[1990] OLRB Rep. August 904
2740-89-FC National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada), Applicant v. Venture Industries Canada, Ltd., Respondent
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W. Pirrie and C. McDonald.
APPEARANCES: Daniel Harris, Leo Rustin and Joey Gander and others for the applicant; Patrick Milloy and others for the respondent.
DECISION OF THE BOARD; August 9, 1990
- This is an application for settlement of a first collective agreement by arbitration, pursuant to section 40a of the Act.
Adjournment Request
This matter first came on for hearing on February 19, 1990. At that time the employer objected to filing a collective agreement that it was prepared to execute pursuant to Practice Note 18. As a result of a ruling by the Board, differently constituted, the respondent filed a collective agreement on February 21, 1990. The next two hearing days were spent in an attempt to settle the matter. On Thursday, February 22, the matter was adjourned to continue on dates set on consent, being February 26, 27 and 28, the following Monday through Wednesday. The parties agreed that the time limits in section 40a would start running again on February 26, the first actual day of hearing.
When this panel of the Board convened the hearing on February 26, employer counsel asked for an adjournment on the basis that his client was engaged in multi-million dollar negotiations in the United States. He submitted that as his client had only learned that he would be needed in this other matter after the agreement the previous Thursday to proceed on Monday, February 26, an adjournment was in order, despite the consent to the dates scheduled. The Board did not allow the adjournment as the facts could not be considered exceptional circumstances beyond the party's control, nor to be advisable in the interests of justice, pursuant to section 82(1) of the Board's Rules of Procedure. If the Board were to adjourn whenever a party had other business which it chooses to deal with on the date of a hearing, no party would have any reasonable prospect of a hearing proceeding expeditiously. The maxim "labour relations delayed is labour relations denied" is ever more applicable in the context of a section 40a application, intended by the Legislature to proceed within very short time lines.
The Application for Direction of Settlement of a First Collective Agreement by Arbitration
On March 27, 1990, the Board endorsed the record and the parties were advised that the application was granted, with reasons to follow. In the interim between the hearing and our decision, a termination application was filed. In the Board's decision dated May 31, 1990, we decided to continue with this application, and dismissed the termination application. We now provide our reasons for the original direction to arbitrate.
The statutory provisions relevant to our decision are 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 on 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.
The respondent is a wholly owned subsidiary of Venture Industries, an American corporation based in Fraser, Michigan. An application for certification concerning its Wallaceburg auto parts painting plant was filed on March 25, 1988 by the applicant union. It was certified to represent the relevant bargaining unit on March 15, 1989 after fifteen days of hearing.
Notice to bargain was given by the union on March 23, 1989. A request to bargain was made by phone shortly thereafter, and again in writing on April 19, 1989. There were telephone conversations between April 26 and May 16 between the representatives of the parties concerning setting up the first meeting which did not result in a date being set. A request for conciliation was made on May 19, 1989. On or about May 23, 1989 the date of June 27, 1989 was set as the first bargaining meeting between the parties. The union alleges that the conduct of the respondent in being slow to respond to the requests to bargain and failure to agree to meet until after the request for conciliation were the first in a series of actions that should be characterized as a failure to make reasonable and expeditious efforts to conclude a collective agreement. Further, the union alleges that, having given the company the dates its chief negotiator was not available, the company chose those dates as the first meeting dates it proposed on May 16, 1989. The company says this was a misunderstanding. On the more general question of setting up a meeting, it says both parties had busy schedules and the meeting was set up in the time period in which the union was offering dates. They cite the union's delay in bringing the complaint after the October 23rd meeting as proof that expedition was not of first importance to the union. Further allegations of failure to make reasonable and expeditious efforts to conclude a collective agreement included the union's assertion that the company's practices at the table, including tabling a fresh document at each meeting, were designed to protract negotiations and impede progress. The company replies that it was attempting to facilitate the process and keep track of progress.
