Labourers' International Union of North America, Local 1059 v. Co-Fo Concrete Forming Construction Limited, 1987 CanLII 3092

Labourers' International Union of North America, Local 1059 v. Co-Fo Concrete Forming Construction Limited

Citation: [1987] OLRB Rep. October 1213 File No.: 3546-86-FC Date: September 29, 1987

Before: Owen V. Gray, Vice-Chair, and Board Members I. M. Stamp and J. Redshaw.

Appearances: L. A. Richmond, C. Pike and J. MacKinnon for the applicant; Peter F. Chauvin, Mike Dzaidura and Marie Miszczak for the respondent.

DECISION OF THE BOARD

1. On March 31, 1987, the applicant trade union applied under section 40a of the Labour Relations Act, R.S.O. 1980, c. 228, as amended by S.O. 1986, c. 17, ("the Act") for a direction that a first collective agreement between it and the respondent employer be settled by arbitration. We heard evidence and argument with respect to that application on April 15, 16, 21 and 22, 1987. At the conclusion of the hearing on April 22, 1987, we delivered the following decision:

We are satisfied that collective bargaining between the parties has been unsuccessful for reasons enumerated in subsection 40a(2) of the Labour Relations Act. We therefore direct the settlement by arbitration of a first collective agreement in this matter. Reasons for this decision will be delivered at a later date.

We set out here our reasons for that decision.

I

2. The employer is engaged in the concrete forming business in the London area. In late June 1985, the union applied under the construction industry provisions of the Act for certification with respect to construction labourers employed by the respondent. Shortly thereafter, it filed unfair labour practice complaints under section 89 concerning the respondent's terminations of the employment of two of its employees for union activity and amended its application for certification to claim in the alternative under section 8 of the Act.

3. A different panel of the Board ("the first panel") heard the complaints and certification application together on August 14 and October 29 and 30, 1985. At the conclusion of the hearing, that panel ruled orally that the union would be certified under section 8 of the Act as exclusive bar­gaining agent for construction labourers employed by the respondent. It also directed that the two discharged employees be offered reinstatement and that they be compensated for losses arising out of their discharges. The first panel's written certification decision was issued on May 9, 1986. It was accompanied by two certificates in accordance with section 144(2) of the Act: one certifying the applicant as bargaining agent for construction labourers in Board Area 3 excluding the ICI sector, and the other certifying the applicant, on its own behalf and on behalf of all other affiliated bar­gaining agents of the designated employee bargaining agency, as bargaining agent for construction labourers in the ICI sector in the Province of Ontario. The first panel's written decision with respect to the section 89 complaints, which set out the panel's reasons for certifying the applicant without a vote under section 8, was issued on April 9, 1987, after this application was filed.

4. In its decision of April 9, 1987, the first panel observed that the evidence it had heard from the two management witnesses, including that of the respondent's president, Mike Dziadura, "was little more than a string of lies intending to mislead the Board." The panel determined that Louis Kotor, an employee of the respondent for 14 years, had not quit, as the respondent claimed, but had been dismissed by the respondent for union activity during the union's organizing cam­paign. It found that Mr. Dziadura had threatened to close down the business if it was organized by the trade union. It also found that "the termination of Kotor was tied to his union activity as far as the rest of the work force was concerned" and that "both Mr. Koza and Mr. Dziadura made sure that the work force was aware of the tie in." It concluded that the effect on the rest of the work force of such a termination of a senior employee had been to cut short the union's organizing cam­paign at a point at which it had signed up almost fifty percent of the employees.

5. While the written decisions of May 9, 1986 and April 9, 1987 say nothing about a notice to employees, we accept the applicant's uncontradicted evidence that the first panel did say, at the hearing of October 30, 1985, that the respondent would be required to post notices to employees with respect to the unfair labour practice complaints and their outcome in the English, Portuguese and Polish languages. In the result, such notices were never sent to the respondent for posting and, so, were never posted.

6. The parties first met for the purpose of collective bargaining on November 18, 1985. The union's business manager, Jim MacKinnon, gave Mr. Dziadura copies of the provincial agree­ment covering employment of construction labourers in the ICI sector (by which the respondent had became bound by operation of law as a result of the certification), literature describing the union's pension and welfare benefits and the union's collective agreement with another London concrete forming contractor, Rockwall Concrete Forming (London) Limited ("the Rockwall agreement"). Mr. MacKinnon stated that the union was seeking a collective agreement similar to the Rockwall agreement, and explained the provisions of that agreement. Not unexpectedly, the parties reached no agreement at this meeting, other than to meet again after the formal certificates were received from the Board.

