United Food and Commercial Workers International Union, Local 175 v. Wendy's Restaurants of Canada Inc. Store #365, 1991 CanLII 6023

[1991] OLRB Rep. October 1241

1172-91-FC United Food and Commercial Workers International Union, Local 175, Applicant v. Wendy's Restaurants of Canada Inc. Store #365, Respondent

BEFORE: M. A. Nairn, Vice-Chair, and Board Members I. W. Murray and C. McDonald.

APPEARANCES: Leanne Chahley, Garry Thayer and Richard Woodruft for the applicant; C. G. Riggs, G. W. Giorno, C. Park, M. Inzetta, S. Wale, J. Shepherd, S. Lennon and A. White for the respondent.

DECISION OF THE BOARD; October 1, 1991

1. This is an application under section 40a of the Labour Relations Act ("the Act"). On August 21, 1991 the Board directed that the first collective agreement between the parties be settled by arbitration. We now provide our reasons for that determination.

2. The parties agreed to waive the time limits contained in section 40a of the Act. On August 2, 1991, the Board (differently constituted) ruled orally that whether as a matter of discretion and/or in light of the Board's decision in Great Lakes Community Credit Union Limited, [1991] OLRB Rep. June 758, it would not hear evidence concerning events occurring after the date of the filing of the application.

3. The relevant provisions of the Act provide 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.

4. It was the position of the applicant (the "trade union" or "union") that the process of collective bargaining had been unsuccessful because of circumstances which met the criteria set out in section 40a(2)(a), (b) and (c) and therefore a direction to settle the first collective agreement by arbitration should issue. It was the position of the respondent (the "employer") that even assuming that the process of collective bargaining had been unsuccessful (which it did not concede) there was no causal connection between the lack of success and any of the enumerated criteria in section 40a(2)(a) - (d).

5. Garry Thayer, a business representative for the applicant gave evidence concerning the negotiations between the parties. The respondent did not dispute certain of the background information to this application but chose to call no other evidence. Some fifty or so documents were placed before the panel, including the written documents and proposals exchanged by the parties during the course of their negotiations. We do not intend to review that evidence or address all of the matters raised by the parties except as is necessary to explain our conclusion.

6. The applicant was certified on September 19,1990 to represent all employees of the respondent at its location at 1411 Ouellette Avenue in Windsor (excluding office and clerical staff). The Board certificates describe a full-time employee bargaining unit and a part-time employee bargaining unit. The respondent operates approximately 141 fast food hamburger restaurants in Canada. This location is one of three in the City of Windsor. It also appears to be the first location of the respondent to be unionized. The respondent operates its locations in Canada under a franchise agreement with Wendy's International located in Ohio.

7. Mr. Thayer was the chief spokesperson for the applicant throughout the negotiations. After forwarding a notice to bargain to the respondent, Mr. Thayer attempted to contact Mr. Inzetta, counsel to the respondent for the purpose of setting up negotiating dates. After some initial difficulty in making contact with each other, Mr. Thayer and Mr. Inzetta were able to agree to commence negotiations on November 15, 1990. Between November 15 and April 30, 1991, the parties met and negotiated (at times with the assistance of a conciliation officer) on fourteen different occasions. Some of those meetings went late into the night. At the outset of negotiations the parties agreed that they would deal with non-monetary issues prior to negotiating monetary issues and proposals were identified accordingly. The Minister of Labour released a "No-Board" Report on May 7, 1991. This application was filed July 4, 1991.

8. In its submissions, the applicant referred the Board to a number of its earlier decisions interpreting and applying section 40a(2). The respondent did not take issue with the propositions set out in those cases, although it disagreed with the applicant as to the conclusions the Board should reach on the facts before it in this case.

9. The thrust of section 40a of the Act was summarized in Nepean Roof Truss Limited, [1986] OLRB Rep. July 1005 at paragraphs 16 and 17:

10. 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. What it provides is access to this remedy where certain conditions precedent have been met. These conditions are enumerated in subsections (a) - (d) of section 40a(2).

