[1992] OLRB Rep. March 345
0768-88-U National Elevator and Escalator Association, Complainant v. International Union of Elevator Constructors, International Union of Elevator Constructors, Local 50, International Union of Elevator Constructors, Local 90 and International Union of Elevator Constructors, Local 96, Respondents
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members D. A. Patterson and R. W. Pirrie.
APPEARANCES: R. Ross Dunsmore, Andrew Reistetter and Tim P. Liznick for the complainant; B. Chercover, E. Shaw, T. McCann, W. Baxter and P. Verrege for International Union of Elevator Constructors, International Union of Elevator Constructors, Local 50, International Union of Elevator Constructors, Local 90 and International Union of Elevator Constructors, Local 96.
DECISION OF THE BOARD; March 19, 1992
1For reasons given below, the names of the respondents in the style of cause have been amended to International Union of Elevator Constructors, International Union of Elevator Constructors, Local 50, International Union of Elevator Constructors, Local 90 and International Union of Elevator Constructors, Local 96.
2This complaint was brought originally on June 27, 1988 under section 91 [formerly section 89] of the Labour Relations Act. The union had begun a lawful strike on or about June 18th against all employers for whose employees the respondents held bargaining rights in the elevator industry in the Province of Ontario and who had been bound by the collective agreement between the complainant and the respondents which had expired April 30, 1988. It alleged that the respondents, together with J. Warner Baxter, Ernest Shaw, Thomas McCann, Peter Verrege, Joseph Kennedy, York Elevators Limited and Henry Render, Capital Elevators Limited and Ken Anderson, Televator Limited and Andy Johnson, Canadian Escalator and Elevator Service Company Limited and John Ainsworth, Classic Elevators and Jack Parks and J. Schindler Elevator Corporation, or any of them, had violated one or more of the multiple sections and subsections of the Act pleaded in the complaint. At a hearing on June 29, 1988, a different panel of the Board dismissed the complaint for want of prosecution insofar as it related to subsections 74(4), 133(1), 133(2), and 150(1) and section 152 [formerly subsections 72(4), 131(1), 131(2) and 148(1) and section 149(a)] of the Act. That panel of the Board also determined the complaint insofar as it related to subsections 148(1) and 148(2) [formerly subsections 146(1) and 146(2)] and adjourned the complaint respecting the alleged violations of sections 15, 70, 71 and subsection 154(1) [formerly sections 15, 69 and 70 and subsection 151(1)] of the Act. Hearings into the remaining allegations scheduled for November 21 and November 22, 1988, were adjourned on consent. The complainant filed an amended complaint on July 10, 1989 and requested that it be put on for hearing. Further amendments were filed on July 25, 1989. The remedies sought in the amended complaint included the following:
a declaration that it was unlawful of the respondents to insist on one collective agreement with the Association in the face of the Association's request to negotiate a separate agreement for non-ICI work;
a declaration that the respondent engaged in bad faith bargaining in negotiating non-ICI collective agreements with other companies in the elevator industry and by refusing to negotiate or even discuss such agreements with the Association;
an order that the respondent cease and desist from such unlawful activity referred to in items 1. and 2. and bargain in good faith during the next round of negotiations with the Association with a view to concluding two collective agreements, one for the ICI sector of the construction industry and one for the rest of the work performed by Association companies;
damages for loss of opportunity because of a prolonging of the strike as a result of the respondents' negotiation of unlawful collective agreements for work outside the non-ICI sector and subsequent refusal to bargain for a similar arrangement in that sector for members of the Association.
3When hearings into the amended complaint began on August 30, 1989 before this panel of the Board, counsel for the complainant confirmed that the amended pleadings effectively reduced the complaint to an alleged breach of section 15 of the Act by the International Union of Elevator Constructors and its Locals 50, 90 and 96. The Board also heard and dismissed the motion of counsel for the respondents that the complaint be dismissed without hearing. The written reasons for the Board's decision are given in a decision which issued September 18, 1989. Evidence and argument respecting the merits of the complaint were heard on August 31, 1989 and January 10 and 11, 1990.
4The conduct of the respondents which the complainant alleges constitutes a failure of the section 15 duty to bargain in good faith may be summarized as follows:
from the commencement of bargaining until the start of a legal strike on or about June 18, 1988, by refusing to consider or offer any alternate proposal to the complainant's proposal for either separate collective agreements for construction work and non-construction work, or separate seniority list for construction and non-construction employees, and by insisting there be one collective agreement and one seniority list for the elevator industry in the Province of Ontario; and,
after the start of the strike, by executing with each of several employers a collective agreement purporting not to apply to the industrial, commercial and institutional (ICI) sector of the construction industry, by attempting to negotiate a similar agreement with other employers, by refusing to consider the complainant's proposal to enter into such an agreement with the Association and by continuing to insist there be one collective agreement for the construction industry.
5The parties were able to agree on many of the facts and the Board heard the evidence of Andrew Reistetter for the complainant. Facts set out herein are based on the parties' agreement and the Board's conclusions of fact respecting the viva voce evidence. For ease of reference, the Board will refer to the National Elevator and Escalator Association either as "the Association" or "the complainant" and to the respondents collectively either as "the Union" or "the respondents" and to each respondent individually as "the International Union", "Local 50", "Local 90", and "Local 96".
6The parties to this complaint share a lengthy bargaining history in the elevator industry. From approximately 1930 until 1972, bargaining in the elevator industry in Canada was national in scope, as reflected by a series of national collective agreements between employer associations which are the predecessors of the complainant and the International Union on behalf of its respondent Local Unions and other Canadian locals of the International Union. The last national collective agreement was replaced by a series of provincial agreements between the predecessors of the Association and the International Union after a national strike which took place in 1973. The last province-wide collective agreement in Ontario in effect between the Association and the International Union prior to the making of this complaint expired on April 30, 1988 ("the Agreement"). During the extensive bargaining history of the parties up to the expiry of the Agreement, the member employers of the Association and its predecessor employer associations were always subject to a single collective agreement for an all-employee bargaining unit covering all sectors of the construction industry and all non-construction aspects of the elevator industry for which the International Union or its locals had bargaining rights. In the circumstances, the history of bargaining between the parties to this complaint or their predecessors has been broader than that created by the province-wide bargaining scheme under the Labour Relations Act.
