Retail Clerks Union, Local 409 v. Dryden Truck Stop Inc., 1983 CanLII 760

Ontario Labour Relations Board

Parties and Appearances

[1983] OLRB Rep. August 1300

0576-83-U Retail Clerks Union, Local 409, Complainant, Dryden Truck Stop Inc. (formerly Farelane Properties Ltd.), Respondent

BEFORE: R. M. Brown, Vice-Chairman and Board Members J. A. Ronson and W. F. Rutherford.

APPEARANCES: Michael Fraser for the applicant; Chris Eames and Ken Hallson for the respondent.

Decision of R. M. Brown, Vice-Chairman and Board Member W. F. Rutherford; August 24, 1983

1. This is a complaint under section 89 of the Labour Relations Act. The union contends that the respondent has failed to comply with section 43(1) of the Act. That section provides:

43.- (1) Except in the construction industry and subject to section 47, where a trade union that is the bargaining agent for employees in a bargaining unit so requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the regular union dues and to remit the amount to the trade union forthwith.

3. The parties are signatories to a first collective agreement executed on January 13, 1982 and running from that date to October 31, 1983. Article 7 addresses union dues.

7.01 The Employer shall deduct each month from the wages of all employees in the bargaining unit who have completed their probationary period, and signed a payroll deduction form, such regular monthly dues as may be adopted and designated by the Union. The Union dues shall be deducted from the employee's pay each month beginning with the month the employee completes the probationary period.

7.04 The Union shall indemnify and save the Employer harmless from any and all claims for amounts deducted from pay and remitted under the terms of this Article.

4. After the agreement came into effect, the employer initially deducted dues from all employees who had completed their probationary period. Eventually, some employees complained that the employer was not entitled by article 7.01 to make a deduction from the paycheck of any employee who had not signed a payroll deduction form. Several employees did not issue an authorization upon completion of their probation, and the employer did not make deductions from their paychecks.

5. On May 20, 1983 the union requested the employer to comply with the collective agreement and the Labour Relations Act. In a complaint to the Board dated June 15, the union alleged section 43 has been violated on or about June10. On the advice of counsel, the employer has deducted dues for all non-probationary employees for the period since June 10. These monies are being held in a trust account.

6. The complainant claimed a request pursuant to section 43 was made at the time that the contract was negotiated. The only evidence offered to support this contention was article 7.01. The Board was asked to find this provision required the employer to deduct union dues from all employees. Counsel for the union argued the requirement of a payroll deduction form was intended to save the employer from any liability to employees, and was not meant to allow individual employees to decide whether or not to contribute to the union. In the alternative, counsel submitted the union made a request pursuant to section 43(1) of the Act on May 20, and the employer is obliged by the statute to deduct and remit dues from that date forward.

7. Counsel for the respondent argued article 7.01 obligates the employer to deduct dues only for employees who sign an authorization. Turning to the Act, he contended a request under section 43 can only be made in the course of bargaining for a collective agreement, not during the term of a contract. Counsel drew a distinction between sections 41, 42, 44 and 45 which mandate terms — relating to exclusivity, work stoppage and arbitration — and section 43 which is not operative until triggered by a union request. Counsel suggested this difference implies that a union can invoke section 43 only during bargaining. He emphasized section 43 speaks of a provision being "included in a collective agreement" and suggested a topic can only be included when the contract is open for negotiation. Reference was also made to the heading which appears before this part of the Act — "Contents of Collective Agreement". The Board was reminded section 52(5) permits a collective agreement to be revised by mutual consent. Finally, counsel contended the Board's powers under section 89 do not permit it to amend a collective agreement.

8. The Board finds article 7.01 is not evidence that a request was made under section 43 at the bargaining table. The collective agreement does not oblige the employer to deduct dues for employees who have not executed a payroll deduction form or for probationary employees. The language of the collective agreement is clear on these points. Article 7.01 is not simply designed to protect the employer from liability. That objective is accomplished by the indemnity set out in article 7.04.

9. Can a union invoke section 43 during the life of a collective agreement? Section 43 was introduced by The Labour Relations Amendment Act 1980 (No. 2), S.O. 1980, c. 34. Section 2(1) of that Act provides:

Subsection 1 of section 36a [now 43] of the Labour Relations Act, as re-enacted by subsection 1 of this section, does not apply to a collective agreement in operation on the day this section comes into force but applies to every collective agreement that is renewed or made after that date.

The legislative intention is clear from this provision which is omitted from the consolidated statues — perhaps because it was mistakenly perceived to be transitory in nature. A contract that predates the legislation cannot be reopened, but a collective agreement entered into after section 43(1) came into force can be.

10. The rationale for allowing a request to be made at this point in time was set out in North American Plastics Company Limited, [1976] OLRB Rep. May 210. The statutory provision at issue was the original section 36a(1), the predecessor to section 43(1). The only difference between the two is the union security arrangement contemplated by the former allowed each individual employee to decide whether or not to contribute to the union, whereas the latter does not. In North American Plastics the Board said:

The legislature in its wisdom, has effectively removed from the sphere of collective bargaining union recognition (section 35), strike/lockout prohibition (section 36) and binding rights arbitration provisions (section 37). Similarly the legislature in its most recent enactments has 'decided that in the furtherance of "harmonious relations between employers and employees" the often divisive issue of even a minimal form of union security should be removed from the sphere of collective bargaining in order to better facilitate that process. The statute now directs in section 36a that upon the request of the bargaining agent there shall be included the prescribed provision. It is no longer a bargainable item to the extent that the unilateral request of the bargaining agent triggers the section and the inclusion of the required provision. The interpretation urged by the respondent is not only at variance with the clear meaning of the words of the section but it lends a meaning contrary to the purpose of the section in that it would require that the issue be dealt with at the bargaining table. This is not to say, however, that the section could not be triggered during the bargaining process but rather that the section cannot be interpreted as requiring that it be triggered only during the bargaining process.

11. The Board finds that the complainant did not make a request pursuant to section 43(1) until its complaint dated June 15 was received by the respondent. The union's letter of May 20 makes no mention of section 43(1) and does not even refer to the union's statutory right to a compulsory checkoff arrangement.

12. We direct the respondent to agree to the union's request and to pay to the complainant regular union dues, as defined by section 43(2), for the period since the request was made.

Decision of Board Member J. A. Ronson;

1. We are dealing with the first collective agreement that the parties have negotiated.

2. It seems to me that section 43 of the Labour Relations Act is permissive in nature. It allows the parties to bargain about the deduction and remittance of dues, but it does not allow an impasse to be created over the issue. Section 43 is not automatic or mandatory in the same sense as sections 41, 42, 44 and 45 of the Act.

3. Since this is a first agreement it is clear that the parties chose not to follow section 43 and indeed struck a bargain embodied in article 7.01 of the collective agreement. That being the case, I would hold the applicant to its bargain during the life of the collective agreement and dismiss the application.