United Brotherhood of Carpenters and Joiners of America, Local 1072 v. General Wood Products, 1993 CanLII 7888

United Brotherhood of Carpenters and Joiners of America, Local 1072 v. General Wood Products

[1993] OLRB Rep. July 597

1812-92-U United Brotherhood of Carpenters and Joiners of America, Local 1072, Applicant v. General Wood Products, Responding Party

BEFORE: S. Liang, Vice-Chair, and Board Members W. H. Wightinan and R. R. Montague.

APPEARANCES: N. L. Jesin and W. Oliveira for the applicant; Fred Meyerhofer and Alan Ketteringham for the responding party.

DECISION OF THE BOARD; July 26, 1993

[1]. This is a complaint made pursuant to the provisions of section 91 of the Labour Relations Act in which the applicant, the United Brotherhood of Carpenters and Joiners of America, Local 1072 ("Local 1072" or "the union") alleges that General Wood Products ("the company" or "General") violated various provisions of the Act. The union relies on sections 15, 65, 67, 71 and 81 of the Act. In short, the union alleges that the company has bargained in bad faith, interfered with the bargaining rights of the union, discriminated against employees associated with the union, intimidated employees associated with the union and contravened the freeze provisions of section 81 after the termination of the collective agreement.

[2]. The company was not represented by counsel. The Board explained to Mr. Fred Meyerhofer, the owner of the company, the role of the Board and the nature of these proceedings. The Board explained that it is an adjudicative body. It is not the role of the Board to advise the parties on how to proceed. It is the responsibility of parties appearing before the Board to present their case, through evidence and submissions. The Board did, however, outline the general procedures of calling evidence, cross-examination and submissions. The Board also outlined the nature of the legal issues before it in this case on which it anticipated the parties would be presenting their evidence and submissions.

I

[3]. The union called two witnesses, Walter Oliveira (the Business Manager for the applicant) and Rocco Difrancesco. Fred Meyerhofer testified for the company. Ultimately, much of the evidence is not in dispute. Where there are conflicts in the evidence which are significant to our determinations, we have assessed what is most probable in the circumstances, having regard to the evidence as a whole. All of the witnesses were credible and straightforward in their testimony.

[4]. The company is engaged in the business of woodworking, manufacturing store fixtures and other types of cabinetry. At one time, it has employed up to 15 shop employees. However, in recent years, it has only had enough work for two or three steady employees. Meyerhofer is a carpenter himself and states that he has been a union member for more than forty years.

[5]. The union and the company have been party to a collective agreement for many years,at least as far back as the mid-70's. Local 1072 is the successor to Local 27 of the United Brotherhood of Carpenters and Joiners of America, which in turn is the successor to Local 2679 as a result of a merger in 1989. There is no dispute that Local 1072 holds the bargaining rights which had previously been held by Local 27 and before that by Local 2679 with respect to the shop employees of General.

[6]. The most recent collective agreement which has been signed by the parties (General and Local 2679) indicates that it is effective April 17, 1988 until April 16, 1990, and from year to year thereafter, unless notice to terminate or negotiate is given prior to the termination date.

[7]. Local 1072 is also party to a collective agreement with the Canadian Woodwork Manufacturers Association. Historically, although General has not been party to the Association agreement, it has waited until negotiations between the union and the Association have been concluded, and adopted the same provisions. When the Association concluded a new agreement for 1990-1992, General agreed to adopt the new wage schedule contained in the Association agreement.

[8]. It appears, therefore, that the agreement of 1988-90 continued to be in effect from year to year after April 16, 1990 and the parties agreed to adopt a new wage schedule corresponding to the Association agreement for the period 1990-92.

[9]. On January 30, 1992, the union gave notice to the company that it wished to negotiate a further collective agreement. The company responded by requesting some time before beginning negotiations, citing a recent operation of Mr. Meyerhofer and the fact that work was "at a stand still due to the present economic situation." The union agreed with the company's request, although it is unclear for how long the parties agreed to delay bargaining.

