[1982] OLRB Rep. July 1091
2681-81-R; 2682-81-R West Bend of Canada Division of Dart Industries Canada Limited, Applicant, v. United Steelworkers of America, Respondent.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members R. J. Swenor and B. L.
Armstrong.
APPEARANCES: James E. Bowden, Edward V. Johnson and Tim Sandell for the applicant; C. M. Mitchell, Paul Murphy and Paul Falkowski for the respondent.
DECISION OF THE BOARD; July 26, 1982
These matters are hereby consolidated.
These are applications for a declaration terminating bargaining rights brought by the employer under the provisions of section 59 of the Labour Relations A ct. Section 59 reads:
59.-( 1) 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of any of the employees in the bargaining unit, and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.
(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of any of the employees in the bargaining unit and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.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 respondent trade union has, for a number of years, held bargaining rights for the applicant's main production facility in Barrie. In January of 1981, the respondent was certified as bargaining agent for the employees of the applicant at its foundry operation in Brampton, and its warehouse facility in Mississauga. It is these latter two bargaining units which are tl.3e subject of the present application.
Negotiations for a first agreement for the two new bargaining units only concluded in September of 1981. These negotiations took place on a joint basis for the two units, and the resulting collective agreements had effective dates of January 21, 1981 to January 24, 1982. Thus the collective agreements were up for renewal almost immediately upon their signing. The respondent gave notice to bargain on December 7, 1981, and the applicant wrote back on December 16th indicating its preparedness to meet. Tim Sandell, the applicant's Personnel Manager, then called the respondent in early January to discuss a timetable for negotiations. The staff representative that he spoke to, Gerry Barr, indicated that he was only filling in for staff representative Paul Falkowski, who was ill. Mr. Barr suggested that Mr. Sandell wait until Mr. Falkowski's return on January the 11th or 12th, and set up a date for a meeting with him. Sandell concurred, and on January the 13th, Mr. Falkowski did call Mr. Sandell. Mr. Falkowski explained the problems he had been having with his heart, and indicated to Mr. Sandell that he would get back to him to set up negotiations after he had had an opportunity to meet with the employees and prepare their proposals. Mr. Sandell concurred with that, and indicated to the Board that he expected to hear back from Mr. Falkowski some time in January. In fact he never did hear anything more from Mr. Falkowski directly until after the present application was filed, which was on March 25, 1982. Mr. Falkowski responded to the application immediately with the following telegram:
April 2, 1982
TO: TIM SANDELL, BRAMPTON
I HAVE CONTACTED YOUR OFFICE ON SEVERAL OCCASIONS DURING THE MONTH OF MARCH 1982. YOU HAVE NOT RESPONDED. I AM REQUESTING YOU CONTACT ME IMMEDIATELY AND ARRANGE A MEETING FOR NEGOTIATIONS. I AM AVAILABLE FOR A MEETING ON APRIL 7, 15, 16, 20 22. I AM EXPECTING AN IMMEDIATE RESPONSE.
PAUL FALKOWSKI
STAFF REP.
USWA
350 Rutherford Road
Mr. Sandell consulted with counsel, however, and on April 7th advised Mr. Falkowski that in view of the present application, the company was not prepared to meet.
- As the Board has stated many times, the purpose of section 59 is to ensure that a trade union, once clothed with bargaining rights, does not permit collective bargaining to fall into abeyance. Where a trade union does so, for a period exceeding sixty days, it may be required to come before the Labour Relations Board and satisfy the Board that it has some reasonable justification for the delay. As the Board noted in Oliver Lumber Company, [1963] OLRB Rep. Aug. 280, at page 283:
In the exercise of its discretion, the concern of the Board is to ascertain whether a trade union which has acquired bargaining rights on behalf of employees has actively pursued and forwarded their interests in bargaining with their employer. An opportunity is afforded to an interested party to bring to the attention of the Board an allegation that the trade union is not carrying out its function in a proper manner and, on such application, the union may then explain its delay in commencing or continuing negotiations as the case may be.
