[1982] OLRB Rep. May 670
2154-81-R F. C. M. Construction Limited, Applicant, v. Labourers' International Union of North America, Local 183, Respondent
BEFORE: Ian Springate, Vice-Chairman, and Board Members H. J. F. Ade and O. Hodges.
APPEARANCES: Mark Contini, Leslie Ivanyi and Joao Frias for the applicant; B. Fishbein, M. J. Reilly and T. Conolly for the respondent.
DECISION OF THE BOARD; May 3, 1982
This is an application under section 59 of the Labour Relations Act for a declaration that the respondent no longer represents certain employees.
F. C. M. Construction Limited ("F.C.M.") is a Mississauga-based sewer and watermain contractor. On November 15th, 1979, the Board certified the respondent trade union ("the union") for a unit of construction labourers in the employ of F. C. M. in the Board's geographic area #8. On November 21, 1979, Mr. Tom Connolly, the union's assistant manager, sent a notice to bargain to the company. The company never replied to the notice. Mr. Connolly testified that his practice was generally to follow up a notice to bargain, but he acknowledged that he did not do so with respect to F.C.M.
Mr. Connolly testified that he may not have followed up the notice to bargain either because a standard form sewer and watermain agreement was due to expire on April30, 1980, or because he was waiting for the company to start a new job. We doubt that the fact that the standard form sewer and watermain agreement was due to expire some five months later was what led Mr. Connolly not to follow up the notice to bargain. We reach this conclusion largely on the basis of Mr. Connolly's own testimony wherein he stated that after sending out a notice to bargain he would generally either call or visit the company involved, and that during the ensuing discussion the parties would sometimes agree that instead of signing an agreement immediately, they would wait for a new standard form agreement to be concluded. Mr. Connolly, however, never did phone or visit F. C. M. and, accordingly, there could not have been any agreement to wait until a new standard form agreement had been concluded. With respect to Mr. Connolly's statement that perhaps he was waiting for the company to start a new job, we are satisfied that he never contacted the company or any of its employees to see if the company was doing any work. As it happens, at about the time the notice to bargain was sent, the only job F. C. M. was performing was in Campbellford, outside Board area #8. However, in December of 1979, the company started on two contracts in Board area #8, one for the Borough of Etobicoke and the other for the Regional Municipality of Peel. Both of these contracts ran until mid-February, 1980. The respondent's next job, a subdivision project in Mississauga for $330,000, commenced in mid-April of 1980. Except for certain winter shutdown periods, the company has been almost continuously active in Board area #8 since that time doing both subdivision work and performing contracts for local municipalities. It is also of some interest to note that section 121 of the Act expressly provides that in the construction industry a valid collective agreement can be entered into even if there are no employees in the bargaining unit at the time. Given these considerations, we are led to conclude that it was likely due to oversight and for no other reason that Mr. Connolly did not follow up the notice to bargain.
The only contact the union had with the company after forwarding the notice to bargain on November 21, 1979 was in September of 1980 when Mr. Frank Palazzolo, a business representative of the union, had a chance encounter with Mr. L. Ivanyi, the company's general manager, in a parking lot. Mr. Palazzolo asked Mr. Ivanyi about signing a collective agreement, to which Mr. Ivanyi replied that he would sign as soon as he got a new job. Mr. Ivanyi's comment was clearly misleading, since F. C. M. was in fact working in Board area #8 at the time. The union did not take any steps to check out Mr. Ivanyi's implied assertion that the company was not currently working. The union also did not subsequently contact F. C. M. or take any other active steps to ascertain if the company had acquired any new work.
In April of 1981, Mr. R. Reilly became the union's business manager and secretary-treasurer. Early in January of 1982, Mr. Reilly became aware, through the Southam Building Reports, that F. C. M. had obtained a contract from the Town of Oakvile worth $136,134. This prompted Mr. Reilly to inquire into the status of F. C. M. It appears that it was during this inquiry that Mr. Reilly first became aware of the union's outstanding certificate relating to the firm. It is not disputed that it was at this time that Mr. Reilly first learned of Mr. Palazzolo's conversation With Mr. Ivanyi in September of 1980.
On January 7, 1982, Mr. Reilly, on behalf of the union, requested that the Minister of Labour appoint a conciliation officer to confer with the parties in an endeavour to effect a collective agreement. In support of this request, Mr. Reilly relied on the notice to bargain served on the company on November 21, 1979. As required by the Minister, the union forwarded a copy of the application to F. C. M. Upon receipt of its copy of the application, F. C. M. both objected to the appointment of a conciliation officer and also made the instant application to the Board. Notwithstanding the objections of the company, the Minister appointed a conciliation officer. The appointment was made on February 4, 1982, subsequent to the filing of the instant application on January 14, 1982.