[10]. In early March of 1992, Oliveira was informed that the employees of the company had been laid off. At that time, the company had only two employees in the bargaining unit, Rocco Difrancesco and Luca Sportelli. Difrancesco had been with Meyerhofer for some 30 years, though not always with this company. Shortly afterwards, Sportelli, who was the shop steward, told Ohveira that although both employees including himself had been laid off, he believed that the company was continuing its operations with non-union employees.

[11]. At some point, a policy grievance was filed with respect to this, although we have no evidence as to the date of this grievance. The present complaint is dated September 22, 1992. Ohveira testified that no collective bargaining took place between the parties until after the complaint was filed. As a result of the filing of the complaint, and through the efforts of a Labour Relations Officer of the Board, the parties agreed to meet to negotiate.

[12]. On November 26, Oliveira, the two employees and Meyerhofer met at the union's office. At this meeting, Meyerhofer presented the union with a proposal, consisting of the following:

This is a contract agreement between the above mentioned, General Wood Products c/o F & H Store Fixture Limited and the United Brotherhood of Carpenters and Joiners of America Local Union 1072 for the purpose of supplying work for Mr. Rocco De Francesco and Mr. Lucas Sportelli for a period of two (2) years from November 26, 1992 at an hourly shop rate of $12.00 per employee.

Said contract would begin as soon as there is work available for the above mentioned two employees.

The employees would work in all aspects of carpentry work including shop and installation.

The salary would include the benefits paid under the Ontario Labour Code, namely, Employers Health Tax, holdiay [sic] pay and the Workers Compensation Board dues. All other benefits would be excluded from this contract.

The employees would also be in agreement to work in the same premises with a non union shop, as the Owner has rented out part of his shop to a non union organization due to slow economic conditions.

[13]. The proposal by the company would have eradicated virtually all of the terms of the agreement in effect until April 16, 1993. In addition, the wage rate offered was almost $5.00 less than the most recent top wage in effect between the parties. Benefits were eliminated.

[14]. The union told Meyerhofer that the proposal was not acceptable, and that it wanted him to accept the Association agreement, as he had always done. Oliveira gave him a copy of the Association agreement for 1992-94, which had been concluded in May of 1992. Oliveira also indicated that the union would be prepared to make some concessions on wages, and could agree to the last rate under the 1988-90 collective agreement. Meyerhofer agreed to consider the Association agreement.

[15]. At the meeting of November 26, the union also raised the issue of non-union employees that it believed the company to be using. Meyerhofer acknowledged engaging, in addition to Difrancesco and Sportelli, three employees on one job after the layoffs. The job was the manufacture and installation of store fixtures for a store in St. Catharines, and was performed in August of 1992. These additional employees were not paid according to the collective agreement. Difrancesco was paid his regular wage, and we have no evidence as to the wages paid to Sportelli on this job.

[16]. In fact, although the evidence is sketchy, it appears that the company has been using other persons to do various work, sporadically throughout the entire period from the layoffs to the present. Meyerhofer states that he does not consider these persons employees, since he only engages them for a few hours or a day or few days at a time. Also, he pays these persons a fixed sum for each job, which has no relation to the hourly rates fixed by the agreement. The company has paid no dues on behalf of these persons, nor made remittances to the benefit plans.

[17]. The collective agreement states that senior employees are to be given preference in recall from layoff. Further, it states that when "new employees are required, the Employer agrees first to contact the Union office for help." The company has never contacted the. union with respect to these short term jobs.

[18]. Meyerhofer states that he has called Difrancesco and Sportelli in for work. He offered them work on the St. Catherines job. He was told, however, and understands that they are not interested in work of short duration. He has thus not contacted them with respect to any of the other work the company did. Difrancesco testified that he was called once for work. At the time, he had a steady job and General was only offering a few days of work so he did not return. He continues to be interested in working for the company.

