[1981] OLRB Rep. August 1186
1940-80-R Arthur Wilkinson, Applicant, v. United Food & Commercial Workers International Union Local 633 AFL-CIO-CLC, Respondent, v. Vaunclair Meats Limited, Interverner
BEFORE: M. G. Picher, Vice-Chairman and Board Members W. H. Wightman and D. B. Archer.
APPEARANCES: Arthur Wilkinson on his own behalf D. I. Wray and J. DiNardo for the respondent; W. Herridge and J. Hurlbut for the intervener.
DECISION OF M. G. PICHER, VICE-CHAIRMAN AND BOARD MEMBER D. B. ARCHER; August 5, 1981
1The applicant has applied to the Board under section 49 of the Act for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is the bargaining agent. The respondent submits that the application is untimely and must therefore be dismissed.
2The facts are not in dispute. Vaunclair Meats Limited is the successor employer, having been found by the Board to be the transferee of a business from Vaunclair Purveyors Company Limited. (Reported in [1981] OLRB Rep. May 581). The respondent union had a collective agreement with the predecessor employer which expired on October 22, 1980. Prior to the transfer of the business, on August 22, 1980, it gave the predecessor employer timely notice to bargain for renewal of the agreement. After the transfer of the business the union gave a further notice to bargain to the present employer, the intervener in this case, on November 20, 1980. This application to terminate the union's bargaining rights was filed on November 26, 1980.
3The union submits that because its notice to the intervener was a notice with the meaning of section 55(3) the effect of section 55(10) is to render untimely the application for termination which was filed subsequently. The relevant sections are as follows:
Section 55(3)
Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 13 or 45, sells his business, the trade union, or council of trade unions continues, until the Board otherwise declares, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to make a collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a notice under section 14 or 45, as the case requires.
Section 55(10)
For the purposes of section5, 49, 51, 53, and 112, a notice given by a trade union or council of trade unions under subsection 3 or a declaration made by the Board under subsection 5 has the same effect as a certification under section 7.
Section 49(l)
If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 53, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
Counsel for the intervener submits that section 55(10) was intended to apply only in a situation where the sale of a business occurs during the course of bargaining for a first agreement, and not, as in this case, where the renewal of a prior collective agreement is being negotiated. He submits that to apply the section to a renewal situation would allow a union the possibility of completely foreclosing any open period by giving a successor employer notice to bargain under section 55(3) before the commencement of the open period under the collective agreement.
4We cannot agree that the application is timely. The facts of this case are on all fours with those in independent Paper Convertors inc. [1979] OLRB Rep. Mar. 207. In that case section 55(3) notice was given after the transfer of a business and before an application for termination was filed. In dismissing the application as untimely the Board commented at p. 209- 10:
The question as to when an application can be made to terminate a union's bargaining rights is an important one, and reflects two competing industrial relations concerns. One of these concerns is that employees not be straddled with a trade union which they no longer desire to have represented them. The other concern is that a trade union be given a reasonable opportunity to negotiate a collective agreement, and particularly a first collective agreement, free from the disruptive effects of a termination application. In our view the detailed provisions set forth in the Act concerning the timeliness of termination applications reflects an attempt on the part of the Legislature to strike a balance between these two concerns. This being the case, we are of the view that it would be improper for this Board not to give effect to the time limits specifically provided for in the Act. .
Section 55(10) provides that notice given under section 55(3) has the same effect as a certification for the purposes of section 49. Section 49, in turn, provides that no termination application can be made until after a year from a union's certification. It follows, in our view, that no termination application can be made within one year of the giving of notice to bargain to a successor employer pursuant to section 55(3). We would note that we see no conflict between this result and the statement in section 55(3) that such a notice has the same effect as a notice given under section 13 or 45. The giving of notice under section 13 or 45 triggers a requirement to bargain in good faith under section 14 and also generally acts as a precondition to the appointment of a conciliation officer. The giving of a section 55(3) notice to bargain has the same result. However, quite apart from this it also for certain other purposes acts as a certification of the union under section 7. There simply is no conflict.
5It appears that counsel for the intervener is correct in his argument that given the proper timing, notice under section 55(3) could foreclose an open period in the event of the sale of a business. It is clear, however, that that did not happen in this case. It is also clear that it would only happen in rare cases, when all of the events that are a pre-condition coincide in time. In drafting section 55(10) the Legislature was obviously obliged to balance the interest of maintaining the stability of bargaining rights when there is a transfer of a business, on the one hand, with the freedom of employees to terminate the bargaining rights of their union, on the other hand.
6By the plain language of the Act, and specifically by making sections 49 and 53 subject to the qualification of section 55(10), the Legislature has clearly opted to give precedence to preserving the stability of a union's bargaining rights where there has been a sale of a business. As the language of the Act reveals, the Legislature has adopted the view that special protection should extend to a union over the often unsettling period during which it seeks to establish a collective bargaining relationship with a new employer. In some cases the transition to a new management may be smooth and without incident as the successor employer willingly accepts to renew the framework, if not the precise terms, of the previous collective agreement. The transition, can, however, be jarring to a union, especially if the new employer, bent on changing the style and methods of a business, brings fundamental proposals for change to the bargaining table. Some of these proposals may be acceptable to a union and some may not.
7Where a business has changed hands the possibility of greater stress on a union is real; it can no longer be sure that it will bargain with the same expectations along the paths that it travelled time and again with the predecessor employer. In this sense a union bargaining with a successor employer after the transfer of a business is in a situation similar to a union bargaining a first collective agreement after certification. By enacting section 55(10) of the Act the Legislature has recognized that reality and has provided the union faced with a first negotiation with a successor employer the same protection of its bargaining rights as would operate to protect the negotiations of a first collective agreement. Like a newly certified union, a union dealing with a successor employer can proceed with the assurance that its bargaining rights cannot be subject to attack for a minimum of one year. That is the unequivocal effect of section 49(1) of the Act and it is the clearly intended consequence of section 55(10) of the Act.
8The foregoing provisions represent a policy choice by the Legislature grounded in well established collective bargaining principles. In our view it would require clear and unequivocal language contrary to the existing language of the Act to support the argument of counsel for the intervener that section 55(10) was not intended to apply except in the case of the transfer of a business following certification. For the foregoing reasons the application must be dismissed.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
I do not disagree that the scheme of the Act is intended to ensure against the disruption of a bargaining relationship simply by virtue of the sale of a business. Unsettling as the thought might be to some, it is nonetheless true that some employers, no less than unions, would find the destabilization of a mature bargaining relationship unappetizing.
Viewed from this employer perspective the continuity assured by the successor rights provisions can be seen as mutually beneficial to the institutional interests of two of the parties — the company and the union.
However, in devising this means of providing continuity of a bargaining relationship, I see no need for the provision to take precedence over the already circumscribed right of the third party, the employees, to terminate the relationship between their employer and union if a majority of the employees so wish. Nor can I think our Legislators would have wished to subordinate the personal freedom of individual employees to the institutional interests of either employers or unions even in "rare cases" (see para. 5) as the majority of the Board acknowledges will be the case if their interpretation prevails.
In that the applicant was not represented by counsel, it remained for counsel to the respondent and intervener to assist the Board. For the reason stated above I find more persuasive the intervener's argument that section 55 was not intended to foreclose entirely on the open season in the case of a sale, thereby giving the union a "windfall" in the sense of an extended period during which no termination application can be made.
Accordingly, I would have found the application to be timely and heard the case.