Chris Martin v. Sheet Metal Workers' International Association, Local Union No. 540
1273-81-R Chris Martin, Applicant, v. Sheet Metal Workers' lntcrnational Association, Local Union No. 540, Respondent, v. Flexonics Division, UOP Limited, Intervenor
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members H. Kobryn and J. Wilson.
APPEARANCES: M. Horan and C. Martin for the applicant: B. Fishhein, K. Waisglass, R. Flood and N. Watt for the respondent; and M. Gordon, D. Peel and R. Kuhm for the intervenor.
DECISION OF THE BOARD; October 27. 1981
This is an application for a declaration terminating the respondent union's bargaining rights, pursuant to section 57 of the Labour Relations Act. The principal issue before the Board is whether forty-five per cent of the intervenor's employees have voluntarily signified in writing that they no longer wish to be represented by the union. The respondent alleges that the intervenor's unlawful interference casts doubt on the "voluntariness" of the employee statements supporting this application.
This matter first came on for a hearing before the Board on Friday, October 16th. and is scheduled to continue on November 23rd and 24th. It is evident that the issues raised on the application will remain unresolved for several weeks. In the interim, the employer seeks a direction from the Board relieving it of its obligation to bargain with the respondent until the "cloud" over its status as bargaining agent is removed, or, in the alternative, some direction concerning the scope or extent of its bargaining obligation under section IS of the Act.
The facts forming the background to the intervenor's request are not in dispute. The termination application was filed on September 3rd, 1981. On or about September 4th, 1981, the union gave the employer notice to bargain, and thereafter, the parties engaged in negotiations with a view to concluding a new collective agreement. The union applied for conciliation and, despite the employer's objections, the Minister of Labour, by a letter dated October 9th, 1981. indicated that a conciliation officer would be appointed, and that in his view, the existence of an outstanding termination application was not a bar to such appointment. At the present time, no officer has been appointed, and no further meetings between the parties have actually been convened. It is possible (although not likely) that: the officer will be appointed; meetings will take place; the meetings will prove unsuccessful: the officer will recommend, and the Minister will issue, a "no Board report"; seventeen days will go by; and the right to strike will accrue all before the termination application is resolved. It is also possible that the union and employer will resolve their differences and be in a position to conclude a new collective agreement before the Board has disposed of the application before it.
The intervenor employer argues that the termination application affects, and raises doubts about, the efficacy of continued collective bargaining until the union's status is resolved. At the very least, the intervenor argues, this Board should give some guidance as to how the statutory duty to "bargain in good faith" applies in this situation. While there is no allegation that the respondent has not bargained "in good faith" such complaint is a distinct possibility which a Board direction might avoid.
The union contends that a Board seized with a termination application has no jurisdiction to make an order restricting the obligation of the employer to bargain in good faith, or relieving it of its responsibilities under section 15. In this respect, the union notes the absence of any language in section 57 similar to section 63(9) of the Act which specifically relieves an employer of the obligation to bargain while a successor status issue is being litigated. The union further argues that it would be unwise to speculate about how section 15 might be applied in this situation. The union admits that the pending termination proceedings may legitimately have an impact on the conduct of bargaining, but maintains that it is premature to address these issues, and relies on the general statement appearing in Groves Park Lodge [1979] OLRB Rep. Nov. 1088 at paragraph 9:
"If an application for termination, standing alone, were to place a veil of uncertainty over a union's right to bargain on behalf of the employees, the rights of all concerned would be seriously prejudiced by the lengthy delays in bargaining that would inevitably follow. Unless the parties agree that bargaining should be deferred pending the determination of a termination application, it is in the best labour relations interests of the parties for the union and employer to proceed with their negotiations.
The union also relies upon the Board's expressed view that a challenge to its jurisdiction to issue a certificate does not, in itself, relieve the employer of its obligation to bargain while the Court resolves that issue (see Four B Manufacturing[1978]OLRB Rep. August 741 and Cable Tech Wire [1978] OLRB Rep. October 895). The union argues that a termination application is an analogous situation. There do not appear to be any previous Board decisions analyzing the impact of a termination application on the parties' duty to bargain under section 15.
- We have carefully considered the intervenor's submission in this matter, and especially its suggestion that, in the absence of decided cases before the Ontario Labour Relations Board on the point in issue, we should give consideration to the practice of the (U.S.) National Labour Relations Board. There too, there is an obligation to bargain in good faith based upon the union's status as the majority representative of the employees, and the NLRB has consistently held that an employer's "good faith doubt" concerning the union's majority status is an effective defence in an unfair labour practice complaint alleging a breach of the duty to bargain. The short answer to this submission is that the U.S. statutory framework is quite different from that in Ontario, however, a perusal of the American cases reveals both that a decertification application does not, in itself, relieve an employer of its obligation to bargain, and the variety of other factors which bear upon the extent the employer's bargaining obligation. Moreover, these issues do not seem to be raised as part of the representation proceeding, but rather in an unfair labour practice complaint alleging a breach of the duty to bargain in good faith. (See for example, Valmac Industries Inc. 101 LRRM 2389, Anderson Cabinets 103 LRRM 2103, Sacramento Clinical Laboratory, 105 LRRM 2054, Sahara Tahoe Hotel, 105 LRRM 3421, Grede Foundaries Inc. 104 LRRM 2646, Rogers Manufacturing Co., 84 LRRM 2577, Automated Business Systems, 86 LRRM 2659, Seeburg Corporation, 82 LRRM 2225, South West Chevrolet Corporation, 79 LRRM 1156, Texas Electric Coop In(., 80 LRRM 1319, Rogers Manufacturing Co., 80 LRRM 1548, WA P1-TV, 80 LRRM 1625. Community Convalescent Hospital, 82 LRRM 1222, Toltec Metal Inc., 82 LRRM 1542, National Cash Register Co., 82 LRRM 1620. etc.) These American cases amply illustrate the variety of factors which can bear upon the Board's assessment of the employer's bargaining obligation, and underline the union's contention that the Board should be hesitant to make any general statement with respect to this matter in the absence of a thorough review of all of the bargaining circumstances. These concerns are especially apposite in the instant case when the Board does not have a bargaining complaint before it, and is asked to speculate on a largely hypothetical situation. Thus, while the Board is not unsympathetic to the employer's dilemma, and acknowledges that a termination application may have an effect on the intervenor's bargaining obligation, the Board is not disposed to give the general directions which the employer now seeks.