[1983] OLRB Rep. December 2039

1207-83-R Edmund Northcott & A Group of K-Mart Employees, Applicant, v. Teamsters Local 419, Respondent, v, K Mart Canada Limited, Intervener

BEFORE: Richard M. Brown, Vice-Chairman, and Board Members H. Kobryn and J. A. Ronson.

APPEARNACES: Michael Gordon, Walter Fedunchar and Ed Northcott for the applicant; J. J. Nyman and G. O 'Driscoll for the respondent; Robert A. McDermid and J. Fox for the intervener.

DECISION OF RICHARD M. BROWN, VICE-CHAIRMAN AND BOARD MEMBER H. KOBRYN; December 5, 1983

1. This application under section 57(2) of the Labour Relations Act, for a declaration that the union no longer represents the employees in the bargaining unit, was filed on August 31, 1983. By decision dated August 26, 1983, another panel of the Board dismissed an earlier termination application filed on July 8, 1983, relating to the same bargaining unit. Consequently, the union has asked the Board to exercise its discretion under section 103(2)(i) and thereby to refuse to entertain the second application.

2. All of the parties to these proceedings have agreed to certain stipulated facts relating to ongoing collective bargaining between the union and the employer for the renewal of a collective agreement that expired on August 3 1st, 1983. By letter dated June 1, 1983 the union gave the employer notice to bargain, and the union's proposed revisions to the existing contract were presented to management on July 13th. On August 2nd, both parties to the negotiations agreed to suspend collective bargaining until the first application for termination was considered by the Board. At this point, no negotiation meetings had been held. Shortly after the Board rendered its first decision, and before the second application was filed, the union contacted the employer and they agreed to meet on September 26th. They have also met on two other occasions since that date. The parties have further agreed that Mr. Northcott, the present applicant, first retained counsel on September 8th.

3. Counsel for the applicant also sought to call evidence relating to the union's dealings with them. At the request of the chairman of this panel, he stipulated the facts upon which he relied:

The group of objecting employees state, and the fact is, that throughout the period of time from the date when the Union entered into a collective agreement with the intervening employer, there has been a concerted effort by the Trade Union to conceal from the objecting employees any information about the following:

(1) The dates, times or places of Union meetings;

(2) The distribution of copies of the Constitution of the Trade Union;

(3) The provision of the objecting employees of copies of the collective agreement between the Employer and the Trade Union;

(4) A concerted refusal, or failure to obtain from employees and instructions with respect to collective bargaining;

(5) The failure to report to the objecting employees the results of any Union meetings or activities as a collective bargaining agent in respect of the employees as aforesaid;

(6) The refusal by Union stewards to respond to questions by objecting employees as to what happens at Union meetings, what is going on in terms of negotiations or to elicit any admissions from employees with respect to matters to be taken up in negotiations;

In support of the foregoing the objecting employees state as follows:

1. The first collective agreement between the Company and the Union was ratified after a vote of eighteen to seventeen against ratification over the objections of the objecting employees. Subsequent to the imposition of the collective agreement upon the employees by the Trade Union, employee Ron Johnston, asked representatives of the Union for a copy of the Union Constitution. He was assured that he would be given a copy and has not, since the date of ratification, been given a copy of the Constitution of the said Trade Union.

2. All of the objecting employees state, and the fact is, that they have never been informed of any meetings of the Trade Union since the ratification of the collective agreement in 1980 no have their views been solicited as to the matters which ought to be negotiated for in the current round of negotiations.

3. Employee Mike Lavelle states, and the fact is, that shortly after the signing of the collective agreement in 1980 he asked his Shop Steward, one Jack Presley, for a copy of the collective agreement. He was assured by Mr. Presley that he would receive a copy of the said collective agreement but no such document has ever been provided to him. In addition his questions with respect to what happens at Union meetings never gets answers.

4. Employee Rowend Gargoin states, and the fact is, that any questions which he has asked of stewards with respect to proceedings at Union meetings have brought either response or a simple "shrug of the shoulder". In addition to the foregoing after the 1980 collective agreement had been signed he was advised that he would be given a copy of the collective agreement and of the Union Constitution. Neither of such documents have been provided to him. He is only informed of meetings of members of the bargaining unit after the meetings have taken place.

5. Employee Ed Northcott states, and the fact is, that even though he is a card carrying member of the Union he has never received an invitation to attend Union meetings. He further states that the former Chief Steward of the Union, one Chester Stewart Russell, advised him: "I was told not to tell you so don't ask me any questions regarding the Union."

6. Employee Dale Wendover states, and the fact is, that the Union had never informed him about anything having to do with collective bargaining and that it is his understanding that the Union simply "doesn't bother" with any of those employees who are not part of a small clique who support the Union.

