[1981] OLRB Rep. August 1145
0379-81-U Isobel Northover, Linda Tower, et al., Complainants, v. American Federation of Grain Millers, Local 242, Inter-Bake Foods Ltd., and American Federation of Grain Millers, Respondents
BEFORE: George W. Adams, Chairman, and Board Members J. A. Ronson and B. Armstrong.
APPERANCES: Eva E. Marszfwski for the complainants; Rodney D. Dale, Beatrice Ennis, Agnus Dorman, Doris Backus and Barb DeGaust for the respondent trade union; Tim Sargeant and Peter Radley for the respondent company; and Robert W Willis and Larry D. McCombs for the American Federation of Grain Millers.
DECISION OF THE BOARD; August 27, 1981
- This a complaint under section 79 of The Labour Relations Act. The complaint is amended to add as respondent the American Federation of Grain Millers (hereinafter referred to as "the International"). The complainants, a group of employees of Inter-Bake Foods Ltd. and members of both the International and its Local 242, allege violations of section 63(5) and section 60 of the Act. These sections provide:
63.-(4) A strike vote or a vote to ratify a proposed collective agreement taken by a trade union shall be by ballots cast in such a manner that a person expressing his choice cannot be identified with the choice expressed.
(4a) All employees in a bargaining unit, whether or not such employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement.
(5) Any vote mentioned in subsection 4 shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots.
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
The employees contest the manner in which a ratification vote meeting was called and conducted. The meeting was called on Thursday, April 23, 1981 for Sunday, April 26, 1981. The employees complain:
(i) the meeting was called upon insufficient notice;
(ii) the notice was not provided to all full-time and seasonal employees;
(iii) the meeting was improperly and unconstitutionally called; and
(iv) the meeting was not properly conducted.
- The relief requested includes:
I. A declaration that:
The ratification vote taken by those present at the meeting on Sunday, April 26th, 1981, is invalid.
An order prohibiting the Trade Union and the Employer from recognizing and signing the new collective agreement based upon the vote held on April 26th, 1981.
An order requiring the Union to conduct the vote to ratify the proposed collective agreement in such a manner that those entitled to vote have ample opportunity to cast their ballots, and specifically:
(i) That a full-time and seasonal employees receive at least two weeks written notice of the meeting at which the ratification vote is to be conducted.
(ii) That the notices sent out to the employees in sub. (i) above are to contain a copy of either the amendments to the collective agreement, or a copy of the new collective agreement which is to be ratified at the meeting.
(iii) That the Union allow the membership present and attending at the ratification meeting to have an ample opportunity to discuss the proposed amendments.
(iv) That the ratification vote be made by ballots cast in such a manner that a person expressing his choice cannot be identified with the choice expressed.
Organizing and other costs of the Complainant-Grievors herein.
Negotiations between the union and the company for a new collective agreement affecting approximately 600 employees, commenced some time in January of 1981 and continued through the winter of 1981. In total, there were approximately ten meetings held in an effort to arrive at a new collective agreement and six of these meetings were held prior to the conciliation meeting held on March 16, 1981. The negotiations were conducted on behalf of the local union by Mr. Robert Willis, Executive Vice-President of the International Federation of Grain Millers. Mr. Willis travelled from his office in Minneapolis for the purpose of conducting the negotiations on behalf of the local union. A no-board report dated April 10, 1981 was filed which would have put the union in a legal strike position on Monday, April 27th, 1981. A special union membership meeting was held on Sunday, March 29th, 1981 for the purpose of conducting a vote to give the negotiating committee authority to call a strike. The March 29th meeting was presided over by Mr. Larry McCombs, District Vice-President of the American Federation of Grain Millers. Larry McCombs and certain members of the American Federation of Grain Millers, Local 242, maintain that at the March 29th meeting, Larry McCombs told the membership that there would be a contract ratification vote conducted on Sunday, April 26th, 1981. In support of that assertion is the Conciliation Meeting of March 16, 1981 when it was agreed by the parties to create a strike deadline against which bargaining could develop momentum. Willis had indicated to Mediator, John Hopper, that the union needed the pressure of a no-board report. Mr. Byers for the company and Mrs. Ennis, President of Local 242 were present when these arrangements were devised. However it appears that Mrs. Innis was confused about the arrangement and no arrangements were made at that time to secure a hall in which to hold a meeting on Sunday, April 26th.
The local union holds general membership meetings on the 3rd Tuesday of every month. On Tuesday, April 21st, 1981, at a general membership meeting, the President of Local 242, Mrs. Beatrice Ennis, was specifically asked whether there would be a meeting held on Sunday, April 26th for the purpose of holding a contract ratification vote. Revealing her lack of understanding of the arrangements between the parties made on March 16, 1981 she replied that she thought the membership would not be in a legal strike position until Wednesday, April 29th, and therefore, she felt it was unlikely that there would be a contract ratification vote meeting held until Sunday, May 3rd. However, the very question indicates that at least some employees had heard of the possibility of a ratification vote being held on Sunday, April 26, 1981.