7The 1973 strike in Ontario was ended by Provincial legislation which imposed compulsory arbitration on the parties. That arbitration produced a first provincial agreement in the elevator industry in Ontario. The parties usually refer to that agreement as the Anderson award. That award issued February 28, 1974. One of the products of the award was a unique seniority provision which has continued in each provincial collective agreement from 1974 to the present. Effective 1978, that provision provided industry-wide seniority protection to employees after six months service with a single employer. The employers had opposed seniority protection to long service employees during the Anderson interest arbitration and subsequently have proposed that the industry-wide seniority provisions be removed from the provincial collective agreement in order to provide employers with greater flexibility in their control of manpower. During the 1982, 1984 and 1986 bargaining sessions, the Association proposed the elimination of seniority and the creation of two collective agreements, one covering construction work and the other covering non-construction maintenance and service work. The International Union has consistently taken the position that the industry-wide seniority protection has provided job security for its members which it would be inappropriate to abandon. Accordingly, the International Union has consistently resisted any change in the job security provisions by way of amendment to the seniority provisions or by way of negotiating separate collective agreements for construction and non-construction work.
8The Labour Relations Act was amended in 1977 to create a province-wide bargaining scheme in the ICI sector of the construction industry in Ontario. The Association became the designated employer bargaining agency in that sector for all employers for whose employees the International Union or any of Locals 50, 90 and 96 held bargaining rights in that sector. The International Union became the designated employee bargaining agent in the ICI sector for those three locals. In 1978 and every two years thereafter, the parties continued to bargain a single provincial collective agreement for an all-employee unit. This agreement applied to all employers in the ICI sector for whose employees the International Union or any of its three Locals held bargaining rights in that sector, whether or not the employers were members of the Association. The agreement continued to apply also to all of the Association's members for all work in other sectors of the construction industry and in non-construction maintenance and service work in the elevator industry. Outside of the ICI sector, employers in the elevator industry who are not members of the complainant and who are bound to the provincial collective agreement as it relates to the ICI sector of the construction industry have acceded to the agreement in other sectors of the construction industry and in non-construction maintenance and service work in the elevator industry and have followed its terms and provisions as their own. From time to time, some of those employers have negotiated separate agreements when no provincial collective has been in place. The International Union has always insisted that, when a provincial agreement was in place, the terms of that agreement would supersede those of any other agreement which had been negotiated with individual employers.
9In the 1982, 1984, and 1986 bargaining sessions, when the complainant proposed that there be two collective agreements and that seniority be eliminated~ the seniority proposal was a fall-back position should the proposal for two collective agreements not succeed. The reason which the complainant gave in bargaining for its proposals was that the skills required for maintenance and service work were different than those required for construction. Since most of the senior employees were in construction, whenever they exercised their seniority to bump into maintenance and service work, it disrupted that aspect of the employer's business. The reason which the Union gave for opposing either change was that a single collective agreement and seniority provisions which applied across the elevator industry were essential for the protection of older and longer service employees. During those three bargaining terms, the parties engaged in what Andrew Reistetter, the spokesman for the Association, referred to in cross- examination as a "fair number of discussions
10The 1988 proposals from the Association included a proposal for two separate collective agreements. One for construction and one for all other work in the elevator industry and a proposal to amend seniority, but without proposing specific seniority language. Of the two proposals, the Association's primary objective was to have two separate collective agreements. Seniority was a fall-back position. When bargaining began in mid-April, the Union's reaction to a proposal for two separate collective agreements was "not again". Reistetter was not surprised by the reaction. From the start of bargaining, the Union's position was that two separate collective agreements was not a bargaining objective which the Association was going to achieve. Several times in bargaining the Union's response to the Association's arguments for the proposal was to the effect that two collective agreements were not beneficial to the union. The Association realized fairly early in bargaining that its objective of getting two collective agreements was not available and it switched its attention to seniority. While the parties discussed seniority during direct bargaining, the Association did not propose any specific seniority language.
11The bargaining moved to conciliation in May after three or four direct bargaining meetings between the parties. The Association discussed with the conciliation officer its underlying rationale for requiring two collective agreements and for changes to the seniority provisions if it was unable to obtain two collective agreements. It is not clear on the evidence whether there was direct discussion of the Association's proposal for two collective agreements, but there was discussion of seniority. Reistetter estimates that the parties spent from four to five hours overall discussing the two issues in direct bargaining and in conciliation. The Association did not propose any seniority language during the conciliation process. The parties were in mediation for three days in June prior to the strike beginning on June 18th. The Association did not raise the two collective agreements issue at mediation. Seniority was discussed with the two mediation officers but was there was no direct discussion with the Union. The Association did make written proposals to amend the seniority provisions so as to limit bumping into maintenance and service work by mechanics employed in construction. The Union rejected the proposal, but some compromise was reached on seniority which would make training in maintenance available to mechanics working in construction and limit their opportunities to bump into maintenance if they did not avail themselves of training in maintenance.
12The Association reintroduced the issue of two collective agreements during the strike after some of the local unions had executed collective agreements with some of the individual employers who were not members of the Association. These agreements did not relate to the ICI sector of the construction industry. They came about after York Elevators Limited informed the Union that the Association did not bargain for York outside of the ICI sector of the construction industry. When the Union took a contrary position, York filed a complaint under the Act alleging that the Union was engaged in an unlawful strike against York. The complaint was settled when the Union negotiated a collective agreement with York. The Union then negotiated collective agreements containing the same terms with a few other independent employers, including J. Schindler Elevator Corporation. All of these agreements contained a provision which purported to modify them to be consistent with the terms of the "...usual Provincial agreement..." once it is settled. Upon learning of Schindler's agreement, on June 27 Reistetter told J. Warner Baxter, the senior executive officer of the International Union in Canada, that the Association was prepared to bargain a collective agreement similar to the ones which they had negotiated with York and Schindler. Baxter's response after a couple of minutes discussion was that there would be one collective agreement for the elevator industry in Ontario. On July 11, the Association requested the Union to resume formal negotiations for the purpose of bargaining a collective agreement excluding the ICI sector similar to the one executed with Schindler. The Union replied that it was prepared to resume bargaining for the renewal of the Ontario Provincial Agreement.