11. To understand the conceptual underpinning of the legislation, it is useful to dissect the language of section 40a(2). The Board is directed to impose settlement of a first collective agreement by arbitration where "it appears ... that the process of collective bargaining has been unsuccessful because of ...". The Board is thereby obliged to consider the following factors:

i) "The process of collective bargaining". The use of the word 'process' imports into the deliberation an examination of the interaction between the two parties. It is a truism that the negotiation of any contract involves a considerable range of bargaining positions and tactics. It is a dynamic exchange, with each party relying as extensively as possible on those postures most likely to induce the other side to accept a tolerable result. The Board must therefore be sensitive to this bargaining reality when considering how each party has conducted itself. It is the totality of the process that is under scrutiny, and the Board must be cautious not to examine the complaint in a factual vacuum. The conduct of both parties is therefore relevant, not only for understanding why the process has been unsuccessful, but also for assessing whether it has been unsuccessful for any of the enumerated reasons. This does not intend to suggest that the applicant's conduct will be a bar to the imposed settlement of a first contract, but rather that its conduct is relevant in assessing the reason for the failure of the process.

ii) "The process ... has been unsuccessful because of . . .". This language 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.

iii) "Irrespective of whether section 15 has been contravened". Section 15 of the Labour Relations Act imposes the duty to "bargain in good faith and make every reasonable effort to make a collective agreement". The reference to section 15 in this way can only be interpreted as making a distinction between bad faith bargaining and first contract assessments. The Board is not to be bound by whether or not the conduct complained of violates section 15. Given the Board's jurisprudence pursuant to section 15, wherein the Board has held that hard bargaining is not necessarily bargaining in bad faith (T. Eaton Company Limited [1985] OLRB Rep. March 491; Radio Shack [1985] OLRB Rep. Dec. 1789), one is left with the inescapable conclusion that the legislature has intended a different standard to apply in the determination of first contract disputes, a standard peculiar to section 40a adjudications. This does not suggest that contravention of section 15 is irrelevant. A contravention of section 15 may well be a factor to consider in assessing why the process was unsuccessful. But the absence of sufficient facts upon which to find a contravention of section 15 does not preclude the application of section 40a. Hard bargaining may not violate section 15, but rigid bargaining proposals may, if they fall within subsections (a) - (d) of section 40a(2), justify the imposed settlement of a first collective agreement.

10. The respondent argued that as of the date of application the process of collective bargaining had not been unsuccessful. At the last negotiating meeting on April 30, 1991, the applicant informed the respondent of its intention to file its application under section 40a. Prior to filing its application the applicant agreed to meet with the respondent to negotiate and, following the filing of the application, it was agreed, did meet. In the circumstances, the fact that the applicant agreed to and did meet with the respondent is of little assistance in determining whether the process of collective bargaining was unsuccessful at the date of application. As Mr. Thayer testified, he would always be prepared to meet. This is not surprising if only because the parties to the process continue to have obligations under section 15 of the Act, and refusing to meet even in the face of a section 40a application might well result in a complaint being filed against the trade union. It is difficult to assess the process where the respondent is specifically aware of the trade union's intention to file a first contract application. These difficulties were touched on in the Board's decision in Great Lakes Community Credit Union Limited, supra, at paragraph 6.

11. On the other hand the parties had met on fourteen different occasions over a period of ten months and had exchanged proposals with respect to all outstanding issues except scheduling. Some of these meetings were conducted with the assistance of a conciliation officer. At the conclusion of the negotiations on April 30, virtually all monetary issues remained outstanding (including wages and benefits, vacations, holidays, sick leave, uniform allowance). In addition, a substantial number of non-monetary issues were not resolved including, the definition of employee, an assignment of work provision, union security provisions, elements of the management rights clause, an arbitration provision, certain specific penalty clauses (and language respecting cash shortages), strike and lock-out language, the definition and accumulation of seniority, language respecting job promotion, lay-off and recall, hours of work, overtime and scheduling, provision for use of a bulletin board, and the term of the agreement. The parties were at an impasse with respect to (at a minimum) the issues of union security, hours of work and scheduling, wages and benefits, and Article 9.03. Reviewing all the evidence we have no doubt that at the date of application the process of collective bargaining between these parties was unsuccessful (See Alma College, [1987] OLRB Rep. Dec. 1453, and MacMillan Bloedel Building Materials Limited, [1990] OLRB Rep. Jan. 58).