As agreed March 16, 1981, the negotiation meetings scheduled for Thursday, April 23rd and Friday, April 24th, 1981 commenced at the Howard Johnson's Motor Inn in London. Mr. John Hopper from the Ministry of Labour was present to assist the union and the company in their efforts to arrive at a new agreement. Mr. Willis testified that he first learned of the confusion over the strike deadline and proposed ratification meeting when he met with Mrs. Ennis on Thursday. He believed that the whole no-board arrangement and the two days of meetings would be wasted without the deadline. A judgment was therefore made to proceed with the negotiations and immediately notify the membership of the proposed April 26, 1981 meeting. At approximately noon on Thursday, April 23rd, Mrs. Agnes Doorman, the Treasurer of Local 242, telephoned certain union members at the plant for the purpose of instructing them to post notices for the purpose of informing the general membership of a contract ratification vote meeting to be held on Sunday, April 26th. At least one large, unsigned notice was posted and arrangements were made to secure a location for the meeting. The negotiations continued from 9:30 in the morning on Thursday, April 23rd until 6:30 in the morning on Friday, April 24th at which time a tentative agreement was reached that the union negotiating committee undertook to recommend to the membership. The contract ratification vote meeting was held on Sunday, April 26th and presided over by Mr. Robert Willis. At that time he explained the terms of the proposed collective agreement to the membership who were present. Mr. Willis informed the membership that if they did not accept the contract, that they would be "hitting the bricks" the next day. There were 390 members in attendance. The vote was conducted by secret ballot and the result was 212 members in favour of the contract and 178 opposed to the contract. Somewhat fewer employees turned out at the meeting when the preceding collective agreement had been ratified and the outcome of that vote was not dissimilar. The evidence reveals that usually a week's notice was given of earlier ratification meetings; that only one microphone was available at the meeting in question; and that no handout summarizing the agreement was prepared. There is also some uncertainty over whether or not union stewards performed the usual role of notifying employees on layoff or sick leave of the meeting. However, no complaint was registered with respect to any of these matters at the meeting.
On Monday, April 27th, 1981, there were at least two petitions circulated by unhappy members of the union complaining for a variety of reasons that the contract ratification vote meeting was unfairly conducted. These petitions were signed by a substantial number of union employees. The negotiating committee was concerned about the reaction of a significant number of their members to the way in which the vote had been conducted. As a result of consulting with their solicitor, the negotiating committee was advised to refrain from signing the collective agreement in order to allow any employees who felt they had been unfairly treated to apply to the Ontario Labour Relations Board for a ruling. A special union membership meeting was held on Sunday, May 10th for the purpose of advising the general membership that the union would maintain a neutral position in these proceedings.
A number of employees testified that the ratification meeting seemed hurried. The meeting lasted from 11:00a.m. to 12:30 p.m. No one was refused an opportunity to question the speakers and the terms of the proposed agreement were fully explained. As noted, no member questioned the conduct of the meeting or moved to have the meeting declared as irregular and set aside. There is no notice requirement in the constitution or bylaws of either union and no provision in these documents appears to have been contravened. However, it is more than likely that a number of employees made arrangements to go away during the weekend on the strength of Mrs. Ennis' incorrect assurances during the union meeting of April 21, 1981. Indeed, Mrs. Isabel Northover was one such employee. Mrs. Northover testified that she saw the notice on Thursday, April 24, 1981 but, because it was not signed, did not know it was official until the next day. Unfortunately, she had made arrangements on the Wednesday to be away and chose not to cancel those plans. Mrs. Northover is a union steward and told the Board that because of the lack of notice and her own plans, she did not have time to telephone all the people in her department. However, her daughter and son work for the company and she asked her daughter to call other employees if she had time. The Board was not advised as to how many employees were actually contacted or needed to be contacted. Another employee, Mrs. Suta, testified that Mrs. Ennis had assured her on Wednesday, April 27, 1981 that there would be no ratification vote that coming Sunday and she was unable to attend the meeting because of a commitment to the Ladies ride for Cancer held on the same date. A Mrs. Jeffrey expressed similar concerns. She did not think the employees would ever go on strike but would have preferred to see more meetings because of her belief that a company "always holds something back."
