[1994] OLRB Rep. July 821
0840-93-U Centre Jubilee Centre, Applicant v. United Steelworkers of America, Gerry Loranger, Brian Shell, Responding Parties
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. A. Correll and H. Peacock.
DECISION OF THE BOARD; July 18, 1994
- This is an application under section 91 of the Labour Relations Act, alleging that the
union has contravened section 15 of the Act - "the duty to bargain in good faith". The employer
asserts that the union breached section 15 when it applied for "first contract arbitration" [section
41 of the Act] and submitted for the arbitrators' consideration:
(a) an item on training which had not surfaced in the earlier bargaining;
(b) an item respecting the discharge of an employee which the union had withdrawn during bargaining, indicating that it would deal with it separately; and
(b) a proposal respecting retroactivity which was different from the one proposed during bargaining.
The employer asserts that putting these issues to the arbitrators was a breach of the union's section 15 "bargaining duty". Section 15 reads as follows:
- 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.
[emphasis added]
When the first contract arbitration proceeding began before the arbitration board, the employer opposed any award on the disputed items. The employer pointed out that they were the subject of these unfair labour practice allegations, and asserted that the arbitrator could not or should not deal with them. The union asserted the contrary.
The board ruled that it had jurisdiction to proceed, and made an award which, among other things, addressed these three issues. As we understand it, the employer seeks a remedy from this Board which would strike these now adjudicated items from any collective agreement.
Having reviewed the facts pleaded by the employer, we are not persuaded that they disclose any breach of section 15 of the Act. Interest arbitration is not bargaining. It is a substitute for bargaining; and once the interest arbitration process is triggered collective bargaining, as such, has ended (although, of course, the parties may still decide to compose their differences in the shadow of the arbitration proceeding, even though they might not be required to seek a negotiated settlement at that stage). If the section 15 duty subsists in a formal sense until the terms of the collective agreement are actually handed down by the arbitrator, it must nevertheless be interpreted in light of, and in conjunction with, an arbitration process that preempts the normal bargaining mechanisms. (See for example sections 41(13) and 41(13.1) which suspend the right to strike/lockout).
Nothing in the statute confines the parties' arbitration submissions to what they have negotiated about during the course of bargaining - provided that there has not been written agreement on any item submitted to the arbitrator (see section 41(17) of the Act). Indeed, the bargaining preceding the reference to the Minister may not have been very productive or complete at all, and that is why one party or the other may opt for "first contract arbitration". The statute requires the parties to stipulate the terms of a proposed collective agreement that each of them is prepared to sign (section 41(1.4)). However, the statute does not limit the terms of such proposed agreement to terms that have previously been discussed, nor prohibit reference to issues which have not been raised before, or have been "withdrawn".
Nor is an arbitrator's jurisdiction so limited. In settling a first agreement the arbitrator is bound to include any item upon which the parties have agreed; but apart from that, s/he has a wide discretion to prescribe any terms which s/he considers appropriate in the circumstances. The matters in dispute are those that either party chooses to put to the arbitrator for determination (perhaps illuminated by the proposals filed pursuant to section 41(1.4)). Those issues may or may not mirror the items pursued in bargaining - again, so long as the parties have not actually settled a
particular issue, in writing - and what the arbitrator ultimately decides may or may not reflect the position which the parties have previously taken.
It may be unwise for a party to raise before an arbitrator matters which have not been pursued in bargaining. An arbitrator might be disinclined to award a request that a party did not see fit to raise earlier. Similarly, it may be wiser for a party to "sign off' (i.e. settle in writing) any particular issue on which agreement is reached, lest the matter later surface as part of the mix of issues before an arbitrator. But there is nothing illegal about raising "new~~ issues or changing one's position in the course of the submissions to arbitration. And once the arbitration process is invoked, it is for the arbitrator to decide what the terms of the first agreement will be.
We see no breach of section 15 in the facts pleaded by the employer.
However, even if there were a prima facie or arguable case for a breach of section 15 (which we find there is not) we would exercise the Board's discretion under section 91 of the Act not to inquire into this particular complaint.
The items in question have all been put before the arbitrator for his consideration. The employer has had an opportunity to argue, on various grounds, that the arbitrator should not deal with them. However, despite these employer objections, the arbitration board decided that it should proceed, and decided further that it should adjudicate the disputed items in conjunction with the other issues in dispute, and the other matters that he had to determine to settle a first collective agreement. Both parties had an opportunity to address the content of the collective agreement, and the arbitration board made its decision in light of those representations and its own judgement of what was appropriate.
We see no reason, at this stage, to interfere with the results of that arbitration process. Nor, at this stage, would we be inclined to grant the remedy which the employer requests or interfere with the terms that the arbitration board has prescribed.
We see no labour relations purpose for a Board enquiry into this complaint, and in accordance with the discretion under section 91 of the Act we decline to do so.
For the foregoing reasons, this application is dismissed.