United Brotherhood of Carpenters and Joiners of America, Local 2679 v. Egan Visual Inc., 1986 CanLII 1520

[1986] OLRB Rep. December 1687

1767-86-FCA United Brotherhood of Carpenters and Joiners of America, Local 2679, Applicant, v. Egan Visual Inc., Respondent

BEFORE: R. A. Furness, Vice-Chairman, and Board Members J. Redshaw and G. Shamanski.

APPEARANCES: Jim Nyman, Michael Church, T. G. Harkness and Sergio Lilliani for the appli­cant; Howard Levitt, Jeff Reeves and Gerry Egan for the respondent.

DECISION OF THE BOARD; December 1, 1986

1. On September 11, 1986, the Board received a request to arbitrate a first collective agreement. This request arose as the result of a memorandum of agreement between the applicant and the respondent. In Board File No. 0335-86-R an employee filed an application for a declaration terminating bargaining rights. In File No. 0919-86-FC the applicant filed an application requesting the Board to direct settlement of a first collective agreement by arbitration. In the memorandum of agreement it was agreed that the application for a first collective agreement should be settled by arbitration filed by the applicant and it should be adjourned pending the determination of a representation vote with respect to the application for a declaration terminating the bargaining rights of the applicant. Moreover, the parties agreed to waive the time limits set out in section 40a(8) of the Act. It was agreed that if more than fifty per cent of the ballots cast were in opposition to the applicant, the Board should declare that the applicant no longer represented the employees in the bargaining unit in accordance with section 57(4) of the Act and that the applicant would withdraw the request filed with the Board for a first collective agreement to be settled by arbitration. It was further agreed that if fifty per cent or less of the ballots cast were in opposition to the applicant then the applicant should continue to be the legal representative to represent the employees in the bargaining unit. It was also agreed that if the applicant won the representation vote, then the first collective agreement should be settled by arbitration.

2. This first contract arbitration was referred to the Board on the agreement of the applicant and the respondent. The hearing dates were set for October 6, 7 and 10, 1986, which meant that pursuant to section 40a of the Act, the decision date would have been required on November 20, 1986. However, three additional days were required to complete this arbitration before the Board and the last date for hearing and argument before the Board was November 3, 1986. In these circumstances, pursuant to section 40a(19) of the Act, the parties agreed in writing to extend the time limits set out under the Act for the release of a decision by the Board to December 1, 1986.

3. It would be unwise for the Board to attempt to definitively set forth the contents of a collective agreement which are applicable to all circumstances. As more first contract arbitrations are filed with the Board, no doubt criteria will arise as a result of experience in a greater number of situations. There are no statutory guidelines in the Act which require the Board to have regard to a given standard of comparison. The Board would, however, adopt the language set forth in Burlington Northern Air Freight (Canada) Ltd., [1986] OLRB Rep. Oct. 1327. In that case the Board indicated that it had adopted a somewhat similar approach to the reasoning of the British Columbia Labour Relations Board in London Drugs Ltd., [1974] Can.LRBR 140 at page 147. The Board agrees that applications under section 40a of the Act with respect to a first contract arbitra­tion by the Board should not be used to achieve major breakthroughs in collective bargaining, but rather, the Board would try to settle the terms of a collective agreement which reflect a fairly gen­eral consensus as to what should be the contents of a collective agreement having regard to the par­ticular circumstances of each collective bargaining situation. The Board also agrees that the terms of the collective agreement should be sufficiently attractive to the employees who are in the bar­gaining unit defined in the collective agreement that they would give serious consideration before deciding to terminate the bargaining rights of the applicant.