Mr. Willis has negotiated the previous three collective agreements for the union. He testified that during the negotiations with the company on April 23 and 24 it was made clear to the company that if it did not come up with a settlement which could be ratified by the membership at the Sunday meeting, the union would call a strike which would begin on Monday, April 27, 1981. At 11:00a.m., Sunday, April 26, 1981 the membership meeting was called to order by Local President, Beatrice Ennis who informed the membership that the Union had a contract for them to vote on. Willis testified that Ennis explained that because of the limited time involved there had not been sufficient time to provide the membership with copies of the settlement. Ennis then turned the meeting over to Willis to explain the proposed contract. Willis informed the membership that the contract was being recommended by the entire Local Committee and the International Union. He explained that he would read through each item and if there were any questions on any item, questions would be permitted at that time; however, there would be no debate on any of the items until after the entire package had been presented. Willis then read each proposal and followed by reading the previous language in the contract pertaining to that proposal. Language changes in the contract were covered first, with benefit and wage items being covered last. He informed the membership that the Union Committee had obtained the best possible offer from the Company without a strike, and that if the offer was rejected by the membership, using the above jargon of the trade, the Union would call a strike to begin the next morning on Monday, April 27, 1981. After completing the explanation of the proposals, the floor was then opened for discussion and debate. No member was prohibited from asking questions or stating opinions on the contract. After discussion, one of the members made a motion to vote on the contract. As noted previously, at no time did any member attempt to place a motion on the floor to declare the meeting out of order because of any alleged irregularity. The motion to vote on the contract carried by a large majority. Secret balloting was then conducted in an orderly manner after which the ballots were counted with the result that 212 voted to accept the contract and 178 voted to reject the contract. Thereafter, Willis advised the company officials of the outcome of the vote and, notwithstanding the union's refusal to execute the resulting collective agreement, the company implemented the settlement. Willis pointed out to the Board that of the five AFGM Local Unions in Ontario, only three have adopted a set time limit for posting special meeting notices. Local 154 representing Kelloggs in London, Local 230 representing General Mills in Toronto, and Local 210 representing Pillsbury and Ogilvie in Midland, by bylaw provision, all require that notices be posted at least 24 hours in advance of special meetings. Neither Local 327 representing Lipton in Bramalea or Local 242 have adopted bylaws which provide for a specific time limit.
For the complainants it was submitted that the totality of the respondent unions' conduct constituted a breach of both section 60 and 63(5). Counsel submitted that this conduct included negligent misrepresentations, insufficient notice and a failure to comply with the past practices of Local 242 in holding and conducting special meetings. It was also contended that neither union had taken adequate steps to correct the situation and that, in the result, employees were not given ample opportunity to vote. On behalf of the respondent company, it was argued that no collusion involving the company had been established and that it had an agreement with the unions. Counsel submitted that no breach of the Act on the part of these unions had been made out in his opinion but that, in any event, the company should not and could not properly be affected by any remedy. It was argued that any remedy should be confined to the trade unions and not involve a setting aside of the collective agreement. On behalf of the International it was pointed out that no constitutional provision had been violated and that the Board had to develop reasonable and practical standards in administering sections 60 and 63(5). It was also submitted that the legislature did not intend a rigorous review of the procedure of ratification meetings in enacting section 63(5).
Having carefully reviewed all the evidence and the submissions of the parties, the Board finds that the alleged violations of sections 60 and 63(5) have not been made out. The standard of trade union conduct required under section 60 has been reviewed in detail elsewhere and need not be elaborated to any great degree in the instant case. See Barber Coleman of Canada Ltd., [1976] OLRB Rep. Oct. 613 and Walter Prinesdomu, [1975] OLRB Rep. May 444. As noted in the Coleman case, section 60 requirements take much of their shape from the fact that union affairs are conducted for the most part by laymen and this is particularly so of local union affairs. Breakdowns in communications and errors in judgment inevitably occur. The Board has decided that, given the statutory language employed, the Legislature has acknowledged this reality of trade union organization and intended it to be accommodated in the administration of the section. In the facts at hand the local trade union s president misunderstood the "count-down" scenario worked out between the parties on March 16, 1981. On April 23, 1981 the union was therefore confronted with the dilemma of going ahead with the two days of negotiations and the planned ratification meeting of April 26, 1981 or postponing everything. It concluded that the time remaining was adequate for the calling of the special meeting. We note that other locals of the same trade union require only that twenty-four hour's notice be given. A large number of employees obviously received notice and the employee turnout appears to have been representative of previous attendance at such meetings. Not one objection was registered at the meeting with respect to lack of notice, the conduct of the meeting, or to the format of the meeting. No motion was made to set the meeting aside. The proposed contract was fully explained; questions were entertained; and a secret ballot vote was conducted. The failure of a union official to sign the meeting notice is a mere technical irregularity and the number of microphones and the lack of a handout appear to be equally insignificant on the facts before us. We are satisfied by the voter turnout and direct evidence that by Friday, April 24, 1981 it was clear that the notice was official. Admittedly, many employees may have been inconvenienced but this is not unusual in the setting of negotiations where events surrounding settlements can be swift. Having regard to all of these facts, it cannot be said that either section 60 or section 63(5) were violated. In the circumstances, we are satisfied that all bargaining unit employees were given a reasonable opportunity to participate in the secret ballot vote and we do not agree that section 63 was intended to set down a rigid standard of trade union procedure for strike and ratification votes. Nothing done in the instant case strikes us as so patently unfair or unreasonable to merit intervention under this section. See RCA Limited, [1981] OLRB Rep. Aug. 1159. To intervene in the instant case would set this Board on a course of detailed regulation we are reluctant to embark upon. Trade union democracy is amply suited to handling controversy of this kind.
The complaint is dismissed.