[19]. On December 4, Meyerhofer delivered to the union a further proposal. This proposal was a vast improvement over the proposal of November 26, in that it contained many of the provisions of the previous collective agreement, and of the Association agreement given to Meyerhofer by Oliveira. There were, however, still significant differences. The wage offer, which had been increased from $12.00 to $13.00 still represented a sizeable wage cut. The proposal contained no payments to the union's benefit trust funds or pension fund, nor any benefits whatsoever. The cost of living allowance was removed. There were changes to a number of other provisions as well, including union security.

[20]. The union responded by rejecting this further offer. Oliveira called Meyerhofer and asked if the company was prepared to negotiate further. Meyerhofer replied that it was not and it could not afford anything else since there was no work. Essentially, he did not see the point of continuing negotiations, since even if the agreement were signed, neither Difrancesco nor Sportelli would have any work until the company was able to get some jobs.

[21]. Since that conversation, Oliveira has visited the company's premises on a few occasions and observed persons doing work which appeared to be bargaining unit work. He confronted Meyerhofer with this. Meyerhofer explained that he was renting out part of his premises to another individual, who occasionally engaged employees to do work. He also acknowledged that the company has done work on at least one occasion of very short duration. The union has received neither dues payments nor benefit trust remittances for this work. Although Meyerhofer characterized some of this work as "sub-contracts", we are satisfied on the evidence (scant as it is) that the persons performing the work were in essence employees paid on a lump sum basis instead of an hourly wage.

[22]. Meyerhofer testified that over the last few years, the business of the company has catastrophically declined. The company is at the limits of its borrowing power. A few years ago, Meyerhofer took out a second mortgage on the building, which he owns, and does not believe that he could even sell it for the value of that mortgage on today's market. There is much more non-union competition than there has been in the past, and the company is simply not getting enough work. Even what work has been done, such as the St. Catherines job, has been at a loss. Meyerhofer denies that he is anti-union and states that he has been associated with the union (or other similar unions) for at least 45 years. He states that to the extent the business is in crisis, it is not caused by the collective agreement, but the lack of work.

[23]. Meyerhofer candidly testified that he would prefer not to be a unionized company now. His reason is, among other things, that he is hoping to sell the business in order to be able to retire on the proceeds (he is 62 years old). He does not believe that he could sell the business if it was unionized. After his decades of association with the union, he states, he is looking for a "divorce". In these economic circumstances, he stated, it "makes no sense" to sign a contract with the union.

[24]. On the other hand, Meyerhofer states that he was prepared to sign an agreement containing the terms of the company's offer of December 4.

[25]. The Board was informed that sometime this spring, a "no-Board" report was issued.

II

[26]. The union alleges that the company has violated sections 65, 67 and 81 by its actions. These sections provide:

65. No employer or employers' organization and no person acting on behalf of an employer or employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

66. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

81.-(1) Where notice has been given under section 14 or section 54 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,

(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or

(ii) fourteen days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to

appoint a conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been terminated.

whichever occurs first.

[27]. Section 81 has been called a "statutory freeze". Among other things, it applies once notice to bargain has been given and a collective agreement has expired. Section 81 preserves the pattern of operations of a business during the period in which a union and an employer are negotiating for the renewal of the collective agreement. The purpose of this provision is to provide for a fixed point of departure for negotiations by preventing an employer from unlaterally altering the status quo even when the collective agreement has expired. This prohibition against unilateral changes expires once the parties are in a strike or lock-out position.

[28]. In the case before us, the collective agreement expired on April 16, 1992. Since the layoffs of Difrancesco and Sportelli occurred prior to the onset of the freeze, section 81 has no application. We also find that the initial layoffs, on the evidence, do not violate the other sections of the Act relied on. It is clear that General did not have the work to sustain the employment of full-time carpenters and this evidence was not challenged by the union. We cannot find that the decision to layoff Difrancesco and Sportelli was motivated by reasons other than financial necessity.

