Independent Canadian Transit Union and its Local 6 v. Olympia & York Developments Limited, 1994 CanLII 9785

Independent Canadian Transit Union and its Local 6 v. Olympia & York Developments Limited

[1994] OLRB Rep. May 583

3249-92-R; 3250-92-R Independent Canadian Transit Union and its Local 6, Applicant v. Olympia & York Developments Limited, Responding Party; Independent Canadian Transit Union and its Local 6, Applicant v. Olympia & York Developments Limited, Responding Party v. United Brotherhood of Carpenters & Joiners of America, Local 93, Intervenor

BEFORE: R. O. MacDowell Alternate Chair, and Board Members R. M. Sloan and H. Peacock.

APPEARANCES: Nelson Roland, Cindy Read and Michel Vendette for the applicant; W. G. Phelps, M. E. Keenan, B. Goodman and K. Brouillard for the responding party; no one appearing for the intervenor.

DECISION OF THE BOARD; May 2, 1994

I

1. This is an application for certification in which the Board has combined a newly-certified bargaining unit, with a bargaining unit for which the union already had both bargaining rights and a recently-negotiated collective agreement. The parties now request the Board to address certain issues which have arisen as a result of the Board's combination order.

2. The facts are not in dispute.

3. For ease of reference, the applicant will be referred to simply as "the union", and the responding party will be referred to either as "the employer" or "0 & Y".

4. The provisions of the Labour Relations Act to which particular reference will be made are as follows:

7.-(1) On application by the employer or trade union, the Board may combine two or more bar-bargaining units consisting of employees of an employer into a single bargaining unit if the employees in each of the bargaining units are represented by the same trade union.

(2) On an application under subsection (1) that is considered together with an application for certification, the Board may do the following:

1. Combine the bargaining unit to which the certification application relates with one or more existing bargaining units if the certification application is made by the trade union that represents the employees in those existing bargaining units.

(3) The Board may take into account such factors as it considers appropriate and shall consider the extent to which combining the bargaining units,

(a) would facilitate viable and stable collective bargaining;

(b) would reduce fragmentation of bargaining units; or

(c) would cause serious labour relations problems.

(5) In combining bargaining units, the Board may amend any certificate or any provision of a collective agreement and may make such other orders as it considers appropriate in the circumstances.

(6) This section does not apply with respect to bargaining units in the construction industry.

II

5. On April 3, 1989, the union was certified to represent a bargaining unit composed of full-time and part-time "mechanical maintenance employees engaged in maintenance services and plant operations at Olympia & York Developments Limited, L'Esplanade Laurier" in Ottawa. That certification application was what is commonly known as a "raid". The Independent Canadian Transit Union displaced the Canadian Union of Operating Engineers and General Workers which had previously been the bargaining agent for this group of employees.

6. Following certification, the employer and the new union engaged in collective bargaining to conclude a new collective agreement. The extent of that bargaining is not before us. We do know that there was a collective agreement between the parties that ran from January 1, 1991 to December 31, 1992.

7. Some time before the expiry of the 1991-92 agreement, the parties began bargaining for its renewal. On January 8, 1993, they entered into a "Memorandum of Settlement" prescribing the contents of a new collective agreement, which was to run from January 1, 1993 to December 31, 1993 (the "1993 agreement"). It is not entirely clear when this Memorandum of Settlement was ratified, but it is not disputed that the new collective agreement was for a one-year term, and was to expire on December 31, 1993.

8. In early February 1993, the Board received an application for certification, in which the union sought bargaining rights for another group of employees working in the same commercial complex. Accompanying that certification application was a request to combine the employee group to which the certification application related, with the employee group for which the union already had bargaining rights. The certification and combination applications were dealt with together.

9. The union's applications came on for hearing before the Board on March 22, 1993. The employer did not appear to contest the applications, or to address the form of the order which the union was seeking. (At the time, 0 & Y was still engaged in massive litigation, financial difficulties, and restructuring.) Accordingly, the Board disposed of the case before it as follows:

4. The employer operates a commercial complex in Ottawa known as L'Esplanade Laurier. The Transit Union currently represents a group of maintenance employees who work at L'Esplanade Laurier. The bargaining unit now represented by the Transit Union is framed as follows:

all mechanical maintenance employees engaged in maintenance services and plant operations at Olympia & York Developments Limited, L'Esplanade Laurier save and except Assistant Superintendent, persons above the rank of Assistant Superintendent, office staff, persons regularly employed for not more than twenty-four (24) hours per week, and students hired for the school vacation periods.