On June 7, 1989 a wage increase was given to the members of the bargaining unit without, the union says, its consent. The company says that it was relying on a blanket consent given the year earlier when a one-week bonus was given. The union asks us to find that this was a breach of the freeze provisions, and in the context of the provisions of section 40a, a failure to recognize the bargaining authority of the union. The intended message, in the union's view, was that the company would give unilateral raises, and that the union was essentially irrelevant. Additionally it argues that Messrs. Lowe and Torakis had no authority to conclude a collective agreement. It says that Mr. Winget, the owner of the parent company was the only one with that authority.
The applicant union also asked the Board to have regard to the company's conduct during the certification process and the actions complained of in a related section 89 complaint in considering whether the preconditions for direction in section 40a existed. The section 89 complaint relates to lay-offs which the union alleges were not necessary for valid business reasons and were motivated by a desire to attack the union during the certification hearings. The company says that Venture Canada lost certain work because it was unable to handle it at a competitive cost. Venture Industries, the American parent therefore assigned the work elsewhere and Venture Canada laid people off. Further lay-offs were justified by the company as downsizing the plant to the point where it could be more productive.
The first meeting between the parties took place on June 27, 1989. A conciliation meeting, at which no bargaining took place, occurred on July 21, 1989. Five further negotiation sessions took place, the last one on October 23, 1989. An additional date had been set for July 28, but was cancelled to allow the union to review the company's proposals. At the last meeting the union asked that negotiations be "adjourned", and said that it would advise the company whether it would strike, seek arbitration of the contract, or return to the bargaining table. This application was filed on February 8, 1990. No further negotiations occurred in the interim. No collective agreement has been signed. At the point at which bargaining stopped in October, agreement had been indicated on some items but nothing had been "signed off". The parties were in dispute as to whether the items agreed to verbally or in the company's minutes were firm or subject to revision until signed off. The union says that bargaining has been unsuccessful because of the respondent's conduct. The company says that real bargaining was just about to begin when the union broke off.
Detailed evidence was given about the negotiating sessions by Leo Rustin, National Representative and Chief Negotiator for the applicant, and by Michael Torakis, Ted Lowe and Michael Pavlovic, the three members of the company's negotiating team. Messrs. Torakis and Lowe, who are based in Fraser, Michigan, were the company's spokesmen during negotiations. Mr. Torakis is Vice-President, Finance and Administration, of the respondent's American parent and is responsible for personnel policies at Venture Canada. Mr. Lowe is the parent Company's Vice-President for Quality Improvement and Corporate Planning. He developed the company's proposals using the company's personnel handbook, collective agreements which reflected "contemporary management labour agreements", some points from the document which the union had previously tabled and his own thoughts. Mr. Pavlovic is the Plant Manager of Venture Canada; his is the most senior position in Wallaceburg. He reports to Messrs. Torakis and Lowe in their areas of responsibility as well as to others in the parent company. His role at the bargaining table was to advise Lowe and Torakis on the day-to-day operation of the plant. He was not involved in developing the bargaining proposals, nor did he know who had been. The company also called evidence from two former members of the union's negotiating team and from their Quality Improvement Process Administration. The union called in reply Ms. Gander, an employee member of the union's negotiation team. We do not propose to set out the evidence in the detail in which we heard and considered it (there were six days of hearing), but will refer to it as necessary in our findings of fact below.
In deciding that the negotiations in the application before us were unsuccessful, we are mindful that there is no formula for deciding whether a process has been unsuccessful. By necessity, the decision entails making inferences about the future on a balance of probabilities from the prior history of the bargaining. An examination of the reasons set forth for the alleged lack of success will often assist greatly in the determination of whether or not the process has been unsuccessful.