4. The arguments which were addressed to this Board were extremely helpful and of assis­tance in enabling the Board to reach a conclusion on the points in issue as related by the parties. However, the Board does desire to comment on some of the positions taken by the respondent. Firstly, the Board does not agree that the process envisaged under a determination of a first con­tract by this Board under section 40a of the Act is to be based upon the concept of a final offer selection. In attempting to set forth a collective agreement which is, in the Board's view, fair to both sides, it is not sufficient for the Board to simply look at the most attractive or the least unat­tractive proposal of either side. Secondly, the Board also rejects the argument of the respondent that the collective agreement which the Board determines under section 40a ought to reflect the relative strengths of the bargaining positions of the parties. In this case, it was the position of the respondent that it was in the stronger bargaining position and that, therefore, the determination of the Board should wholly or substantially reflect the proposals advanced by the respondent. The Board rejects this notion because the imbalance of the bargaining position of the parties was cer­tainly a factor in the inability of the parties to conclude a collective agreement which was satisfac­tory and acceptable to both sides. If the Board were to accept the argument of the respondent that the collective agreement determined by the Board ought to reflect the relative bargaining positions of the parties then there would be little point in having an application made for a first collective agreement pursuant to section 40a of the Act since the parties would know in advance the collec­tive agreement which would be determined by the Board. Moreover, an endorsement of the con­cept of the relative bargaining positions of the parties would encourage extreme positions by the parties which perceive themselves to be the stronger position.

5. The Board has considered all of the material which was filed before it and has made the determinations with respect to the articles in dispute as set forth. In article 5 with respect to union dues, the Board has determined that there should be the checkoff as required under the Act. The applicant has sought a union shop and the respondent, in objecting to this provision, has argued that such a provision would infringe the Charter of Rights. It is unnecessary for the Board to deter­mine the constitutional argument since it has determined that the collective agreement will not contain a union shop provision. The Board has considered the fact that there is a considerable body of employees as reflected by the recent result of the termination representation vote to the applicant as the bargaining agent, who oppose the applicant. It would be unfair in these circum­stances where the applicant does not enjoy a preponderance of support in a plant to confer a closed shop provision on the employees who are affected by the collective agreement. In article 14, Jury and Witness Duty, the Board has determined that the simpler provisions as proposed by the res­pondent are appropriate. It is the view of the Board that an employee should fulfill his civic duty by serving as a juror in any court of law and that when required to attend as a witness of the Crown, he should not suffer any loss of remuneration. The proposal of the applicant that this pro­vision extend to a broader area of attendance before the courts is not appropriate. In article 15, The Negotiating Committee, the Board determines that the provision essentially proposed by the respondent is the appropriate one. Up to three employees may be designated by the applicant as a negotiating committee. However, the Board from the evidence before it, was not able to conclude that the proposal for such absence on a negotiating committee be remunerated was at all common in collective agreements. In article 16, Holidays, the Board has determined that the number of paid holidays should be as proposed by the respondent. However, there is a letter of understanding which is to be executed by both sides to the effect that in the event that the employer changes from a four-day week to a five-day week, then the parties will negotiate a change to reflect this. This is a particularly important area for paid holidays which fall on a Friday. Friday, at the present time, is not a day of operation for the respondent. In article 16, Vacations with Pay, the language in this article reflects the language which the parties themselves refined and agreed to at the commence­ment of the hearing before the Board. No further comment is required. In article 18, Health and Welfare, the respondent has provided for some time a health and welfare benefit programme for its employees. It has proposed to increase the benefits under this programme while insisting that the employees contribute 0.9 per cent of their gross salary as a contribution towards the cost of these benefits. The more costly and generous proposal by the applicant, in our view, is not appro­priate for a first collective agreement. Rather, it is a matter of seeking to improve the present health and benefit programme in future collective bargaining. In article 19, No Strikes or Lock­outs, the philosophy of the respondent in this area appears to be, possibly as a result of a recent lawful strike, essentially defensive. The respondent claims that it has experienced a decline in pro­ductivity due to slowdowns by the employees while awaiting the conclusion of a first collective agreement. The Board did not inquire into the substance of this position by the respondent. How­ever, the Board notes that the respondent has not filed any application before the Board with respect to a cease and desist order for an unlawful strike. The respondent sought in the language proposed to have the applicant bear a responsibility for the anticipated slowdowns and/or strikes in the future. In our view, this is negative thinking by the respondent and it also fails to take into account that a trade union is frequently