Canadian Paperworkers Union v. Great Lakes Community Credit Union Limited, 1991 CanLII 6186

[1991] OLRB Rep. June 758

2272-90-FC Canadian Paperworkers Union, Applicant v. Great Lakes Community Credit Union Limited, Respondent

BEFORE: M. G. Mitchnick, Chair, and Board Members R. W. Pirrie and K. Davies.

APPEARANCES: Leanne Chahley, Cecil Makowski, Chris Monk and Teresa Rahmer for the appli­cant; D. J. Lenardon and G. L. Firman for the respondent.

DECISION OF M. G. MITCHNICK, CHAIR, AND BOARD MEMBER K. DAVIES; June 21, 1991

1This is an application under section 40a of the Labour Relations Act in which the Board over the course of six days of hearing received the evidence and submissions of the parties. A deci­sion on the application was reserved by the Board at that point, and the Board has now been advised that the parties have resumed their negotiations, and have in fact been successful in arriv­ing at a collective agreement. The application before us has accordingly been withdrawn.

2At the outset of the hearing, however, the parties had made lengthy submissions to the Board on a matter of evidence, and the Board, in light of the history of that issue before the Board, reserved on the issue and undertook to deal with it in its final decision. Such final decision has now been rendered moot, as indicated, but the Board has been asked to provide its ruling on the evidentiary point nonetheless, in order that the community in dealing with section 40a applica­tions in the future will have the benefit of that guidance. Given the practical difficulties surround­ing uncertainty over this issue, now that the issue has been raised, the Board considers it appropri­ate to deal with the issue by way of the decision and reasons hereunder.

3The present 40a application was a relatively unusual one in the Board's experience, in that like Alma College, [1987] OLRB Rep. Dec. 1453; [1988] OLRB Rep. July 641, it involved a breakdown over not simply one, or even two main issues, but rather an allegation that the respon­dent's whole pattern of bargaining, and in particular its failure to make any significant movement in its positions, was such as to bring into play sections 40a (2)(a), (b), (c) and, failing that, (d), and cause the Board to direct that these parties' first collective agreement be resolved by third-party arbitration. Section 40a in its material parts provides:

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 parties in these negotiations had agreed from the outset to divide their issues into "Language" and "Main Agenda" items, and to proceed first with the former. As a result, all of the testimony before the Board related solely to the efforts of the parties to make their way through the "Lan­guage 'portion of the bargaining. In the circumstances now before us, it would not be pertinent to recite that testimony in any detail. Suffice it to say that, while a large number of Language items remained outstanding as of the date of this application, the attention of the parties in the bargain­ing leading up to the application had come to be focused in particular on the issues of:

• Seniority rights on lay-off and promotions

• the amendment of the bargaining unit Scope to exclude a "confiden­tial secretary"

• restrictions on the use of "Temporary Employee", and the rights of such employees

• specific penalty (discharge) for certain offences

• the scope of the Jury Duty provision

• the continuation of existing parking privileges and hours of work at the employer's new downtown location.

4The applicant Union had been certified on December 22, 1989, to represent an "all-em­ployee" unit (then 9 persons) at the Great Lakes Community Credit Union Limited. Negotiations reached the stage of meetings with a conciliation officer by September of 1990. Those meetings, from the Union's point of view, continued to generate no progress, and the Union requested a "no-Board" from the officer. It was then the decision of the Union that the present application should be filed, and the Union did that on November 28th. Prior to the filing of the application, however, the employer had requested the services of a mediator from the Ministry, and meetings in that regard were arranged with the parties for December 9th and 10th. The parties did in fact, in the face of the section 40a application, carry through with the mediation session as arranged, and by the end of those two days all of the language items in dispute were resolved. To the extent time permitted at the end of that second day, discussion then moved to the large number of items that had been left as "Main Agenda" items (being essentially the monetary items), but with no resolu­tion. The parties subsequently made further efforts to resolve matters short of a hearing on the sec­tion 40a application, under the aegis of a Labour Relations Officer of the Board, but those delib­erations once again ended in impasse.

