Ontario Labour Relations Board

[1986] OLRB Rep. October 1441

1495-86-FC International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Lodge 128, Applicant, v. Teledyne Industries Canada Limited, Respondent

BEFORE: G. T'. Surdykowski, Vice-Chairman, and Board Members D. A. MacDonald and D. A. P Patterson.

APPEARANCES: Paul W. Timmins, Stan Petronski and Reg White for the applicant; John P. San­rson and Terry Sloan for the respondent.

DECISION OF THE BOARD; October 16, 1986

1. This application for a direction that a first collective agreement be settled by arbitration pursuant to section 40a of the Labour Relations Act came on for hearing on September 15 and 17, 86. After hearing the evidence and the submissions of the parties, the Board orally dismissed the application (confirmed in writing on September 17, 1986) with written reasons to follow.

2. Before setting out our reasons, we find it appropriate to note a procedural matter that arose at the outset of the hearing. This application was filed with the Board on August 20, 1986. It was scheduled to be heard on September 15, 16 and 17, 1986. Section 40a(2) of the Act requires the Board to render its decision within thirty days of receiving such an application, in this case by September 19, 1986. At the outset of the hearing, Mr. Sanderson, counsel for the respondent, quested that the Board proceed on September 15 and 17, 1986 but not on September 16 as origi­nally scheduled in order to accommodate him with respect to another matter he had scheduled on at date. Mr. Sanderson indicated that he had telephoned Mr. Timmins, counsel for the applicant, me two or three weeks earlier to advise him of this conflict in his schedule and to request the applicant's indulgence in this respect. Both counsel agreed that this proceeding would not likely take more than two days to complete (correctly as it turned out). Mr. Timmins indicated that he did not think there would be a problem but that he would have to obtain instructions from his client. There was no further communication between counsel until Mr. Timmins telephoned Mr. Anderson's office during the week prior to the hearing, while Mr. Sanderson was on vacation, and indicated to his secretary that the applicant was not prepared to grant Mr. Sanderson the indul­gence he requested. The parties maintained their positions before the Board. In addition, appar­ently by way of explanation, Mr. Timmins added that his client was not available on September 17, 1986 as scheduled. There was no agreement to extend the time limits imposed by the Act with respect to applications of this nature. The Board was of the view that counsel for the respondent as not entitled to assume either that the applicant would agree to his request or that he would otherwise obtain what amounts to an elimination of one of the three days of hearing scheduled. We therefore denied his motion and ruled that the matter would proceed on September 15, 16 and 7, 1986 as originally scheduled.

3. It is generally recognized that labour relations delayed are labour relations defeated and denied (see Journal Publishing Co. of Ottawa Ltd. et al v. Ottawa Newspaper Guild, Local 205, OLRB et al. March 31, 1977 (Ont. C.A.) unreported). It is well known that, in recognition of that reality, the Board will normally refuse to grant an adjournment except on consent of the parties or if it is satisfied that there are exceptional extenuating circumstances. In addition, it is the Board, not the parties, that is entitled to determine its practices and procedures. The Board's discretion with respect to determining whether or not adjournments should be granted is a broad one and a party that has had adequate notice of a hearing does not have a right to have it adjourned for the convenience of itself or its representative (Re Flamboro Downs Holdings Ltd. and Teamsters Local 1879 (1979), 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400 (Div. Ct.)). Further, in applications under section 40a(2) of the Act, the time constraints placed upon the Board by the statute militate against the adjournments of pro­ceedings even if the parties do consent (particularly in the absence of any extension of the time lim­its pursuant to section 40a(19)). This is not to suggest that the time limits specified in the legislation are anything other than directory (see Air Care Ltd. v. United Steelworkers of America et al 1974 CanLII 200 (SCC), [1976] 1 S.C.R. 2; Re Metropolitan Board of Police Commissioners and Metropolitan Toronto Police Association (Unit B) (1973), 1973 CanLII 677 (ON HCJDC), 37 DLR (3d) 487 (Ont. Div. Ct.) Nepean Roof Truss Limited, [1986] OLRB Rep. Sept. 1287), but applications for a direction that a first collective agreement be settled by arbitration must be dealt with expeditiously.