7. The employer's first proposal was sent to the union by mail in February 1986. It differed from the union's in a number of respects. Mr. MacKinnon felt the next bargaining meeting ought to be under the auspices of a conciliation officer, but his application for conciliation could not be processed until the Board had issued formal certificates, which awaited the release by the Franks panel of a written decision. The necessary decision and certificates were issued in May 1986, and the parties' meeting with a conciliation officer took place on June 5, 1986. Consistent with section 111 of the Act, the only evidence we received about this meeting concerned direct "face to face" discussions between the parties (see Shaw-Almex Industries Limited, [1984] OLRB Rep. Jan. 109). For the most part, those discussions focused on the employer's proposal.

8. From the perspective of this application, one of the more significant exchanges at the meeting of June 5, 1986 concerned the wage rates set out in the employer proposal. Mr. MacKin­non suggested to Mr. Dziadura that the rates set out in his proposed collective agreement were lower than the actual rates then being paid to some of the employees to whom those proposed rates would apply. To the apparent surprise of his legal adviser, Mr. Dziadura admitted this. He did not, however, revise the employer's wage proposal at that meeting. Another exchange of sig­nificance concerned this sentence in the employer's proposed article on Travel and Room and Board: "Where the Employer provides a vehicle to an employee for transportation during the course of work, the vehicle must be used only in the course of work and must be returned promptly on the completion of work." At the time, the employer had a practice of allowing certain employ­ees to take company trucks home after work and drive them to work the following day. The employees who were allowed to do this drove others home after work and picked them up on the way to work. While acknowledging the employer's right to do as it wished with its trucks, the union saw the employer's proposal for a collective agreement provision prohibiting the current practice as a penalty for employees if they achieved a collective agreement -- a loss of benefit for which the union would appear responsible. It asked that the sentence be deleted, stating that the use of its trucks would then be a matter on which the employer would be unrestrained by the collective agreement. The explanation Mr. Dziadura gave for this proposal at that time was "if I have to pay Rockwall wages, the trucks stay in the yard." At no time did the company offer to pay "Rockwall wages", nor did it ever withdraw this aspect of its proposal or offer any further or other justifica­tion for it.

9. The meeting of June 5,1986 ended without either side's having indicated a willingness to compromise on any major issue. Over the next three months, the union considered putting pres­sure on the employer by means of a strike or picketing. On the basis of information from his con­tacts, Mr. MacKinnon concluded, not unreasonably, that there was not sufficient employee sup­port for either such action. This was not surprising in the circumstances. The union's original support had been eroded and diluted over time by employee turnover. The remaining original union supporters were "scared", Mr. MacKinnon said. The chilling effect of the earlier firing of workers for union activities would not have been relieved by subsequent events: the remaining employees did not see the discharged employees return to work (the latter having chosen not to return to despite the Board's oral ruling), nor did they ever see the notices in three languages which the union had told them would be posted. The respondent's employees worked in roving crews of four to six men moving from place to place pouring house basements; it would be rela­tively difficult to effectively picket several such small, moving workplaces. Lack of significant employee support for any strike compounded that difficulty; so did the low level of unemployment among union members, which limited the number of persons available to man picket lines.

10. Mr. MacKinnon requested a further bargaining meeting in a letter to the employer dated September 23, 1986. The employer's lawyer responded by letter dated October 8, 1986, the gist of which was that while the employer was willing to meet, it feared nothing would be accom­plished if the union was not prepared to change its position. The union then retained a lawyer. Negotiations proceeded in a series of telephone conversations and letters between the parties' law­yers. There was a further meeting of representatives of the parties on February 12, 1987. This was followed by another exchange of lawyers' correspondence, during which the union's lawyer indi­cated that an application for first contract arbitration would be made. Between September 1986 and March 1987, some issues were resolved and some explanations were given with respect to posi­tions on outstanding items. While these further negotiations narrowed the number and range of disputed items, they did not result in a collective agreement.

11. In his letter of November 17, 1986, to the employer's lawyer, the union's lawyer wrote:

This is to confirm our telephone conversation of November11, 1986.