12. It was the position of the respondent that even if the Board were to conclude that the process of collective bargaining had been unsuccessful, no causal connection had been established between that lack of success and any of the enumerated provisions in 40a(2)(a)-(d). The respondent asserted two reasons for any lack of success in the bargaining. The first reason essentially was that the union was not getting what it had hoped for and had filed its application in anticipation of doing better. The second reason put forward by the respondent was the conduct of Mr. Thayer through the course of negotiations.

13. It is axiomatic to conclude that if a trade union files an application for a direction under section 40a of the Act it did not obtain in collective bargaining what it had hoped for. If it had, there would be no application. Similarly, because no collective agreement has been reached between the parties it might be assumed that the respondent is not "getting what it hoped for" in the negotiations either. Neither proposition precludes a conclusion that collective bargaining has been unsuccessful because of one or more of the enumerated reasons in section 40a(2)(a)-(d).

14. The second reason put forward by the respondent for the lack of success in collective bargaining is the conduct of Mr. Thayer throughout the negotiations. Mr. Thayer testified before the panel and we note at the outset that we found him to be an entirely credible witness. He was forthright both in his examination-in-chief and cross-examination notwithstanding what amounted at times to a fairly personal attack on his competence and experience. This occurred in the context of a respondent who admittedly was engaged in its first set of collective bargaining negotiations, where no one who participated in the negotiations on behalf of the respondent testified, and in the face of uncontradicted evidence with respect to the respondent's conduct in the negotiations. In support of its position, the respondent pointed to evidence that Mr. Thayer had misunderstood certain terminology including the meaning of a Rand Formula union security provision, and had failed to understand the company's position on scheduling. We find the respondent's position to be completely without merit. To the extent that there is a human element contained in any set of negotiations and that mistakes will be made, Mr. Thayer acknowledged those on his part and allowed the respondent the same latitude. However to the extent that there was uncertainty concerning the meaning of certain jargon and its effect, the uncontradicted evidence is that in each case Mr. Thayer explained what he meant by the use of his terms. However, upon a request by Mr. Thayer to the respondent to explain its use of the term "Rand Formula", the respondent suggested that Mr. Thayer "go look it up for himself'. Obviously even if Mr. Thayer had conducted his own inquiry there is no guarantee that the information he would have obtained would have been consistent with the respondent's understanding of its own proposal. Certainly in the face of an express request by the other party it is incumbent on the respondent to explain its understanding and use of terms.

15. With respect to the suggestion that Mr. Thayer did not understand the employer's position on scheduling again, the uncontradicted evidence is that on numerous occasions Mr. Thayer requested that the employer supply him with schedules. Mr. Thayer had received information from employees in the bargaining unit with respect to the number of hours of work available and staffing. That information differed from what the respondent was putting forward in support of its proposal in Article 20. The respondent maintained the position throughout negotiations that employees were scheduled solely on the basis of their availability. Scheduling was therefore unpredictable and inconsistent. The applicant was of the view that there was a core group of full-time employees and regular part-time employees who were prepared to make a commitment regarding working hours, while acknowledging that the majority of employees were students whose availability was unpredictable. Rather than providing Mr. Thayer with copies of schedules (which it had not done as of the date of this application), the respondent simply maintained its position that Mr. Thayer either failed or was unable to understand that employees were scheduled according to their availability. (The respondent did review a one-day schedule at one meeting. However we accept the inference from Mr. Thayer's testimony that it provided little if any assistance and failed to provide the applicant with the information it was requesting).

16. The respondent also suggested that Mr. Thayer was not prepared for negotiations. Mr. Thayer conducted a meeting with the members of the bargaining unit in order to determine their priorities and learn of their particular concerns. Then with the assistance of another business representative he drew proposals from a master collective agreement. He reviewed collective agreements of the applicant to find one with an employer that was as similar as possible in nature to this employer's operation. From those sources a series of proposals for a collective agreement was prepared. Mr. Thayer then met with the elected negotiating committee to review the proposals in anticipation of the first negotiating meeting. The only evidence that we have with respect to the respondent's state of preparation for the negotiations is Mr. Thayer's uncontradicted evidence. Having tabled proposals at the first meeting, Mr. Thayer was left with the understanding that at the next meeting the company would respond. The parties spent the second day reviewing four of the applicant's proposed Articles. Mr. Thayer was of the view that the respondent's representatives were reading the proposals for the first time. Having reviewed an article and posed questions, the discussion would not continue until the respondent's representatives had taken time to read the next proposal and formulate questions with respect to it. There is simply no evidence to support the respondent's proposition that Mr. Thayer's conduct was the reason that the process of collective bargaining had been unsuccessful. Therefore we rejected the second reason advanced by the respondent for the lack of success in collective bargaining.