This is obviously a position which a trade union, acting prudently, will avoid placing itself in, but it is precisely the position in which the respondent has placed itself in the case now before us. The Board, as a result, heard considerable evidence from various officials of the respondent trade union as to the difficulties it was encountering in the present set of negotiations.
The difficulties, in fact, trace back to the prior negotiations concluded in September of 1981. Doug Hart, the respondent's Area Coordinator, had originally assigned negotiation of the first agreements for these units to Staff Representative Ron Varley. Mr. Varley, however, was having no easy time of it. In particular, the members of his bargaining committee all resigned their positions, citing a fear of perceived harassment on the part of the company. Apprised of these problems, Mr. Hart finally decided to take the task of negotiating the first agreements upon himself, and concluded collective agreements without the presence of any committeepersons at the bargaining table. Mr. Hart then replaced Mr. Varley with Mr. Falkowski, a more experienced staff representative, and assigned Mr. Barr, an experienced organizer, to service the two units as well. Mr. Hart instructed the two staff representatives, in light of the previous bargaining history, to take whatever steps were necessary to prepare negotiations.
On January 4, 1982, while Mr. Falkowski was still confined to his home on doctor's orders, an employee in the Brampton unit, Regina Young, attended at the respondent's offices to see Mr. Barr. Mrs. Young indicated that she had been part of a group that was considering circulating a petition to decertify the union, but that incidents occurred in the plant which caused the employees to reverse themselves and decide instead to try to solve their problems through the union. Mr. Barr and Mrs. Young discussed the problems that employees were concerned about, and the kind of contract that would be necessary to deal with them. Mr. Barr suggested that a meeting with the employees should await the return of Mr. Falkowski, but in the meantime gave Mrs. Young a supply of membership cards with which to try to generate renewed interest amongst the other employees in the unit. At the same time Mr. Falkowski, upon his return, met with Mr. Niles, an employee at the Mississauga warehouse, and discussed the bargaining proposals for that unit. There are 5 employees in the Mississauga warehouse unit. Mr. Falkowski then advised Mr. Niles that negotiations would once again be carried out on a joint basis, and that they would commence as soon as the Brampton unit was ready.
Mrs. Young again called Mr. Barr on January 18th, and the two of them arranged a meeting for January 28th. Mr. Barr wrote up leaflets for the meeting, and arranged for them to be distributed at the Brampton facility, the meeting was to be handled by Mr. Falkowski. Unfortunately, Mr. Falkowski understood from Mr. Barr that the meeting was to begin at 4 p.m., the employees were told that it was to begin some time later, so that when they arrived at the union hall that evening, Mr. Falkowski had already left. Mrs. Young phoned Mr. Barr the next day to find out what had happened, and the two of them arranged a further meeting at the union hall for February 4th. Mr. Barr again drew up a notice of the meeting, and delivered it to George Sanders, the applicant's general foreman at Brampton, to post on the plant bulletin board. The Brampton operation was temporarily without a plant manager at this point, and Mr. Sanders phoned Mr. Sandell at the company's head office to receive permission to post this notice. Mr. Sandell indicated to Mr. Sanders that it was proper to post the notice, and Mr. Sanders sent Mr. Sandell a copy. The notice read:
"Important Notice
There will be a meeting for all bargaining unit members to discuss and decide on our negotiating priorities .
Date Thursday
Time 7:00 p.m.
Place Union Hall
350 Rutherford Road
South (in the office mall, 1 Block west of Old Heart Lake Road and Steeles)
All bargaining unit members are urged to attend this important meeting."
Asked on cross-examination whether he formed any conclusions from this Notice, Mr. Sandell stated that the Notice told him that the respondent was having difficulty getting employees to a meeting, because he understood that the meeting was to have taken place in January.