13Bargaining did resume, although the evidence does not reveal when that happened or how many meetings the parties held. Four issues remained to be resolved, including the issues of seniority and two collective agreements. The other two issues were also Association proposals. One dealt with the installation of factory assembled escalators and the other was to substitute increased contributions to the pension and welfare plans for a thirty-three and one-third cent increase resulting from an award of an interest arbitrator which was awaiting judicial review. With respect to the two collective agreements, the Association had made an amended proposal for one collective agreement applying to the ICI sector of the construction industry and another applying to the rest of the elevator industry. The Union's position on that issue was that a single collective agreement was essential for the protection of its members. The Association's position was that the party should attempt to negotiate language which would alleviate the union's concerns. The proposals respecting factory assembled escalators and the substitute for the arbitration award were eventually withdrawn and the parties executed a memorandum of agreement on July 27th to renew the expired collective agreement, amended in accordance with the terms of the memorandum of agreement. The terms of the memorandum included a new seniority provision making courses in maintenance available to elevator mechanics working in construction and limiting the bumping protection of such mechanics if they do not avail themselves of the courses. The memorandum also contains the parties' acknowledgement that its terms constitute full settlement of all matters in dispute.
14The memorandum of agreement had been subsumed into a formal collective agreement by the time the complainant filed its amendments to the complaint. Clause 20.02 of the collective agreement provides as follows:
"20.02 This Agreement defines the entire relationship between the parties for the term of this Agreement and, except as herein specifically provided for, neither party shall during the term of this Agreement, have any obligation to bargain with respect to any matter not covered by this Agreement nor concerning any change or addition thereto."
The Argument
15The argument of the Association counsel runs as follows. He submits that the bargaining conduct of the Union has to be measured against three sets of responsibility:
the responsibility of the Union and the Association, under section 15 of the Act, to engage in full and complete discussion of the issues in an attempt to achieve a collective agreement;
responsibility of the Association and the International Union as designated bargaining agencies in the province-wide bargaining scheme to achieve a collective agreement relating to the ICI sector of the construction industry; and,
the responsibility of the Union and the Association, as bargaining agents for its members, to achieve a collective agreement for the elevator industry, excluding the ICI sector of the construction industry.
Against those responsibilities, counsel submits that the Union has failed to bargain in good faith and make every reasonable effort to make a collective agreement as required by section 15 of the Act, because it;
pressed to impasse the continued integration in a single collective agreement of the terms and conditions of employment for the ICI sector of the construction industry and the rest of the elevator industry; and,
refused to discuss with the Association the collective agreements for the elevator industry, excluding the ICI sector of the construction industry, which were negotiated with some individual employers who were not members of the Association.
16Counsel for the Association argues that it is inconsistent with the scheme of the Act for the Union to press to impasse the requirement for a single collective agreement covering the entire elevator industry, including the ICI sector of the construction industry, in circumstances where the Association is unwilling to bargain a single, comprehensive collective agreement for the elevator industry. According to counsel, the province-wide bargaining provisions of the Act have superimposed on the general duty of designated bargaining agencies to bargain in good faith, the specific duty ". . .to bargain in good faith and make every reasonable effort to make a ..." provincial agreement as defined in section 139 [formerly section 137] of the Act. For the International Union, that duty applies in respect of all employees for whom the International Union or Locals 50, 90 and 96 have bargaining rights in the ICI sector of the construction industry. For the Association, it applies to all employers of those employees, whether or not they are members of the Association. In turn, section 148 [formerly section 146] of the Act requires that the International Union and the Association bargain only one provincial agreement for those employees and employers; makes it unlawful for them or any person, employee, trade union, council of trade unions, affiliated bargaining agent, employer, employer's organization, group of employers' organizations to bargain for, attempt to bargain for or conclude any collective agreement or other arrangement affecting employees represented by the Union in the ICI sector; and makes any other agreement or arrangement null and void.
17In addition to their specific duty "...to bargain in good faith and make every reasonable effort to make a ..." provincial agreement, the International Union and the Association also have the general section 15 duty to bargain in good faith towards a collective agreement for the elevator industry in Ontario, excluding the ICI sector. For the Union, that involves bargaining on behalf of all employees of employers in the elevator industry for whom it has bargaining rights. These are the employees of the employers listed on Schedule "C" of the Agreement. For the Association, that involves bargaining with the International Union on behalf of its members for whose employees the Union holds bargaining rights in the elevator industry. They too are listed on Schedule "C". The Association has no duty to bargain a collective agreement for the elevator industry, excluding the ICI sector of the construction industry, for the employers on Schedule "C" who are not its members. While they are bound by operation of statute to the provincial agreement for the ICI sector negotiated between the International Union and the Association, historically they have been bound to the province-wide agreement between the Union and the Association for non-ICI construction and non-construction maintenance and service work by having acceded voluntarily to the agreement.
18Therefore, in these circumstances and for several reasons, counsel submits that the Union's insistence on bargaining a single, comprehensive collective agreement for the elevator industry in Ontario is inconsistent with the province-wide bargaining scheme and contrary to the Union's specific duty to bargain in good faith towards a provincial agreement for the ICI sector of the construction industry and its general duty to bargain in good faith towards a collective agreement for the other sectors of the construction industry and for non-construction maintenance and service work.
19First, by insisting on one province-wide collective agreement for the elevator industry in Ontario, the Union is trying to force on the Association, its member employers and independent employers who are opposed to continuing with a single, comprehensive collective agreement, a bargaining process in which they have participated voluntarily in the past. Both groups of employers accepted one collective agreement as governing their labour relations throughout the elevator industry. That was achieved voluntarily by the Association bargaining the collective agreement on behalf of its members and the independent employers acceding to it. After introduction of the province-wide bargaining scheme in 1978, they were bound by statute to the agreement respecting the ICI sector of the construction industry in Ontario, but continued to accede to it for the rest of the elevator industry. Throughout past bargaining the parties have recognized a bargaining duty to achieve a single, comprehensive collective agreement. York decided to get out of that voluntary arrangement respecting the non-ICI work, and the Union tried to force York to remain in. Eventually the Union signed separate collective agreements with York, Schindler and others which another panel of the Board found did not apply in the ICI sector. That was a complete about-face from the position which the Union had taken right into the strike and the catalyst which caused the Association to seek similar treatment for its members. The Union refused the Association's request to return to the bargaining table to negotiate with it for the same kind of agreement and continued to insist on a single, province-wide agreement for the elevator industry. Since there is no legal basis for the Union to compel the Association to negotiate for its members a single collective agreement for the elevator industry which would include terms and conditions of employment for the ICI sector of the construction industry together with those for non-ICI and non-construction work, by continuing to insist on such an agreement when the Association was opposed to it, the Union was failing to make every reasonable effort to end the strike and conclude a collective agreement. Similarly, since there is no legal basis for the Union to compel all employers on Schedule "C" of the Agreement to bargain together for a single collective agreement, by pursuing that position to a strike, the Union failed to make every reasonable effort to achieve a provincial agreement for the ICI sector of the construction industry and a collective agreement for the elevator industry in Ontario, excluding the ICI sector. In that respect, counsel relies on Burns Meats Ltd., [1984] OLRB Rep. Aug. 1049 for the proposition that it is a breach of the section 15 duty to bargain in good faith to bargain for a collective agreement which has no foundation in the Act.