In Nepean Roof Truss, [1986] OLRB Rep. July 1005 the bargaining process was found to be unsuccessful where the union had been categorically informed by the company that it would not recede from a 3 year term or the merit clause (instead of seniority) and the union had compromised on most major matters. The company had taken the position that the union should have continued bargaining, but the Board held that where attempts to continue bargaining would be obviously meaningless, the applicant should not be penalized for applying under section 40a. In Alma College, [1987] OLRB Rep. Dec. 1453, where extensive give and take had taken place, and the employer had initiated action on bargaining in some instances, despite being in a financially troubled situation, the Board said that the process had indeed been unsuccessful but not because of the reasons set out in the Act.
By contrast, in Teledyne, [1986] OLRB Rep. October 1441, the process was held not yet unsuccessful where there were a low number of meetings (although the Board observed that there was no minimum number required for a finding of unsuccessful bargaining), inexperienced negotiators, and substantial progress, in the context of a strike. The context included the fact that the applicant wanted the benefit of the provisions of section 40a(13) returning people to work if a direction under 40a were made. It appears there was nothing eventful about the bargaining until the strike/lockout. In Juvenile Detention (Niagara), [1987] OLRB Rep. Jan. 66, the process was also found to be not yet unsuccessful where the parties "could profit from further discussion". Both parties thought more could be accomplished at the table and the employer was prepared to sign a standard contract.
In MacMillan Bloedel Building Materials Limited, [1990] OLRB Rep. Jan. 58 the process was held to have been unsuccessful after five meetings where the parties were at impasse and the respondent's positions showed that it intended to penalize employees for having joined the union by offering less than what they were currently receiving, or at best, a two tier wage structure. Even though both parties had been uncompromising, the Board was convinced that bargaining had been unsuccessful because of the nature of the company's proposals. It found there was "no reasonable possibility either party will abandon the principle behind their respective bargaining positions."
In this case, the conclusion that the bargaining process was unsuccessful is inseparably intertwined with our finding that the company adopted and maintained two positions which were uncompromising and without reasonable justification. These are the positions surrounding the transfer of certain language from the personnel handbook into the collective agreement and the position taken on "job security" which would have required the union to agree to forego any attempt to restrict contracting out in other collective agreements. The bargaining process foundered on these two matters. There were also other positions such as that on mandatory drug testing of which the union complained on which it is unnecessary to comment in light of these findings and we decline to do so. Although there was much else left to discuss, including all monetary matters, it was clear that a collective agreement would not have been concluded without the resolution of these two important language issues. The facts in this case do not give us confidence that the matter would profit from further discussion and thus we cannot accept company counsel's invitation to return the parties to the bargaining table. Counsel's appeal to not provide an easy way out, to let the parties "do the hard thing" of hammering it out at the table, comes too late. It has already been demonstrated that the process was not working; it was unsuccessful. We turn then to the reasons for this lack of success.
In January, 1988, a few months before the application for certification in this matter, the company distributed for the first time a personnel policies manual, the drafts of which were prepared by Mr. Torakis. It is a fairly lengthy document containing the thinking of the company on its requirements for success, its personnel policies and rules for employees. It includes a form for each employee to sign, acknowledging receipt and informing the employer that the manual has been read, with the words at the bottom, "THIS PAGE IS TO BE SIGNED, DATED AND RETURNED TO YOUR SUPERVISOR." Although it was contemplated that if a collective agreement was signed, the manual might have to be withdrawn, at the time of the hearing the manual was still given to every new hire. Section Two of that manual is entitled "Non-Union Philosophy". It expresses the belief of the company that it is in the best interest of all of its employees that it stay union-free. The text continues:
By working together with these two common goals of customer satisfaction and company profitability, we will all prosper. We have found that Venture Canada employees work better without Interferences which disrupt our spirit of teamwork. Labor unions do not share our two main goals, and their objectives often interfere with our ability to work well together. For example, we have found that unions are usually most concerned about their own strength, power and financial success - objectives which are actually counter-productive to our efforts.
In most cases, our employees enjoy better benefits, wages, security and communication than union workers doing similar work. We work together to satisfy our customers, and the result has been that Venture Canada employees generally have greater job security and better wages and benefits than union employees doing similar work.
