Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 880 v. Canada Building Materials Company, 1990 CanLII 5701

[1990] OLRB Rep. October 1012

1473-90-FCA Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 880, Applicant v. Canada Building Materials Company, Respondent

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. A. Correll and B. L. Armstrong.

APPEARAIVCES: Michael A. Church, Linda Huebscher, Tom Baldwin, Gary Kitchen, Frank Bietex and Dan Peltier for the applicant; James C. Vair, Barry Hutton, Dave DeBruine and Bert Beraldo for the respondent.

DECISION OF THE BOARD; October 5, 1990

1. This is an application filed pursuant to section 40a(4) of the Labour Relations Act ("the Act") arising out of the request of the parties that the Board arbitrate the settlement of the first collective agreement.

2. Canada Building Materials Company ("CBM") manufactures and supplies Ready-Mix concrete, concrete block and calcite brick and aggregates. It carries on business throughout the province of Ontario and operates a number of "ready-mix" and "block" plants at various locations in the province. This application relates to CBM's plant in Chatham, Ontario. This plant includes a "ready-mix" and "block" operation. At full employment during the summer months there are approximately twenty-one employees in the bargaining unit. The majority of these employees are drivers.

3. Before we address the merits of the items which remain in dispute, and the criteria

which are .to be applied in resolving those items, we wish to address as a preliminary matter an

issue raised in the materials filed with the Board.

4. In the submissions filed by the Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 880 ("Teamsters") pursuant to Practice Note 19, it is stated:

PRELIMINARY NOTE

The Union reserves the right to refer to and rely upon the extensive pleadings and documenta­tion filed in respect to the recent proceedings before the Board involving the parties in this case. Reference may be made to a Complaint under Section 89 of the Act (Board File No. 0995-90-U) and an Application for Direction for First Collective Agreement to be Settled by Arbitration under Section 40a of the Act (Boar File No. 1252-90-FC).

The Union appreciates that the parties have resolved all of their differences in respect to the aforementioned proceedings before the Board. However, as the Board can readily appreciate, the parties spent considerable time, effort and expense in preparation of the pleadings and materials utilized in respect to the aforesaid cases. The Union is, of course, prepared to stand by and honour the settlement of all issues reached to date with the Employer in this case. However, the Union respectfully reserves the right to refer to certain pleadings of fact and docu­ments contained in the aforementioned material which it believes are not in dispute between the parties. The Union believes that it is essential for the Board to become familiar with the back­ground of the history, negotiations and issues in dispute between the parties in this case before the Board can hope to appreciate and address the remaining issues in dispute between the par­ties. Accordingly, the Union reserves the right to refer to the aforementioned Board Files.

5. In its submissions, CBM objected to the filing of that material stating that it was not rel­evant and inadmissible. Counsel submitted that the trade union was "attempting to introduce information which would result in the Board considering bargaining conduct when settling the terms of the first agreement". It asserted that "such conduct is irrelevant and such considerations are inconsistent with the scheme of first contract arbitration."

6. We note that the Teamsters' complaint under section 89 of the Act (Board File 0995-90-U) was withdrawn. We further note that the parties mutually agreed that the Board direct the settlement of the first collective agreement by arbitration under section 40a of the Act after their negotiations failed to result in a collective agreement (Board File 1252-90-FC). There has not been any litigation of the facts asserted by the trade union (but disputed by the employer) in either of those two files.

7. We accept the submissions made on behalf of CBM that conduct of the parties (either the union or the employer) during the negotiations prior to arbitration is not relevant. Although such conduct is obviously relevant to determinations made by the Board under section 40a(2), it is not relevant to the arbitration of the first collective agreement.

8. In arbitrating the first collective agreement the Board is concerned with the contents of that collective agreement and not with the conduct of the parties. In arbitrating the first collective agreement the focus is on what are fair and reasonable terms and conditions to be contained within that collective agreement. The arbitration of a first collective agreement is not designed to penalize or reward the conduct of either party. In our view, the behaviour of the parties during negotiations (or during certification for that matter) should not influence or affect the contents of the arbitrated collective agreement.

9. When Bill 65, An Act to amend the Labour Relations Act (in respect of first agreement arbitration), received first and second reading, section 40a(15) read as follows:

"In arbitrating tbe settlement of a first collective agreement under this section, matters agreed to by the parties, in writing, shall be accepted without amendment and account may be taken of.

