Ontario Labour Relations Board
[1980] OLRB Rep. November 1688
0048-80-U United Brotherhood of Carpenters & Joiners of America, Local 3054, Complainant, v. Selinger Wood Limited, Robert Selinger, Respondents
BEFORE: George W. Adams, Chairman, and Board Members T. G. Armstrong and W. F. Rutherford.
APPEARANCES: J. Melnitzer, A. Salvona and T Harkness for the complainant; Robert Selinger for the respondents.
DECISION OF THE BOARD; November 12, 1980
- This is a complaint under section 79 of The Labour Relations Act alleging a violation of section 14. Section 14 of The Labour Relations Act provides:
The parties shall meet within 15 days from the giving of 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]
The facts in this matter are not in dispute. A previous agreement affecting this bargaining unit expired December 12th, 1978. Notice to bargain was served on the respondent company's predecessor on September 14th, 1978. On or about February 26th, 1979 the complainant applied to the Ontario Labour Relations Board for a declaration that the respondent, Selinger Wood Limited, was a successor employer to Goderich Manufacturing Company Limited which had been the employer party to the aforementioned collective agreement. On March 26th, 1979 the Board declared that Selinger Wood Limited was a successor to Goderich Manufacturing Company Limited and that Selinger Wood Limited was bound by the collective agreement between Goderich Manufacturing Company Limited and the complainant trade union. On March 26th, 1979 the Minister of Labour appointed a conciliation officer. On April 25th, 1979 the union filed a complaint under section 79 alleging a violation of sections 14, 35, 46, 56 and 70(1) of the Act. In a decision handed down on October 18th, 1979 the Board recorded the agreement of the parties that the respondent company had violated the Act and breached the aforesaid collective agreement from October 1978. Another complaint was filed by the trade union on January 28th, 1980 alleging violations of sections 3, 14, 46, 56, 58, 59, 61, 62, and 71 of The Labour Relations Act. On March 3rd, 1980 the Board rendered its decision in respect of this complaint and recorded the agreement of the respondents to meet with the complainant trade union to bargain in good faith and make every reasonable effort to make a collective agreement. On April 9th, 1980 yet another complaint was filed by the union alleging similar breaches of The Labour Relations Act. This matter came before the Board on May 13th, 1980 and following the introduction of some evidence by the complainant trade union the matter was adjourned pending settlement discussions between the parties.
It is agreed that a memorandum of settlement was entered into between the parties on that same day (i.e. May 13, 1980). The memorandum of settlement provided:
The parties herein agree to the terms of this memorandum as constituting full settlement of all matters in dispute.
The undersigned representatives of the parties do hereby agree to recommend complete acceptance of all terms of this memorandum to their respective principals.
The parties herein agree that the term of the collective agreement shall be from May 13 1980 to 4 Oct. 1981.
The parties herein agree that the said collective agreement shall include the terms of the previous collective agreement which expired on Dec. 12/78, provided, however, that the following amendments are incorporated:
All matters previously settled and agreed to by the parties prior to the date hereof.
Wages Oct. 6 1980 25¢/hr.
1st Monday in Apr. 1981 25¢/hr.
2.01 —as proposed by Co.
Delete parts II and III of Appendix "A".
1.01 —add "save and except students employed during the school vacation period."
1.02— except that a maximum of 5 supervisory or maintenance personnel shall be permitted.
It is also agreed that the solicitors for the complainant trade union prepared a formal collective agreement on June 16th, 1980 based on this memorandum of settlement and that Adam Salvona, a representative of the trade union, presented this document to the respondents for signature on the same date. It was also agreed that Salvona was advised some time in early July that the respondents refused to execute the collective agreement because they believed it had not been properly ratified. The evidence is that the one remaining member employed in the bargaining unit approved or ratified the agreement between the parties on June 13th, l980.
Before this Board, the respondents relied upon the provisions of Bill 89 requiring that all employees employed in the bargaining unit be permitted to participate in any ratification vote. It is undisputed that a large number of employees in the bargaining unit who are not members of tie complainant trade union were not notified of the June 13th meeting at which the agreement was ratified. Counsel for the trade union submits that Bill 89 does not affect the facts at hand n that Bill 89 did not receive royal assent until June 17th, 1980. Alternatively, he submits that the memorandum of settlement did not require ratification and that the complainant trade union is entitled to require the respondent company to execute the formal collective agreement without ratification. He further submits that the respondents have no standing to even raise this issue before the Board and thereby inquire into the internal workings of the trade union.
As the Board advised the parties at the hearing, it is our finding that on the facts before us the respondent company had violated section 14 of The Labour Relations Act and to remedy this violation it is directed to execute the collective agreement presented to it on June 16th, 1980 (see Municipality of Casimer, Jennings, and Applyby, [1978] OLRB Rep. June 507). While Bill 89 has amended The Labour Relations Act to provide "all employees in a bargaining unit, whether or not such employees are members of the trade union, are entitled to participate in a vote to ratify a proposed collective agreement", this amendment was not in effect at the time the complainant trade union sought to have the one remaining member of the bargaining unit ratify the aforementioned memorandum of settlement. And, of course, prior to the amendment, nothing in The Labour Relations Act explicitly required a trade union to permit employees who were not members to participate in a ratification vote. The only requirement was that any ratification vote be conducted in such a manner that a person expressing hi5; choice could not be identified with the choice expressed.
For all of the foregoing reasons and findings the Board issues the following remedy:
a) The Board declares that the respondent company violated section 14 in refusing to execute the agreement presented to it on June 16, 1980;
b) The Board directs the respondent company to execute the aforesaid collective agreement reflecting as it does the memorandum of settlement arrived at between the parties;
c) The Board directs the respondent company to pay damages together with interest to all bargaining unit employees for its failure to bargain in good faith and the Board retains jurisdiction to determine such damages on the application of the complainant;
d) The Board directs the respondent company to post copies of the attached notice marked "Appendix" after being duly signed by the respondent's representative, in conspicuous places at all its places of business where bargaining unit employees are employed in Ontario, including all places where notice to employees are customarily posted and to keep these notices posted for 60 consecutive working days. Reasonable steps shall be taken by the respondent to insure that the said notices are not altered, defaced or covered by any other material. Reasonable physical access to the premises shall be given by the respondent to two representatives of the complainant trade union to satisfy itself that this posting requirement has been and is being complied with;