[1986] OLRB Rep. July 954
1097-85-U Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Complainant, v. Formula Plastics Inc., Respondent
BEFORE: Robert J. Herman, Vice-Chairman, and Board Members W. H. Wightman and S. O'Flynn.
APPEARANCES: E. G. Posen and Paul Magee for the applicant; James B. Noonan and F. J. Matthews for the respondent.
DECISION OF ROBERT J. HERMAN, VICE-CHAIRMAN AND BOARD MEMBER W. H. WIGHIMAN; July 4, 1986
This is a complaint filed pursuant to section 89 of the Labour Relations Act in which it is alleged that the respondent employer has violated section 15 of the Act.
Specifically, the union alleges that the respondent has violated section 15 in two respects: First, by its refusal to table a monetary offer during negotiations, and second, by its insistence on clause 8.08 during negotiations, including taking the clause to impasse.
Negotiations commenced in December, 1984 and continued through various meetings up until a meeting with a provincial mediator on June 17, 1985. It is common ground that up until this meeting on June 17, 1985, neither party had tabled a monetary offer, nor had either party requested that a monetary offer be tabled, as the parties had agreed to deal initially only with non-monetary matters. The union argues that it did request at that meeting that the employer provide a financial offer, and the respondent denies that any such request was made.
The employees went out on legal strike, commencing at midnight at June 20, 1985 and lasting approximately four weeks. At that time the strike was called off, with the majority of employees not returning to the respondent but obtaining jobs elsewhere. Further meetings were held, with the provincial mediator, after the cessation of the strike, and the parties are agreed that at no time during any of these further meetings did the applicant union request the employer to table a monetary package. This complaint was filed on July 30, 1985 and in a letter dated September 5, 1985, the respondent employer provided to the applicant its initial financial package. As of the date of the hearing into this matter, the applicant union had not responded to the employer's financial offer.
Based on all the evidence, we conclude that the union never requested of the employer that a monetary package be tabled and the complaint under section 15 with respect to this issue is dismissed. The evidence produced by the applicant suggested that it had requested, at the meeting with the mediator on June 17, 1985, that the respondent table a "comprehensive offer". The applicant did not maintain that it specifically asked for a monetary offer. The witnesses produced by the respondent, including a former member of the union who was present during the meeting in question as part of the union negotiating team, testified that the union at no time during that meeting had requested that a monetary offer be tabled, either through the medium of the mediator or requested directly of the respondent. Parenthetically we note that, notwithstanding that the union never requested of the respondent that it table a monetary offer, the respondent had in any event done so by the time of the hearing into this matter.
There remains for consideration the central issue in dispute between the parties, the inclusion of Article 8.08 in the collective agreement. That article purports to give the employer the right to discharge employees, regardless of whether just cause exists, upon payment of specified amounts as severance pay or in lieu of notice. In other words, the respondent employer insists that there be no "just cause for discharge" clause within the collective agreement, and that it retain the discretion to discharge any employee, without cause, provided that severance pay is paid to the discharged employee in accord with the amounts negotiated in the collective agreement.
The applicant concedes that the employer is in no way motivated by anti-union animus nor in any way insisting upon such a clause in an effort to avoid entering a collective agreement. The applicant submits that the contents of such a clause per se must make it illegal and a violation of section 15, and therefore the employer insisting on such a clause violates section 15. As counsel for the union succinctly put it, "can the company bargain on the principle contained within article 8.08 in this day and age?". In support of its position that the respondent's position was a violation of section 15, the applicant suggested that such a clause was contrary to the spirit and intent of the Labour Relations Act. The applicant was unable to point to any specific provision of the Act nor to any prior decision of the Board on point.
Section 15 of the Labour Relations Act reads as follows:
The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement. R.5.O. 1980, c. 228, sIS.