At that time, you indicated to me that you would reply in writing by November 21, 1986, to Mr. MacKinnon's letter of September 23, 1986. You also indicated to me that you would outline to me the problems your client has with the proposed collective agreement. We both agreed that it would be more fruitful for future negotiations for the union to have your reply to that letter prior to a proposed collective agreement being forwarded to you.

My client has advised me that your client has been advertising for labourers, and undoubtedly now has a work force quite different from the time of certification. In order to ensure that the existing work force has the opportunity to consider a proposed collective agreement that may be tentatively arrived at, it will be necessary for my client to contact these people. Moreover, I understand that your client will be requesting that its present work force ought to be admitted into membership in the union. In order to admit any of these persons into membership, it will be necessary to know who they are.

Accordingly, I request that you supply me in writing with the names, addresses and telephone numbers of all construction labourers employed by your client, together with their current hourly rate. The hourly rate information is required to make a reasonable evaluation of your monetary proposal.

Please provide this information as soon as possible, and no later than Wednesday, November 26, 1986.

If you have nay questions regarding this matter, or I can assist you in any way, please do not hesitate to contact me at your earliest convenience.

[emphasis added]

In his letter of November 25, 1986, the employer's lawyer offered a rationale for its position on certain issues. With respect to the request contained in the November 17th letter from the union's lawyer, he wrote:

I have just recently received your letter dated November 17, 1986. I have requested the employer to provide me with the information requested therein. I will respond to your letter as this information becomes available.

In a letter to the employer's lawyer of January 6, 1987, the union's lawyer noted that his request of November 17, 1986, had not been answered, and asked whether or not the employer intended to provide the requested information.

12. At the meeting of February 12, 1987, the employer told the union the range of wage rates it was paying in each of its job classifications and the number of employees in each classifica­tion, but not the names of and specific wage rates of each employee. In his letter of March 17, 1987, the union's lawyer again asked for the names of the employees in the unit it represented. The employer never provided the information requested in the union lawyer's letter of November 17, 1986. There is no evidence of the employer's reason for either failure. In argument, its counsel invited us to conclude that the employer had refused the detailed information requested in the let­ter of November 17, 1986 because it felt the information it gave at the meeting of February 12, 1987, was sufficient to enable the union to bargain.

13. There were fourteen or fifteen different collective agreement articles and appendices remaining in dispute when this application was filed. The major ones concerned classifications and wages, benefits, union security and subcontracting. The draft collective agreement included with the employer's reply indicated further movement on one issue. The union delivered a further pro­posal the day before the hearing of this application began and, after our hearings commenced, the parties made some additional attempts to settle a collective agreement and, thus, this application. Those attempts were unsuccessful. Consistent with the privilege which normally attaches to settle­ment discussions, the only evidence we have heard about the negotiations which took place after this application was filed is the evidence which the parties agreed could be put before us.

14. The employer's only witness was Marie Miszczak, the administrative assistant (and daughter) of Mike Dziadura, who is President of the employer corporation. She was put forward as being a person who could describe the employer's business and explain the positions it had taken in collective bargaining. She claimed to have participated in the formulation of the employer's bar­gaining position throughout. Taking that at face value, a number of aspects of her testimony left us in some doubt about the process by which the respondent formulated its positions. For example, Ms. Miszczak testified that she knew no details about the union's welfare and pension plans (to which the employer would make benefit payments under the union's proposal) and had never been told about or shown the literature which, according to Mr. MacKinnon's uncontradicted evidence, was given to Mr. Dziadura in the presence of his lawyer in November 1985. Ms. Miszczak also tes­tified that the employer's opposition to the union's proposal that all employees be required as a condition of employment to be and remain union members was based on a belief that such a requirement would violate section 70 of the Labour Relations Act. She said that this was the employer's belief from November 1985 until it was advised otherwise by its lawyer in early April of 1987 during preparation of its reply to this application (which she says was the first time this con­cern about section 70 was raised with the lawyer). When she also testified that the union's pro­posed union security clause had ultimately been accepted, the employer's counsel suggested to her that that was incorrect, drawing her attention to the employer's reply to this application, which showed that that article was still in dispute.

15. In its reply to this application, the employer gave this explanation for the position it took in February 1986 on the union's proposed union security clause:

The Respondent's collective agreement did not contain a Union hiring hall provision. Nor did the Respondent's collective agreement contain a clause requiring membership in the Union. The Respondent's collective agreement did not contain these provisions because the Respondent had been told by Mr. Jim McKinnon that the Applicant would not accept into membership many of the Respondent's employees who the Applicant considered to be unskilled and unquali­fied.

