Prescott Machine and Welding Inc. v. Energy and Chemical Workers Union and it Local Union No. 1
[1983] OLRB Rep. February 250
1676-82-R Prescott Machine and Welding Inc., Applicant, v. Energy and Chemical Workers Union and it Local Union No. 1, Respondent
BEFORE: Ian Springate, Vice-Chairman, and Board Members F. W. Murray and C. A. Ballentine.
APPEARANCES: R. N. Gilmore, M. Baril and L. Shand for the applicant; Henri Gauthier for the respondent.
DECISION OF THE BOARD; February 7, 1982
This is an application for a declaration terminating bargaining rights filed pursuant to the provisions of section 59 of the Act.
Subsection 59(2) provides that if a trade union fails to commence to bargain within sixty days after it has served notice to bargain on an employer, either the employer or any of the employees in the bargaining unit may apply to the Board for a declaration terminating the union's bargaining rights. The issuance of such a declaration is at the discretion of the Board, and in deciding whether or not to issue a declaration the Board is empowered, but not required, to hold a representation vote. The actual wording of the subsection is as follows:
"59.-(2) Where a trade union that has given notice under section 14 or section 53 or that has received notice under section 53 fails to commence to bargain within sixty days from the giving of the notice or, after having commenced to bargain but before the Minister has appointed a conciliation officer or mediator, allows a period of sixty days to elapse during which it has not sought to bargain, 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of any of the employees in the bargaining unit and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit."
The purpose of section 59 is to protect employees (and, in a proper case, the employer) against a bargaining agent which neglects to forward the interests of the employees but instead "sleeps" on its bargaining rights. As the Board has indicated in a number of cases, the section is not meant to be used to penalize a union, but rather is a means by which an interested party can 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 bargain. In instances where the union has not met the time requirements set out in section 59, but has either sought to bargain relatively soon afterwards or has some reasonable explanation for its delay, the Board will generally dismiss the application outright. See, Trizec Equities Ltd. [1978] OLRB Rep. Feb. 189 and Mohawk Construction Limited [1981] OLRB Rep. Aug. 1156. If, on the other hand, the union has been inactive for a substantial period of time, or if it appears that the union has made a decision not to exercise its rights, the Board will generally terminate its bargaining rights. See, Darrigo's Supermarkets Ltd. [1982] OLRB Rep. Jan. 32. It is generally only in those cases where a union has failed to bargain for a fairly lengthy period of time without any reasonable explanation for its delay, but where nevertheless the facts suggest that it is still interested in actively representing the employees, that the Board will direct the taking of a representation vote. See F. C. M. Construction Limited [19821 OLRB Rep. May 670.
Prescott Machine and Welding Inc. ("the company") and Energy and Chemical Workers Union, its Local Union No. 1 (the "union") had been parties to two collective agreements prior to the filing of the instant application. The company is a relatively small firm, which at the time it filed the application employed only five bargaining unit employees. The union is a "composite local" representing the employees of a number of small firms. The local's total membership numbers only some 40 employees. In negotiations with the company, the union's bargaining team is headed up by Mr. Henri Gauthier, a national representative of the Energy and Chemical Workers Union. Mr. Gauthier also services a number of other union locals with a combined membership of some 3,000 employees.
The most recent collective agreement between the parties expired on November 20, 1982. On or about September 10, 1982 the company laid off a number of employees, including all of the members of a bargaining committee who otherwise would have assisted Mr. Gauthier in negotiations for a new agreement. On September 15, 1982, Mr. Gauthier, who had yet to be advised of the lay-offs, sent the company notice to bargain on behalf of the union. The notice indicated that Mr. Gauthier would later contact the company in order to set dates for negotiations. On or about September 17, 1982, the company sent a similar notice to bargain to the union.
According to Mr. Gauthier, subsequent to serving the notice to bargain on the company, he made a number of telephone calls to the company for the purpose of setting dates for negotiations. However, he failed to make contact with any responsible company official, and did not leave any messages to return his calls because at the relevant times he was "on the road". At some point, apparently in late September or early November 1982, Mr. Gauthier did talk on the telephone with Mr. Larry Shand, the company's controller. During this discussion they dealt with certain matters connected with the lay-off of an employee. Mr. Gauthier testified that he also advised Mr. Shand that he would not be able to commence bargaining right away because he would need a new negotiating committee. Mr. Shand, however, testified that Mr. Gauthier did not make any reference to negotiations during their discussion.
It is undisputed that on November 5, 1982 Mr. M. Baril, the company's general manager, telephoned Mr. Gauthier. Mr. Baril did not initially advise Mr. Gauthier that he was part of management, although he did say that he was with the company and wanted to know what was happening. Mr. Gauthier, believing that Mr. Baril was a bargaining unit employee, stated that he would have to get together with you guys" within the next couple of weeks to agree on some bargaining proposals. The evidence of Mr. Baril and Mr. Gauthier concerning what happened next differs somewhat. Mr. Baril testified that he advised Mr. Gauthier that he was a member of management, to which Mr.