The Continental Group of Canada Ltd. v. United Steelworkers of America
[1980] OLRB Rep. October 1381
1254-80-M; 1255-80-M; 1256-80-M The Continental Group of Canada Ltd., Employer applicant, v. United Steelworkers of America, Trade Union applicant, v. Employee, Objector.
BEFORE: Ian C. A. Springate, Vice-Chairman and Board Members J. D. Bell and D. B. Archer.
DECISION OF THE BOARD; October 21, 1980
- These are three applications under section 44(3) of The Labour Relations Act. The United Steelworkers of America ("the union") and the Continental Group of Canada Ltd. ("the company") have jointly applied to Board for consent to an early termination of certain collective agreements between them. The parties have indicated that early termination of these agreements will facilitate renegotiation of the terms and conditions of employment at "Plant no. 10" in the Borough of Etobicoke; and further that such renegotiation is necessary in order to improve the competitive position of that plant and prevent its closure. The parties advise that they have already negotiated the terms of a "replacement" agreement, and that those terms have been ratified by the employees affected. Section 44 reads as follows:
(1) If a collective agreement does not provide for its term of operation or provides for its operation for an unspecified term or for a term of less than one year, it shall be deemed to provide for its operation for a term of one year from the date that it commenced to operate.
(2) Notwithstanding subsection 1, the parties may, in a collective agreement or otherwise and before or after the collective agreement has ceased to operate, agree to continue the operation of the collective agreement or any of its provisions for a period of less than one year while they are bargaining for its renewal with or without modifications or for a new agreement, but such continued operation does not bar an application for certification or for a declaration that the trade union no longer represents the employees in the bargaining unit and the continuation of the collective agreement may be terminated by either party upon thirty days notice to the other party.
(3) A collective agreement shall not be terminated by the parties before it ceases to operate in accordance with its provisions or this Act without the consent of the Board on the joint application of the parties.
(4) Notwithstanding anything in this section, where an employer joins an employers' organization that is a party to a collective agreement with a trade union or council of trade unions and he agrees with the trade union or council of trade unions to be bound by the collective agreement between the trade union or council of trade unions and the employers' organization, the agreement ceases to be binding upon the employer and the trade union or council of trade unions at the same time as the agreement between the employers; organization and the trade unions or council of trade unions ceases to be binding.
(5) Nothing in this section prevents the revision by mutual consent of the parties at any time of any provision of a collective agreement other than a provision relating to its term of operation.
Section 44 of the Act provides that a collective agreement must have a specific term of at least one year, which cannot be altered by the parties without the consent of the Labour Relations Board. The parties may revise the substantive terms of the agreement, but they cannot change its term of operation.
At first glance, it might seem odd that the parties to a collective agreement cannot by mutual consent alter its term of operation; however, the reason for this restriction becomes apparent when one considers that the agreement prescribes not only the terms and conditions of employment, but also the time when employees are permitted to challenge their union s position as bargaining agent. Sections 5 and 49 of the Act provides that applications for certification or termination can only be made during the last two months of the collective agreement's operation – that is, during the so-called "open period". An alteration of the term of the collective agreement, therefore, can effect the rights of third parties. If a union and employer could alter the agreement's term of operation, the "open period" could be eliminated or postponed, and with it, the right of employees to challenge their union's status as bargaining agent. To avoid this possibility, the statute provides that the term of the collective agreement must be fixed, specific, and not subject to variation without the consent of the Labour Relations Board.
Before granting its consent to an early termination of an outstanding collective agreement, the Board seeks to assure itself that such action will not prejudice the rights of interested individuals or trade unions who may be planning to challenge the incumbent's bargaining rights during the open period. Notices of the application are forwarded to the employer for posting on its premises in such conspicuous locations that they will most likely come to the attention of the employees concerned. These notices must remain posted for at least five days and a declaration by the employer that this has been done must be filed with the Board. In the instant case, the notices read as follows:
"NOTICE OF APPLICATION FOR EARLY TERMINATION OF COLLECTIVE AGREEMENT"
To the employees of: The Continental Group of Canada Ltd.
A joint application, copies of which are attached hereto, has been made by the above employer and United Steelworkers of America, AFL-CIO.
The aforementioned Agreement would normally terminate on February 15, 1981.
Any person having objection to the granting of such consent shall file the same with the Board, on or before the 29th day of September, 1980.
In default of filing a Notice of Objection as aforesaid, the Board may take such action in the matters as may appear to the Board to be just.
Dated this 22nd day of September, 1980.
The employer has filed a declaration indicating that the proper notices were posted. Presumably in response to the postings, the Board has received an objection to the application in File No. 1254-80-M from Mr. Robert Hall, who would appear to be an employee in the relevant bargaining unit. The basis of Mr. Hall's objection is dissatisfaction with the new terms and conditions of employment which the employer intends to implement, with the agreement of the union, following the termination of the existing agreement. There is nothing before the Board to suggest that Mr. Hall or any other employee seeks to challenge the union's position as bargaining agent, and as we have already noted, the purpose of the restriction in section 44(3) is to prevent the parties from undermining the right to make a representation application during the open period. This is "the mischief" to which section 44 is directed, and there is nothing before the Board to suggest that this "mischief" exists in the present case. Accordingly, we are satisfied that the Board should grants its consent to early termination of the parties' agreements.
For the purpose of clarity, the Board notes that the sole issue before it is whether, in the circumstances of this case, it should grant its consent to an early termination of the parties' existing collective agreements. For the reasons we have given we are satisfied that such consent should be granted. We make no comment on the terms or legal effect of the documents which the parties have indicated they intend to execute if such consent is granted. Equally, we express no opinion on the remedies, if any, which may be available to an individual employee who is dissatisfied with the arrangements the parties may enter into. It suffices for this case, to say that we are satisfied that the parties should be permitted to terminate their agreements early, and hereby grant our consent to their doing so.