This material (as well as most of the rest of the content of the personnel manual) was reworked by Mr. Lowe to form part of the company's proposals. Section Two of the company's proposals is entitled "Objectives, Commitments, Responsibilities and Rights". It reads in part as follows:
By working together with these two common goals of customer satisfaction and company profitability, we will all prosper. We have found that Venture Canada employees work best without interferences which disrupt our spirit of teamwork. Parties which do not share these goals, and their objectives, often interfere with our ability to work well together. For example, parties that are most concerned about their own strength, power and financial success are actually counter productive to the long term well-being and security of Venture Canada and its employees. The result of working together to satisfy our customers has been that Venture Canada employees generally have greater job security and better wages and benefits than employees of other companies doing similar work.
The union objected to this language both on the basis of its origin in the "anti-union philosophy" section of the manual and on the basis that it was unenforceable, would require costly arbitration to determine its meaning, and was out of place in a collective agreement.
The company removed the "anti-union philosophy" heading from the clause when the personnel manual language was reworked for the negotiating proposals. It maintains that it no longer has an anti-union philosophy in its Canadian subsidiary although Mr. Lowe acknowledged that it maintains such a philosophy in the American parent which controls Venture Canada. The company's justification for the above clause is set out most concisely in its minutes: "To be negotiated, this section is fundamental in establishing philosophy of contract". We find it unreasonable, and provocative to say the least, to insist that a union agree to language which is obviously anti-union in origin and would be seen as such by every employee who read the collective agreement after having read the personnel handbook as they were required to do. The justification given is insufficient to overcome this obstacle to its acceptance as reasonable, even if one accepts that the only remaining philosophy is one of customer satisfaction and company profitability. The language as it stands is unnecessary to the maintenance of those dual goals. The thrust of Mr. Torakis' evidence made it clear that an educational objective was part of the reason for wanting the language in the collective agreement. The company wanted the union and each employee to share its philosophy. Given its anti-union origin and the conflict between that and the whole scheme of the Labour Relations Act, starting with the preamble, we find it to have been adopted without reasonable justification.
Despite the indication quoted in its minutes above that it would negotiate this clause, the company had proposed no changes up until the time of the hearings, and always took the position at the table that the personnel policy material would be part of the collective agreement. The minutes themselves refer to it as fundamental. Therefore we found this to be a bargaining position correctly described as having an uncompromising nature in the words of section 40a(2)(b).
The job security language reads as follows:
Venture Canada recognizes that job security is essential to an employee's well being and acknowledges that it has a responsibility, with the cooperation of the union, to provide stable employment to its workers. Hence. Venture Canada agrees that it will not permanently lay off employees unless compelled to do so by severe economic conditions that threaten the long term financial viability of Venture Canada. Furthermore, Venture Canada will not lay off any employee as a result of specific gains realized through the Quality Improvement Process.
Venture Canada will take affirmative measures to avoid laying off any employees including such measures as, attempting to secure new business where competitive, and striving to meet any necessary reductions through attrition if possible.
The Union, as the sole and exclusive bargaining agent of the hourly employees covered in this agreement, will not enter into any contracts or agreements with any direct or indirect customers, competitors or suppliers of Venture Canada; or other trade unions, or political parties that may potentially threaten the 'job security" of its members employed by Venture Canada. Specifically, the union will not sign any agreements with other parties that limit out sourcing of work to suppliers.
In summary, the Parties to this Agreement recognize that job security for bargaining unit employees will help to ensure Venture Canada's growth and that Venture Canada's growth will ensure job security.
Paragraphs one, two and four of this proposal, based on a clause in a California collective agreement, about which more will be said later, were unproblematic; the Union indicated its acceptance of them on August 11. It is the third paragraph which it could not sign. This was a clause drafted by Mr. Lowe, as part of a general effort on his part to avoid generic provisions which had no relevance to the Wallaceburg plant.