4. After the Board gave its ruling on Mr. Sanderson's motion, we adjourned briefly at his request. On returning, the parties advised the Board that the applicant was now prepared to agree that the hearing not proceed on September 16, 1986 as scheduled. Upon receiving undertakings from both parties that they would execute a written agreement extending the time limits imposed by section 40a(2), in the event that we were not able to conclude the hearing in the remaining scheduled time, the Board acceded to the agreement of the parties and directed that the matter would proceed on September 15 and 17, 1986.

5. We find it appropriate to comment on an evidentiary issue that arose in the course of the proceedings. In the course of his cross-examination, counsel for the union sought to establish that the company's wage proposals were designed to penalize the union supporters. Upon objection by counsel for the company, the Board ruled that it would not permit that line of questioning to be pursued because no allegations of that nature had been particularized or even made in Sched­ule A to the application (in which an applicant is required, by Practice Note 18, to set out a detailed statement of the material facts, acts and omissions on which it intends to rely) even though the union claimed that this alleged improper design was one reason why this application was brought.

6. The applicant and the respondent each called one witness. We heard from the applicant's Business Manager, Stan Petronski, Jr., and then from the respondent's Vice-President and General Manager, Terrance Sloan. On the basis of their evidence we make the following findings of fact.

7. The applicant trade union was certified as bargaining agent for a bargaining unit of (at the time) 19 of the respondent company's employees in September 1985. The process leading to certification was unremarkable. Subsequently, the applicant delivered a notice to bargain and the parties agreed to meet for the purposes of negotiating a collective agreement.

8. The union selected a negotiating committee consisting of Stan Petronski, Sr., Stan Petronski, Jr., Reg White, and three employees from the bargaining unit. The company's bargaining team consisted of Claudio Petracca, then Manager of Engineering and now Operations Manag­er, and John Whitehouse, senior salesman. In addition Mr. Sloan, who had the final authority to approve any collective agreement on behalf of the company, was involved with the company's team throughout although he did not participate directly in the negotiations. Of the persons involved, only the two Mr. Petronskis and Mr. White had any prior collective bargaining experi­ence.

9. With one exception, the parties did not establish any ground rules for their negotiations. Instead of establishing a structure, procedure, or schedule, they proceeded on an ad hoc basis.

I0. The parties' representatives met to bargain for the first time on November 26, 1985 at which time the union presented its proposed collective agreement, including a monetary package, to the company. There was no agreement on any of the union's proposals and none was expected. The parties did agree to the sole ground rule; that is, that they would deal with the non-monetary items first. They also agreed to meet again on January 16, 1986, at which time the company was to deliver its non-monetary proposals.

11. The parties did meet as scheduled and the company did present its proposals. Again, no

agreement other than to meet again was reached and, again, none was expected. To this point the

parties had exchanged positions but no bargaining as such had taken place.

12. The parties met again on February 6, 1986. This time they reached agreement on a number of items and "signed off' the articles relating thereto. There was disagreement on other matters. In addition, there arose a difficulty over the manner in which the agreement of the parties was to be signified. There was implicit agreement that individual articles or parts thereof would be "signed off' but the parties disagreed on the method to be used. The company felt it would be less confusing to use one party's document, chose its own, and proposed to incorporate agreement on mattters not in its document in subsequent drafts thereof. The union wanted both sets of documents to be used and interpreted the company's position as a refusal to deal with the union's proposals.

13. The union decided that the negotiations were not progressing as they should and so, shortly after the February 6, 1986 meeting, requested the appointment of a conciliation officer. The company was somewhat surprised by this because it felt that the parties had just begun to bar­gain. However, the company willingly participated in the process and the parties met with the conciliation officer on March 20, 1986. The meeting was brief and there was no further agreement between the parties. At its conclusion the union requested that a "No Board" report be issued and accordingly, on April 10, 1986 there issued a notice that the Minister did not consider it advisable to appoint a conciliation board.

14. The union then suggested mediation. Again the company co-operated. The parties met with a mediator on May 5, 1986. There was no progress made in the bargaining at that meeting.

