[1982] OLRB Rep. January 32
2028-81-R Domenic Panucci, Applicant, v. Teamsters Local Union No. 419 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent, v. Darrigo's Supermarkets Ltd., Intervener
BEFORE: R. D. Howe, Vice-Chairman, and Board Members L. Hemsworth and S. Cooke.
APPEARANCES: Domenic Panucci for the applicant; no one appearing for the respondent; Robert Howard for the intervener.
DECISION OF THE BOARD; January 15, 1982
This is an application under section 59(1) of the Labour Relations Act for a declaration that the respondent trade union no longer represents the employees in the bargaining unit for which it is the bargaining agent.
Section 59(1) provides as follows:
"If a trade union fails to give the employer notice under section 14 within sixty days following certification or if it fails to give notice under section 53 and no such notice is given by the employer, the Board may, upon the application of the employer or of any of the employees in the bargaining unit, and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit."
Also relevant to the present application is section 14, which provides:
"Following certification, the trade union shall give the employer written notice of its desire to bargain with a view to making a collective agreement.
The application was filed with the Board on December 17, 1981. No reply to the application was filed by the respondent. Although the respondent was duly notified that the hearing of this application by the Board would take place at its boardroom, 400 University Avenue, Toronto, Ontario, on Thursday the 14th day of January, 1982, at 9:30 a.m., no one appeared on behalf of the respondent when the case was called at that time. As a matter of courtesy, the Board recessed the hearing until 10:00 a.m. in view of the possibility that the representative(s) of the respondent might have been delayed. When no one appeared on behalf of the respondent by 10 o'clock that morning, the Board proceeded to hear the application.
By decision dated October 14, 1981, in File No. 1365-81-R, the Board, differently constituted, certified the respondent trade union as bargaining agent for "all employees of [the intervener] at its warehousing operations in Metropolitan Toronto, save and except supervisors, those above the rank of supervisor, part-time [sic] and students employed during the school vacation period".
Having regard to all of the evidence and the submissions of the parties, the Board finds that the respondent trade union failed to give the intervener employer notice under section 14 within sixty days following certification. Moreover, it appears that no such notice had been given by the date of the hearing of this matter. As noted above, the respondent trade union filed no reply to this application and did not appear at the hearing. Thus, the Board was provided with no explanation whatever for the respondent's failure to exercise its bargaining rights.
The application was filed by an employee in the bargaining unit. The applicant also filed in support of the application a document that we find to have been voluntarily signed by eight of the nine employees in the bargaining unit on the date of the application. The heading on that document reads:
"We, the undersigned employees, of Darrigo's Supermakets Ltd., 55 Plywood Place, Toronto, Ontario, working at its warehouse in Metropolitan Toronto freely wish not be represented by the Teamsters Local Union 419 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America."
The purpose of section 59(1) is to protect the employees (and, in a proper case, the employer) against a union which stakes out a claim to represent certain employees and then fails to give the employer notice under section 14 within sixty days following certification, thereby sleeping on its bargaining rights and neglecting to forward the interests of those employees. As has been indicated by the Board in a number of cases, section 51 should not be used to penalize a union but rather to afford an opportunity for an interested party to bring the material facts to the attention of the Board so that the Board can call upon the trade union to provide an explanation for its failure to give notice under section 14 within the time period specified in section 59(1), or to provide an explanation for its failure to commence (or continue) bargaining in cases to which section 59(2) is applicable. (See, for example, Trizec Equities Limited, [1978] OLRB Rep. Feb. 189 and the Board jurisprudence cited therein.)
The Board has generally exercised its discretion under section 51 to terminate bargaining rights without a vote where the trade union fails to file a reply and appear at the hearing to provide a satisfactory explanation for its failure to serve notice under section 14 within the time period specified in section 59(1), or to commence (or continue) to bargain within the time period specified in section 59(2). (See, Fullers Restaurant, [1981] OLRB Rep. Feb. 156 and the numerous authorities cited therein.)
Having regard to all of the circumstances, the Board is of the view that this is an appropriate case in which to exercise its discretion under section 59(1) to terminate the respondent's bargaining rights without a representation vote. Accordingly, the Board hereby declares that the respondent no longer represents the employees of the intervener in the bargaining unit set forth above, for whom the respondent has heretofore been the bargaining agent.