The respondent is a supplier. It is clear that the purpose of tabling this "job security" language was to take a shot at all restrictions in CAW contracts which limit outsourcing (subcontracting) by other employers and therefore reduce the amount of work available to suppliers. Although Mr. Lowe attempted to make a distinction between the two terms "outsourcing" and "subcontracting" we find that the evidence does not support the conclusion that this distinction was real, or made between the parties at the table. We find that the language, if accepted, would have had the effect of prohibiting the union from bargaining with anyone, anywhere, any restriction on out-sourcing or sub-contracting. Although read strictly, given the punctuation employed, the clause could be read to prohibit the union from entering into any contracts with anyone who was a customer, competitor or supplier of Venture Canada, the company explained in the minutes Mr. Lowe sent to the Union after the September 27, 1989 negotiating session what it intended:
Venture Canada had tabled three paragraphs in Section 3 that made a very strong commitment to job security for Venture Canada employees. In return, the company asked for language from the union that they would not enter into any agreement that might threaten the job security of its members employed at Venture Canada; specifically those that may limit outsourcing.
The company, in Mr. Lowe's words, "thought paragraphs two and four were a pretty bold statement on the company's part. We wanted something equally bold in return."
- The company's minutes have attached to them a summary of their view of the positions of the parties after each of the sessions from August 11, 1989 on. The company's position about paragraph 3 in each of the minutes of August 11, September 27 and October 23 meetings is the same, and reads as follows:
Paragraph 3 is essential to the success and security of our employees and therefore, will be retained.
The company indicated it would be agreeable to taking out the words "political parties", but despite several lengthy discussions of the rest of the wording indicated no flexibility on the rest of the language. Since the company said it was willing to remove the reference to political parties, (although the "political parties" portion of the language remained in its proposals at the time of the hearing) we do not comment on the union's argument that the political parties language was illegal in Ontario. There were heated discussions on this language on a number of occasions and bargaining seemed inevitably to circle back to it. At the last meeting on October 23 it was the focus of what Mr. Rustin described as a vicious argument. Rustin quotes the company as saying paragraph three would be maintained "hell or high water." Mr. Torakis, the company spokesperson at that meeting, did not say otherwise in his testimony. Nor did Mr. Pavlovic, who was present at that meeting. Although Mr. Lowe suggested the company could have been flexible on the language, he was not at the last meeting, did not indicate flexibility about the concept itself and agreed that any flexibility was never communicated to the union. Nor could he be specific about what flexibility actually existed. We have no hesitation in finding that this position was of an uncompromising nature.
Further, we are of the view that it was maintained by the respondent without reasonable justification. It is an attempt to extend the reach of the bargaining between these two parties well beyond the employees for which the certificate was granted. The union was being asked, at this bargaining table with a mandate from a bargaining unit of approximately a hundred employees to bind the thousands of employees in its other bargaining units, and indirectly their employers.
In Formula Plastics Inc., [1987] OLRB Rep. May 702, the Board noted that in requiring the Board to examine the intrinsic reasonableness of a negotiating position, section 40a leads the Board well beyond the inquiry required under section 15's requirement of bargaining in good faith. It said at paragraphs 24 to 26:
But was the employer's position taken without reasonable justification? Much depends on our interpretation of 'reasonable" in this regard. Obviously the employer in this matter did have reasons for taking this position in the sense that it hoped to achieve a contract provision of benefit to itself. However, in our view, "reasonable" must mean something more than simply a rational relationship between a bargaining position and a party's self-interest. This test is so minimal that it would make the relief provided by section 40a(2)(b) virtually inaccessible, a result which we find inconsistent with the remedial nature of this provision. Reviewing the section as a whole, and having regard to the Board's analysis in Nepean Roof Truss, supra, and Juvenile Detention Centre (Niagaro), [1987] OLRB Rep. Jan. 66, we find it difficult to conclude that the legislation was designed to do no more than ensure that parties were looking after their own interests in a logical way.