17. It remained to be determined whether or not the process of collective bargaining had been unsuccessful because of any of the reasons enumerated in section 40a(2)(a) - (d). We were satisfied that the criteria set out in sub-paragraphs (a), (b) and (c) had been met in the circumstances of this case.

18. We will deal with the evidence with respect to the criteria in section 40a(2)(b) first. Two of the key stumbling blocks between the parties in these negotiations were Articles 9.02 and 9.03 of the employer's proposals. Article 9.02 is a provision that contemplates that if an employee is disciplined for theft and there is an arbitral finding of fact that a theft occurred (or where there is a cash shortage where the employee is responsible for the cash at the time in question and at arbitration there is a finding to that effect) then an arbitrator would have no jurisdiction to modify the penalty imposed by the employer. Article 9.03 can be referred to as a specific penalty clause and it provides as follows:

9.03 Without restricting the Company right to discharge for cause generally, the specific penalty for the following infractions will be discharge:

(a) theft, fraud or dishonesty; (b) serious misconduct;

(c) conduct incompatible with the employee's duties or prejudicial to the Company's interests;

(d) gross insubordination;

(e) failure to comply with a reasonable order of an immediate supervisor;

(f) consuming or selling alcohol or drugs on Company premises or reporting to work under the influence of either substance.

In such cases the jurisdiction of a board of arbitration shall be limited to determining whether or not the infraction occurred.

19. Both these proposals have been on the table without amendment throughout the course of negotiations. The union initially took the position that it was unable to agree to either Article 9.02 or Article 9.03 and that the employer was protected by virtue of the management rights clause (which provides that the employer can discharge or otherwise discipline any employee for just cause provided that the matter may be made the subject of a grievance). On April 1, 1991 the respondent re-submitted these proposals indicating simply that the issue was important to it in operating the restaurant. The union reiterated its view that the respondent already had the right to terminate employees under the management rights clause. On April 15 the employer re-submitted the proposals with no further explanation. On April 21 the union moved to the position that it would agree to Article 9.02 if the respondent would drop Article 9.03. On April 29 the company responded that the two articles were separate issues. There is no evidence of any other explanation. By the end of the negotiations on April 30 the respondent was still proposing Article 9.02 and Article 9.03 in their entirety.

20. Throughout the negotiations the union has taken the position that Article 9.03, by virtue of the breadth of conduct that would result in the specific penalty of discharge, effectively eliminated any job security established by the just cause protection in the management rights clause. In the union's view Article 9.03 would allow the respondent to terminate anyone's employment at any time for any reason. It further precluded the arbitral review of the penalty notwithstanding the nature of the offence or any other relevant circumstances.

21. The respondent argued that the parties were only in dispute as to the extent of those matters covered by the specific penalty clause. Counsel also suggested that many of the subparagraphs would be subject to a test of reasonableness in any event. With respect to this latter proposition there is no evidence of any suggestion to the applicant that the employer's intention was to agree to apply a standard of reasonableness with respect to what might constitute for example, gross insubordination, or serious misconduct. To the contrary, the employer had proposed in Article 4.02 that no arbitration board would have the right to impose a standard of reasonableness upon any exercise of management prerogative wherever it be contained in the collective agreement unless such standard of reasonableness was expressly set forth in the agreement. This issue had been discussed between the parties and the respondent did identify areas in its proposals which expressly set out a standard of reasonableness. Regardless of whether or not the respondent now takes the position that certain matters in Article 9.03 would be subject to a test of reasonableness (of which we have no evidence) it cannot overcome the effect of its position throughout bargaining.