(a) whether the parties have made reasonable efforts to reach a collective agreement;

(b) the terms and conditions of employment, if any, negotiated through collective bargaining for employees performing the same or similar functions in the same or similar circumstances as the employees in the bargaining unit; and

(c) such other matters as the Board or Board of Arbitration considers relevant to a fair and rea­sonable settlement."

10. Before the Standing Committee on Resources Development (when that Committee reviewed Bill 65) this clause received considerable attention. A number of submissions were received from both employer and trade union interests alike advocating the deleting of this provi­sion because of the view that retribution or punitive measures ought not to affect the arbitration of a first collective agreement.

11. In our view, the fact that the section was substantially amended (as evidenced by the current provision in section 40a(17) indicates that the legislature recognized that conduct or "fault" has no place in the arbitration of a first collective agreement. For these reasons we have not con­sidered either of the parties' pleadings in Board Files 0995-90-U and 1252-90-FC.

12. We turn then to the merits of the items in dispute. For purposes of the proceedings before us, the parties were agreed that the only items which remained in dispute were Clause 15: Hours of Work, Clause 17: Pension (amounts of contribution only) and Schedule "B" - Wage Rates and Classifications. The parties were also in dispute in respect of the issue of retroactivity. At the hearing the parties agreed on a number of matters. We find it unnecessary to set out those agreements before us or the many items upon which the parties agreed prior to the hearing. It is sufficient to note that those matters agreed upon shall be included in the collective agreement together with the matters which have been the subject of arbitration before us.

13. In our view section 40a is intended to apply in circumstances where the normally con­templated process of collective bargaining has broken down. The object of arbitrating the first col­lective agreement after a direction has been issued by the Board is therefore to put such terms and conditions in that first collective agreement as the employer and the trade union would have achieved had the process of collective bargaining not broken down. What collective agreement terms could reasonably be expected to have resulted if the parties' negotiations had not broken down? In answering that question we must assume that the parties would not have negotiated a collective agreement which was not "fair and reasonable" (although we recognize that the parties' definition of that term may differ). We view our role and arbitrating this agreement as remedial.

14. In Teamsters Local Union 419 and Crane Canada Inc. (an arbitration by a "consensual" Board of Arbitration under section 40a(3) of the Act) the Board wrote:

In our view, first agreement boards of arbitration should guard against any temptation to make overly generous awards, rich in "breakthrough" provisions which are normally achieved only through years of collective bargaining. Such an approach would tend to encourage recourse to first agreement arbitration as a substitute for legitimate negotiation and compromise that must be the essence of free collective bargaining. It might also have the deleterious effect of further souring the perspective of an employer whose view of collective bargaining may already be unduly cynical. By the same token, however, the terms of an arbitrated first agreement should not be so niggardly as to undermine the confidence of employees in the process of collective bar­gaining or prompt employers to adopt hard bargaining positions in the belief that their conduct, and the prospect of first agreement arbitration, contain little downside risk. Paradoxically, first agreement arbitration awards should be perceived by unions as sufficiently lean to dissuade them from lightly turning to it as a substitute for bargaining, and should at the same time be seen by employers as sufficiently generous to cause them to realize that it may be in their own best interest to freely fashion the terms of a first collective agreement in face-to-face bargaining with the union. In the final analysis, the measure of the success of a first agreement arbitration provision within a labour relations Act or a labour Code is the infrequency, and not the fre­quency, of its ultimate application.

The task of a board of arbitration charged with establishing the terms of a first collective agree­ment under a statutory provision such as section 40(a) of the Ontario Labour Relations Act is therefore extremely delicate. It must avoid granting contract terms so expansive as to convert the first agreement arbitration forum into a promised land that frees unions from the obligations and risks inherent in a market-sensitive system of free collective bargaining. At the same time, as has been recognized by the three leading labour relations boards in Canada, boards of arbi­tration must be cognizant of the role they must play as statutory tribunals within a legislative scheme whose general purpose is to foster the process of collective bargaining.

15. The Board went on to refer to the oft-quoted decision of then Chairman Weiler in the decision of the British Columbia Labour Relations Board, 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....

See also Nepean Roof Truss Limited, [1986] OLRB Rep. July 1005; Burlington Northern Air Freight Canada Ltd., [1986] OLRB Rep. Oct. 1327; Egan Visual Inc., [1986] OLRB Rep. Dec. 1687 and Venture Industries, [1990] OLRB Rep. July 809, decision not yet reported.