The allegation that the union sought restriction of employment to union members while denying membership to persons employed in the unit for which it had been certified is a very serious one indeed. In his testimony, Mr. MacKinnon denied having said that any employee would be refused membership in the union. The employer called no witness to contradict Mr. MacKinnon or other­wise explain its having made this allegation. In response to the appearance of this allegation in a letter of November 25, 1986 from the employer's lawyer, the union's lawyer very clearly stated in his letter of January 6, 1987 that the union would admit existing employees into membership and noted, as he did again in his letter of March 17, 1987, that the union would need to know who those employees were. Even if we charitably suppose that the employer misunderstood the union's position in November of 1986 despite the contents of the letter of November 17th from counsel for the union (quoted in paragraph 11 above), we cannot suppose that such a misunderstanding contin­ued after the letter of January 6, 1987 was delivered. We note that that letter also indicated that the union was abandoning the request for a hiring hall provision. The employer's continued resist­ance thereafter to the remaining aspects of the union's proposal on union security was left entirely unexplained, both at the bargaining table and by Ms. Miszczak's testimony.

16. Ms. Miszczak's explanation for the respondent's resistance to the union's proposed "no subcontracting" clause was that under that clause it could not continue its existing practice of con­tracting out certain aspects of its work, particularly damproofing and floor finishing, to non-union contractors. The language of the clause proposed by the union is less clear than it could be. It could be interpreted as prohibiting any subcontracting of work to non-union contractors. It could also be interpreted as permitting such subcontracting when the subcontracted work is not work which was normally performed by the employer's workforce at the time the agreement was signed, as would be the case with work which the employer had an existing practice of subcontracting. Mr. MacKinnon testified that the latter interpretation is the union's interpretation, and that he had explained this to Mr. Dziadura and the employer's lawyer during bargaining. As Mr. MacKinnon did not attend the bargaining meeting in February 1987, this explanation must have been given at either or both of the meetings on November 18, 1985 and June 5, 1986. Ms. Miszczak was not pres­ent at either of those meetings. She could not and did not contradict Mr MacKinnon's evidence that the employer's President knew early in negotiations that, on the union's view of the matter, it would be able to continue its existing subcontracting practices under the union's proposed subcon­tracting clause. She says only that she was not aware that the union had this interpretation of the clause until she heard Mr. MacKinnon's testimony at the hearing of this application.

II

17. Subsections 1 and 2 of section 40a of the Act provide:

40a.-(l) 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.

In Nepean Roof Truss Limited, [1986] OLRB Rep. July 1005, the Board made these observations about subsections 1 and 2 of section 40a of the Act:

16. It is clear from these provisions that the legislature has acknowledged the significance to the collective bargaining relationship of the first contract, and has given statutory recognition to the potential difficulties that may be encountered in achieving it. This remedy does not supplant the primacy of the free bargaining process; rather, it recognizes that the negotiation of the first agreement may sometimes be thwarted by unjustified intransigence. Although this is remedial legislation and should be given a liberal construction and interpretation, the scheme of section 40a does not envision the automatically imposed settlement of a first collective agreement in all cases where the parties are unable to negotiate one.

18. There are two sets of conditions precedent to an order directing that a first collective agreement be settled by arbitration. The first set of preconditions is found in subsection 1 of sec­tion 40a. Those preconditions focus on the formal stage which the parties' negotiations have reached -- they must be at or beyond the state at which a "no board" report has issued -- and the results of those negotiations -- "the parties are [still] unable to effect a first collective agreement." Subsection 2 sets out as a second precondition or set of preconditions that "it appears to the Board that the process of collective bargaining has been unsuccessful because of' one of the reasons described in subparagraphs (a) through (d) of subsection 2. Verbalization of one idea in two differ­ent ways is good form in creative writing, but not in legislative drafting. When the legislature uses two different words or phrases it is presumed to mean two different things. It cannot be supposed, therefore, that the phrase "the process of collective bargaining has been unsuccessful" in subsec­tion (2) is a mere restatement of the preconditions already set out in subsection (1). In Teledyne Industries Canada Limited, [1986] OLRB Rep. Oct. 1441 the Board concluded (at paragraph 25) that "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." This is also the necessary impli­cation of the Board's statement in Juvenile Detention (Niagara) Inc., [1987] OLRB Rep. Jan 66, (at paragraph 20) that ".. .it is too early to say that [the process of collective bargaining] has been unsuccessful at all..." even though the application there satisfied the criteria set out in subsection 40a( 1).