22. While there is no doubt that the applicant was concerned that the proposal in Article 9.03 raised what might be referred to as definitional problems (such as what constituted "serious" misconduct) the applicant pointed to Article 9.03(c) to support its concern about job security. As noted this proposal remained on the table without amendment from its tabling to April 30th. We have no hesitation in concluding that the respondent took an uncompromising position and we are further satisfied that it was without reasonable justification. In fact, no justification has been provided for why the employer might require a provision such as this. The parties have agreed that employees are to be protected from discipline or discharge without just cause. To the extent that just cause can be defined it has come to mean conduct that is incompatible with the employment relationship. In essence Article 9.03(c) defines just cause and provides that in any case the specific penalty will be discharge. That penalty is not reviewable by arbitration. Mr. Mayer testified that one of the union's primary concerns in this set of negotiations was to ensure a fair and equitable discipline system. This proposal not only provides no protection against the possibility of arbitrary or discriminatory imposition of disciplinary penalties but arguably goes so far as to preclude any discipline system except one of discharge. The respondent provided no justification for its position in bargaining. We were satisfied that the process of collective bargaining had been unsuccessful because of the employer's uncompromising position without reasonable justification in respect of Article 9.03.

23. While the lack of success in bargaining over Article 9.03 may well be sufficient for a finding that a direction should issue, there were other proposals which led us to conclude that the process of bargaining had been unsuccessful because of an uncompromising position taken by the respondent without reasonable justification.

24. In Article 13.01 the applicant proposed that seniority be defined as length of continuous service in the bargaining unit. It was the respondent's position that seniority be defined as length of uninterrupted service with the company. The parties maintained their respective positions throughout the course of the negotiations and the matter was still outstanding as of the date of filing the application. The respondent's position in its written proposals of April 30 was that employees should not be discriminated against and should be credited with time spent with the company at any location and regardless of whether or not it was unionized. The effect of the respondent's proposal would be to recognize seniority for employees at 141 locations throughout the country for purposes of exercising seniority at one location in Windsor. The union was again concerned about job security for the members of the bargaining unit. The employer could hire someone new to that location from elsewhere in the company with the result that that employee would have greater seniority than anyone in the bargaining unit. That employee could then be promoted or protected from lay-off over those employees who had chosen to be represented by the applicant. We note that the respondent's proposals appear to make a distinction between seniority and service - for example as between job promotion opportunities and vacation entitlement. It is not apparent that any legitimate employer objective was being sought by the respondent's proposed definition of seniority. We can assume that the definition of seniority proposed by the applicant is one that the employees in the bargaining unit support. As indicated in Nepean Roof Truss Limited supra, recognition of seniority rights is one of the fundamental attributes of trade union representation. In this context the mere assertion that employees ought not to be discriminated against provides no justification. We were unable to conclude that there was a reasonable justification for the uncompromising position taken by the respondent in respect of Article 13.01.

25. A number of factors combined to also lead us to conclude that collective bargaining had been unsuccessful because of the respondent's failure to make reasonable or expeditious efforts to conclude a collective agreement (section 40a(2)(c)). It is apparent that during the early part of the negotiations the respondent's proposals did not make a distinction between recognition of the bargaining agent and union security provisions. The applicant was certified to represent all employees of the respondent (both full-time and part-time) save and except Assistant Manager, those above the rank of Assistant Manager, and office and clerical staff. The union's initial proposal for recognition simply reiterated the language in the Board's certificates. The effect of the employer's initial proposals in Articles 2.01, 2.02, 3.01, and 3.05 would have the employer recognize the trade union as the representative of employees who had completed their probationary period~ who had elected to join the trade union, and who were entitled to receive wages for work performed. Those proposals were tabled by the respondent at the fourth negotiating session and remained on the table with only minor amendments until February 12 (the 8th negotiating meeting). In the employer's document dated March 1, 1991 it recognized the bargaining units set out in the Board certificates. However Article 2.04 of the respondent's proposals continued to make reference to "non-management personnel who elect not to being [in] the bargaining unit". It was not until April 15 at the 11th negotiating session when the respondent agreed to the removal of these words.

26. The union initially proposed that all employees become and remain members of the trade union as a condition of employment. The respondent's initial position was that membership in the trade union be optional to employees. The effect of the respondent's proposals in Articles 2.01, 2.02, 3.01 and 3.05 would arguably be to deduct dues only from employees who had completed their probationary period and who had joined the trade union. The respondent's Article 3.01 stated that this was pursuant to section 43 of the Labour Relations Act. Section 43 requires the inclusion of a clause requiring the deduction of dues from all employees in the bargaining unit if requested by a trade union. As of March 1, the respondent had moved to the position that dues would be deducted from all employees in the bargaining units set out in the Board's certificates provided they had completed their probationary period, again stating that this was pursuant to section 43.

