Toronto Typographical Union, Local 91 v. Burlington Northern Air Freight (Canada) Ltd.

[1986] OLRB Rep. October 1327

1223-86-FC Toronto Typographical Union, Local 91, Applicant, v. Burlington Northern Air Freight (Canada) Ltd., Respondent

BEFORE: Robert D. Howe, Vice-Chairman, and Board Members I. M. Stamp and B. L. Arm­strong.

APPEARANCES: Nelson Roland, Susan Bazilli and Joe Bigeau for the applicant; D. Brisbin and Win. E. Machika for the respondent.

DECISION OF THE BOARD; October 1, 1986

1. In a unanimous decision dated July 10, 1986 in File No. 0819-86-FC, this panel of the Board directed the settlement of a first collective agreement between the applicant and the respon­dent, pursuant to section 40a(2) of the Labour Relations Act.

2. On July 17, 1986, the parties, pursuant to section 40a(4) of the Act, gave written notice to the Board of their agreement that the Board arbitrate the settlement of the first collective agree­ment. That agreement was conditional on the writer being assigned to chair the arbitration panel. The parties further agreed in writing to extend the section 40a(4)(a) twenty-one day time limit in order to accommodate that assignment. They also requested that Board Members I. M. Stamp and B. L. Armstrong be assigned to the panel if possible.

3. At the hearing of this matter on August 25, 1986, the parties advised us that they were in agreement that, subject to their respective submissions as to relevance and weight, the evidence and submissions presented before this panel of the Board in File Nos. 0037-85-U, 0039-85-OH, 0446-85-U, and 0819-86-FC, could be applied to the instant application to assist us in arbitrating the first collective agreement.

4. We do not propose to provide a detailed rationale concerning our determination of the matters in dispute between the parties. The statutorily imposed forty-five day time limit for that determination militates against the provision of detailed reasons. Moreover, such reasons would be of little assistance to other panels of the Board or to members of the labour relations community as, insofar as is possible, each first contract arbitrated under section 40a must be tailored to meet the needs of the parties to that agreement and to reflect the circumstances in which it is to operate. Thus, the absence of detailed reasons for our conclusions as to particular items in dispute between the parties is intended to minimize the danger that this decision will be mistakenly viewed as hav­ing established general standards concerning what should be included in all first collective agree­ments which are arbitrated under section 40a. However, since this is one of the Board's first deci­sions under section 40a(4), we find it appropriate to set forth some general considerations which we have found to be of some assistance in fulfilling our mandate under that provision. Whether those considerations will also be of assistance in future cases involving other parties and circum­stances is a matter which must await future decision.

5. In commenting on the components to be included in a first collective agreement under British Columbia's first contract legislation, P.C. Weiler, who was at that time the Chairman of the British Columbia Labour Relations Board, wrote, in part, as follows in London Drugs Ltd., [1974] 1 Canadian LRBR 140, at page 147:

As regards the language and structure of the collective agreement, the Board does not believe that s. 70 should be used to achieve major breakthroughs in collective bargaining. Instead, we will try to settle on terms which reflect a fairly general consensus of what should be in a collec­tive agreement, as tailored to the requirements of the operation before us. We will leave it to future negotiations between these parties to develop any innovations in that language. How­ever [w]e intend to see that the collective agreements we settle under s.70 are sufficiently attractive to the employees affected by them that they will think twice before applying to rid themselves of their union representatives and thus forfeiting the agreement....

6. We have adopted a somewhat similar approach in arbitrating the first collective agree­ment between the applicant and the respondent. We have awarded moderate wage increases which reflect the current economic and collective bargaining climate, but which also reflect the fact that the employees' wages have remained static since November of 1983. Although we have not awarded any improvement in vacation and holiday entitlement, the overall monetary cost of the contract is not insubstantial as we have extended sick leave and welfare benefits to permanent irregular employees. We have attempted to provide bargaining unit employees with some degree of job security by limiting the respondent's power to contract out work and to use part-time employees in certain circumstances, but have also sought to maintain sufficient managerial flexibil­ity in respect of those and other matters to allow the respondent adequate scope to maintain a competitive position in the rapidly changing service industry of which it is a part.

7. Having carefully considered all of the material before us, including the oral and written submissions of the parties, we have determined that the attached document marked "Appendix" shall be the first collective agreement between the applicant and the respondent. In accordance with the legislative directive contained in section 40a(17), in arbitrating the settlement of that first collective agreement, we have accepted without amendment all of the matters agreed to by the parties in writing, including Articles 1.01, 1.02, 2.01, 2.02, 2.03, 3.03, 3.04, 4.01, 4.02, 4.03, 6.01, 6.02, 7.01, 8.01, 8.02, 8.03, 8.04, 8.05, 8.06, 8.07, 8.09, 8.11, 9.01, 9.03, 10.01, 10.02(a), (b), (c), and (d), 10.03, 12.01. 12.02, and 12.06. Much of the language contained in Articles 4.04, 4.05, 4.06, 5.01, 8.10, 10.04, 10.06, and 12.05, and in Attachment "B" - Vacations and Holidays, Attachment "C" - Sick Leave Plan, and Attachment "D" - Welfare, was also not in dispute. The same is true of portions of Attachment "A" and a number of the other provisions included in the document. In resolving the matters remaining in dispute, the Board has attempted to use language that conforms with the framework and style of the provisions to which the parties have agreed, and where suitable, has adopted language proposed by one of the parties, or blended language from their respective proposals. Although the inclusion of a mandatory membership provision was a major issue at the bargaining table, the respondent's proposed collective agreement that was filed with the Board in respect of this application (in accordance with paragraph 3(a) of Practice Note No. 19) included a provision - aptly described by counsel for the respondent as "a highly-valued 'trading item"' - requiring as a condition of employment that all employees covered by the agree­ment, except new employees during their probationary period, become and remain members of the union in good standing. Accordingly, that language, which parallels part of the applicant's pro­posal concerning union security, has been included in the collective agreement, together with other language which the Board finds to be appropriate in the circumstances of this case.

8. In conclusion, we have attempted to provide the parties with a workable first collective agreement which will enable their relationship to grow and mature. If any of the provisions which we have arbitrated (other than the term of the collective agreement) prove to be unsatisfactory, it is open to the parties to revise them by mutual consent at any time, as permitted by section 52(5) of the Act. Indeed, we would encourage the parties to meet and discuss such matters with a view to improving their relationship, so that they will encounter fewer difficulties in their negotiations for the renewal of the first collective agreement.

[Collective Agreement omitted: Editor]