The most recent collective agreement between the employer and the Transit Union ran from January 1, 1991 until December 31, 1992. The parties are in the process of concluding a new collective agreement, but that agreement has not yet been finalized.

5. The certification application relates to a group of employees who are currently unrepresented. They, too, work at L'Esplanade Laurier. They occupy the classifications of: building control centre operator, heavy duty maintenance person, parking attendant, and loading dock. There are 8 such employees. The union is "certifiable" as bargaining agent for a bargaining unit of these employees, because more than fifty-five percent of them were members of the union on February 5, 1993, the certification application date.

6. The purpose of this proceeding is to add this group of 8 unrepresented workers to the group of 13 whom the union already represents, and combine the two groups into a single bargaining unit of "service workers". The Transit Union proposes that the combined unit should be described as follows:

all employees of Olympia & York Developments Limited at L'Esplanade Laurier, in the City of Ottawa, save and except supervisors, persons above the rank of supervisor, office staff, security guards, students employed during the school vacation period, and persons for whom any trade union held bargaining rights as of February 5, 1993.

7. This bargaining unit description consolidates the above-mentioned employee groupings into a single unit for collective bargaining purposes. It avoids fragmenting a group of building service workers into two legally distinct units, each of which would encompass only a handful of employees. And, of course, if there were two separate units, that could mean: separate bargaining, separate collective agreements, separate seniority regimes, a strike of one or other of these employee groupings at different times, and potentially two trade unions, should one or other of these employee groups choose to displace the Transit Union (as has happened before in this organization). This is not a recipe for stable or effective collective bargaining, nor (as noted) did the employer appear at the hearing to substantiate any concerns it might have about the proposed consolidated bargaining structure.

8. In the circumstances, and pursuant to section 7(2) of the Act, the Board considers it appropriate to combine the bargaining unit to which the certification application relates, with the existing bargaining unit represented by the Transit Union, to create a single combined bargaining unit framed as follows:

all employees of Olympia & York Developments Limited at L'Esplanade Laurier, in the City of Ottawa, save and except supervisors, persons above the rank of supervisor, office staff, security guards, students employed during the school vacation period, and persons for whom any trade union held bargaining rights as of February 5, 1993.

For the purpose of clarity, the Board notes that the emphasized portion of the combined bargaining unit description is intended to avoid any conflict with bargaining rights that the Carpenters Union may have for "construction" work to which its ICI collective agreement might apply.

9. Pursuant to section 7(5) of the Act, the bargaining unit found at Article 1 of the Transit Workers collective agreement is hereby amended so that its terms encompass the now combined bargaining unit. Article 1, therefore, is amended to read as follows:

The terms of this Agreement shall apply to all employees of Olympia & York Developments Limited at L'Esplanade Laurier, in the City of Ottawa, save and except supervisors, persons above the rank of supervisor, office staff, security guards, students employed during the school vacation period, and persons for whom any trade union held bargaining rights as of February 5, 1993.

10. Section 7(5) of the Act also gives the Board the power to "make such other orders as it considers appropriate in the circumstances". However, in our opinion, it is unnecessary, at this stage, to make any further remedial order. It appears to the Board that the Transit Union and the employer ought first to explore, between themselves, the way in which the "added-on group" should be accommodated within the broader bargaining structure (for example, Mr. Dodd, whose work classification, we were told, involves different duties than the others). If, as seems likely, it is simply a matter of negotiating appropriate terms for the four new classifications, the parties are in the best position to determine how this will be done, and they should be able to resolve that question without further Board involvement.

[emphasis added at paragraph 4]

10. The Board was satisfied that the combination of bargaining units would not in itself cause serious labour relations problems, and that any transitional difficulties could be resolved through a process of mutual negotiations and accommodation. The Board was not disposed to make any further order under section 7(5) until the parties were able "to explore, between themselves, the way in which the "added-on group" should be accommodated within the broader bargaining structure...".

11. Since the application was uncontested and dealt with fairly summarily, no one made anything of the fact that the combination of units was occurring only a few months before the parties were scheduled to return to the bargaining table in respect of the existing collective agreement. [Section 54(1) of the Act, and Article 17.02 of the existing agreement both contemplate that collective bargaining may begin three months before the agreement is to expire - that is, as early as October 1993]. Indeed, as the Board noted at paragraph 4 of its decision, the parties had not yet finalized the terms of the 1993 agreement, so that they appeared to be in an "open bargaining period" for both groups at the time the combination order was made.