19. If the phrase "the process of collective bargaining has been unsuccessful" does not mean merely that no collective agreement has been effected, what does it mean? One possibility is that the word "because" which connects that phrase with subparagraphs (a) through (d) is defini­tional, as in the statement: "this substance appears to be water because each of its molecules con­sists of two atoms of hydrogen and one atom of oxygen." If the word "because" were definitional, then the only precondition subsection (2) would impose is the existence of one of the conditions described in subparagraphs (a) through (d). On that view, the actual effect on the parties' collec­tive bargaining of any particular manifestation of one of those conditions would be entirely irrele­vant. This does not seem a particularly sensible result. A definitional interpretation of the word "because" was implicitly rejected in Nepean Roof Truss Limited, supra, when the Board concluded that the use of the word ''because~~

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 employer's refusal to recognize the union's bargaining authority, the respondent's unreasonably uncompro­mising bargaining proposals, the respondent's dilatory or unreasonable efforts to reach an agreement, or any other reason the Board deems relevant, then notwithstanding the failure to conclude an agreement, the Board is not entitled to direct its imposition. In the infancy of this legislation, it has yet to be determined what other reasons the Board may consider relevant within the meaning of section 40a(2)(d), but logic and the spirit of section 40a suggest that this will involve a case-by-case analysis of whether there is a causal connection between the "rea­son" in question and the failure of the collective bargaining process.

20. In short, the phrase "the collective bargaining process has been unsuccessful" is not defined. Nevertheless, the context in which it appears does tell us some things about the quality of unsuccess which must appear to the Board to be present before an application under subsection 40a(1) has any hope of success. As we have already observed, that context tells us that this quality of unsuccess is not something that will necessarily be present when a "no board" report issues. It also tells us that unsuccess is something that can be caused by one of the conditions described in subparagraphs (a) through (d) of subsection 40a(2) and, importantly, that unsuccess can also come about in the complete absence of any of those factors. Finally, the context tells us that the mere existence of this quality of unsuccess is not reason enough to direct first contract arbitration. As with the language of subparagraph 40a(2)(d), the precise meaning of the phrase "the collective bargaining process has been unsuccessful" will have to be elaborated on a case by case basis as the Board forms judgments in each case about whether negotiations have reached a point at which they could fairly be described as "unsuccessful".

III

21. Counsel for the respondent argued that the process of collective bargaining has not been unsuccessful in this case. In the alternative, he argued that any lack of success has been caused by hard bargaining, particularly the union's insistence that the respondent must agree to the same monetary terms as other employers in the London area, and not by any of the factors listed in subparagraphs (a) through (d) of subsection 40a(2).

22. With respect to his first argument, counsel cited Teledyne Industries Canada Limited, supra in which the Board made these observations at paragraphs 25 and 26:

25... .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.

There having been a number of articles agreed to in the case before us after only three actual bar­gaining meetings, counsel for the employer asked us to conclude that the process of collective bar­gaining had not been unsuccessful at the time this application was filed.

23. While there had only been three face to face meetings by the time this application was filed, negotiations had also proceeded or been attempted by way of written correspondence. We see no reason to limit ourselves to considering only face to face meetings in assessing whether negotiations have been "unsuccessful". The appropriate inquiry is: what has or has not been dis­cussed, when and with what results? One's sense of how long any particular set of negotiations would ordinarily be expected to take cannot be determinative; "unsuccess" may be precipitated prematurely by one of the factors described in subparagraphs (a) through (d) of subsection 40a(2).

24. Counsel for the employer argued that this Board should take the same view of section 40a of the Act as the British Columbia Labour Relations Board took of that province's first contract provisions in the following passages of its decision in Grandview Industries Limited, [1974] 1 Can. LRBR 140 at pages 143 and 145:

Even parties who are both quite willing to agree on terms each considers plausible may fail to do so. The union may be strongly committed to basic standards it has negotiated elsewhere and be unwilling to risk diluting them by accepting less in this unit. The employer may believe that these same terms are inappropriate for the special economic circumstances in which it operates. Both sides are genuinely prepared to sign a collective agreement but neither will budge from the position it feels is reasonable from its point of view. In our judgement, that is not the kind of case for which section 70 is designed.