Rather, in our view, the word "reasonable" imports an objective element into our consideration of the respondent's justification for its position. It is not simply a matter of whether the justification is reasonable from the respondent's point of view, or even from the applicant's. The legislation draws us into an unavoidable assessment of whether a given proposal or position is reasonable in objective terms, a task which to some extent takes the Board into uncharted waters.
This is so, in part, because reasonableness is a relative concept; what is reasonable depends largely, if not entirely, upon the context in which such an examination is to be made. In considering section 40a(2)(b), such a context will include both the general landscape of labour relations and the specific labour relationship between the parties. In many cases such an assessment will also require the weighing and balancing of the opposing interests of the parties which they seek to pursue by way of their negotiating positions.
No other collective agreement was shown to have similar language. The collective agreements which Mr. Lowe used as models do not employ any language of such sweep. It is language that appears to the Board in its experience to be unprecedented. Although novelty is not proof of unreasonableness, it may require further explanation as to why it is justified than would be the case with more standard provisions.
The company justifies both the above proposals as necessary to its overall approach, which it refers to as contemporary management practices. These are related to its commitment to quality, which is necessary for its survival in the highly competitive automotive parts industry. We accept as undebatable that quality is a legitimately high priority for this company. However, the evidence did not convince us that the proposals set out above were justified on the basis of high quality standards or any other reasonable basis. Paragraph 3 is clearly aimed at quantity of work, not quality of product. The company's minutes says it is necessary to the success and security of its employees. No justification was offered for this assertion other than the "boldness" of the company's other three paragraphs. We do not see a reasonable nexus between the offered assurances in paragraphs 1, 2 and 4 and the over-broad language and reach of paragraph 3. In addition, the spectre of litigation to interpret wording such as "agreements ... which may potentially threaten the job security of its members" sheds further light on the problematic nature of the language. It is not immediately obvious what beyond sub-contracting limitations the employer had in mind. If all the employer intended was the last sentence of paragraph 3, the rest of the language is mere surplus-age and not reasonably justified on that basis. The language is very uncertain and invites litigation since it is difficult to see how one could ascertain its meaning without it. In such litigation an arbitrator chosen by the parties to this agreement would interpret some other agreement. Similar problems would exist in defining wording such as "direct or indirect customer" of Venture Canada.
The union urged us to find that insistence on these proposals was motivated by the anti-union philosophy the company acknowledged (in Mr. Lowe's evidence) to be part of the American parent company's current operations, and thus also constituted a failure to recognize the union's bargaining authority. This point is unnecessary to decide in this case given our findings above. In any event, motivation is not the primary focus of the section 40a inquiry. The position taken, together with its justification, is.
The company's position, as noted above, is that the real negotiations, the actual "horsetrading", was just about to begin. Implicit in this argument is the idea that the respondent should be permitted to posture, to maintain positions it knows are not attainable until it sees sufficient movement on the other side to warrant a demonstration of flexibility. In essence, the company argues that part of its justification for maintaining the above positions, which it does not see as unreasonable, was that it was too early to give them up. The Board is well aware that posturing is an integral part of collective bargaining in this province. There may be cases in which a direction under section 40a will properly be refused on such grounds. We do not think this is one of them. Every indication was that the respondent had no intention of compromising on the above language. Its own minutes demonstrate this. At a time when the union had clearly indicated that it was considering strike or bringing this application, the company sent its final set of minutes to the union, with each and every one of its positions unchanged from the previous meeting. Together with the positions taken at the table, we find this to indicate that the crucial positions were being maintained inflexibly, from the first to the last. Further, neither Mr. Torakis nor Mr. Lowe indicated any real flexibility on the core of their proposals in their testimony. In addition, and perhaps most importantly, part of the changed statutory landscape for bargaining after the introduction of section 40a is that posturing, like all other conduct during first contract negotiations, will be subject to scrutiny according to the standards set out in the section.