20Second, the province-wide bargaining part of the Act requires the International Union and the Association, as designated bargaining agencies, to bargain in good faith towards a collective agreement for the ICI sector of the construction industry. The International Union, by requiring that the Association bargain for a single, comprehensive collective agreement for the elevator industry is requiring that bargaining the terms and conditions of employment for the ICI sector of the construction industry be combined with bargaining the terms and conditions of employment for the rest of the elevator industry. In so doing, the Union is forcing employers to bargain about matters which cannot be taken to impasse in bargaining for a provincial agreement in the ICI sector of the construction industry. Therefore, when bargaining for a single collective agreement is taken to impasse over matters which are outside of the ICI sector, it is inconsistent with the province-wide bargaining scheme and contrary to the section 15 duty to bargain. For the same reason, counsel argues, it was a breach of the section 15 bargaining duty to bargain to impasse in the non-ICI part of the elevator industry over matters in the ICI sector of the construction industry. It is also inconsistent with the Association's specific duty to bargain a provincial agreement for the ICI sector of the construction industry to be required to tie together its bargaining responsibilities in the ICI sector and its bargaining responsibilities outside of that sector by the Union's insistence on bargaining one collective agreement covering the ICI sector and other sectors. This is because section 148 contemplates that those employers for whom the Association's bargaining rights are restricted to the ICI sector, will be able to look to the collective agreement which is the product of the bargaining and know what are their obligations in that sector. A single collective agreement which includes the terms and conditions of employment for the entire elevator industry frustrates that objective. Furthermore, the Union's section 15 duty obligated it to focus on effective ways to resolve the strike. The Union failed in that duty by continuing through its insistence that bargaining about the terms and conditions of employment for the ICI sector of the construction industry and non-ICI elevator industry work be integrated when the Association was unwilling to do so and was seeking to negotiate a separate collective agreement for the non-ICI part of the elevator industry.
21Third, by taking the single agreement issue to a strike, and by continuing to hold that position during the strike in face of the Association's request to negotiate a separate collective agreement for the non-ICI part of the elevator industry in Ontario similar to those which the Union signed with independent employers like York and Schindler, the Union was attempting to force the Association to bargain the terms and conditions of employment in the non-ICI part of the industry for other independent employers for whom the Association had no bargaining rights. Thus the Union was seeking to extend the Association's bargaining rights by pressing to impasse its position that there be a single collective agreement for the elevator industry in Ontario. Since a strike for recognition is conduct inconsistent with the scheme of the Act, the Union was failing to bargain in good faith by pressing its one-agreement position to a strike. In that respect, counsel relies on the decision of the Board in United Brotherhood of Carpenters & Joiners of America, [1978] OLRB Rep. Aug. 776.
22With respect to the Association's claim that the Union breached its section 15 duty when it refused to discuss with the Association the collective agreements for the elevator industry, excluding the ICI sector of the construction industry, which the Union negotiated with individual employers who were not members of the Association, the thrust of Association counsel's argument is that the negotiations of those agreements represented a complete about face in the position which the Union had taken in bargaining right up to the start of the strike. Having departed from its insistence on a single, comprehensive collective agreement for the elevator industry, the Union had no right to refuse to discuss with the Association a similar agreement for its members. By continuing to insist on a single collective agreement with the Association for the elevator industry, the Union deprived the Association of any significant discussion of the issue of a separate collective agreement for the non-ICI part of the industry. The Union's section 15 duty required that it at least discuss providing the Association members with a similar opportunity to carry on work outside of the ICI sector of the construction industry.
23Counsel for the Union began his argument by reminding the Board of his submissions made in support of the motion to dismiss the complaint without a hearing. Since the Board dismissed the motion because it "...could not say with certainty that the complainant was not entitled to the relief which it was seeking without the Board having the benefit of the evidence and full legal arguments of the parties.", counsel asked the Board to consider that argument in light of the evidence now before it. Counsel's primary position was that the memorandum of agreement which was executed July 27, 1988 created a new provincial agreement to run from that date until April 30, 1990. Accordingly, there was no present obligation on the Union to bargain with the Association and, therefore, there could be no failure to bargain in good faith on the part of the Union and the complaint should have been dismissed. In the alternative, to the extent that the amended complaint contains the claim that the Association signed the memorandum of agreement without prejudice to its right to bring forward the complaint, there is no foundation to the claim. On the contrary, counsel submits, the memorandum of agreement contained a provision which stated as follows:
"The parties agree herein to the terms of this memorandum as constituting full settlement of all matters in dispute."
Since the complaint was a matter in dispute between the parties at the time the memorandum of agreement was made, it was one of the matters settled by the parties' execution of the memorandum of agreement on July 27th. Therefore, in either event, there is no basis on which the complainant can establish its entitlement to any of the remedies sought in the complaint.
24With respect to the complainant's argument that, when the Union pressed to impasse the requirement of a single collective agreement for the elevator industry in the province of Ontario, it was attempting to extend the complainant's bargaining rights in the non-ICI sector part of the industry to include individual employers who are not members of the Association and for whom the Association did not have bargaining rights outside of the ICI sector of the construction industry, Union counsel argues that the bargaining parties are the International Union and the Association and, as between them, the collective agreement is binding in the elevator industry in the province of Ontario on the International Union, its Ontario locals, the Association, its members and their employees for whom the Union has bargaining rights in the elevator industry. It is binding also in the ICI sector of the construction industry in the province of Ontario on employers who are not members of the Association and for whose employees the Union has bargaining rights in the ICI sector, and on those employees. All that the Union was doing in pressing the single collective agreement issue to impasse was seeking to preserve the integrity of those bargaining rights. It was not an attempt to extend the complainant's bargaining rights outside of the ICI sector so as to include employers who were not its members. Similarly, to bargain to impasse the issue of a single collective agreement is to insist on the preservation of an established, single bargaining unit, it is not taking to impasse an attempt to create new bargaining rights by voluntary recognition.
