United Steelworkers of America v. Tech Corporation Limited (Silverfields Division), 1982 CanLII 936

Ontario Labour Relations Board

[1982] OLRB Rep. July 1069

0673-82-U United Steelworkers of America, Complainant, v. Tech Corporation Limited (Silverfields Division), Respondent.

BEFORE: George W. Adams, Q.C., Chairman, and Board Members M. Eayrs and M. J. Fenwick.

APPEARANCES: Brian Shell and Rheal Lemoine for the complainant; and Roy C. Filion, C. Peterson, K. I. Hymas and M. Robinson for the respondent.

DECISION OF GEORGE W. ADAMS, Q.C., AND M. EAYRS; July 30, 1982

1. The complainant alleges that the respondent violated sections 15, 64, 70 and 75 of the Labour Relations Act and extensive remedial relief is requested. The case was, however, argued on the basis of a violation of the bargaining duty centering on the allegation that the respondent unlawfully withdrew an offer for the purpose of avoiding a collective bargaining agreement between the parties.

2. The complainant and respondent were parties to a collective agreement effective July 3rd, 1981 to July 2nd, 1982. On April 2nd, 1982 the complainant gave notice to the respondent of its desire to amend and renew the aforementioned collective agreement. On the dates of May 11th, May 20th and June 23rd, 1982 the parties met and engaged in collective bargaining for the purposes of renewing the previous collective agreement. On June 17th, 1982 Mr. Trevor Stevenson was appointed Conciliation Officer and a conciliation meeting was conducted on June 23rd, 1982.

3. There is little or no dispute that at the meeting of May 11th the union simply reviewed its proposals with company officials. The proposals took the following form:

Proposals by the United Steelworkers of America to Tech Corporation Limited, (Silverfields Division), pursuant to the current Collective Agreement between the aforementioned parties that will expire on July 2nd, 1982.

ARTICLE 2— RECOGNITION

2.01 The Company recognizes the Union as the exclusive bargaining agent for all employees of the Company at its mines, mills or surface plants in the Province of Ontario.

ARTICLE 18—INSURANCE-WELFARE PROGRAMME

18.01 (b) Dental Plan to read current schedule of fees.

Dental — 100% paid by the Company.

Sickness & Accident — 100% paid by Company.

$500.00 L.T.D. with no offsets. (delete any reference to

offsets).

ARTICLE 19— WAGES

19.01 Wages to be increased $1.00 across the board.

19.02 E. (ii) Roll-in each three months of the Contract.

19.09 SEVERANCE PA Y — $15.00 per month.

Severance Pay — given on the day of notice of lay-off or transfer.

ARTICLE 20— SHIFT DIFFERENTIAL

20.01 A shift premium of 30e per hour shall be paid to employees who are scheduled to work and who perform their regular work on afternoon shift or night shift.

20.02 A shift premium of 40% per hour shall be paid to employees who are scheduled to work and who perform their regular work on graveyard shift.

ARTICLE 22— DURATION OF AGREEMENT

22.01 One year Agreement.

Foreman to cease doing work normally performed by Bargaining

Unit employees.

Safety Apparel to be paid on every receipt up to $125.00 to all

employees (letter dated October 1, 1981 — Subject: Safety-

Clothing Allowance). (attached).

4. Attending this first meeting were Michel Robinson, Manager; Doug McClelland, Accountant; and John Young, Mine Superintendent for the company. For the union, Mr. Rheal Lemoine, Staff Representative; Roland Boifvert; Danny Larabie; and Elwood Sweet. Mr. Robinson was the company spokesman and this was his first set of negotiations. Mr. Lemoine was appointed Staff Representative of the complainant trade union May 1st, 1982 and he too has had very little experience in conducting negotiations. To complicate matters, Mr. Robinson's first language is French and he has some difficulty understanding and expressing himself in English.

5. A second meeting was held May 20th and at this meeting the company spokesman was Mr. K. I. Hymas, General Manager, Eastern Operations for the respondent corporation. He has been with the company nine years and has had considerable labour negotiations experience. There is no dispute that Mr. Hymas gave a rather depressing review of the company's position to the trade union. The bargaining unit numbers 60 employees who are engaged in silver mining and milling. Mr. Hymas pointed out that the price of silver had been decreasing for the last two years and that it was currently at an all time low. He pointed out that there was a decreasing grade of ore at the mine and that the company had not made an overall operating profit for about six months. He went on to describe the company's profit experience month by month over the previous year. He said that he hoped the mine could be kept open until Christmas, although at the time of the hearing Mr. Hymas indicated that the termination or closing of the mine would likely occur at the end of October. There is also no dispute that Mr. Hymas reviewed all of the trade union proposals and was generally negative with respect to all of them except for the last proposal dealing with the renewal of the collective agreement. Where the complainant and respondent part company is over what Mr. Hymas is alleged to have said about the continuation of the COLA clause.