Section 59(2) of the Act provides as follows:
When a trade union that has given notice under section 14 or section 53 or 1 hat 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 is 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 representative vote, declare that the trade union no longer represents the employees in the bargaining unit.
It is the contention of the union that this application should be regarded as untimely in that it was made after the union had requested the appointment of a conciliation officer. The timeliness requirements of section 59(2) can arguably be interpreted in a number of different ways. However, the very best interpretation from the point of view of the union is that this application became untimely once the Minister "had appointed a conciliation officer or mediator". Albeit that when this application was filed a request had been made to have a conciliation officer appointed, the fact remains that no such appointment had as yet been made. This being the case, the application is, in our view, clearly timely. We would further note that given the lack of activity on the part of the union, we are unable to agree with union counsel that somehow the company acted improperly in filing this application immediately after being advised of the request for the appointment of a conciliation officer. Until it received a copy of the request, the company appears to have assumed, with some justification, that the union had simply forgotten about it.
This application was filed on January 14, 1982, at a time when there were no employees in the bargaining unit. The company did employ some bargaining unit employees in February, but they had been laid off by the time this matter came on for hearing on March 15, 1982. At the hearing, we were advised that the company planned on commencing work and employing people within the bargaining unit in two weeks' time. If this projection was correct, then it is most likely that there are currently a number of employees working in the bargaining unit. At the hearing, counsel for the union contended that on the basis of a Board practice of refusing to terminate the bargaining rights of a union where there are no employees in the bargaining unit, the instant application should be dismissed. There are in fact a number of cases where, after a company had ceased operations and there were no longer any employees in the relevant bargaining unit, the Board declined to terminate the union's bargaining rights due to a failure to bargain. See, for example, BLH Bertram Limited, [1979] OLRB Rep. Jan. 1032. In such cases, it would have made little sense for the union to engage in bargaining unless and until the discontinued operations were reopened. That, however, is not the situation in the instant case. Here, except for certain winter shutdown periods, the company has been almost continually active and has employed bargaining unit employees. In these circumstances, we decline to dismiss the application simply because it was filed at a time when there were temporarily no employees in the bargaining unit.
The purpose of what is now section 59 of the Act has been summarized as follows in Medi-Park Lodges Inc. [1979] OLRB Rep. Oct. 1007:
Certification gives a union an effective monopoly in the representation of a group of employees. Section 51 of the Act is therefore intended to insure that the rights of representation extended through a Board certificate are actively advanced by the union charged with that responsibility. While nothing in the Act can insure that the granting of bargaining rights will result in the consummation of a collective agreement, section 51 acts as a spur to require immediate and continuous efforts in bargaining on behalf of the employees concerned. A union that does not meet the minimum requirements of the section is liable, upon a successful application, to have its bargaining rights reviewed through the test of a representation vote, or to have them directly terminated.
In instances where a union has not met the time requirements set out in section 59, but has either subsequently sought to bargain within some relatively short time period, or has advanced some reasonable explanation for its delay, the Board has declined to terminate its bargaining rights. See: Walmer Transport Co. Ltd., 53 CLLC ¶ 17,062. The Board has also refused to terminate a union's bargaining rights in situations where, although a few months have passed without any bargaining, the union has, prior to the filing of the termination application, demonstrated a renewed interest in bargaining. See: Mohawk Construction Limited [1981] OLRB Rep. Aug. 1156. In the instant case, however, the union's delay involved more than just a few months, and the union has not advanced any justifiable reason for not seeking to engage in collective bargaining. Further, there is nothing in the evidence to indicate that subsequent to November of 1979, the union has had any contact with employees in the bargaining unit. Given these circumstances, we are of the view that the employees should be given an opportunity to indicate whether or not they still desire to be represented by the union.
We would note that as part of its case, F. C. M. contended that the Board should declare that the union had abandoned its bargaining rights. For the Board to conclude that a union has abandoned its bargaining rights, it must be satisfied that the union has voluntarily given up or "walked away" from those rights. Although the facts involved bring this case very close to the line, we are not satisfied, especially due to Mr. Palazzlo's discussion with Mr. Ivanyi in September of 1980, that there was in fact an actual abandonment of its bargaining rights on the part of the union.
The Board directs that a representation vote be taken among the employees of F. C. M. Construction Limited. Those eligible to vote are all construction labourers employed by F. C. M. Construction Limited in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Township of Esquesing, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except construction labourers employed on building projects, non-working foremen and persons above the rank of nonworking foreman, on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken.
Voters will be asked to indicate whether or not they wish to be represented by Labourers' International Union of North America, Local 183 in their employment relations with F. C. M. Construction Limited.
The matter is referred to the Registrar.