25Nor was it a breach of the province-wide bargaining scheme of the Act to press to impasse the issue of a single, province-wide collective agreement for the elevator industry which would include the ICI sector of the construction industry in the province of Ontario, counsel submits. The amendments to the Act which introduced province-wide bargaining in the ICI sector of the construction industry did not add to or alter the scope of bargaining rights which existed at the time. While the amendments did give the International Union and the Association the exclusive authority to conduct bargaining and conclude a provincial agreement as defined by section 139 of the Act, as long as they bargain within the scope of their bargaining rights, nothing in the Act prohibits them from bargaining for and concluding a collective agreement which is more than a provincial agreement as defined in section 139 and which includes sectors of the construction industry other than the ICI sector and non-construction service and maintenance work. Counsel argues further that the Board recognized that reality in London Sandblasting & Painting Limited [1982] OLRB Rep. Sept. 1322, particularly at paragraphs 16, 18 and 19. Therefore, since the Act does not prohibit designated bargaining agencies from concluding a collective agreement which includes terms and conditions of employment which relate to the ICI sector of the construction industry along with terms and conditions of employment which relate to other sectors and to non-construction work, it was not inconsistent with the province-wide bargaining scheme for the ICI sector of the construction industry, or with the Act, to press to impasse the issue of a single, comprehensive, province-wide collective agreement for the elevator industry. Accordingly, counsel argues, it was not a breach of its section 15 duty for it to do so.
26Union counsel denies that the Union refused to discuss the Association's request that the Union negotiate a separate collective agreement for the elevator industry, excluding the ICI sector of the construction industry, like those executed with individual employers. Counsel submits that, prior to the strike, the Association had dropped its proposal for separate collective agreements for construction and for non-construction service and maintenance work, and focused on its seniority proposal for the same relief which it was seeking with its proposal for two collective agreements. The complainant's renewed demand for two collective agreements in the form of one for the ICI sector and the other for the rest of the elevator industry was clearly triggered by the collective agreement which the Union negotiated with individual employers covering the elevator industry, exclusive of the ICI sector of the construction industry. Those collective agreements were negotiated when York took the position that the Association had no authority to bargain for it outside of the ICI sector and filed a complaint alleging that the Union was engaging in an unlawful strike against York in the elevator industry outside of the ICI sector. York and the Union settled the complaint by signing a collective agreement for the elevator industry, excluding the ICI sector. The Union then proceeded to sign similar collective agreements with several other employers who were not members of the Association, including Schindler. That was when the Association renewed its proposals for two collective agreements by requesting to negotiate with the International Union for a collective agreement, excluding the ICI sector of the construction industry, similar to the one signed with each of York and Schindler. When the International Union responded that it was prepared to return to the bargaining table to negotiate a renewal of the province-wide collective agreement for the elevator industry, it was not refusing to bargain with the Association with respect to terms and conditions for the non-ICI part of the industry because, by bargaining for the entire elevator industry, the parties would be bargaining terms and conditions of employment for the non-ICI sectors of the construction industry as well as for the non-construction service and maintenance part of the elevator industry. For the Union to have agreed to bargain the way the Association was asking, would have been to allow the Association's members to preserve their work in the remainder of the elevator industry at the expense of ICI bargaining. Counsel submits that the section 15 duty does not require the International Union to divide its bargaining in the manner sought by the Association and by so doing, weaken its bargaining position.
27Union counsel argues further that section 15 serves two purposes. First, to reinforce the obligation of each bargaining party to recognize and deal with the existing bargaining agency opposite it. Second, to assure there will be rational communications about the matters which are the subject of the negotiations.
28With respect to the first purpose, the effect of agreeing to a separate collective agreement for the elevator industry, excluding the ICI sector of the construction industry, would be to divide the single, province-wide bargaining unit for the elevator industry into two units and, in so doing, would weaken the Union's bargaining rights for employees of the Association members. It is not a failure of the Union's duty to bargain in good faith to take to impasse the Association's post-strike proposal for two separate collective agreements (thus, for two separate bargaining units) in order to protect and continue the Union's existing, province-wide bargaining rights for employees of the Association's members.
29With respect to the second purpose of section 15, the bargaining history of the parties since the Anderson award in 1973 shows that the Association has consistently proposed dividing the Union's bargaining rights into two units, construction and non-construction, or, in the alternative, separating seniority into two such groups. The Union has responded just as consistently that neither two collective agreements nor two seniority lists is in the interest of the Union or its members, and that a single collective agreement with a common seniority list for construction and non-construction is essential for the protection of its members with long service in the elevator industry. The Union disagreed with the Association's claim that the difference in the skill requirements for mechanics doing service and maintenance work made it essential to eliminate bumping from construction into that kind of work. It also disagreed with the Association's position that the "skill and ability" requirement of the bumping provisions was ineffective protection for the skill requirements in service and maintenance work. Those were the positions taken by the Union in prior bargaining years and in 1988.
30One effect of the Association's post-strike proposal to negotiate a separate collective agreement for its members covering the elevator industry, excluding the ICI sector of the construction industry, was to put the parties back into the same position that they were in prior to the strike respecting the two collective agreements issue. Bearing in mind the positions taken by the Union in prior bargaining years and at the start of the 1988 bargaining and the discussion attendant thereon, as little as two or three minutes discussion before rejecting the Association's proposal was still rational discussion within the context of a mature bargaining relationship and the history of bargaining about whether there will be a single, province-wide collective agreement for the elevator industry. In that respect, counsel submits that it is clear from Reistetter's acknowledgement in cross- examination that he and the Association knew why the Union was not prepared to agree to negotiate a separate collective agreement for the non-ICI part of the elevator industry. Furthermore, counsel submits that signing collective agreements with individual employers for the elevator industry, excluding the ICI sector of the construction industry, was not a departure from the Union's position that there be only one province-wide collective agreement for the elevator industry because it was an expressed term of those collective agreements that they be subsumed by the province-wide collective agreement when it was renewed.
31Therefore, counsel submits, both purposes of section 15 have been satisfied and, while the Union's position in pressing to impasse the two collective agreements issue, and retaining that position during the strike when the Association reintroduced the issue in a different form, may have been hard bargaining, there has been no breach of section 15 of the Act.