12. We might also note, parenthetically, that this was the first combination case to come before the Board as a result of legislation that came into effect on January 1, 1993. There was no established Board jurisprudence on the application of section 7, or how the result permitted by section 7 fit within the established legal framework, or how the broad discretion under section 7(5) should be exercised. Because the employer did not appear and the union did not raise the issue, no one considered whether transitional bargaining problems might be a reason to reject or postpone consolidation, or what the magnitude of such problems might be, or how section 7(5) might be employed to resolve them. These issues only surfaced later. And, of course, with the benefit of hindsight, it is evident that the labour relations considerations might well be different if the existing collective agreement had expired, or was being re-negotiated at the time of the consolidation order (what appeared to be the case), or had only a few months to run before expiry (what turned out to be the case), or had years to run before its termination. Similarly, the considerations might well be different depending on whether the situation and terms of the "add-on group" were more or less congruent with those of the employees in the existing unit.

13. In any event, following the Board's decision, the parties did exchange positions on how the "add-on group" should be treated - that is to say, how the terms of the existing collective agreement should be extended or amended to take into account the addition of employees in different classifications. But there was no meeting to discuss these issues. When the employer proposed a variety of changes, the union balked, and came back to the Board seeking relief under section 7(5). The union's position is as follows:

"The union submits that the only "terms" that it is obligated to bargain, given the amended scope~ are those that can be directly related to the new classifications per se that have been added by the amendment. Other than those terms, the subsisting Collective Agreement with its terms and conditions, applies immediately upon the consolidation of the bargaining units and without any need for or requirement of negotiations".

14. The union points out that the existing collective agreement already contemplates that if a new classification is created within the defined bargaining unit, a wage rate is to be negotiated; and, in the union's submission, the bargaining exercise should not involve much more than that. The union argues that once the bargaining unit is enlarged, the employees should be entitled automatically to the terms negotiated for the existing group. The application of the collective agreement is largely a mechanical exercise, and the amount of "bargaining" required is minimal.

15. The employer replies that the new classifications are different. The wages are different, the hours of work are different, and the benefits are different; so it may be necessary to modify existing contract language to take into account these differences. It is one thing to add a new classification to an established configuration of "mechanical maintenance employees" (what the employer describes as a "quasi-craft unit"). It is quite another to add a series of new classifications that were never contemplated by the negotiating parties when they drafted the collective agreement that had been so recently concluded.

16. We will have more to say below about the substance of the parties' positions. At this point, we merely reiterate that the parties did not meet, and that there was no real exploration of these issues, because the parties disagreed on how much bargaining, if any, they were required to engage in. And, of course, that question has become more complicated by the fact that, whatever the parties' bargaining obligations might be, and whatever transitional arrangement the Board might be disposed to prescribe under section 7(5), the existing collective agreement was set to expire on December 31, 1993. By the time the parties were crystallizing their dispute about the extent of any duty to bargain transitional issues, there was a full-blown duty to bargain about any terms of the collective agreement that either party thought warranted revision. Thus, any order the Board might be disposed to make under section 7(5) could be limited to the period April-December 1993, and would immediately be subject to "reconsideration" through the ordinary process of collective bargaining.

17. It is not obvious whether or how the Board should exercise its discretion in these circumstances.

III

18. As we have already mentioned, this was and is a case of first impression. There is no well established Board jurisprudence on whether or when to combine bargaining units, or on the application of a pre-existing collective agreement to employee groups who could not have been contemplated at the time that agreement was entered into. Issues of this kind have been canvassed in other jurisdictions [see, for example, the views of the Canada Labour Relations Board in cases such as: Teleglobe Canada, 32 d.i. 270; Premier Cable System Ltd. (1981) 45 d.i. 221; Canadian Broadcasting Corporation (1982) 50 d.i. 141; Canadian Broadcasting Corporation (1984) 55 d.i. 145 quashed at (1985) 17 D.L.R. (4) 709 (F.C.A.); Cablevision National Ltee. (1979) 35 d.i. 168; Pacifique Limited (1984) 57 d.i. 112; Association des Employeurs Maritimes (1987) 71 d.i. 77; Canadian National Railways (1982) 44 d.i. 170; Marine Atlantic Inc. (1990) 82 d.i. 91]; however, the results in these cases are somewhat uneven, and do not provide an unfailing guide to the way in which the Board should approach section 7. There are a variety of choices: combine and integrate the add-on group into the existing agreement making such changes as appear appropriate; defer combination until the termination of the existing agreement at which time the two groupings, now combined, can proceed into bargaining together; terminate the existing agreement so bargaining can begin immediately for the enlarged group, etc. But there is little guidance as to which choice is the best one in particular circumstances. Nor has the Board had much experience with the labour relations consequences of the various choices.