[29]. In fact, the focus of the union's case was primarily the actions of the company after the layoffs. In the union's submissions, when faced with serious financial problems, the company engaged in illegal self-help to resolve them, by operating outside of the terms of the collective agreement, instead of engaging in frank negotiations with the union.

[30]. Many of the cases involving the application of section 81 deal with actions taken by an employer under its general managerial authority. The issue in those cases is whether decisions taken during the period of the freeze are consistent with employment patterns in place before the freeze. Here, the actions complained of relate to the failure by the employer to apply the wages and other terms of the collective agreement. Where the terms which a union seeks to enforce are found within the very provisions of an expired collective agreement, it is hard to conceive of a clearer indication of the pre-existing employment patterns in place before the freeze.

[31]. On the evidence, after April 16, 1992 and continuing to the expiry of the statutory freeze, the employer engaged employees to perform work, but failed to pay the wages and benefits required by the collective agreement. The employer also failed to first contact the union office for help when it needed new employees, as required by the collective agreement. The collective agreement also requires that senior employees be given preference in recall. We find the company in violation of section 81 by failing to contact Difrancesco and Sportelli when it had work, from April 17, 1992 to the expiry of the freeze period. Although it is possible that these two employees may not have been available for every job, given the collective agreement, they should have been given the first opportunity to do the work.

[32]. With respect to the violation of section 81 of the Act, we order the company to compensate the union on behalf of its members for its failure to contact the union for employees, for its failure to give preference to Difrancesco and Sportelli in recall, and for its failure to pay wages and benefits according to the terms of the agreement. We leave the issue of the amount of compensation to the parties to resolve and remain seized in the event that they fail to agree. Although we direct payment of damages arising out of the violations of the Act, the amount of damages will have to be assessed having regard, amongst other things, to whether the union's members would have been available to work had it been offered to them.

[33]. As a result of our findings under section 81, we do not need to consider whether the company's failure to apply the terms of the expired collective agreement constitutes a violation of sections 65 and 67 of the Act.

III

[34]. Section 15 of the Act states:

15. The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.

[35]. The obligation contained in section 15 is the obligation to bargain. It does not require an employer to agree to proposals put forward by a union; neither does it require a union to agree to the proposals by the employer. Section 15 does require, however, that when it is time to re-negotiate a collective agreement, the parties meet with the common objective of reaching an agreement. In DeVilbiss (Canada) Limited, [1976] OLRB Rep. March 49 the Board described the content of the duties contained in section 15 thus:

The section [section 15] imposes an obligation upon both employers and trade unions to enter into serious discussion with the shared intent to enter into a collective bargining agreement.

Once a trade union is certified as the exclusive bargaining agent of employees within an appropriate bargaining unit the employer of those employees must accept that status of the trade union. It cannot enter into negotiations with a view to ridding itself of the trade union. And thus it can be said that the parties are obligated to have at least one common objective -- that of entering into a collective agreement and section 14 [now section 15] is intended to convey this obligation. But this is not to say that they will or are obliged to have common objectives with respect to the contents of any collective agreement they might enter into. The legislation is based upon the premise that the parties are best able to fashion the law that is to govern the work place and that the terms of an agreement are most acceptable when the parties who live under them have played the primary roles in their enactment. In short, the legislation is based upon the notion of voluntarism and reflected in the many administrative and judicial pronouncements that neither trade union nor employer is, by virtue of the bargaining duty, obligated to agree to any particular provision or proposal. Therefore, while they must share the common objective to enter into a collective agreement, the legislation envisages that they have differences with respect to just what the content of that agreement should be and those differences may force the parties to have recourse to economic sanctions.