27. On April 1 the respondent agreed to delete the reference to the probationary period in the union security language, however that restriction re-appears in its draft proposal C-12 dated April 15, 1991. On April 2 the applicant indicated some willingness to move. To that point the justification for the respondent's position was that it felt employees should have a choice with respect to trade union membership. In response the applicant took the position that all current employees who were trade union members were to remain members and that new hires would be required to become members. The trade union felt this addressed the issue of choice because new employees would be aware on hiring that if they were to accept the job they would be required as well to join the trade union. However current employees who had chosen not to become members of the trade union would not be required to do so.

28. At the end of the day on April 15 the respondent proposed a Rand Formula union security provision to provide that all bargaining unit employees would be required to pay union dues but that union membership would be voluntary. At the end of the negotiations on April 30 the employer was maintaining this position. The applicant maintained its position put forward on April 2. We are satisfied that the conduct over the negotiations with respect to these two issues evidences a failure on the part of the respondent to make reasonable or expeditious efforts to conclude a collective agreement. The earlier positions taken by the respondent evidence a refusal to recognize the trade union as bargaining agent for the employees in the bargaining unit. In the respondent's documents filed as C-3 and C-4 (February 11) the respondent states it does not agree to a closed shop but goes further and states that the respondent will "only recognize trade union for employees who have joined union". As indicated that position was maintained until the 8th negotiating session. Although as of the date of filing the application the respondent had changed its position, those initial and unreasonable (if not illegal under sections 15 and 64 of the Act) proposals delayed the negotiations (and may well have set the stage for subsequent problems in negotiations).

29. In addition to our concern about the recognition and union security issues, other factors combined to support our conclusion that the respondent failed to make reasonable or expeditious efforts to conclude a collective agreement.

30. The issues of wages and benefits remained unresolved between the parties. The applicant initially proposed a benefit package and provided the respondent with information concerning its proposed plans. The employer's only apparent response to the issue of benefits was that it was not willing to negotiate benefits because no one else in the industry provided them. That position was maintained throughout bargaining. There was little, if any, serious negotiating concerning wages. The respondent tabled and held to the position that it would not pay wages in excess of those paid by its competitors. That was the rate set by the government through the minimum wage provisions (although the proposal itself allowed for discretionary increases). The applicant was unwilling to agree to a discretionary package, and noted that the effect of the respondent's proposal was to maintain employees' wages at minimum wage for a proposed three year period. Cross-examined at considerable length concerning his knowledge of the respondent's financial position in a competitive marketplace Mr. Thayer did not agree with the proposition put forward by respondent counsel that in any case where an employer pays wages in excess of its competitors it is invariably placed at a competitive disadvantage. Having heard the evidence of the process of negotiations between these parties and the various positions taken, we were satisfied that the respondent's uncompromising position on the issues of wages and benefits was~ in context~ a refusal to bargain these issues with the trade union. While that also supports a finding under section 40a(2)(a), we were satisfied that the refusal to bargain evidenced a failure to make reasonable or expeditious efforts to conclude a collective agreement.

31. At the fourth negotiating session the respondent tabled a document filed as C-i and titled Collective Agreement. To that point the parties had been working from the applicant's proposed document. Over the course of negotiations the respondent tabled six further similar documents. The remaining documents are titled Collective Agreement Draft Proposal. In its pleadings the respondent suggested that these draft documents were not intended to report any movement on any outstanding issues. Rather, they were intended to record settlement on agreed issues and to identify the respondent's original position on outstanding issues. On a review of the documents that is simply not the case. Substantial changes in the respondent's proposals appear in each succeeding document. In the early stages of negotiations changes or additions to each earlier draft were not identified. Each time the respondent presented the applicant with a draft document, the applicant was required to review it in its entirety before the negotiations could continue. It appears that it was not until the respondent's fourth draft proposal dated March 1,1991 that it began to underline those changes or additions to the language that it had provided earlier on those issues remaining in dispute. As Mr. Thayer indicated the documents prepared by the employer at the latter stages of negotiations were useful. Whether the earlier failure by the respondent to identify or indicate movement or change was intentional or as a result of inexperience or ineptitude is irrelevant. It is apparent that the initial format of the documents contributed to some substantial delay in the process (see Grant Forest Products Corporation, [1991] OLRB Rep. July 848. The applicant had to review each of those items still in dispute simply in order to determine the respondent's current position. In addition, it became apparent that there were a number of errors with respect to items indicated as agreed when there had been no agreement or vice versa. To take one example, in Article 2.01(a), between documents C-7 and C-9, the respondent added the words "for work" to language that had been agreed to. The respondent did subsequently agree to remove those words. A second example is union proposal 6.03. It mirrored the respondent's proposed Article 6.08 (except for the word "full"). It appears in the respondent's document C-2 in italics suggesting that the language is agreed to. However the language has been changed from "working" days to "calendar" days. We have no explanation about any negotiations over this change except to note that the applicant did subsequently agree to the change to calendar days. We note these examples only to show that based on the documents formulated by the respondent additional time and effort was required to identify and deal with movement by it further delaying and frustrating the negotiation process.