5The evidentiary matter left for the Board to decide in this case was the "cut-off' point for relevant evidence in a section 40a application. The Union made the initial point that all efforts with the Officer of the Board to settle the particular application short of litigation were "privileged" in any event, under ordinary principles, and the Board agreed. Beyond that, however, the Union argued that even negotiations which continue in the "normal" process of bargaining once the section 40a application has been filed are irrelevant, and ought not to be the subject of evidence before the Board. Otherwise, submits the Union, the situation would never "crystallize" for the parties in a way that would allow them to assess when to invest the time and expense of prepar­ing a section 40a application, and for each to know the case they have to meet if the matter does have to proceed to a hearing. To hold otherwise, the Union further submits, would invite "postur­ing" in any negotiations that take place subsequent to the application, with a view to evidence that the Board may be receiving should the matter in fact turn out to have to proceed to a hearing. Such evidence, the Union goes on to add, is not only without any real probative value, but can in fact be misleading to the Board: that is, as the very evidence before the Board in this case demon­strates, the Union submits, an employer would have the opportunity to "clean up its act" just enough to get the section 40a application dismissed as premature, and then revert to its old style of "stonewalling" as soon as the matter before the Board has been disposed of. While the Board has in fact entertained evidence of post-application bargaining sessions in the past, the Union notes, that was always on the concurrence of the parties, and the point was never argued or consid­ered. See, for example, Formula Plastics Inc., [1987] OLRB Rep. May 702; Juvenile Detention (Ni­agara) Inc., [1987] OLRB Rep. Jan. 66. The argument on behalf of the respondent, simply put, is that the Board's Practice Note is clearly aimed at producing settlements of the collective agree­ment, and that an employer is less likely to engage in any kind of bargaining after the application if there is "nothing in it" for it. The respondent also argues that it is clearly relevant to the Board to know what, if anything, has happened to the bargaining since the application was filed, in order to assess the real state of negotiations between the parties, and decide whether the bargaining process can in fact be said to have been "unsuccessful".

6The matter is indeed a difficult one - particularly since the real labour-relations goal of a section like 40a is to "encourage" the parties to reach that initial collective bargaining agreement on their own, and not have the Board impose third-party determination. To the extent that the Board has now been called upon to decide this question, however, the Board is persuaded that the approach articulated by the Union is the correct one. With any piece of litigation there normally is a fixed "cut-off” point, at least with respect to the initial question of liability, and if we were to adopt the position put forward by the respondent, it is difficult to see how there would ever be a fixed cut-off point as of which the parties are required and entitled to assess their chances and, pre­pare for hearing (assuming that evidence of ongoing offers or "negotiations" were admissible at all, and not "privileged" as an attempt to settle the matter). Rather, we think that as a general rule the parties are required to make those assessments at the time that an application under section 40a is filed. At that stage, as the Board's Practice Note indicates, the parties are required to file particulars of all of the material facts upon which they intend to rely, and those particulars are used by the Board to allow it to contain the case to one that the other party knows from the outset it is going to have to meet. If a respondent's position is that the applicant has acted precipitously in fil­ing its application, without the opportunity for dialogue really having been exhausted, that is some­thing that the Board can assess in coming to a decision on the "merits" of the application, on the basis of what has transpired between the parties up to the point of the application. In the meantime the parties are, of course, completely free to continue their negotiations in an effort to reach a col­lective agreement, with a view to avoiding the need to litigate the section 40a application entirely, free from any thoughts about what will or will not appear before the Board by way of evidence, should the matter ultimately turn out in fact to have to proceed to a hearing.

DECISION OF BOARD MEMBER ROSS W. PIRRIE; June 21, 1991

1. As the majority have indicated, the matter being dealt with is a difficult one. Regretta­bly, I do not believe the majority have arrived at the correct decision.

2. Reaching a first collective agreement is a continuous process from the time of certification to the signing of the contract. For the Board to segment that process and look only at the behaviour of the parties up to the application date will create a highly artificial situation. In my view the Board is quite capable of looking at the entire spectrum of the collective bargaining pro­cess and making a judgement as to the conduct of the parties. I do not feel the Board has been or will be easily duped by an employer who "cleans up its act" following a union's section 40a applica­tion.

3. That evidence pertaining to the fact of and the result of negotiations beyond the union s application dates has been admitted to date suggests to me that the need for a cut-off date is not of the significance that the majority cite at paragraph 6 of the decision.

4. As successive Board decisions have interpreted the language of section 40a to narrow what is acceptable employer conduct in first contract negotiations, the value to employers of partic­ipating in the direction portion of the process has become questionable. In my opinion this decision will simply be another reason for employers to back away from the process and save their time, energy and money for the interest arbitration portion of section 40a. If my judgement is correct, it will be regrettable for collective bargaining in the narrow sense of what has been a relatively suc­cessful means of encouraging the parties to settle first contracts, and in the wider sense for the entire area of collective bargaining.