6. It was Mr. Hymas' evidence that he emphasized the company was not looking for "a cut" in wages but that "what was valid in the agreement on July 2nd (the last day of the agreement) the company would adopt and propose for a one year extension without further change". He explained to the Board that the July COLA payment had not yet been paid at the time of the meeting and that it was expected to generate l0~. He said that what he meant by referring to "what was valid on July 2nd would remain valid until July 1983" is that the company was willing to continue to pay the expected 10r COLA payment "unrolled in" for the life of the contract. He said there was nothing said by the trade union that gave any indication that they did not understand what he was saying to them. Mr. Lemoine, on the other hand, said that he recalled Mr. Hymas indicating that the company was willing to accept a one year contract and when asked if such a contract included COLA Mr. Hymas indicated that it would. Mr. Hymas, however, specifically denies stating that COLA would continue to be paid. In any event, there was clearly no discussion of the necessary revisions to the various dates the reference to a COLA clause in Mr. Lemoine's notes is contained in a different colour ink which gives us some cause for concern. There is also no dispute that Mr. Hymas told the committee that if there was a strike the company would simply close its doors. Nor is it con­tested that following this meeting it was the union that applied for conciliation with the com­pany preferring to continue pre-conciliation discussions.

7. The next meeting between the parties was June 23rd, 1982 and this meeting was with the Conciliation Officer, Trevor Stevenson. The parties met face to face first thing in the morning and then Mr. Stevenson worked with each of the parties in private session. Finally, some time in the afternoon, he called the parties together and another face to face session was held during which he reviewed their respective positions. It would appear he indicated that the company was willing to increase the severance pay from the present $10.00 per month per year of service to $15.00 and that it was unwilling to make any reference to the Employment Standards Act. He stated that the company was willing to continue the present agreement for one year and then either asked whether or asserted that the company's offer included the continuation of COLA payments. Unfortunately, at this meeting only Messrs. Robinson, McClelland and Young were present for the company because Mr. Hymas had a com­mitment elsewhere. Mr. Robinson testified that after a discussion with Mr. Young and Mr. McClelland at the outset of the morning of June 23rd before meeting with the union he became unsure whether the company's position was the continuation of COLA payments or not. He had thought Mr. Hymas had said on May 20th that the COLA clause would continue although he did recall specific mention by Mr. Hymas of the July 2nd date. On the other hand, according to Robinson, McClelland and Young thought that Mr. Hymas did not intend to include COLA. Mr. Robinson testified that he was unable to get in contact with Mr. Hymas prior to meeting with the union and was confused over what was happening and too embarrassed to admit this confusion to the trade union. When he did talk to Hymas at 1:00 p.m. he forgot to raise the issue with him. Thus, he testified, when Mr. Stevenson made reference to the continuation of the COLA at the afternoon meeting he said nothing and instead Mr. Lemoine confirmed that the company intended the COLA payment to continue. Lemoine's recollection is that Stevenson asked Robinson whether the COLA payment was to continue and Robinson said that this was the case. But regardless of who said what, the union committee did not accept the company's proposal. Rather they agreed to submit it to the membership for a ratification vote and to take a neutral position. The company was advised that the ratification vote would take place on the following Monday and it was Lemoine' s evidence that he and other committee members told the company that they thought the offer would be accepted because the employees wanted the continuation of the COLA payment. Robinson denies that this was said to him and his colleagues but agrees that he had the impression that the continuation of COLA was important to the trade union.

8. Both Robinson and Hymas testified that Hymas called Robinson at 6:00 p.m. that evening to review what had happened at the meeting. Hymas had expected the meeting to be an introduction to the conciliation officer and a review of positions. He certainly did not intend that an agreement be concluded on that day and even Robinson seemed to be surprised at the way the meeting progressed. Hymas testified that, in questioning Robinson about the day, it became apparent that Robinson had misunderstood the company's position as expressed by Hymas at the meeting of May 20th on the issue of COLA. Hymas corrected his understanding in this respect and advised him to immediately get in contact with the trade union representatives to insure they understood the company's true position. Robinson testified that he specifically drew his uncertainty to Hymas in order to seek clarification. The very next morning Robinson attempted to locate Lemoine and reached him in the afternoon. It appears from the evidence that Robinson left Lemoine with the impression that Robinson had made a mistake and that Hymas was directing him to correct it by advising the trade union that the company's position as of June 23rd had to be revised so that there was no continuation of COLA payments in the one year agreement. It would also appear that Robinson called together the negotiating committee members without Lemoine and advised them of the same thing.

