[1980] OLRB Rep. October 1574
0939-80-U Local 1979 Retail Clerks International Union affiliated with the Canadian Labour Congress, AFL-CIO, Applicant, v. Wilson Automotive (Belleville) Ltd., Respondent.
DECISION OF BOARD MEMBER F. W. MURRAY; October 29, 1980
1I dissent.
2My notes indicate that on October 18th, 1979, there were between 28 to 30 employees in the original bargaining unit when the union declared strike action and 9 employees went on strike.
3I cannot agree with my colleagues with respect to their analysis of the bargaining process as described in paragraphs 12 and 13. I would have thought that at some point in bargaining a company will often offer the maximum it believes it can afford with the hope that the employees might accept it, and in most cases has reason to believe that a union will properly poll its members before making any decision to embark on strike action. Today it is safe to say that most trade unions do poll their members before embarking on strike action. Here again I do not agree with my colleagues' characterization of section 34e as being a safety valve. I would have interpreted it to mean that the new section was designed to guarantee the process adopted by most trade unions, namely, the proper polling of their members before embarking on a strike.
4In the process of collective bargaining many important elements are always subject to change with the passage of time. Certainly the economics of an offer, both from the standpoint of the union's willingness to accept, or indeed the company's willingness to pay, can be altered within a matter of days, or hours, as a result of external developments or actions taken by the other party. The Board has supported the concept that an employer may reduce the economic offer made in later attempts to settle a strike because of his inability at a new point in time to meet the offer originally proposed. (See The Toronto Jewellery Manufacturers Association, [1979] OLRB Rep. July 719.)
5The Board, of course, must be vigilant to ensure that an employer recognizes the certified trade union as the bargaining agent and the only bargaining agent for its employees. However, not only do economic realities change, but so indeed will the relationship between the parties alter when either one embarks on an action that will either destroy or seriously hurt the other. It is not surprising, in the instant case, to find in effect that the employer's confidence in the union's ability to represent the employees was somewhat shaken when it found the union embarking upon, and continuing, a costly strike action that obviously had the support of less than one-third of the employees in the bargaining unit.
6The union's action on March 28th, in which it permitted only 6 employees out of a total of 25, or 25% (18 working and 6 on strike) to vote on the acceptance or rejection of the offer made in October, would also not inspire confidence.
7I do, however, agree with the majority that the wording of section 34e is clear, and that the employer is not entitled to ask for a vote when there are no "matters remaining in dispute between the parties." I would not, however, have concluded under all of the circumstances that the employer's conduct in asking for a vote under section 34e was a breach of section 14, with respect to his duty to bargain.
8In light of the applicant's behaviour in this case I would have denied granting it any remedy.