In that situation, if we were to impose upon these parties our own opinion as to a reasonable settlement, we would be acting on the assumption that the Code guarantees that a collective agreement must be reached, and by compulsory arbitration as a last resort. The Code makes no such promise, even in the case of first agreements. The primary method of resolving an impasse at the bargaining table remains the strike of the lockout. This Board is not prepared to dilute the force of that alternative which is a necessary constituent of collective bargaining. The imme­diate parties are much better able than an outside arbitrator to appreciate what is a fair and politic settlement of the dispute in their own particular circumstances. We must ensure that our administration of s. 70 does not distort their responsible search for that point.

In this case, Grandview's contract proposals were within range of existing settlements at its own operations in Rexdale, Ontario, with a different union, and at Canplas (another subsidiary of Noranda) in New Westminister, with this same Local of the Teamsters. The Teamsters prefer­red a very different kind of agreement, both as to language and as to money. The Teamster pro­posal is based on a contract framework it uses as a standard model in the many different opera­tions in which it represents employees. Grandview is just not prepared to accept that model as realistic for its own special situation. There is nothing improper in the Teamsters' insisting on its proposals, as to compulsory union membership for example. One can understand why a union would want to prevent any erosion in principles which it has fought hard to attain. However, one can also understand why an employer may not want to see those principles inserted into its own situation, especially at the beginning of this relationship with the new union. When this is the type of stumbling block there is to agreement, neither party should be able to go to the Board and have us arbitrate the dispute. The statute contemplates a strike or lockout as the means of breaking that kind of deadlock.

Counsel for the respondent submitted that while resort to a strike is not a prerequisite to a union's application under section 40a in every case, it should be in circumstances of the sort described in the Grandview case. He argued that this is that sort of case, having regard to the applicant's insist­ence that the respondent agree to the terms accepted by other London area forming contractors and the respondent's insistence that different provisions are warranted because its business is dif­ferent from the businesses of those other contractors.

25. In the Grandview case, the B.C. Board observed that:

In this case, Grandview did not threaten the bargaining authority of the Union, it did not oppose the certification application and asked only that the earlier status of the Steelworkers be dealt with (as it was, through a vote). No unfair labour practices were alleged nor were there any attempts to erode the Union position while the certification was proceeding. Once certifica­tion was received, bargaining began and the Employer has made monetary proposals for the Union to take back to its members. Certainly Grandview's representatives have taken a very firm stand on certain issues in the negotiations but this has not been due to any opposition to the ides of having a union in the plant.

The importance of these observations is highlighted by the B.C. Board's disposition (in the same decision) of the London Drugs application. There the employer had opposed the certification and fired a union supporter for reasons which the B.C. Board had earlier found to be an unfair labour practice. The B.C. Board explained its granting that application by the union for first contract arbi­tration at page 146 of the reported decision:

In reviewing the history, we find one clear and established unfair labour practice. In addition, the Employer skated very close to the line, if not over it, in talking to the individual employees, dealing with an Action Committee, and terminating a striking employee for the reasons given. We don't need to reach a final conclusion as to each of these specific allegations because we are not dealing here with unfair labour practice complaints. The point is that a pattern of conduct has taken place which had has an inevitable impact on the bargaining posture of both parties. We would note as well that the Union has not displayed totally clean hands in its response to the Employer's behaviour. In our judgement, the situation did reach an impasse which required action by the Board under s. 70 of the Code.

26. In Juvenile Detention (Niagara) Inc., supra, the Board commented at paragraph 21 that

section 40a neither requires, nor rules out, resort to a strike or lockout - the traditional levers in a collective bargaining process which recognizes the realities of economic power and is designed to elicit compromise, concessions and accommodation. A work stoppage may well be a relevant factor, just as the union's inability to mobilize effective pressure may be relevant - espe­cially where it results from the employer's previous misconduct or the employer's intransigent and unreasonable bargaining stance. If there has been a collective bargaining break-down, the Board must carefully scrutinize the conduct and attitudes of both bargaining parties, to discern whether the impasse, while not amounting to bad faith bargaining, fits within section 40a(a)-(c), or involves circumstances which would warrant an exercise of the Board's discretion under sec­tion 40a(a)(2)(d).