With the January 28th meeting having been mishandled by the respondent, only two employees returned to the union hall for the meeting on February 4th. One of them was Mrs. Young, and Mr. Barr was able to convince her and the second employee to serve on a bargaining committee which would meet with the company. Mr. Barr then gave Mrs. Young the respondent's standard forms for indicating collective bargaining priorities and proposals, and instructed Mrs. Young to distribute these to the other employees in the Brampton unit. Mrs. Young shortly thereafter returned to Mr. Barr and Mr. Falkowski some 40 completed bargaining forms (there appears to have been between 40 and 60 employees in the Brampton unit at this time), and as well submitted in excess of 30 membership cards, all of which purported to come from employees in the Brampton bargaining unit. Mr. Falkowski then reviewed the responses of the employees on the bargaining priority forms, and from them drew up a set of proposals to submit to the company. Mr. Falkowski testified that he telephoned Mr. Sandell on March 1st to advise him that the union was ready to commence negotiations, but Mr. Sandell was not in his office. Mr. Falkowski testified that he left his name and telephone number with the applicant's operator, and asked that Mr. Sandell be given the message to call him. Mr. Hart testified that he became concerned when he learned that Mr. Sandell had not returned Mr. Falkowski's message immediately, because of his experience with the applicant in the first round of bargaining, and instructed Mr. Falkowski to call him again. Mr. Falkowski testified that he did so, at least on March 9th, and that he again left a message for Mr. Sandell to call him. The applicant's evidence is that no messages from Mr. Falkowski were ever received by Mr. Sandell.
On March 8th, the applicant recieved a letter from the respondent advising that its bargaining-unit employees had been incorporated into a new composite Local representing employees of various companies. On March 11th, with Mr. Falkowski still not having made contact with Mr. Sandell, Regina Young walked into Mr. Falkowski's office and announced that she was unable to take the employer's harassment any longer, and had quit. She further advised that the second member of the bargaining committee was withdrawing from the committee before the same sort of things would happen to her. At that point, Mr. Falkowski testified, he realized that he was once again not in a position to meet with the company. He pointed out that his union is extremely reluctant, notwithstanding what occurred in the fall, to bargain with an employer without the presence of people having direct knowledge of the situation in the plant. He therefore drafted another notice of meeting, and obtained Mr. Sanders' approval to post it in the Brampton facility. Mr. Sandell, for his part, recalled in his testimony that George Sanders did call him to obtain approval for the posting of a second Notice, but was of the tentative view that this second incident likely occurred sometime in February as well.
This last Notice, in any event, announced a meeting for March 30, 1982. The meeting was scheduled to take place one hour before a meeting of the new composite local, Local 1888. Five employees from the applicant's Brampton Plant showed up at the West Bend meeting, and a bargaining committee of two was elected. Another meeting was then scheduled for April 1st at 7:30 p.m. to go over the bargaining proposals already developed, and discuss the need for any changes to them. On the afternoon of April 1st, however, the respondent received notice from the Board of the present application. Mr. Falkowski met with the employee committee as scheduled later that day and prepared a revised set of bargaining proposals. The next day he sent to the applicant the telegram already referred to earlier in the decision, in which he indicated the respondent's preparedness to meet. That is how matters stand at the present time.
It is clear that the respondent has not at all times acted as diligently as its own interests might have dictated. The Board does not find this to be a case, however, in which the evidence demonstrates a lack of interest at any time on the part of the respondent in pursuing its bargaining mandate. On the contrary, the respondent during this period dedicated a good deal of time and activity toward advancing the situation to the point where it could meaningfully begin to bargain for the employees. Its task was made more difficult by the health problems of Mr. Falkowski, and the expressed reluctance of employees to serve in as overt a role as member of the bargaining committee. Neither of these are matters which reasonably could be said to lie within the control of the respondent, nor for which any "fault" could be attached to the respondent. The respondent was not, in the Board's view, simply stalling for time in order to consolidate its support. The applicant argues that the respondent's delay caused prejudice to the applicant in the sense that it was unable to establish its costs for price-setting purposes, and that employees in the bargaining unit were asking about the status of negotiations. It is not without significance, however, that the applicant itself was in full awareness, through the notices it approved if nothing else, of both the respondent's continued presence on the scene and its bargaining-related activities on behalf of the applicant's employees. Yet at no time prior to the filing of the instant application did the applicant indicate to the respondent that the status of negotiations was anything less than acceptable to it.