32Association counsel argued as follows in rebuttal. With respect to the Union's argument that there was no present duty on it to bargain with the Association once the memorandum of agreement was executed because no issues remained, counsel argued that there were outstanding issues because this complaint and the judicial review of the interest award respecting the thirty-three and one-third cents per hour wage increase were still outstanding. With respect to Union counsel's argument that the Board in London Sandblasting, supra, has found lawful the same kind of comprehensive collective agreement which the Union and Association have bargained in the past, the Association's position is that, even though the Act may not prohibit such agreements when negotiated voluntarily, it places no obligation on the Association to negotiate one overall collective agreement for the elevator industry in Ontario, and more particularly, the province-wide bargaining part of the Act does obligate the International Union and the Association to bargain a provincial agreement for the ICI sector of the construction industry. Finally, with respect to the duty to bargain in good faith requiring rational discussion, counsel argues that the Union's signing of separate collective agreements with individual employers was a dramatic change from its earlier insistence on a single collective agreement. That new circumstance created a need, when bargaining resumed, for rational discussion with the Association about the consequences for the elevator industry of those collective agreements. The Union's refusal to discuss the Association's proposal for a collective agreement for the non-ICI part of the elevator industry was a failure to engage in that rational discussion and a breach of its section 15 duty to bargain in good faith. That breach prolonged the strike.
The Decision
33It is appropriate that the Board deal first with the argument which Union counsel originally made in support of his motion that the complaint be dismissed without a hearing. The Board agrees with Union counsel that the section 15 duty to "...bargain in good faith and make every reasonable effort to make a collective agreement" ends with the making of a collective agreement, and that there is no duty to bargain in good faith respecting matters arising during the term of a collective agreement. However, that is not reason for the Board to dismiss the complaint now. This is because the complaint was made while both parties were subject to the duty to bargain in good faith, and the remedies sought are not limited to bargaining orders pertaining only to the bargaining which preceded the execution of the memorandum of agreement. While the amended complaint was filed nearly one year after the parties' bargaining duty had ended, the primary effect of the amendments was to delete from the complaint the alleged breaches of other sections of the Act. It did not alter the material facts alleged in support of the claimed breach of section 15, all of which dealt with alleged conduct prior to the execution of the memorandum of agreement. The range of remedies sought includes damages for loss of opportunity alleged to have resulted from a prolonging of the strike because of the Union's breach of its section 15 duty, and a bargaining order respecting the anticipated bargaining when the open period of the newly executed collective agreement is reached. Moreover, even though the bargaining duty ends with the making of a collective agreement, that has not prevented the Board from entertaining a complaint made after the agreement and inquiring into a party's conduct prior to the making of the agreement, because of some event subsequent to the agreement, where that event is alleged to disclose a breach of the bargaining duty. An example is to be found in Kennedy Lodge Nursing Home, [1980] OLRB Rep. Oct. 1454, one of the authorities relied on by Union counsel, and in Westinghouse Canada Limited, [1980] OLRB Rep. Apr. 577, referred to therein.
34Therefore, in the circumstances of the complaint, the fact that the parties' bargaining duty had come to an end and they were under no statutory duty to bargain, is not reason to dismiss the complaint. That is not to say, however, that the Board would have come to the same conclusion if the only remedy sought was the prospective bargaining order. While it may be possible to have breaches of the bargaining duty the nature of which might cause the Board to make a prospective bargaining order, this is not such a case even were the Board to find that the Union had breached section 15 of the Act.
35With respect to Union counsel's argument that the signing of the memorandum of agreement cured any breaches of the section 15 duty to bargain in good faith which might have existed prior to the agreement, the fact that the memorandum became a collective agreement is not in contention. Whether that event cured the alleged breaches of section 15 is in contention. Union counsel submits that Kennedy Lodge, supra, and Fotomat Canada Limited, [1982] OLRB Rep. July 1020 are authorities for the proposition that the agreement did cure the alleged breaches. In Kennedy Lodge, the Board had to decide an issue of whether the section 15 duty extended beyond the making of a collective agreement, in the form of a ratified memorandum of settlement, to the signing of the formal collective agreement. The Board dealt with the issue succinctly at paragraph 17:
The question raised is whether the [section 15] obligations were extended during the period of August 21st [the ratification of the memorandum] to December 16th [the date of signing of the formal collective agreement]. The evidence in the instant case clearly establishes that, as of August 21, 1979 a collective agreement had been brought into existence by the parties. The obligations of [section 15] which are directed to the conduct of the parties in their efforts to reach a collective agreement are no longer applicable since an agreement is concluded. A similar issue was raised, in a somewhat different manner, in the case of Inglis Limited, [1977] OLRB Rep. Mar. 128. The Board there stated at paragraph 15,
'Counsel for the respondent argued that the duty set out in [Section 15] of the Act is a continuing duty requiring the employer to negotiate the terms of a mid-contract relocation with the union. The Board rejects this argument. The duty stipulated in [Section 15] is in respect of the duty to bargain for a collective agreement.
In Fotomat , supra, the Board had found the employer liable in damages for breaches of section 15 prior to the making of a collective agreement. The parties could not agree on the parameters for calculating the amount of damages and the Board had to decide "..the period of entitlement over which monetary losses ... should be calculated" (paragraph 4). In the process of deciding that question, the Board stated in part as follows at paragraph 9:
However, we do need to decide from what point in time recoverable losses run from and precisely what losses during the relevant period ought to be recovered. The easiest point in time to determine is the point in time to which bargaining losses run. All bargaining losses can be considered as running to December 3, 1980. On that date the parties entered into a binding memorandum of agreement...
36Neither of those decisions are wholly on point with the facts of this complaint, a fact recognized by Union counsel in his submissions, and are of limited assistance to the Board in this complaint. In Kennedy Lodge, the Board decided a question of whether the bargaining duty ended with the making of a de facto collective agreement or with the signing of the formal document in order to determine whether the employer had a duty to bargain about plans or intentions to contract out some bargaining unit work, which plans came into existence between those two points in time. In Fotomat, there had been an earlier Board finding that the employer had breached its section 15 bargaining duty prior to the making of the collective agreement. In determining for the parties certain parameters for measuring damages arising out of the breach, the Board found that the employer's liability ended with the making of the collective agreement. The question in the instant complaint is whether, once the collective agreement was made, any grounds remained for finding that, prior to the making of the collective agreement, the Union had breached its duty to bargain in good faith and make every reasonable effort to make a collective agreement.