- As the Board stated in Governing Council of the University of Toronto (Royal Conservawry of Music), [1985] OLRB Rep. Nov. 1652:
Scope of the Duty to Bargain
- The scope of the duty to bargain imposed under section 15 of the Act is squarely raised on the instant facts and has not been dealt with quite so directly by the Board previously. It is useful to refer first to the classic exposition of the duty in De Vilbiss (Canada) Limited, supra, at paragraph 13:
The section imposes an obligation upon both employers and trade unions to enter into serious discussion with the shared intent to enter into a collective bargaining agreement. Once a trade union is certified as the exclusive bargaining agent of employees within an appropriate bargaining unit the employer of those employees must accept that status of the trade union. It cannot enter into negotiations with a view to ridding itself of the trade union. And thus it can be said that the parties are obligated to have at least one common objective - that of entering into a collective agreement and [then] section 14 is intended to convey this obligation. But this is not to say that they will or are obligated to have common objectives with respect to the contents of any collective agreement they might enter into. The legislation is based upon the premise that the parties are best able to fashion the law that is to govern the work place and that the terms of an agreement are most acceptable when the parties who live under them have played the primary roles in their enactment. In short, the legislation is based upon the notion of voluntarism and reflected in the many administrative and judicial pronouncements that neither trade union nor employer is, by virtue of the bargaining duty, obligated to agree to any particular provision or proposal. Therefore, while they must share the common objective to enter a collective agreement, the legislation envisages that they have differences with respect to just what the content of that agreement should be and those differences may force the parties to have recourse to economic sanctions.
Given that "voluntarism" is the touchstone, it is implicit that the Board's role pursuant to section 15 of the Act is one of monitoring the process of bargaining and not the content of the proposals tabled. This role stands in sharp contrast with the American approach embodied in the "mandatory-directory" classification of proposals and the different consequences for bargaining of classification as a "mandatory" or "directory" item. The mandatory-directory approach has been rejected in this jurisdiction as not consonant with the legislative scheme: see Consolidated Bathurst, supra; Pulp and Paper Industries, supra; Westinghouse Canada Limited, supra.
This does not mean that the Board is totally distanced from the content of the parties' proposals or that there are no limits whatsoever on the scope of bargaining. The Board may have regard to the content of items tabled in order to determine whether either party does not intend to enter into a collective agreement (e.g., is engaging in surface bargaining) or whether the employer, for example, is seeking to undermine the union as exclusive bargaining agent by tabling an offer "tailor-made for rejection": see Radio Shack, [1979] OLRB Rep. Dec. 1220; Fotomat Canada Ltd., supra; Irwin Toy Ltd. [1983] OLRB Rep. July 1064. Further the Board may review the content of proposals to assess whether any items arc "illegal". For example, a strike for recognition or to resolve a jurisdictional dispute is contrary to the legislative scheme:
see United Brotherhood of Carpenters & Joiners of America, supra; Toronto Star Newspapers Ltd., [1979] OLRB Rep. May 451, [19791 OLRB Rep. Aug. 811. See also: Croven Limited, [1977] OLRB Rep. Mar. 162; AN. Shaw Restorations Ltd., [19761 OLRB Rep. Sept. 504; T. Barlisen & Sons, [1960] OLRB Rep. May 80; Canada Cement LaFarge Ltd., [1980] OLRB Rep. Nov. 1583; Treco Machine Tool Ltd., [1982] OLRB Rep. Dec. 1954. The Board notes that, although two examples of demands which have been found to be "illegal" are mentioned and other examples are contained in the cases referred to, the appropriate scope of the concept of "illegality" is not before the Board in this case.
However, subject to the comments outlined in paragraph 32 above, the Board will not evaluate or censure the content of proposals tabled by the parties. Again, apart from those comments, if the parties are free to agree that any matter may become part of their collective agreement, it is implicit that each party must be free to table that matter for discussion. While this is perhaps the bluntest enunciation of this principle, the proposition is not novel: see Westinghouse, supra; Sunnycrest Nursing Homes, supra; Consolidated Bathurst, supra; Canadian Industries Limited, supra.
The applicant has conceded that the respondent has not in any way been engaging in surface bargaining, nor has been seeking to undermine the union as exclusive bargaining agent of the employees. Similarly, the applicant concedes that the respondent employer is not in any part motivated by anti-union animus. In effect, the applicant has conceded that insofar as the "process" of collective bargaining is concerned, the respondent employer has not violated section 15. The applicant is really suggesting that the "content" of the proposed clause is per se illegal and therefore a violation of section 15.