14. But the preceding observations demonstrate that a very important function of section 14 [now section 15] is that of reinforcing an employer's obligation to recognize a trade union lawfully selected by employees as their bargaining agent. Certainly the freedom to join a trade union of one's choice declared in section 3 of the legislation would be but an edict "writ on water" if an employer could enter into negotiations with no intention of ever signing a collective agreement. But we believe the duty to meet and make every reasonable effort to make a collective agreement has an even more important function in a modem society that for the most part accepts that trade unions have legitimate and important roles to play. That is to say that the duty assumes that when two parties are obligated to meet each other periodically and rationally discuss their mutual problems in a way that satisfies the phrase "make every reasonable effort", they are likely to arrive at a better understanding of each other's concerns thereby enhancing the potential for a resolution of their differences without recourse to economic sanctions -- the impact of which is never confined to the immediate parties of an industrial dispute. At the very least rational discussion is likely to minimize the number of problems the parties are unable to resolve without the use of economic weapons thereby focusing the parties' attention in the eleventh hour on the "true" differences between them.

15. Hence it is our belief that the duty described in section 14 [now section 15] has at least two principle functions. The duty reinforces the obligation of an employer to recognize the bargaining agent and, beyond this somewhat primitive though important purpose, it can be said that the duty is intended to foster rational, informed discussion thereby minimizing the potential for "unnecessary" industrial conflict.

[36]. Further, the obligations contained in section 15 require an employer to engage in a frank discussion with respect to impending business decisions which have a significant impact on its employees. In Sunnycrest Nursing Homes Limited, [1982] OLRB Rep. Feb. 261, the Board discussed this principle in the context of a decision by an employer to subcontract a substantial portion of the work performed by employees in the bargaining unit:

40. We do not think the duty to bargain about a major subcontracting decision imposes an unreasonable or unfair burden upon the employer involved. It does not unduly restrain him from formulating or implementing an economic decision to terminate a phase of his business operations, nor does it obligate him to yield a union's demand that the subcontract should not be let, or should be let on terms inconsistent with management's business judgment [sic]. The duty to bargain is not an obligation to agree. It is a requirement to engage in a full and frank discussion with the employees' representative, and make a bona tide effort to explore alternatives, if any, that may achieve a mutually satisfactory accommodation of the interests of both the employer and his employees. If such efforts fail, the employer remains free (absent other unfair labour practice considerations based upon anti-union animus) to go forward with his decision. But experience has shown that candid discussion about mutual problems by labour and management frequently result in their resolution with attendant benefit to both sides. A union confronted by a proposed loss of jobs can often make a useful contribution to the decision-making process. The recent bargaining in the automotive industry provides a good example. Business operations can profitably continue, and jobs may be preserved. And as Professor Cox has observed:

"Participating in [collective bargaining] debate often produces changes in a seemingly fixed position either because new facts are brought to light or because the strength or weaknesses of the several arguments become apparent. Sometimes the parties hit upon some novel compromise of an issue which has been thrashed over and over. Much is gained even by giving each side a better picture of the strength of the other's convictions. The cost is so slight that the potential gains easily justify legal compulsion to engage in the discussion."

(See: Cox, The Duty to Bargain in Good Faith, 71 Harv. Law Rev. 1401.) In our view, prior discussion of decisions of this nature is all that the Act contemplates. But it commands no less.

[37]. The facts in Sunnycrest Nursing Homes Limited are quite different from those in the case before us. However, the general principles of "full and frank discussion" are useful. It is difficult to view this obligation to engage in full and frank discussion having been met by an employer who decides to operate entirely outside of the terms of the agreement during the period of bargaining.

[38]. We are left with mixed signals from this employer as to whether it genuinely recognizes and wishes to comply with its obligations to bargain in good faith. On the one hand, it is clear that since February 1992, it has sought to ignore its obligations to the trade union under the collective agreement. By its own admission, it has undertaken work outside the terms of the agreement. Its actions suggest, and Mr. Meyerhofer's statements confirm, that the company wishes to exit from this collective bargaining relationship. The means by which it has tried to achieve this is to simply operate as though the union did not exist.

[39]. On the other hand, the company responded to the union's proposal of the Association agreement with a detailed proposal which it states it was prepared to sign. However, after this offer, the company has retreated and resisted further attempts to negotiate.