As the Board made clear in Medi-Park Lodges Inc., [1979] OLRB Rep. Oct. 1007:
The termination of bargaining rights under section 51 is within the discretion of the Board. The purpose of the section is not to punish a union but to protect employees and employers from the hardship that can result when bargaining rights are tied up by a union that fails to discharge its responsibilities. Thus section 51 should not be applied mechanically and without regard to its purpose to insure active union representation to all employees who are subject to collective bargaining. Even where the objective conditions of section 51 are met the Board may not terminate a union's bargaining rights or order a vote when, although the union has missed the deadlines within the section, it has in fact been active in advancing the interest of the employees concerned. (Waliner Transport Co. Ltd. 53 CLLC 9117, 062; Dominion Stores Ltd. 56 CLLC 9118,047)
And similarly, in Dominion Window, [1969] OLRB Rep. April 96:
- As has been pointed out in a number of cases of this nature, section 45 should not be used to penalize the union which has failed to commence the bargaining within 60 days of giving the notice. The Board has said that the section should be used rather to afford an opportunity for an interested party to call the attention of the Board to the situation so that the Board may call upon the union to explain the delay.
In the latter case, the trade union in effect offered no explanation for its delay in presenting to the employer the bargaining proposals it had received from the employees, and the Board exercised its discretion by ordering the taking of a representation vote. Similarly, in Moyer Sand, [1966] OLRB Rep. March 913, the Board received no explanation as to the "difficulties" the trade union indicated were encountered in putting together a meeting of employees to formulate proposals and, having regard to the trade union's overall tardiness in pursuing its bargaining mandate, again directed the taking of a representation vote.
Those latter two cases are not on a parallel with the present one. The Medi-Park Lodges Inc. case, supra, is closer to this one in a number of respects, and had this to say:
The union should, of course, have endeavoured to confer with the employees and put its proposals in a final form for presentation to the employer within the sixty-day period stipulated in the Act. Its failure to do that is satisfactorily explained, however, by the staffing difficulties which it had at the time. A new business agent was introduced to the union s St. Catharines office during the course of the preparation of the unions proposal. That representative, Tom Small, became responsible for the negotiations, but required the assistance of Ms. M. Elhadad, a representative from the respondent's Toronto office. That fact, and the interruption of regularly scheduled summer vacations, caused some delay in the process of consultation with the employees and the final drafting of the union s proposal.
In these circumstances the Board is satisfied that the union's delay has been adequately explained. More importantly, we are satisfied that notwithstanding its delay the union has consistently endeavoured to advance the interests of the employees. In these circumstances the Board should exercise its discretion in favour of preserving the union s bargaining rights. The application is therefore dismissed.
The Board in the present case as well is satisfied on the evidence that the delay which the respondent allowed to occur has been justified, within reason, and that this is not the kind of case where either the termination of bargaining rights or a representation vote is appropriate.
- The Board notes that the respondent in this application sought to have the Board consider evidence of its conduct in representing members of the bargaining unit after this application was filed. In view of the Board's disposition of this application, the Board does not consider it appropriate to decide whether such evidence could ever be relevant to the question which section 59 raises. Such evidence could obviously suffer from the weakness of being self-serving in nature, and the Board notes that no previous case has been cited in which the Board has ever looked beyond the date of the application. As the Board commented in Mohawk Engineering, [1981] OLRB Rep. Aug. 1156, at paragraph 7:
The Board looks at the conduct of the parties during the whole period from the giving of notice to bargain to filing of the application under section 51 in order to decide how to exercise its discretion.
- For the reasons given, however, the application is dismissed.