19. The thrust of section 7 is clear enough: broader-based bargaining structures are desirable in a variety of circumstances for reasons outlined in the Statute itself, and in cases such as Premark Canada Inc., [1993] OLRB Rep. June 540, Mississauga Hydro-Electric Commission, [1993] OLRB Rep. June 523, and Kingston Access Bus, [1993] OLRB Rep. July 610. In each of these cases, the Board considered it appropriate to combine bargaining units, so as to create a larger one for collective bargaining purposes. However, the Board has not yet settled either the "mechanics" of section 7, or the way in which the policy it expresses should be squared with other statutory policies - most particularly, the legislative choice of free collective bargaining as the preferred method of resolving workplace issues.

20. We think it is fair to say, though, that neither the scheme of the Act, the language of section 7, nor the existing "consolidation cases" presume that the terms of an existing collective agreement will automatically be extended to the add-on group. That is what happens in the construction industry where a newly-certified employer becomes bound automatically to the terms of the provincial ICI collective agreement. But, there is no equivalent provision under section 7. Nor has this been the Board's assumption, as the panel observed in Premark:

32. The employer has taken the position that fragmentations is not an issue in this case. While we agree that fragmentation is not at issue in the same sense as it was in cases such as Kidd Creek Mines Ltd., [1984] OLRB Rep. Mar. 481 and Stratford General Hospital, [1976] OLRB Rep. Sept. 459, nevertheless the statute requires us to consider whether in combining bargaining units, fragmentation will be reduced. Although the northern bargaining unit is an appropriate bargaining unit, it appears to us that the larger bargaining unit makes more labour relations sense. If two separate bargaining units are retained, the union's concerns with regard to consistency in the terms and conditions of employment of individuals performing the same work could be borne out. In addition, clearly the job opportunities of the three individuals in the northern bargaining unit would be restricted and there could be a potential for jurisdictional disputes. If the two bargaining units are combined it will obviously reduce fragmentation.

33. The final factor to be considered by the Board in this case is whether combining the two units would cause serious labour relations problems. The employer has expressed concerns that combining the bargaining units would do so. Once again it appears to us that the concerns expressed by the employer relate more to the apprehension that it will not have an opportunity to bargain with the employees in the northern bargaining unit if the Board issues a combination order. Clearly the legislation provides that the Board is to consider whether combining bargaining units would cause serious labour relations problems and if we conclude that a combination order would do so, we may decline to combine the bargaining units. The serious labour relations problems referred to in section 7(3)(c) must flow from the act of consolidation and must be considered by the Board before it concludes that it is appropriate to issue an order combining bargaining units. In the case before us the employer's concerns flow from the assumption that the Board will direct that the employees in the new combined bargaining unit will receive all of the rights enjoyed by the employees currently in the southern bargaining unit who are covered by the collective agreement. While the change in bargaining unit structure which results from a combination of bargaining units could cause serious labour relations problems which would cause the Board to conclude that a consolidation order is not appropriate, the evidence before us in this case does not support such a finding.

34. The union in this case seeks a consolidation order. It also seeks a direction from the Board that the three individuals in the northern bargaining unit are to be rolled into the southern bargaining unit and that their employment will henceforth be governed by the terms and conditions of the collective agreement in existence covering employees in the southern bargaining unit.

35. After having carefully reviewed the evidence before us and the submissions of the parties, we conclude that it is appropriate to consolidate the two bargaining units in this case. Therefore, the Board declares that the two bargaining units in issue here are combined.

