Cited as:
Original Cakerie Ltd. (Re)

Between
The Original Cakerie Ltd. (the "Employer"), and
Teamsters Local Union No. 464 (the "Union")

[2001] B.C.L.R.B.D. No. 369
BCLRB Decision No. B369/2001

Case No. 45442

British Columbia Labour Relations Board
S. Kearney, Vice-Chair

Heard: May 31 and June 4, 2001.
Decision: June 7, 2001.
Reasons: October 5, 2001.
(17 paras.)

Counsel:

Nazeer Mitha, for the Employer.
James Baugh, for the Union.


Reasons for the Board's Decision

I.  NATURE OF THE APPLICATION

 1      The Employer applied under Sections 5, 11, 59 and 60 of the Labour Relations Code (the "Code") for a declaration that the manner in which the Union conducted its strike vote constituted an unfair labour practice and bargaining in bad faith and that the Union's strike vote was invalid because the parties had not bargained collectively in accordance with the Code.  The Employer subsequently withdrew its unfair labour practice and bargaining in bad faith complaints.

 2      An oral hearing was conducted on the issue of the validity of the Union's strike vote.  Following the hearing I issued a bottom line decision dismissing the Employer's application:  BCLRB No. B251/2001.  The Union requested written reasons for my decision.  These are my reasons.

II.  BACKGROUND

 3      The Employer operates a baking production facility on Annacis Island.  The Union was certified to represent production employees on or about March of 1994.

 4      The most recent round of collective bargaining commenced in February of 2001, starting with a meeting to discuss the protocol for negotiations on February 28, 2001.

 5      On March 28, 2001, the Employer and the Union attended their first actual bargaining meeting.  At this meeting, the Union's chief negotiator, Mike Crawford, presented two sets of Union proposals to Sue Peterson, the Employer's chief bargaining representative.  One set of proposals dealt with non-monetary items and the other dealt with monetary items.  Peterson presented the Employer's proposals to Crawford.  The Employer's proposals did not contain a proposal on monetary items.  Crawford asked if monetary issues would be raised.  Peterson told the Union that it would not be dealing with monetary issues until the Employer had studied the Union's proposals.  Crawford then asked for the Union's monetary proposal to be returned.

 6      The parties met again on April 9, 2001.  The parties discussed various non-monetary items including matters pertaining to a hiring hall and scheduling issues.  No monetary items were discussed and the Employer did not present any proposals on monetary items.

 7      The parties met again on April 11, 2001.  At the end of this meeting the Union re-tabled its monetary proposals.  Since the Union's monetary proposals were predicated on changing the hours of work from a 10-hour to an 8-hour shift, it was agreed that the next meeting would be set aside to explore scheduling issues.

 8      The parties met again on May 3, 2001.  At this meeting the Employer presented a merged Employer/Union proposal document.  It did not include monetary items. Several issues were discussed, particularly the possibility of a hiring hall and scheduling.  During this meeting, Crawford advised that the Union would not make any decision on scheduling but wished to proceed with both non-monetary and monetary items.  He also advised that the Employer could bring up scheduling issues again during the negotiation of monetary items.  The parties set May 11, 2001 as the next date for bargaining.

 9      On May 9, 2001, the Employer applied to the Board for mediation pursuant to Section 74 of the Code.  The Board assigned a mediator, and at the time of the Employer's application, the parties were engaged in mediation.

 10      On the morning of May 11, 2001, the Union cancelled the negotiation meeting which had been scheduled for that day.

 11      On May 13 and 14, 2001, the Union conducted a strike vote.  A majority of the employees voted in favour of a strike.

III.  POSITIONS OF THE PARTIES

 12      The Employer says that the Union has not met the requirements under Section 59 for taking a strike vote because the parties have not yet exchanged any monetary proposals, let alone had an opportunity to discuss them.  The Employer says Section 59 of the Code requires discussion on all key issues: Natural Glacial Waters Inc., BCLRB No. B329/2000 (Leave for Reconsideration of BCLRB No. B272/2000); Victoria Times-Colonist, BCLRB No. B168/95; Horizon Exhibits Inc., et al., BCLRB No. B221/96.  The Employer says although there has been an exchange of proposals on some items, there are numerous other issues over which there has been no discussion; particularly, wage rates and the term of the collective agreement.

 13      The Union says the strike vote is valid because the parties' bargaining has satisfied the requirements of Section 59 of the Code.  The Union says it did not agree to deal with non-monetary issues before monetary issues and therefore made a proposal on monetary items at the April 11, 2001 meeting, more than a month before its strike vote.  The Union says that the Employer cannot prevent a strike vote by failing to present its own monetary proposal.  The Union says the Employer cannot determine the date of the strike vote by unilaterally determining when it will table or discuss monetary proposals.  The Union says the Employer has provided no reason for its failure to table a monetary proposal.  The Employer's failure to do so is simply a tactical manoeuvre. The Union says it put forward its proposals, both monetary and non-monetary and provided the Employer with an opportunity to discuss them.

IV.  REASONS AND ANALYSIS

 14      The Board's jurisprudence establishes that in order to have "bargained collectively" in accordance with Section 59(1) of the Code, the parties must exchange proposals and there must be some discussion, or an exchange of views, on all the key or central issues in dispute:  Natural Glacial Waters Inc., supra.  Based on the evidence, I find that there has been an exchange of proposals and an exchange of views on all the key issues in dispute with the exception of the Employer's monetary proposals which I will now address.

 15      The Union presented the Employer with its monetary proposal on April 11.  The Union and the Employer met again on May 3, at which time the Employer tabled a combined Employer/Union proposal in which it chose not to include any monetary items.  During this meeting, Crawford advised that the Union wished to proceed with both non-monetary and monetary items.  The Employer was also advised that it could bring up scheduling issues, which were an Employer concern, during the negotiation of monetary items.

 16      The Employer in this case is relying on its own failure to provide a monetary proposal to support its Section 59 application.  I find that it is not open to the Employer to limit the scope or the quality of collective bargaining discussions and then rely on that fact to preclude the Union from resort to a strike vote:  Coast Mountain Hardwoods Incorporated, BCLRB No. B360/94, at p. 2.  Further, I find that the Employer has provided no reasonable explanation for why it was unable to provide a monetary proposal.  The Employer's argument that scheduling had to be negotiated first is not sufficient.  While the Employer wished to maintain the 10-hour shift and the Union had predicated its monetary proposal on an 8-hour shift, nothing prevented the Employer from putting forward its monetary proposal based on the status quo.

V.  CONCLUSION

 17      For all of the above reasons, I find that the Union's strike vote has met the requirements of Section 59(1). The Employer's application is dismissed.

S. KEARNEY, VICE-CHAIR

QL Update:  20011025
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