[40]. On balance, we find that the company has not made "every reasonable effort to make a collective agreement". It made no attempts to negotiate with the union until after this complaint was filed. Before and after the complaint was filed, it continued to run its business, sporadic as it was, outside of the terms of the collective agreement (which are preserved for the duration of collective bargaining by section 81). After it agreed to meet with the union to negotiate, it presented two proposals containing roughly 30% cuts to the wage and benefits package. Mr. Meyerhofer seemed to indicate to the union that the proposal of December 4 was the company's last offer. Yet, in the face of such major changes to the collective agreement, the company made no attempt to review its proposals in detail and explain the basis for them. Against the context of an Association agreement whose terms the company had always adopted, the company made no attempt to provide a substantive rationale for the radical departure from that agreement that it was now proposing. Further, the company continued to maintain that there was no point in negotiating since there was absolutely no work, when the evidence suggests otherwise. Although there does not appear to be enough work to sustain any full-time employees, the company has from time to time since February of 1992 hired persons who would normally be covered by the terms of the agreement.

[41]. We are left with the impression that the company has generally resisted the efforts of the union to negotiate a new collective agreement. Only when compelled to, by the filing of this complaint, did it make any attempt to put its mind to the issue. Even then, it is clear that its commitment to negotiate was short-lived.

[42]. This case is different from some of the other cases in which the Board has applied section 15, in the sense that it involves a small business with a long-standing union association. It appears that the parties have had a trouble-free relationship over the years, and the company cannot be accused of having any ideological or intransigent aversion to dealing with the union. Rather, it appears that the' company was driven by desperate economic circumstances to try and back out of its relationship with the union. Union counsel refers to the actions of the company as constituting "self-help". We agree with this characterization. The company seems to hope that by ignoring the union and its obligations under the agreement and the Act, the union might abandon the relationship.

[43]. There is no place for such "self-help" under the agreement and the Act, however. It is not for an employer to decide that a collective bargaining relationship is over. As long as the employees wish to have a union represent them in their employment relations and the union is prepared to do so, the company must comply with its obligations under the Act and recognize the right of the union to act on behalf of its employees.

[44]. We therefore find that the company has violated section 15 of the Act.

IV

[45]. We turn to a consideration of the applicant's request that if the Board finds a violation of section 15 of the Act, we impose as remedy a collective agreement containing the terms of the 1992-94 Association agreement. We indicated to the parties at the outset of the hearing that as the power to settle one or more terms of a collective agreement is a new remedial power under section 91, we were interested in hearing full submissions as to when this power should be exercised. Union counsel submitted that this was an appropriate case in which to exercise this remedial power. Counsel indicated that if the employer had made any attempt to bargain, it might be appropriate for the Board to review each term of the collective agreement separately. However, in this case, the employer has made no reasonable proposal to the union. Further, the history between the parties is that the Association agreement has always been considered acceptable. In these circumstances, the Board should order the employer to sign the most recent Association agreement.

[46]. Section 91(4)(d) provides:

91.-(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting, the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(d) an order, when a party contravenes section 15, settling one or more terms of a collective agreement if the Board considers that other remedies are not sufficient to counter the effects of the contravention.

[47]. As set out above, section 91(4)(d) permits the Board to settle one or more terms of a collective agreement upon finding a violation of section 15, "if the Board considers that other remedies are not sufficient to counter the effects of the contravention." The wording of the section indicates that the imposition of one or more terms of an agreement is a remedial measure which should be taken where other remedial measures are inadequate. The section directs the Board to consider the effects of the contravention and how they can be countered.

[48]. What are the effects of the contravention in this case? Arguably, but for the company's failure to bargain in good faith, the parties might have reached agreement. However, the Board recognizes that even parties who bargain in good faith may not agree. The effects of a failure to bargain in good faith are thus not necessarily, in a given case, the failure to reach agreement. Neither are the effects of a violation of section 15 necessarily limited to the failure to reach an agreement. It may be that a company's conduct has resulted in a weakening of the bargaining position of the union, for instance, by undermining the support of the employees for the union. If this were the case, then a remedial order simply directing the respondent to bargain in good faith might be inadequate to effectively counter the effects of its violation. In such a case, the Board may find it appropriate to settle one or more terms of an agreement.