37The Union's conduct described in the two items at paragraph 4 above is what Association counsel argues constitutes the failure to bargain in good faith and make every reasonable effort to make a collective agreement. The first relates to the Union's bargaining conduct around the issue of whether there would continue to be one collective agreement in the elevator industry in Ontario or, as proposed by the Association, either separate collective agreements or separate seniority lists for construction and non-construction work. The second relates to its bargaining conduct respecting the Association's request, after the start of the lawful strike, to negotiate the same collective agreement for the elevator industry, excluding the ICI sector of the construction industry, which the Union had negotiated with some individual employers for whom the Association had no authority to bargain outside of the ICI sector of the construction industry.
38The Association dropped its proposal for separate collective agreements in construction and non-construction work before the strike started and concentrated on the issue of having separate seniority for those two parts of the elevator industry. The "two agreements" issue arose again approximately one week into the strike, but this time in the form of a request from the Association that the Union sign the same non-ICI collective agreement as it had signed with some individual employers. When the parties resumed bargaining, the matters in dispute included the related issues of separate seniority and the non-ICI collective agreement along with two other issues. When bargaining ended, the Union and the Association had made a single collective agreement with common seniority for the elevator industry in the Province of Ontario. The seniority provisions, however, did include a new condition aimed at providing employers with some protection when employees transfer into non-construction service and maintenance work on lay-off from construction work.
39The parties knew what issues remained to be bargained when they went back to the bargaining table. The bargain which they made settled those issues, including the related issues of whether there would be separate seniority for construction and non-construction work and a separate collective agreement between the Union and the Association for the non-ICI part of the elevator industry. Their agreement that the memorandum of settlement constitutes full settlement of all matters in dispute clearly disposes of all of the issues about which they had bargained. That agreement does not dispose of this complaint, however, because there is no evidence that it was a bargaining issue with the parties.
40Nonetheless, in the Board's view, their bargain has removed the grounds for the complaint proceeding. Clearly no bargaining remedy is required to help the parties conclude a collective agreement and a declaration of breach of section 15 would serve no useful purpose in that respect. There is no evidence that the strike was prolonged by the Union negotiating collective agreements with individual employers, therefore, there is no basis for the claim of relief for the Association's members in the form of damages for the loss of business opportunity from a prolonging of the strike. Finally, as the Board observed earlier in the decision, this is not a case where the Board would make a bargaining order about the next round of bargaining. Even were the Board to assume, without finding, that it was inconsistent with the province-wide bargaining scheme of the Act for a designated bargaining agency to bargain to impasse over issues outside of the ICI sector of the construction industry while bargaining to attempt to conclude a provincial agreement for the ICI sector, the Board would not make a prospective bargaining order prohibiting the intermingling of ICI and non-ICI proposals and bargaining. If for no other reason, it would be an intrusion in the subject matter of bargaining unwarranted by the circumstances of this complaint. The Board in United Brotherhood of Carpenters, supra, makes it clear that it is not a breach of the bargaining duty to bargain about matters which might be inconsistent with the scheme of the Act, as long as bargaining on such matters is not taken to impasse. The Board would also be prejudging the parties' bargaining proposals and conduct by making such an order. Thus, to put it another way, in the circumstances of this complaint, even if the Union had been in breach of its section 15 duty to bargain for an agreement for the non-ICI part of the elevator industry or separate seniority lists, the making of the collective agreement has cured the breach.
41Therefore, now that the Board has heard the evidence and submissions of the parties, it can say with certainty that the complainant is not entitled to the relief which it is seeking. In the result, the complaint is dismissed.
42In the alternative, should the Board be wrong in that conclusion, on the facts of this complaint, the Board would find that the Union has not breached its duty to bargain in good faith and make every reasonable effort to make a collective agreement.
43The claim that the Union had breached its section 15 duty to bargain in good faith by pressing to impasse its position that there be one province-wide collective agreement for the elevator industry in Ontario and by continuing during the course of the strike to insist on one such collective agreement was a central element of the Association's allegations and submissions. The crux of Association counsel's argument was that the province-wide bargaining provisions of the Act requires designated bargaining agencies to bargain for the ICI sector of the construction industry a provincial agreement as defined in section 139 of the Act. Therefore, where either an employee or employer bargaining agency is unwilling to bargain a broader collective agreement encompassing a provincial agreement, it is inconsistent with the province-wide bargaining scheme of the Act for the other one to carry to a strike or lockout a demand for a comprehensive agreement covering more than the ICI sector. In the same way, counsel submits, the requirement to bargain a provincial agreement for the ICI sector, makes it inconsistent with the province-wide bargaining provisions and a breach of the section 15 duty to bargain to impasse over a requirement that terms and conditions of employment for the ICI sector of the construction industry and for the other sectors and non-construction service and maintenance work be bargained together.
44There is no doubt that section 15 imposes a duty on designated bargaining agencies to bargain in good faith towards making a provincial agreement for the ICI sector of the construction industry and subsection 148(2) prohibits them from bargaining for or concluding any other collective agreement or arrangement for that sector. Where, however, the designated bargaining agencies have bargaining rights beyond the ICI sector of the construction industry, there is nothing in the province-wide bargaining provisions which requires them to bargain a collective agreement which is exclusively a provincial agreement as defined in section 139 of the Act, or which prohibits them from bargaining a broader collective agreement which is consistent with the scope of their respective bargaining rights and encompasses a provincial agreement. That was recognized by the Board in London Sandblasting, supra, and is consistent with the fact that the introduction of province-wide bargaining was not intended to alter existing bargaining rights. In London Sandblasting, the Board found that a collective agreement which covered the ICI and non-ICI sectors of the construction industry as well as non-construction work was binding beyond the ICI sector on an employer for whom the employer bargaining agency had bargaining rights beyond that sector.
45In the instant case, the Association holds bargaining rights for its members for the elevator industry in Ontario, including the ICI sector of the construction industry. It also holds bargaining rights in the ICI sector of the construction industry for all other employers for whose employees the Union has bargaining rights in that sector. These are the independent employers whose names are on Schedule "C" of the Agreement along with the Association's members. The Union has bargaining rights for employees of the Association's members congruent with the scope of the Association's bargaining rights. In addition, the Union has bargaining rights for employees of the independent employers which extend beyond the scope of the Association's statutory bargaining rights for those employers. This is because the Union's bargaining rights in the elevator industry extend to the non-ICI and non-construction parts of the industry for those independent employers. They were bound to the Agreement between the Union and the Association for the ICI sector of the construction industry because of the Association's statutory authority to bargain for and bind them to a provincial agreement for that sector. They were bound to that Agreement also for the rest of the elevator industry because they had voluntarily acceded to it.