15. Events in mid May 1986 led directly to the union's decision to bring an application under section 40a of the Act. There was not a great deal of evidence of what transpired and the events are the subject of other proceedings before the Board. We did hear, however, that on May 12, 1986, a bargaining unit employee and member of the union was discharged by the company. Two days later, on May 14, 1986, some 13 to 14 other bargaining unit employees walked off the job, apparently in a show of support for their discharged co-worker. The union neither wanted nor authorized this walkout. At the time, the parties were in a legal strike/lockout position. The com­p my has not permitted these employees to return to work but has continued to operate using a combination of bargaining unit employees who stayed on the job, supervisory personnel, and new hires.

I6. It was shortly after May 14, 1986 and a subsequent refusal by the company to permit the employees who had walked off the job to return to work, that the union decided to apply for a direction that a first collective agreement between the parties be settled by arbitration. Part of the reason was that, if successful, the company would have been required, by section 40a(13) of the Act, to reinstate any employees who were either locked out or on strike.

17. On June 9, 1986 the company was served with the union's application. This application was defective and was not accepted by the Board. In the meantime the parties agreed to meet again with a mediator on July 4, 1986. There was a great deal of progress at this meeting and at its conclusion the only non-monetary issues remaining outstanding were the scope of the union's secu­rity clause and the emphasis to be given to seniority in layoffs expected to exceed fifteen days and recall therefrom. With respect to the union security issue we note that in one of the earlier meet­ings, likely February 6, 1986, the union brought to the company's attention the provisions of sec­tion 43 of the Act relating to compulsory dues checkoff. There is no evidence of the extent to which this issue was discussed further, if at all.

18. Wages and benefits were not discussed at all prior to or after the July 4, 1986 meeting. At that meeting the parties agreed to meet again on July 22, 1986 at which time the company was to present its monetary proposals. Notwithstanding the obvious progress that had been made, the union perfected with its section 40a application and filed the same with the Board on July 7, 1986 (we note that that particular application was withdrawn and therefore was never dealt with by the Board on its merits).

19. The parties did meet on July 22, 1986 as scheduled, again with a mediator. The com­pany presented its monetary proposals. The union had previously presented its monetary offer which called for an increase of one dollar per hour for each employee. This amounted to increases between 9% and 12.8% for the bargaining unit employees based on what the union believed to be their current wages. The union reviewed only that part of the company's proposal dealing with wages and concluded that the company's offer would result in one employee receiving a 2¢ per hour increase and all other bargaining unit employees would suffer decreases in wages, even if all employees receive the maximum rates in the company's proposal. In making this assessment, the union relied upon information it had received from some of the bargaining unit employees. At no time did the union request any current wages and benefits information from the respondent. The company specified that red-circling would be used to ensure that no employees would suffer a wage reduction and it was the company's evidence, which we accept, that under its proposal, some seven employees would have received increase in excess of five percent, seven to eight employees would have received increases of one to five percent, and five would have received no increases. We find that the union's information regarding current wages was incorrect. Even if it had been correct, however, the union's conclusion with respect to the impact of the company's proposal was not. This is readily illustrated by a comparison of what the union thought were the current rates (as set out in Schedule A to Exhibit 1) and the company's offer (Exhibit 4). Although the classifications used by the parties are not identical, some direct comparisons are possible (using the union's mod­el, which assumes that each employee is placed at the maximum rate):

Classification "Current" Max. Rate Increase % Increase

Rate Proposed Per Hr.

(per hr.) (per hr.)

(a) Shipper!

Receiver $ 9.00 $ 9.25 $ .25 2.8% (b) Heat

Exchange

Assembler 7.82 8.25 .43 5.5% (c) Machine Shop 9.50 9.85 .35 3.7% (d) Welding 10.20 10.30 .10 1%

20. In any case, the union concluded that there was no more progress to be made and left without meeting the company directly. Neither party has pursued further collective bargaining since July 22, 1986 although the union did subsequently confirm in writing that it found the com­pany's monetary's proposals "totally unacceptable." Even then, however, the union had not yet reviewed or assessed the entire monetary package. Its statement was based entirely on the com­pany's wage proposals. The company remained ready and willing to meet to bargain with the union inyolvement.