16. In this case our arbitration of this first collective agreement is somewhat unique because prior to the certification of the Teamsters, CBM had a collective bargaining relationship with the Canadian Brotherhood of Railway, Transport and General Workers (CBRT). Indeed, the employ­ees who will be covered by this collective agreement have been unionized and subject to a series of collective agreements and bargaining agents for the past twenty-five years. The Teamsters dis­placed the CBRT in October 1989.

17. The arbitration of the first collective agreement is generally designed to ensure that the employer, the employees and the trade union can experience and assess the value of a collective bargaining relationship for a period of time. In this case, because the Teamsters displaced the CBRT, that factor, although still relevant must be viewed from a different perspective. The employer and the employees already have a lengthy experience working within a collective bar­gaining relationship. They have not however had that experience with the Teamsters as a represen­tative of the employees. One way in which this different perspective must be taken into account is through due recognition of the collective agreement which existed at the time the Teamsters were certified.

18. In determining what collective agreement could reasonably be expected if the parties' negotiations had not broken down we can assume that these parties would have made an agree­ment comparable to others in the same industry and geographic area. In this case although the par­ties appeared to agree that we should impose a "comparable" agreement, they were unable to agree upon the appropriate geographic area within which comparisons should be made.

19. In general terms the employer asserted that the appropriate geographic area was Chat-ham, Blenheim, Wallaceburg, Tilbury and Dresden for its ready-mix operations, and certain block plants east of Chatham (in London, Oshawa, Maple, etc.) for its block plant operations. The trade union on the other hand asserted that the appropriate geographic area for both the ready-mix and block operations was much broader and should include Sarnia and Windsor. In respect of the block plant operation the Teamsters submitted that certain employers which carry on both ready-mix and concrete block operations in Belle River and Leamington were the most appropriate comparators.

20. In our view unqualified acceptance of either of these geographic areas for purposes of comparison would not result in a collective agreement that could reasonably be expected to have resulted if there had not been a breakdown in the process of collective bargaining. Thus, although we have considered all of the collective agreements which have been freely negotiated between this union (and other Teamster locals) within this industry, as well as the prevailing conditions of work and rates of pay at CBM's other locations (both unionized and not unionized), we have made due allowance for a variety of other factors including the economic realities of the industry, the skill levels of the employees within it, CBM's overall operations and the place of CBM's Chatham oper­ations within CBM overall operations, and as noted, the existing, expired collective agreement between CBM and the CBRT. Although the Board is by no means clairvoyant it is our view that had these parties properly considered these various factors and successfully concluded a collective agreement it would have contained the following terms with respect to the items which remained in dispute. We therefore direct that these clauses be included in the first collective agreement.

Hours of Work

ARTICLE 15: HOURS OF WORK

15.1 The employees to whom this Agreement applies shall be paid wage rates as set out in Schedule "B" attached and forming an integral part of this Agreement.

15.2 In the event of a "Temporary" transfer to another job, the employee shall be paid at his own wage rate or the prevailing wage rate, whichever is the greatest.

15.3 The following shall not be construed as a guarantee of hours of work per day or per week:

(i) The normal hours of work for the Ready Mix Division will be eight and one half (8 1/2) hours per day Monday to Friday.

(ii) The normal hours of work for the Block Division will be nine (9) hours per day.

(iii) Time and one half (1 1/2) the basic rate shall be paid for all hours worked by employees in the Ready Mix Division in excess of eight and one half (8 1/2) hours per day, or 42.50 hours per week, Monday to Friday.

(iv) Time and one half (1 1/2) the basic rate shall be paid for all hours worked by employees in the Block Division in excess of nine (9) hours per day, or

44 hours per week, Monday to Friday.

(v) All work performed by employees on Saturday shall be paid at the rate of time and one half (11/2) the employees' basic rate.

(vi) All work performed by employees on Sunday shall be paid at the rate of double time (2 X) the employee's basic rate.

(vii) Double time the basic rate shall be paid for all hours worked by employees in the Block Division in excess of fifty-five (55) hours per week. Failure of an employee in the Block Division to work fifty-five (55) hours per week shall not disentitle such employee from nevertheless receiving double time the basic rate for all work performed by such employee on Sunday.

15.4 Work may be scheduled in shifts, provided the day shift commences not earlier than 6:00 A.M. on weekdays and 7:00 A.M. on Saturdays, and not later than 12:00 noon, with other shifts as the Company may determine, provided that all shift work per­formed between the hours of 3:30 P.M. and 6:00 A.M. weekdays, and 3:30 P.M. and 7:00 A.M. on Saturdays, shall be paid for at the premium rate of twenty-five cents ($0.25) per hour.