If it can be said that the issues remaining in dispute are of a sort which resort to the economic war­fare of a strike or lockout was meant to resolve, that becomes an argument in favour of interven­tion under section 40a if, by its unlawful behaviour, the respondent to the application has under­mined the ability of the applicant to engage in a strike or lockout. That is the situation in this case. The respondent's crude unfair labour practices led to the applicant's certification under section 8 of the Act. We have found that the chilling effect of those unfair labour practices was not ameliorated thereafter, and had the result that there was no bargaining unit support for a strike. As this factor was not in fact one of the affirmative reasons for our decision to direct first contract arbitration, it is enough to observe that the argument its counsel based on the analysis in the Grandview case did not assist the employer in the circumstances as we found them. It is unnecessary for us to decide whether in circumstances similar to those in Grandview this Board would take the same view of section 40a as the B.C. Board did of its legislation in the Grandview case.

27. In our view, a most significant feature of the parties' bargaining from the perspective of section 40a was the employer's refusal, when asked, to provide the union with the names, address­es, telephone numbers and hourly rates of the employees in the bargaining unit it represented.

28. A trade union's entitlement to the names and hourly rates of employees in the bargain­ing unit for which it is negotiating is well settled: DeVilbiss (Canada) Limited, [1976] OLRB Rep. Mar. 49; Radio Shack, [1979] OLRB Rep. Dec. 1220 (jud. rev, denied, in Re Tandy Electronics Ltd., and United Steelworkers of America et al. (1980), 1980 CanLII 1738 (ON HCJ), 30 O.R. (2d) 29, 80 CLLC 14,017 (Ont. Div. Ct.), leave to appeal to Ontario Court of Appeal refused March 10, 1980); Globe Spring & Cushion Co. Ltd., [1982] OLRB Rep. Sept. 1303; Northwest Merchants Ltd., [1983] OLRB Rep. July 1138, 83 CLLC 16,055; Consolidated Bathurst Packaging Ltd., [1983] OLRB Rep. Sept. 1411; The Windsor Star, [1983] OLRB Rep. Dec. 2147; The Ontario Cancer Treatment and Research Foundation (Thunder Bay Clinic); [1985] OLRB Rep. May 705; and, Forintek Canada Corp., [1986] OLRB Rep. Apr. 453. Once certified with respect to a bargaining unit, a trade union is the exclusive bargaining agent of and for all of the employees who fall within that unit from time to time, not just the employees who wish to be represented by it. With that right comes the obligation to fairly represent all employees in the bargaining unit, both in collective bargaining and in the administration of any collective agreement. It necessarily follows that it has both the right and the need to know the names and existing terms and conditions of employment of each of those employees.

29. The cases cited in the preceding paragraph do not expressly deal with requests for the addresses and telephone numbers of employees in the bargaining unit. The principles on which those decisions were based, however, support a union bargaining agent's entitlement to that sort of information as well. In Globe Spring & Cushion Co. Ltd., supra, the Board cited with approval the observation of the British Columbia Labour Relations Board in Noranda Metal Industries Limited, [1975], 1 Can. LRBR 145 at 165 that:

“…..one would hardly say that an employer who deliberately withheld factual data which a union needed to intelligently appraise a proposal on the bargaining table was making every reason­able effort to conclude a collective agreement'."

In Consolidated Bathurst Packaging Ltd., supra, the Board observed that:

A bargaining agent can claim entitlement to information necessary for it to reach informed deci­sions and thereby to perform effectively its statutory responsibilities.

In making informed decisions and effectively performing its statutory responsibilities, information from the employees it represents can be as important to the trade union as the information the employer supplies. A trade union may need to communicate with some or all of the employees in the bargaining unit, including non-members of the union, in order to properly represent their inter­ests: to get their input, to verify information supplied by the employer or to give notice of a strike or ratification vote (see ss. 72(4), (5) and (6) of the Act), for example. Information about how bar­gaining unit employees can be contacted is, thus, information to which the union is prima facie entitled.

30. It is hard to imagine what employer interest in such information could outbalance the union's interest in the addresses and telephone numbers of the persons for whom it has the right and obligation to act as agent. In any event, it is unnecessary to speculate about whether there are some kinds of needed information which an employer is entitled to withhold because of counter­vailing interests: this employer identified no such purported countervailing interest, nor did it deny having any of the information sought -- it simply presumed to make its own assessment of the union's need for the information. It is not for an employer to assess how much such information is or is not needed by its employees' exclusive bargaining agent in order to properly represent those employees in bargaining. Having regard to the analysis in the decisions cited earlier, the employ­er's failure to comply with the union's request for the names, addresses, telephone numbers and wage rates of employees in the bargaining unit amounts to a "failure of the respondent to make reasonable ... efforts to conclude a collective agreement" within the meaning of subparagraph (c) of subsection 40a(2) of the Act and, even more fundamentally, also constitutes a "refusal of the employer to recognize the bargaining authority of the trade union" within the meaning of subpara­graph (a).