We agree with and adopt the approach taken by the Board in the Royal Conservatory of Music Case, as noted above. It is not for this Board, in a complaint alleging bargaining in bad faith, to assess the wisdom or merits of a particular bargaining position or bargaining proposal tabled by either party at the negotiating table. Our concern must be to ensure that the "process" of collective bargaining proceeds properly, and unless it can be said that the contents of a particular proposal impede that process, or violate some other section of the Labour Relations Act, it is not for the Board to intrude itself within the collective bargaining process, nor for this Board to redress any economic imbalance between the parties. Although we recognize that a "just cause for discharge" clause is the foundation of most negotiated collective agreements, there is nothing in the statute which requires a particular employer to provide such protection, nor to agree to include it in a collective agreement. It would take clear language in the statute to support the applicant's contention that the respondent's insistence on such a clause is per se a violation of section 15. The parties must remain free to negotiate and agree to the substantive provisions contained within a collective agreement, and such substantive provisions may very well include the right of an employer to discharge an employee with or without "just cause".
Since in our view the contents of such a clause are not per se illegal, it follows in the circumstances that the employer has not violated section 15 by insisting, to impasse, that such a clause be included in the collective agreement. Parties are free to take hard bargaining stances, provided they are not taking to impasse an illegal clause and provided there is no suggestion that the process of collective bargaining is being hampered.
For all the above reasons, this complaint is dismissed.
DECISION OF BOARD MEMBER SEAN O'FLYNN;
- The preamble of the Ontario Labour Relations Act reads:
Whereas it is in the public interest of the Province of Ontario to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees. Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario enacts, as follows:
and what follows are the provisions of the Ontario Labour Relations Act. So this is the window through which the Ontario Labour Relations Board is directed to interpret the various clauses of the Ontario Labour Relations Act and to decide issues that come before this Board. In short, the stated purpose of the Act is to encourage collective bargaining.
The Ontario Labour Relations Board has developed over the years into a forum where the lay person needs a lawyer to find a way through the complex legal maze created by precedent setting decisions of the Board. Sometimes both the Board and the lawyers become tangled up in their own legal procedures and precedents so the maze becomes a tangled web and the precedents become signposts to injustice and continued frustration that offer no hope to a person coming to the Board looking for an understandable decision that is fair. That description applies to the majority decision in this case. The decision is unfair and will make no sense to the lay person.
The case is simple. The employer insisted that he would not sign a collective agreement that did not give him the right to fire, or get rid of any, or all, of the present, or future, employees as he pleased, whether he had cause to fire them or not. This Board is washing its hands of these workers. It is saying that all the precedents of the Board hold that the Board cannot get involved in the substance of collective bargaining; therefore, when an employer insists that before he signs a collective agreement employees must agree that the employer can fire them without cause, and that the Ontario Labour Relations Act allows this to happen. This decision flies in the face of fairness, common sense and the preamble to the Ontario Labour Relations Act itself which encourages collective bargaining.
Does this decision encourage collective bargaining? No, it clearly discourages it. On the one hand, it says to workers, "Don't waste your time or your money joining a union because the Ontario Labour Relations Board has ruled that an employer can insist that the collective agreement contain a clause which gives him the right to fire you for no reason." On the other hand, this decision tells employers "You can refuse to enter into a collective agreement with your employees unless they agree to a clause in the agreement which allows you to fire them at your whim or as you please."
The idea that employees have a right to work in dignity and without fear that they will be dismissed for looking sideways at the employer is generally accepted in society. Section 44 of the Ontario Labour Relations Act insists that there will be a grievance procedure in every collective agreement with an independent arbitration ruling on disputes that arise. The most fundamental dispute that arises is whether or not an employer had enough cause to fire an employee. How can this Board allow an employer to get around section 44 by insisting as a condition of signing a collective agreement that the employees agree that they can be fired at whim.
Section 61 of the Federal Canada Labour Code provides for an independent arbitrator to decide whether or not an employer was right or wrong in firing an employee who is not covered by a collective agreement. In addition, the provincial government of Ontario has indicated that it intends to introduce similar legislation. In the face of such broad acceptance of the concept that an employer cannot fire employees at whim, how can this Board say that it is a legal proposition for the employer to insist as a condition of having a collective agreement that the employees give the employer more power than he would have had if the employees did not join a union.
For the Board to insist that it must wash its hands of the content of a collective agreement to the extent that it hands down a decision that is:
(1) out of tune with society's standards;
(2) clearly unfair;
(3) silly,
is absurd and shows that the Board is a prisoner of its own precedents.
- The Board should rule and I would have ruled that the employer was bargaining in bad faith by insisting that the employees freely give up all job security in order to get a collective agreement. If the employees agreed to cut their own throats by accepting this condition, then, having a collective agreement and indeed a union, would be a waste of time and money. It also would be an absurdity and so is the majority decision.