36. We decline to order that the collective agreement in existence between the parties will automatically apply to the employees formerly in the northern bargaining unit. Although section 7(5) gives the Board the authority to "amend any provision of a collective agreement or to "make such other orders as it considers appropriate in the circumstances we do not feel that it is appropriate to make any further remedial orders at this point. The employer has expressed concerns with the Board inserting itself into the collective bargaining process and the resultant loss on the part of the employer and the union of the opportunity to bargain the terms and conditions of employment for the employees formerly in the northern bargaining unit. We too have concerns and feel that it is appropriate to provide the parties with an opportunity to resolve the results of the Board's consolidation order without further Board involvement. We therefore refer this matter back to the parties to provide them with the opportunity to resolve if possible, the manner in which the three employees from the northern bargaining unit are to be dealt with under the new bargaining unit structure. We will remain seized with regard to any further remedial relief.

21. The cases under section 7 do not presume that the add-on group will necessarily or automatically receive the same terms as the employees for whom the union already has bargaining rights. Indeed, in none of those cases did the Board even amend the recognition clause of the collective agreement. On its face, the focus of section 7 is bargaining structure, not the contents of the bargain, and, to date, that is all the Board has dealt with.

22. In all of the cases under section 7, the presumed starting point has been a process of bargaining. Before considering the exercise of its discretion under section 7(5), the Board has required the parties to explore their own solutions for whatever transitional difficulties might arise from the combination of bargaining units. That is the view that we expressed in the instant case, and it is consistent with the position taken in later cases.

23. It also seems to work. Since January 1993, the Board has made quite a number of consolidation orders (mostly on agreement), and not one of them has come back to the Board. We do not know the particular circumstances of these files, but experience seems to suggest that if the parties put their minds to it, they will find that the transitional problems are not as intractable as the applicant here suggests they are.

24. What is the content of the bargaining that should precede any request for an order under section 7(5)? We do not think that it is either desirable or possible to be too definitive about that. But at the very least, it should encompass the kind of reasonable efforts and full, rational discussion that have always been part of the "section 15" duty to bargain.

25. This is not a particularly novel or onerous standard. It is one that has always been applied to "bargaining" under the Act, even in contexts where interest arbitration is prescribed to resolve any resulting impasse (as in hospitals, for example). It is also worth mentioning, that it is the kind of bargaining exercise in which the parties here would have had to engage, even if the Board had not combined the two bargaining units.

26. If the Board had dismissed or deferred the combination application, the parties would have had to bargain in respect of the newly certified group under section 15, and could not have ignored the existence of the recently-negotiated collective agreement applying to employees working in the same complex. They would have had to negotiate a collective agreement that takes into account the presence of a contiguous employee grouping in the same workplace, and if they had been unable to do so on their own, they might have moved into a process of "first contract arbitration" - which likewise would have had to take into account the relationship of the newly-certified group to the existing one. In other words, if no combination order had been made, the parties would have had to explore, through bargaining, a joint resolution of their labour relations concerns - including the relationship of the new group to the existing one. And, in the Board's view, a similar bargaining process should at least be the starting point for the exercise of the Board's discretion under section 7(5).

IV

27. Whatever the precise content of the bargaining envisaged in this case or the cases referred to above, it is evident that it has not occurred here. The parties' disagreement about the extent of their obligation to bargain, has resulted in a situation where there has been no real negotiations at all - even though, by now, the old collective agreement has expired and the section 15 bargaining obligation may have been triggered in respect of the combined bargaining unit. The parties did not even meet, let alone canvass the rationale for their respective positions.

28. Was the employer's opening position so extreme, outrageous, or patently unreasonable, that the union was relieved of any obligation to meet and discuss it? We do not think so; and while we must be somewhat circumspect about the substantive issues which divide the parties, it may be appropriate to briefly mention some of the items in dispute.

29. The employer initially suggested (it has abandoned that position) that another group of newly-certified employees be covered by the same collective agreement - thereby avoiding repetitive bargaining and some of the problems to which the Board adverted in its combination decision at paragraph 7. The employer suggested that if it made "labour relations sense" to extend the unit and the agreement to one newly certified group, it made equal sense to consider its extension to another newly certified group.

30. That is not a position which could have been pressed to "impasse" in "ordinary collective bargaining". But extensions of this kind are not prohibited, nor is the employer's suggestion particularly surprising in the context of this case. The labour relations rationale for the employer's position was precisely the same as that advanced by the union to support the consolidation of bargaining units in the first place. There is nothing offensive or unreasonable about the employer's proposal - although, of course, the union was free to reject it.