21. The settlement of a first agreement by arbitration has only recently become available under the Labour Relations Act. The central provisions are subsections 40a(1) and (2) which state 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.

22. Both parties referred to the Board's decision in Nepean Roof Truss Limited, [1986] OLRB Rep. July 1005, in the course of their submissions. That is the Board's seminal decision with respect to the interpretation and application of these new provisions. As the Board indicated in Nepean Roof Truss Limited, supra, the remedy provided by section 40a of the Act does not sup­plant the primacy of the free collective bargaining process. Although it is remedial legislation which should be liberally construed and interpreted, it does not contemplate the automatic imposi­tion of a first collective agreement simply because the parties have been unable to negotiate one. The condition precedent to access to the remedy is that the process of collective bargaining has been unsuccessful for one or more of the reasons enumerated in sub-sections (a) to (d) of section 40a(2).

23. As the Board observed in Nepean Roof Truss Limited, supra, we must be sensitive to the realities of collective bargaining in responding to requests that the Board direct arbitration of a first collective agreement. In considering such applications, it is the entirety of the collective bargaining process and the conduct of both parties that are relevant to the Board's considerations.

24. In this application, the union asserts that the process of collective bargaining has been unsuccessful because the respondent has violated section 40a(2)(b). It is the union's position that the company's bargaining positions with respect to the union security clause, the layoff and recall clause and wages were uncompromising and without reasonable justification. The union also submits that the respondent's approach to collective bargaining was improper and is a matter that the Board should take into consideration pursuant to section 40a(2)(d). The employer's actions, says the union, have resulted in a collective bargaining process being unsuccessful. Counsel for the union states that the company has chosen to fight a "pitched battle" in order to break the union.

25. We do not agree. We are not satisfied that it is accurate to say that the process of collec­tive bargaining in which this trade union and this company have engaged has been unsuccessful. Though there is no minimum requirement in that respect, the number of actual bargaining sessions between the parties was relatively low. Notwithstanding that and the misunderstandings that arose as a result of the relative inexperience of the individuals involved in the negotiations and the lack of structure in the negotiations, the parties have made substantial progress. It is true that three important issues between the parties remain unresolved. However, collective bargaining is a process and the mere fact that a collective agreement has not yet been achieved is not determina­tive of the question of whether or not the process has been unsuccessful. In our view, the collective bargaining process between these two parties has not been allowed to take its full course. The par­ties have not fully discussed the remaining issues; they have hardly bargained or attempted to bar­gain on the matters still outstanding between them and we are not satisfied that bargaining is at an impasse.

26. We therefore find that the process of collective bargaining in which these two parties have engaged has not been unsuccessful. Subsection 40a(2) requires that the Board be satisfied that the collective bargaining process has been unsuccessful before it enquires further into the reasons for the inability of the parties to effect a first collective agreement. Consequently, we need not deal with whether or not any bargaining position adopted by the respondent has been either uncompromising or, if so, whether any of the uncompromising positions were adopted without rea­sonable justification. Nor need we deal with any of the other reasons suggested by the applicant.

27. We agree with the respondent that, on the evidence before us, the applicant gave up on the collective bargaining process too soon. The applicant's decision to apply for a direction under section 40a of the Act was triggered by the strike/lockout and an understandable desire to get the affected employees back to work. Although the existence of a strike or lockout may be a factor rel­evant to the Board's considerations in applications under section 40a, the mere existence of such a situation is not determinative of the issues before the Board. The words of the legislation make it clear that section 40a creates a mechanism that is available to the parties in circumstances where the process of collective bargaining has been truly tried but has been unsuccessful. Even then the mechanism is not available to the parties unless the lack of success is because of one or more of the reasons enumerated in subsection 40a(2).

28. It was for the foregoing reasons that the application was dismissed. Nothing in the Board's decision, or the reasons therefore, should be understood to mean that either party is precluded from bringing another such application before the Board, if the process of collective bargaining does prove to be unsuccessful.