[1982] OLRB Rep. November 1671
0984-82-U Ontario Taxi Association, Local 1688, C.L.C., Complainant, v. Map1e Leaf Taxi Company Ltd., Respondent
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members J.A. Ronson and C.A. Ballentine.
APPEARANCES: Ralph Ortlieb, Ed Wright, C. Louladakis and D. Lekos for the applicant; Nicholas P. Kapelos for the respondent.
DECISION OF KEVIN M. BURKETT, ALTRNATE CHAIRMAN, AND BOARD MEMBER C. A. BALLENTINE; November 4, 1982
- This is a complaint filed under section 89 of the Labour Relations Act alleging a violation of section 50 of the Act. Section 50 stipulates:
A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.
The complainant maintains that there is a subsisting collective agreement between itself and the respondent employer which the respondent is refusing to acknowledge and apply.
The respondent raised two preliminary objections. It argued firstly that where it is alleged that a collective agreement has been breached the matter should be referred to an arbitrator who is empowered to ascertain, as a threshold issue, whether or not a collective agreement exists. The respondent argued secondly that in circumstances where it is challenging the union's certification before another panel of the Board, it is premature to proceed with a complaint dealing with whether or not a collective agreement exists.
The Board hereby affirms the oral ruling which it gave at the hearing. The Board ruled that where the allegation is one of a total repudiation of a document purported to be a first collective agreement, the Board will not defer to arbitration but will hear the matter itself. The Board refused to grant the adjournment sought by the respondent. The Board advised the parties that it would hear the evidence and argument but would only issue a decision if the panel seized with the respondent's request for reconsideration of the complainant's certificate refused to reconsider and thereby upheld the certificate.
The panel which entertained the respondent's request for reconsideration of the complainant's certificate issued a decision dated October 12, 1982 in which it refused to amend, vary or revoke the certificate issued to the complainant on January 12, 1982. Accordingly, we now turn to the merits of this complaint.
The complainant introduced into evidence a document which on its face appears to be a collective agreement entered into between the complainant and the respondent. Article 2.01 provides in part that ..... the company recognizes this union as the sole and exclusive bargaining agent for those members who are licensed as taxi owners and drivers by the City of Toronto." The document contains 13 articles dealing with terms and conditions of employment and procedures regulating the employer/employee relationship between the employees of the respondent, represented by the complainant, and the respondent. The signature of Mr. Louis Pasialis appears on the signing page under the heading "For the company." The initials "L.P." appears beside each clause in the document. Mr. Louis Pasialis was the secretary of the company at all relevant times.
The evidence before the Board with respect to how the document which the complainant claims is a collective agreement came into being establishes that following certification and the request by the complainant for the appointment of a conciliation officer, four bargaining sessions took place. Mr. G. Karakas and Mr. Louis Pasialis, the president and secretary of the company respectively, represented the respondent in these bargaining sessions. Mr. Karakas advised the union at the end of the second meeting that he was departing for Greece and that Mr. Koliopoulous, the vice-president, was now in charge and that he would attend or Mr. Pasialis would attend. Mr. Koliopoulous did not attend at either the third or fourth bargaining session. He was contacted by Mr.
C. Louladakis, a member of the union's bargaining committee, after the departure of Mr. Karakas, and said that he "didn't know anything about the negotiations and that he was not able to follow the steps". Mr. Pasialis appeared alone on behalf of the company at both the third and fourth bargaining sessions. He agreed to and initialed each of the clauses in the document tendered by the complainant and, on behalf of the company, affixed his signature to it. He was asked by the union prior to signing if he had the authority to sign on behalf of the company and replied in the affirmative.
Mr. Pasialis, as secretary of the company, had authority to sign cheques and letters on behalf of the company. He had signed an agreement between the company and the union in connection with the processing of the union's certification application. Mr. Karakas, although testifying that Mr. Pasialis did not have authority to enter into a collective agreement with the complainant union, acknowledged that Mr. Pasialis thought he had such authority at the time he signed the document on behalf of the company. Mr. Karakas also acknowledged that Mr. Pasialis had official signing authority for the company while he was in Greece. Mr. Pasialis, who resigned as secretary shortly after signing the document which the union claims is a collective agreement, was not called to testify. The evidence is that major decisions affecting the company are made by the Board of Directors. The document entered into by Mr. Pasialis was not made subject to ratification.
The respondent takes the position that Mr. Pasialis did not have real authority nor, given the usual manner in which decisions are made and the failure of the union to confirm the status of Mr. Pasialis, can it be found that he had ostensible authority to enter into a collective agreement on behalf of the company. In these circumstances, the respondent asks the Board to find that no collective agreement exists and dismiss the complainant.
Mr. Pasialis, the secretary of the company, enjoyed signing authority for the company in the absence of Mr. Karakas, had previously entered into an agreement with the union on behalf of the company, on the evidence of Mr. Karakas believed that he had the authority to enter into a collective agreement and held himself out as having such authority. Notwithstanding the evidence of Mr. Karakas that Mr. Pasialis did not have such authority, we must conclude on the evidence before us that Mr. Pasialis had the authority to enter into a collective agreement on behalf of the company and that he did so.
If we are mistaken in our finding that Mr. Pasialis had real authority to enter into a collective agreement, we are satisfied that he had apparent or ostensible authority in this regard. (See Re Hussey Seating Company (Canada) Limited [1981] OLRB Rep Aug. 1138 for a review of the doctrine of apparent or ostensible authority. See also Stapco Forest Products Limited [1981] Can. LRBR 83). We are satisfied on the evidence that Mr. Karakas' advice to the union that the Vice-President would be in charge and that he and Mr. Pasialis, the secretary, would represent the company at the subsequent bargaining meetings, coupled with the advice to the union that Mr. Koliopoulous, the Vice-President, that he knew nothing about the negotiations and would not attend at the subsequent meetings, coupled with the appearance of Mr. Pasialis as the company's representative at the subsequent meetings, constitutes a representation to the union that Mr. Pasialis had the authority to negotiate on behalf of and bind the company to a collective agreement. Given the position held by Mr. Pasialis, the fact that he had signing authority and had signed a prior agreement with the union on behalf of the company, and was sent to negotiate on behalf of the company, it was reasonable for the union to accept and act upon the assurances of Mr. Pasialis that he had the authority to sign a collective agreement on behalf of the company. In these circumstances, we are satisfied that if Mr. Pasialis did not have real authority to bind the company to a collective agreement, which we have found that he did, he had ostensible authority to do so.
Having regard to all of the foregoing, we are satisfied that Mr. Pasialis bound the company when he signed the agreement between the company and the union dated July 14, 1982, that the agreement he signed on that date is a collective agreement which became effective as of that date and finally, that it has remained in full force and effect from that date. Accordingly, the failure of the company to abide by its terms constitutes a breach of the agreement and we so declare. The company is directed to apply the terms of the agreement retroactively to July 14, 1982, the date the agreement came into effect.
We will remain seized of this matter in the event of any difficulty with respect to the implementation of our direction.
DECISION OF BOARD MEMBER JAMES A. RONSON;
I accept the evidence of the president of the employer that Mr. Pasialis did not have actual authority to sign the agreement.
However, in view of the circumstances at the time that the agreement was signed, I agree with the majority that Mr. Pasialis had apparent or ostensible authority to sign the agreement on behalf of the employer, and the employer is bound by it.