9. Currently there has been no request by either party for the release of a no-board report. Both Hymas and Robinson disclaimed any interest in seeing the employees engage in strike activity and Hymas stated that all severance obligations of the company have been calculated and monies set aside.

10. It is the complainant's submission that the respondent only revised its offer after it learned from the union that the offer was likely to be accepted by the members of the complainant. At that point, the respondent revised its offer ~o insure rejection and thereby avoid the entering into of a collective bargaining agreement. The complainant speculated that the respondent's intention was either to lock-out its employees and force them to seek employment elsewhere in attempt to avoid its severance pay obligations under the Employment Standards Act and the collective bargaining agreement or, alternatively, the company simply wanted to operate for the duration of the mine's existence without a collective bargaining agreement. It was also submitted by the trade union in a further alternative that if the respondent had genuinely committed an error on June 23rd which it was seeking to correct by revising its position, the error in and of itself constituted a breach of section 15 in that it was fundamental and caused substantial prejudice to the trade union. On behalf of the respondent company it was submitted that at most it had committed a bargaining error because of Mr. Robinson's inexperience and difficulty with the English language. It was contended that the offer made in error had not been accepted and, accordingly, the company was legally entitled to revise it and return to its real position. Counsel stressed that the error did not indicate bad faith or an intent to avoid a collective agreement.

11. A careful review of the evidence and the submissions of the parties has led the Board to conclude that Mr. Hymas did not intend to continue the COLA payment in the new agreement and that he attempted to convey this at the meeting of May 20th. It would also appear that Mr. Robinson because of his inexperience, his difficulty with the English language and the absence of Mr. Hymas at the June 23rd meeting was mistaken in conveying the position of the company at that time. Having regard to the fact that the union did not accept that proposal, the respondent was entitled to salvage its position by notifying the trade union of the error that had been made and precisely what its real position was. While concerned over the apparent failure of Hymas to be precise over a major change in the agreement, the surrounding circumstances have led us to conclude that the complainant has not met the onus it shoulders to establish the alleged violation. We note that the parties were in a renewal situation; the economic outlook for the mine was disastrous; the respondent at no time was pushing to achieve a strike and lockout position and that it was the union that applied for conciliation. We are also mindful that both Mr. Lemoine and Mr. Robinson are relatively inexperienced negotiators and that there is no reliable written record of what Mr. Hymas said on May 20th, 1982. In such circumstances there is a tendency to hear what you want to hear. Against this background, we are satisfied that Mr. Hymas' testimony is plausible and that this plausibility was not significantly impaired by the union's evidence or cross-examination.

12. While the result of this reasoning is to dismiss the complaint, the Board urges the parties to return to the bargaining table with the assistance of the Conciliation and Mediation Branch of the Ministry of Labour and, to this end, we have released a copy of this decision to Mr. Trevor Stevenson.

DECISION OF BOARD MEMBER M. J. FENWICK;

1. I dissent.

2. In view of the disagreement by the parties as to what final agreement renewal terms each proposed, I would direct them to request a further meeting with Trevor Stevenson, the conciliation officer, for the purpose of clarifying the issues.

3. Lemoine s summary of proceedings at the May 20th negotiating meeting included reference to Hymas saying that the company's position was negative to all contract renewal items proposed by the union.

4. Hymas said the corporation was willing to renew the agreement for one year.

5. Lemoine made a point at this stage in the proceedings to suggest that the renewal would include continuing the COLA clause.

6. He testified that Hymas' response was "yes~~. (Company counsel observed that "if a union representative goes away from negotiations without getting something in writing he does so at his peril".)

7. This is a valid cautionary note which applies to any business transaction. However, the history of collective bargaining is replete with examples of deals being made verbally, confirmed only by a handshake.

8. Lemoine further testified that the conciliation officer summarized for the parties on July 23 the items of agreement. These were one year renewal, increase in severance pay and continuation of COLA.

9. Michel Robinson, chief company spokesman at that time, affirmed that the summary was correct.

10. In his testimony-in-chief, Mr. Hymas said he told union negotiators the company would not be looking for cutbacks in wages or benefits and that the company would agree to a one year agreement extension.

11. As a consequence of these assurances by Hymas and Robinson it is understandable that Lemoine and his committee would assume that the COLA clause would be continued for the ensuing year of the agreement.

12. In view of the disagreement by the parties as to what was decided on the COLA clause, I would direct the parties jointly to request Trevor Stevenson, the conciliation officer, to convene a further meeting for the purposes of reviewing their respective positions.