46Therefore, as between the Association and the Union, when the Union sought to bargain a single, comprehensive collective agreement for the elevator industry in Ontario, which would encompass a provincial agreement, it was bargaining entirely within the scope of their respective bargaining rights. The Union was neither failing to do something which the province-wide bargaining provisions of the Act compelled it to do nor doing anything which they prohibited it from doing. Therefore, the Union was not taking to impasse something which those provisions required it to do and it had not done, or something which it had done which those provisions prohibited it from doing. The fact that the Union was seeking to have the independent employers accede to the collective agreement as it would apply to the elevator industry, excluding the ICI sector of the construction industry, does not constitute a requirement of the Association that it bargain for those employees. Therefore, the Union was not bargaining an extension of the Association's bargaining rights to include those employers.
47It follows then, that the Union was not bargaining to impasse the extension of its own bargaining rights or those of the Association. Thus, in these circumstances, as between the Union and the Association, it was not unlawful for the Union to bargain to impasse its position that there continue to be a single, comprehensive collective agreement for the elevator industry in Ontario. It is not alleged that it was unlawful for the Union to bargain to impasse with individual employers who are not members of the Association over the single agreement issue with respect to terms and conditions of employment for non-ICI work.
48With respect to the allegation that the Union refused to consider or offer any alternate proposal to the Association's proposal that there be either separate collective agreements for construction and non-construction work, or separate seniority lists for construction and non-construction employees, having regard to the long bargaining history of the Union and the Association, the facts of their bargaining about those issues since the Anderson award and up to the making of this complaint, the Board is satisfied that the Union has not refused to consider or discuss the Association's proposals.
49The facts are that in negotiations since the Anderson award, and particularly in 1982, 1984 and 1986, the Association has consistently proposed that there be two collective agreements, or in the alternate, separate seniority lists for construction and non-construction work and has put forward the same justification for its proposals. The Union has responded with its reasons for wanting to retain the single collective agreement for the elevator industry in Ontario; that is, for the protection of its older and longer service members. In the bargaining which gave rise to this complaint, the Association did not make a concrete proposal on seniority until the mediation stage of bargaining, but it had proposed from the outset that there be two separate collective agreements, one for construction and one for non-construction. It did not give any different justification for the proposal than it had in the past and the proposal drew the same response from the Union as it had in past bargaining. These are two parties in a mature bargaining relationship and where certain proposals are repeated from one bargaining term to the next with no new reasons advanced to support them, there comes a time when it does not take much discussion for the parties to know and understand each other's positions. In the Board's view that time has been reached respecting the related issues of two agreements or two seniority lists. For those issues to be bargained to impasse by the Union after a few hours discussion in the circumstances present here may be hard bargaining, but it does not cross over the line to bargaining in bad faith. That does not mean, however, that the parties' bargaining history relieves them from their obligation under section 15 of the Act to engage in rational discussion about bargaining issues which they have addressed many times where it can be shown that circumstances surrounding the issue require more than a cursory review.
50Nor on the facts did the Union refuse to consider the Association's proposal to enter into a separate collective agreement for the non-ICI part of the elevator industry. The Association's proposal was that the parties return to the bargaining table for the purpose of negotiating the same collective agreement for non-ICI work as had been negotiated with some individual employers not members of the Association. The Union's response was that it would meet with the Association to negotiate a single collective agreement for the elevator industry. Considering the fact that the Association was reviving the two-agreement demand, albeit in a different form, in light of their bargaining prior to the strike and their bargaining history respecting a single, comprehensive collective agreement for the elevator industry versus two collective agreements~ that is an adequate response and is not subject to the qualification expressed at the end of paragraph 49. Therefore, the response, of itself, does not constitute a breach of section 15 in the form of a refusal to bargain.
51The remaining allegation is that the Union bargained in bad faith after the strike had started, by negotiating with individual employers who were not members of the Association separate collective agreements for the elevator industry in Ontario, excluding the ICI sector of the construction industry. The Association had no bargaining rights for these employers outside of the ICI sector. One effect of making those agreements was to end the strike against those employers outside of the ICI sector of the construction industry, while it continued for the Association's members and for individual employers who did not make a collective agreement for the non-ICI part of the elevator industry. That would not be lawful in the ICI sector because, in addition to subsection 148(2) which prohibits any agreement other than a provincial agreement, subsection 150(1) [formerly subsection 148] of the Act requires that, where an employee bargaining agency calls a strike, all of its affiliated bargaining agents are required to call a strike. Therefore all employers would be struck and the Union cannot selectively strike against some employers and not others. Subsection 150(2) [formerly subsection 148(2)] of the Act places a similar prohibition on lockouts. Subsection 133(1) and (2) [formerly subsections 131(1) and (2)] of the Act provide an analagous protection where an accredited employers association bargains with a trade union. Subsections 133(1), 133(2), 148(2) 150(1) and 150(2) of the Act were legislated in order to curtail interim agreements and selective strikes or lockouts frequently attendant upon such agreements. There are no similar prohibitions against making interim collective agreements during a lawful strike or against a union supplying employees to employers during a strike outside of the ICI sector where the union and the employers are not subject to bargaining under an accreditation order. Therefore, in voluntary multi-party negotiations, it is not unlawful for a particular employer or union to be the target of a strike or lockout and it is not unlawful to achieve that by making an interim collective agreement with some employers or trade unions, and not others. Without more, neither is it bargaining in violation of section 15 of the Act to do those things. That is the position which the Union was in vis-a-vis the employers who were not members of the Association and, while there are substantial grounds for concern that the future bargaining relationship between the two designated bargaining agencies may be adversely affected by the fact that some of the parties bound to the expired collective agreement have departed from their historical bargaining relationship during a strike, on the facts of this complaint, the Union was not bargaining in bad faith when it made collective agreements with some of those employers.
52Accordingly, for all of the reasons given above, the Board finds that the International Union of Elevator Constructors and its locals 50, 90 and 96 or any of them have not violated section 15 of the Labour Relations Act. In the result, this complaint is dismissed.