1974] 1 Can LRBR 140, at page 147.

[Collective agreement omitted: Editor]