15.5 Any employee who is requested to report for work and is not provided with at least four (4) hours work shall receive a minimum of four (4) hours pay at his basic rate. He must, however, remain at work and perform any duties required of him if requested to do so.

15.6 The provisions of 15.5 hereof shall not apply in the event of an employee who has been informed at the conclusion of his working day or shift not to report until advised to do so by the Company.

15.7 Employees may take a one-half (1/2) hour unpaid lunch period, designated by the supervisor, between the fourth and sixth hour of work on any day.

15.8 Should the Company create an occupational classification for which no rate is herein provided, the hourly rate shall be determined by the Company for a period not exceeding thirty (30) calendar days, and thereafter shall be as agreed upon between the parties.

Article 17: Pension

17.1 The parties hereto agree that it is desirable to have a Group Registered Retirement Savings Plan (Group R.R.S.P.) instituted for employees coming within the bargaining unit, and the employees hereby agree and authorize the Company to deduct from their pay an amount equal to thirty cents ($0.30) per hour for each hour worked dur­ing the term of this Agreement, to be deposited in a separate fund, maintained by the Company which shall likewise contribute an equal sum to the said fund during the life of this Agreement.

17.2 The Group R.R.S.P. as provided for in Article 17.1 shall be effective on November 1, 1990.

17.3 For new employees, the provisions outlined in Article 17.1 shall be in effect from the1st day of the month following ninety (90) days of employment. 1

17.4 Employee Group R.R.S.P. statements will be provided for each year.

Schedule B

Wage Rates and Classifications

Ready Mix Division

Classification Nov. 1 Nov. 1 May 1

1989 1990 1991

Ready Mix Driver 13.40 14.40 15.40

Aggregate Truck Driver 13.40 14.40 15.40

Yardman/Loader Operator 13.15 14.15 15.15

Batcher 13.15 14.15 15.15

Mechanic 16.10 16.90 17.70

The starting rate for the above-noted classifications shall be one dollar ($1.00) per hour less than the classification rate during the probationary period.

Block Division

Classification Nov. 1 Nov. 1 May 1

1989 1990 1991

Labourer 13.15 14.15 15.15

Inside/Outside

Lift Truck Operator 13.15 14.15 15.15

Cuber 13.40 14.40 15.40

Machine Operator 13.65 14.65 15.65

Block Truck Driver 13.40 14.40 15.40

The starting rate for the above-noted classifications shall be one dollar ($1.00) per hour less than the classification rate during the probationary period.

The following applies to employees in both the Ready Mix Division and the Block Division:

At the discretion of the Company a classification to be known as Lead Hand may be established for certain of the above job classifications. Lead Hands will be entitled to a premium of fifty cents ($50) per hour above their classified rate.

The Operator of a Semi-Trailer, Semi-Float and Tandem Trailer shall receive an additional ten cents ($10) per hour above the driver rates.

Retroactivity

21. We have exercised our discretion under section 40a(18) and have ordered retroactivity. This retroactivity is reflected in the wage grid. Employees are to be paid the November 1, 1989 rates for all hours worked from November 1, 1989 to November 1, 1990. We do not view it appro­priate to award a "signing-bonus" as requested by the Teamsters.

22. In our view the terms of this award will place CBM, the employees and the Teamsters in a position which they might reasonably have been expected to achieve had the parties been suc­cessful in their bargaining for a first collective agreement. We have attempted to have due regard to market conditions within the unionized sector of this industry in the geographic area within which CBM must compete (including it's own unionized operations) while making certain allow­ances for the fact that CBM must compete also with certain other non-unionized operations in the area (including its own non-unionized operations within a 25 mile radius of Chatham.) In our view the members of this bargaining unit could not expect to achieve parity or even near parity with CBM's unionized operations in Sarnia or Windsor in the first round of bargaining even if the pro­cess of collective bargaining had not broken down. On the other hand, neither could the members of the bargaining unit be expected to accept less, or increases that are only "marginally" better than those given to employees at CBM's non-unionized operations in Blenheim and Wallaceburg shortly after the Chatham employees went on strike. The same considerations hold true for our award in respect of the hours of work.

23. Finally, we note that if any of the provisions which we have arbitrated prove to be unsatisfactory, it is open to the parties to revise them by mutual consent at any time, as permitted by section 5 2(5) of the Act.

24. We will remain seized to resolve any disputes that may arise between the parties respecting the interpretation or implementation of the terms of this award.