[49]. We do not find this to be a case where an employer's conduct during bargaining has so undermined the process of collective bargaining that it is unlikely that the parties could now engage in bargaining on a reasonable basis as they might have had the employer not violated the Act. Here, the parties have only met once for bargaining. In fact, it appears that, for the most part, real negotiations have yet to take place. Both parties have shown, at some point in the process, a willingness to consider the other's proposals. However, because of the refusal by the employer to continue with the process, the parties have not had the opportunity to explore each other's positions further. Also, because of the employer's unwillingness to be frank as to its continuing activities, the parties have not dealt with each other with the full information required for meaningful collective bargaining.

[50]. Partly because of the scant time these parties actually devoted to bargaining, and also because of our assessment of this employer we cannot conclude that this employer will not meet with the union and negotiate in good faith to reach an agreement under the Board's direction to do so and with an understanding of its obligations in this regard. In the circumstances of this case, we prefer to allow the bargaining process to continue rather than to impose a settlement on the parties. Where we see a reasonable probability that the parties can find their own solutions to the difficult economic circumstances that have an impact on the interests of both sides, we hesitate to bypass this process and dictate a result.

[51]. The characterization by the union of this employer's conduct as "self-help" supports our remedial order with respect to section 15. The complaint by the union is that this employer took matters into its own hands rather than dealing with the union. Counsel for the union stated that the union has an understanding of the difficult economic circumstances, and could have addressed these in bargaining if it had been given the opportunity.

[52]. The Board therefore directs the employer to meet with the union forthwith, bargain in good faith, and make ever reasonable effort to conclude a collective agreement.

[53]. The Board emphasizes that the Act requires the parties to meet to bargain in good faith and requires them to make every reasonable effort to make a collective agreement. The lack, or scarcity, of work does not relieve the employer of this obligation. Although there may be circumstances where parties might agree to suspend bargaining until there is work available~ in this case, the union wishes to settle the terms of the agreement despite the absence of much work. It is entitled to negotiate for a renewal agreement even in these circumstances and, reasonably, wishes to know what terms and conditions of employment will apply if business improves. Further, as we have outlined above, the obligation to bargain in good faith requires the parties to engage in full and frank discussion, in order for the process to have any meaning. There must be a willingness to discuss positions taken and provide their substantive rationale.

[54]. Although we decline to grant the remedy requested by the union, and direct the employer instead to fulfill its obligations under section 15, we are aware that there is a possibility that this will not end the matter. Our findings as to remedy in this case do not preclude the union in a future application, if it establishes that the employer has failed to comply with its duty to bargain in good faith under this order, from requesting a remedy under section 91(4)(d). In any future application, the union will be able to rely on our findings that the employer has bargained in bad faith. The Board may well find it appropriate at that time to settle one or more terms of the collective agreement, or to impose the terms of the Association Agreement on the parties.

[55]. To summarize the above, the Board therefore makes the following remedial orders and directions:

a. the Board declares that the company has violated section 81 of the Act by its failure to apply the wages and benefits of the expired collective agreement to employees working after April 16, 1992 and before the expiry of the period of the statutory freeze, by failing to contact the union first when it needed new employees and by failing to give senior employees preference in recall;

b. the Board directs the company to compensate the union on behalf of its members for the violation of section 81;

c. the Board declares that the company has violated section 15 of the Act in that it has failed to bargain in good faith and make every reasonable effort to make a collective agreement;

d. the Board directs that the company meet with the union forthwith and bargain in good faith and make every reasonable effort to conclude a collective agreement.

[56]. The Board remains seized of the amount of compensation owing under these remedial orders, should the parties be unable to resolve it.