32. As set out at paragraph 16 herein, the evidence is uncontradicted that the representatives of the respondent came to the early negotiating sessions not prepared to respond to the applicant's proposals. We also refer to those matters in paragraphs 14 and 15 of this decision in support of our conclusion that the respondent failed to make reasonable or expeditious efforts to conclude a collective agreement.

33. The respondent took the position in negotiations that there would be no agreement on individual matters until the entire collective agreement had been settled. Rather than the more usual understanding of parties in collective bargaining that negotiated items be "signed-off' although there may not be "agreement" until negotiations are completed, the respondent, at least in the early stages of negotiations, took the view that all negotiated items were available for renegotiation following discussions on remaining issues. Collective agreements are "living" documents, open to being fine-tuned in subsequent rounds of bargaining. Otherwise there would be no certainty during the process and the potential for delay is immense.

34. At the outset of negotiations the applicant also requested seniority lists, and information about wages, benefits, any wage progression scales, health and safety equipment utilized, and uniforms. Although certain information was provided it was incomplete. For example the respondent advised that uniforms were supplied without indication of how many, what type, and how often. Similarly the respondent advised that safety wear was provided in accordance with WCB and WHMIS regulations but did not identify what this included. A discount on food items was identified as a benefit. The respondent later also referred to and relied on a scholarship fund available to employees. At the fourth negotiating meeting there was reference to a "standard labour guideline" in the respondent's proposals. The guideline was not provided although requested by the applicant. Reference to the guideline was later dropped from the respondent's proposal. We were given no explanation as to why this information was not provided.

35. As the Board stated in Co-Fo Concrete Forming Construction Limited [1987] OLRB Rep. Oct. 1213 at paragraph 30:

36. 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 person 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 decision 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).

[emphasis added]

36. Finally, the applicant originally proposed that the company agree to provide a bulletin board on which the union could keep notices of meetings and other union business. That proposal went on to provide that before being posted, notices would first have to be approved by the store manager. After fourteen negotiating sessions this matter remained unresolved. To the extent that the respondent provided any explanation in the negotiations it appears to have been concerned about the nature and extent of material to be posted by the union. The union noted that its proposal acknowledged the discretion to the company to effectively determine what would be posted. Given the nature of the trade union's initial proposal and the position of the respondent at the final negotiating meeting this is also a factor indicative of the respondent's failure to make reasonable or expeditious efforts to conclude a collective agreement.

37. We were satisfied that the respondent's positions with respect to the issues of recognition, union security, wages and benefits, seniority and Article 9.03(c), taken together with the respondent's conduct throughout the negotiations evidenced an underlying refusal to recognize the bargaining authority of the trade union (section 40a(2)(a)). We think it not coincidental that issues that are fundamental to trade union representation were issues on which the respondent either refused to negotiate or "negotiated" only to a point where its position met other legal obligations (recognition and union security for example) and only after a considerable period of delay. While hard bargaining may not result in the finding that an employer failed to bargain in good faith, it may result in collective bargaining that is unsuccessful within section 40a(2)(a)-(d).

38. For the foregoing reasons the panel concluded that the criteria established in section 40a(2)(a), (b) and (c) had been met and consequently directed the settlement by arbitration of the first collective agreement between the parties.