31. In the employer's submission, a change in bargaining structure should not automatically oust the bargaining process which would normally follow certification. The employer looks at the effect of the combination on the collective agreement in terms of impact cost and overall administrative efficacy. From its perspective, there is more to it than simply adding a few job titles and wage rates to existing schedules. The employer asserts that the hours of work, shift schedule, standard workweek, and skills of the add-on group are different from those of the employees in the pre-existing bargaining unit. The employer asserts that it is therefore necessary to negotiate changes that will reflect the differences and ensure that the application of the agreement will not result in anomalies or windfall wage increases when overtime and shift premium language are applied to persons for whom it was never intended.

32. The employer asserts that the rote application of the existing terms to the add-on group, will result in wage increases beyond anything that is currently being negotiated in today's economy or would likely have been prescribed in a negotiated or arbitrated "first contract". Arbitrary application of the existing contract terms could also produce a result quite different from what the parties would likely have negotiated for the extended bargaining unit. Bargaining, on the other hand, will yield a result which more closely approximates what the parties would have arrived at had the units been consolidated when the last collective agreement was concluded. In the employer's submission, that is the way to harmonize the legislative encouragement for broader based bargaining, and the legislature preference for free collective bargaining as the mechanism for settling the terms of a collective agreement.

33. The employer wants to examine the existing job posting/seniority language in light of the new classifications and skill mix. The current scheme involves a mix of unit and classification considerations, and obliges the employer to go to the union for new hires. The employer says that this arrangement may not fit the new bargaining unit configuration.

34. The employer has not had grievance/arbitration difficulties under the old collective agreement. But the employer anticipates that there might well be such problems under the hybrid created by the combination order. The employer therefore proposes a single arbitrator model rather than the three-person panel envisaged in the old agreement, pointing out that a single arbitrator is faster and cheaper, and reflects the preferred model prescribed in the statutory amendments that came into effect in January 1993. In the employer's submission, there is nothing sinister about this proposal. It simply wants a faster and cheaper process to resolve problems that are now more likely to arise.

35. The employer submits that there are practices which might amount to an estoppel that should be dealt with in express language. It is not at all clear how "estoppels" from the old agreement may apply to the add-on group, but the employer wants to talk about that.

36. The employer also points out that, for example, the life insurance benefit for the add-on group is superior to that contained in the collective agreement, so that these, and perhaps other benefits, will have to be harmonized. Just as the employer resists a "windfall" for the add-on employees, through the application of clauses never negotiated with them in mind, so, too, the employer resists a scenario which would automatically deprive those employees of superior benefits.

37. We do not think that it is necessary to multiply the examples or prescribe the precise content of the bargaining which should have taken place. Obviously, certain features, such as "just cause~~ or "union security" flow from the Statute itself, so there may not be much to bargain about. Other terms, however, might have to be tailored to reflect the particular labour relations environment which could not have been foreseen when the agreement was concluded. The employer's initial proposal may well have been over-reaching and somewhat exaggerated, but that is not at all unusual for an opening position, and is no reason not to meet to discuss it.

38. In all the circumstances of this case, including the absence of any serious discussion about the issues, and the imminence of full-fledged bargaining for the combined unit, the Board is not prepared at this point to make any direction under section 7(5) of the Act.

39. As before, this panel will remain seized in the event the parties are unable to work out any transitional difficulties arising from the Board's combination order.

CONCURRING OPINION OF BOARD MEMBER H. PEACOCK; May 2, 1994

1. I concur.

2. This case, as do all section 7(2) cases of certification involving combination with an existing bargaining unit, poses a number of issues which in the circumstances may or may not demand an answer. I agree that none of the cases received by the Board to date, especially the facts of this case, should lead a trade union applicant to presume that the terms of an existing collective agreement will automatically be applied to its newly certified unit. No doubt, employees signed cards fully expecting to be covered by negotiated terms and conditions of work rather than those granted by the employer. They were likely less concerned with the structure of bargaining than the result when they signed up. It is structure essentially with which section 7 deals although it is open to the Board, presumably, to give effect to a re-structuring, if necessary, by such remedies as orders to bargain in good faith, early termination of the existing collective agreement, and perhaps directing the settlement of a "first contract" by arbitration for the newly certified group.

3. Here, I cannot find that the parties have reached an impasse so as to require the Board's intervention in such a pre-emptive manner. At the time of making this request, the parties had not met and were close to opening negotiations for the renewal of the existing collective agreement. They simply had not made the effort to canvass the differences between them face to face.

4. It is preferable in these circumstances, therefore, that the parties assume the responsibilities of collective bargaining and fully explore the manner and extent of the application of existing or modified terms to the new unit before turning to the Board.