31. If there can be a case in which a process of collective bargaining characterized by refusal of the employer to recognize the bargaining authority of a trade union can be described otherwise than as unsuccessful, this is certainly not that case. This employer's very serious impropriety in fail­ing to give the trade union information to which it was entitled was by no means an isolated instance of circumstances of the sort to which section 40a was meant to respond.

32. The respondent's approach to the union's proposals about union security reflect either adoption by the respondent of uncompromising bargaining positions without reasonable justifica­tion or failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement or both, depending on the view one takes of Ms. Miszczak's evidence. If we accept the respondent's representation that Ms. Mizsczak's views are the respondent's views, then we have a respondent who resisted accepting a union security clause for more than fifteen months because it believed such a clause violated a section of the Labour Relations Act, but did not bother discussing that belief with the lawyer who was representing or advising it in collective bargaining throughout that period. That belief was not reasonable, nor was the failure of the respondent to discuss it with its legal adviser over a period in excess of 15 months. In any event, Ms. Miszczak was disabused of this belief before our hearings began and could not explain why the respondent continued to resist the union security clause being proposed by the union. The only explanation offered in bargaining rested on the allegation that the union had said it would not take all employees into membership. As we have noted in paragraph 15 above, the evidence before us is to the contrary and, in any event, any concern of that sort was answered directly in January 1987. Again, apart from Ms. Miszczak's unreasonable belief about the effect of section 70 of the Act, there was no explanation given in bargaining or before us for the respondent's unchanged position thereafter.

33. More than once in her testimony, Ms. Miszczak confessed ignorance of bargaining table communications by the union which were objectively relevant to issues to which she attached importance -- the union's interpretation of the effect of its proposed "subcontracting out" clause on the respondent's existing practices, for example. Of course, Mr. Dziadura was at the bargaining table. He is the President of the respondent. Either he or the respondent's lawyer or both received the information of which Ms. Miszczak claims to have been unaware. If Ms. Miszczak was as integ­ral to the respondent's collective bargaining decision-making as it would have us believe, then these failures of communication between the respondent's representatives at the bargaining table and a decision maker who was not at the table also constituted a "failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement" within the meaning of subparagraph (c) of subsection 40a(2) of the Act.

34. In the face of the union's position on the issue, the employer's continued insistence that any collective agreement prohibit an existing practice of employee use of its trucks demonstrated its desire to associate adverse consequences with unionization and collective bargaining in the minds of its employees (as did its proposal in June 1985 of wage rates lower than those enjoyed by some of the employees to whom the proposed rates would have applied). This is another example of adoption of an uncompromising bargaining position without reasonable justification and failure to make reasonable or expeditious efforts to conclude a collective agreement. It is also sympto­matic of a continuation in the employer of the attitude which motivated the unfair labour practices it committed at the time the applicant was trying to organize its employees. At the time this appli­cation was filed, there was every reason to suppose that this attitude would continue to impede the collective bargaining process as envisioned by the Labour Relations Act in general and section 40a in particular.

35. For these reasons, we concluded that the process of collective bargaining between these parties had been unsuccessful for reasons set out in subparagraphs (a), (b) and (c) of subsection 40a(2) and, accordingly, directed the settlement of their first collective agreement by arbitration. In having done so, we should not be taken as having accepted the notion that by having the employer recognize the applicant trade union as exclusive bargaining agent for "all its construction employees engaged in all construction projects in the Counties of Oxford, Perth, Huron, Middle­sex, Bruce, and Elgin" in the recognition clause of their collective agreement, these parties could themselves negotiate the terms and conditions of employment of any construction labourers who might be employed by the respondent in the industrial, commercial and institutional sector of the construction industry. As it was not put in issue before us, it was unnecessary for us to decide whether the Minister's Employee Bargaining Agency Designation of September 30, 1983, does or can at law have that effect, as was contended by the applicant's counsel in answer to a question from the Board. Our direction that the parties' first collective agreement be settled by arbitration would not, of course, authorize imposition by arbitration of an agreement which the parties are not legally competent to conclude themselves under the Labour Relations Act.