The conduct of both parties at the table was put squarely in issue, and in coming to the conclusion that arbitration should be directed we have considered not just the respondent's conduct, but that of the applicant as well. In determining whether the bargaining process has been unsuccessful, and if so, whether it is because of the respondent's actions or inaction, it is necessary to consider all the surrounding circumstances. It cannot be done in a vacuum, without regard to the context, which of necessity includes the behaviour of both parties.
We have therefore carefully considered the company's allegations that the union's position at the table was "to give the company a hard time" in return for its perception that the company had given them a hard time during the certification proceedings. Mr. Rustin may well have held the view that the company had given the union a hard time because of the number of days of hearing for the certification and the number of issues raised by the company. This view is implicit in the union position referred to above at paragraph 7. However we are not persuaded that, if so, such a view was responsible for the lack of success of these negotiations. Neither side chose to conduct itself with diplomatic demeanour at the table; both sides appear to have "given as good as they got" in terms of rhetoric. Section 40a does not require statesmanlike conduct, or for parties to have wiped the slate completely clean from previous proceedings. It does require arbitration where the preconditions have been met, as we have found that they were.
We have come to similar conclusions about the company's allegations that the union caused lack of success because, through Mr. Rustin, it "cluttered" the bargaining table with issues such as the section 89 complaint, tabled the CAW "generic" proposed collective agreement and stated its disagreement with the conceptual basis of two collective agreements the company had used as models in putting together its proposals.
The evidence does not support the conclusion that the section 89 complaint or other issues such as pay for the union negotiating team was the barrier to success in negotiations rather than the respondent's positions. The respondent submits that the time eaten up with those issues meant that the parties were still at an early stage of bargaining. It is true that there was still much bargaining work left to be done, but in terms of the two above issues which were central to the lack of success, there had been plenty of time for the intractable nature of the problems caused to the bargaining process by these positions to become clear.
Nor do we find the fact that the applicant tabled a generic document, which it uses as a checklist so that no issues get missed, to have caused the lack of success in bargaining. Since the union worked from the company's document from the time the company tabled its proposals, we find no merit in the contention that the standard CAW document was the cause of the problems in bargaining. In any event, the company also borrowed heavily from agreements which were not "tailor-made" for Wallaceburg.
The company raised a further point as an indication that it was actually the union who was responsible for the unsuccessful bargaining. This was Mr. Rustin's difficulty in accepting what the parties refer to as the CAMI and NUMMI collective agreements. The first is a collective agreement in an Ontario automobile manufacturing plant between CAMI Automotive Inc. and the CAW, effective between January 23, 1989 and September 14, 1992. The second is a collective agreement concerning a California car manufacturing plant between New United Motor Manufacturing, Inc. and the UAW, effective between July 1, 1988 and June 30, 1991. They are both examples of agreements which incorporate to some extent a "team concept" between management and union, and both share some influence of Japanese work practices. Mr. Lowe borrowed language from both contracts when putting together the company's proposals, although it was never suggested that the company wished to sign a collective agreement modelled on the entirety of either one. Mr. Rustin clearly is not a proponent of the direction taken by these two collective agreements. Despite this, he demonstrated willingness to agree to language taken directly from them. For example, the job security language above, in its unobjectionable part, is closely modelled on the NUMMI collective agreement (although it is less generous to the union than the original). Mr. Rustin tabled that portion for sign-off at the meeting following the one in which the company proposed it. In light of this and in light of the fact that much of what the company tabled was at odds with language on the same subjects in both the CAMI and NUMMI documents, we cannot conclude that Mr. Rustin's reluctance to embrace these contracts caused these negotiations to break down. Nor were the positions which we have found to be responsible for the lack of success of negotiations drawn from either of these documents. In light of this, it is not necessary to resolve the dispute in the evidence as to whether Mr. Rustin was to consult with his superiors about these contracts, which Messrs. Torakis and Lowe assert and Mr. Rustin and Ms. Gander deny.
Given the above findings it is unnecessary to rule on the union's other arguments as to why arbitration should be directed. In the result, for all the above reasons, we directed arbitration under section 40a.