not responsible for the conduct of employees. However, a responsible trade union, and the Board has no reason not to include the applicant in such a classifi­cation, seeks to lead and influence and establish modes of behaviour for employees in the bargain­ing unit. The article on strikes and lockouts therefore provides that there should be no strikes and no lockouts during the collective agreement and instead of the elaborate language proposed by the respondent in the collective agreement, the Board has set forth the definition of strike and lockout as contained in the Labour Relations Act and has included that in this article. In our view, the defi­nition of strike and lockout is sufficiently clear to indicate to the parties and to the employees the proscription on unlawful strikes and lockouts under the Labour Relations Act. In article 22, Wages, there can be little doubt that this was the most contentious provision in the items in dispute before the Board. The information which was presented to the Board and which was provided almost exclusively by the respondent was in a form that was difficult to understand and it was also difficult for the Board to make meaningful comparisons. The Board heard a great deal of evidence on the increases which had been paid to employees over the last two years and the Board also heard a great deal of evidence on the very subjective classifications and reclassifications adopted by the res­pondent with respect to its employees. The effect of the wage proposal under this collective agree­ment by the respondent led, for example, to the red circling of a number of employees with the result that these employees would not receive any increases in pay over the two-year life of the col­lective agreement. In our view, this is completely unacceptable and no trade union should be required to accept a collective agreement which discriminates against employees on totally subjec­tive criteria adopted by an employer. In assessing the evidence before us, particularly the figures provided with respect to wages paid in the manufacturing sector, the Board has determined that employees covered by this collective agreement will receive on December 1, 1986 an increase in their hourly rate of four per cent and that they shall receive a further increase in pay on their hourly rate of three per cent on December 1, 1987. The applicant had requested retroactive pay to February of this year. In our view, the percentage increases referred to adequately compensate the employees and there will be no retroactivity in pay. Before leaving the subject of wages, the Board notes that the employer argued that it did not have the ability to pay the increases requested by the applicant together with retroactivity. The Board observes that where an employer argues inability to pay, it should be prepared to present figures to substantiate that position. In the instant case, the Board received an unsigned letter from a firm of chartered accountants which gave percentage profits for various years and also received oral testimony from Gerry Egan. The evidence dealt with generalities and, as stated earlier, the evidence with respect to inability to pay was neither clear nor impressive. In article 15, Working Rules, the Board has decided to include the working rules proposed by the respondent. However, to balance what appears to be an authoritarian stance on matters of discipline by the respondent, the Board has included the applicant's proposed griev­ance procedure and arbitration in article 7 as a fair counterbalance to the position of the respon­dent on discipline. The purpose of article 7 is to confer a measure of discretion on an arbitrator when a matter comes before him with respect to the suspension or termination of an employee. The claim of the respondent to have absolute control over the employees in matters of discipline is not one which is generally accepted in the labour relations community. It is generally accepted, in our view, that a trade union has a role to play in protecting an employee from unfair discipline by an employer. Moreover, in our view, when an employer refuses to acknowledge the role of a trade union in representing an employee in matters of discipline, it undermines the role of a trade union as the freely selected bargaining agent for its employees. The Board has not included a subcon­tracting clause. The applicant and the respondent had both proposed different articles. It appears to the Board that there is not a great likelihood of the employer subcontracting any appreciable amount of work. The applicant and the respondent may utilize the arbitration provisions of the col­lective agreement and the provisions of the Labour Relations Act if problems arise.

6. The Board has endeavoured to provide a first collective agreement which will prove to be practical and fair and which will provide a basis for a collective bargaining relationship which extends beyond November 30, 1988. Collective agreements which are freely negotiated by the par­ties are always preferable to collective agreements which are imposed on the parties. The Board reminds the parties that under section 52(5) of the Act, there is nothing to prevent the parties from revising, by mutual consent, any article in this collective agreement other than the article which provides for the period of operation of this collective agreement. Above all, it is the Board's hope that since this is a first collective agreement which has been imposed by the Board, that the parties will immediately establish channels of communication with regular meetings in an attempt to fully understand and develop the concerns of each other. Collective bargaining is an ongoing process which culminates when it is time to renew a collective agreement. However, the reality is that col­lective bargaining is an ongoing process which continues throughout a relationship between an employer and a trade union. Attached as an Appendix is a collective agreement and a letter of understanding which is contained therein for the applicant and the respondent to sign.

[Collective agreement omitted: Editor]