7. Employee Gord MacKenzie states, and the fact is, that even though he has been invited to join the Union he has never been invited to a meeting and has never been informed during the present negotiations as to what is transpiring because the Union does not inform any of the members of the bargaining unit who are not card carrying members of the Union as to the activities which the Union is taking with respect to the representation of employees.

8. The employees further state, and the fact is, that following the signing of the agreement between the Company and the Union in 1980 the stewards were advised as a group that they were not to help any of the employees who were not members of the Union.

9. The employees further state, and the fact is, that the Chief Steward, Jack Presley, advised stewards not to talk to employees who weren't members because they were not trusted and the Union did not wish them to have any information regarding its efforts in a representative capacity.

10. The employees further state, and the fact is, that no meetings of the Union membership or of employees in the bargaining unit have, been called during the past three years or, in the alternative, that if there have been such meetings, notices of same have not been provided to employees.

As counsel for the union did not agree to any of these stipulations, the parties were called upon to address argument to the facts alleged, on the understanding that, if we decide that on these facts the application would be entertained, the applicant would be called upon to prove these allegations before a final decision was issued.

4. The union relies upon section 103(2)(i) of the Act:

103 (2) Without limiting the generality of subsection (1), the Board has power,

(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing such employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application;

This section grants the Board a discretion to refuse to entertain successive applications relating to the representation of employees in a particular bargaining unit.

5. Section 103(2)(i), like several other provisions of the Labour Relations Act, is designed to balance two conflicting policy objectives. The first is the freedom of employees, by a decision of the majority, to withdraw from the world of collective bargaining. The other goal is stability in employment relations. Both employers and employees have an interest in a measure of continuity in the process whereby terms and conditions of employment are determined. An application to terminate bargaining rights, successful or not, impairs the functioning of a collective bargaining relationship that was when created, and still may be, the choice of a majority of employees.

6. The legislature has sought to reconcile these competing objectives by permitting termination applications to be made only at certain times. Section 57(1) grants a newly certified union protection against challenges to its bargaining rights for a period of one year. Pursuant to section 61(1) and (3), the duration of this shelter may be expanded depending upon when conciliation proceedings are initiated and whether or not a strike occurs. However, there is always a lengthy period during which bargaining rights are unassailable. In this way, a fledgling bargaining agent is granted an opportunity to negotiate a first contract, a task that often proves to be more difficult than renewing an expired collective agreement. Employees exercise their choice in the certification process, and the expression of any change of heart is stayed until collective bargaining is allowed a reasonable opportunity to bear fruit.

7. Once a collective agreement is negotiated, it bars termination applications during its life, except in the last two months, according to section 57(2). The maximum duration of this bar is thirty-four months. The contract bar assures both employers and employees that the deal struck at the bargaining table — which by statute must contain a prohibition against mid-contract strikes — cannot be undone by a renunciation of the union by a majority of employees. On the other hand, the statute grants employees an opportunity to reject their bargaining agent in the open season that occurs during the last two months of a collective agreement.

8. The open season that commences two months before the expiration of a collective agreement continues to operate after the contract ends, except when conciliation proceedings are underway: see section 61(2). Applications are barred during conciliation because legal proceedings would inhibit the efforts of employer and union to negotiate a collective agreement.

9. There is one final piece to the statutory framework for determining the timeliness of termination applications. The legisture decided that in some circumstances a restriction ought to be placed on repeat applications made during the open season. Rather than enacting detailed statutory rules, the Board was granted a discretion to refuse to entertain a second or subsequent application, pursuant to section 103(2)(i). In other words, the Act delegates to the Board the task of striking an appropriate balance between employee free choice and stable industrial relations in the context of successive termination applications.

10. In this case, we are concerned with the termporal restrictions that apply to termination applications, but we digress to observe that the same limitations are imposed, by sections 5(4) and (5), 61 and 103(2)(i), when one union seeks to displace another.

11. The Board has structured its discretion under section 103(2)(i) by reference to the types of considerations that guided the legislature in defining the open season. The seminal case, Trinidad Leaseholds (Canada) Ltd., 52 CLLC ¶ 17,005, involved two successive challenges to an incumbent union by a rival labour organization. The decision not to entertain the second application, which was filed shortly after the first was dismissed, was arrived at by balancing the competing concerns of employee choice and stable industrial relations:

The question of representation which we are now asked to determine was tried by the Board as recently as July 27, 1949, at which time the Board found that the applicant did not have as members in good standing a majority of the employees concerned. The right of the employees affected to select a new bargaining agent has thus been fully recognized although in actual fact, no new bargaining agent was designated. We must now take into account what is, as indicated by regulation 7(4), the equally important consideration of stability and continuity in collective bargaining. Our earlier decision, by implication, indentified the intervener as the authorized bargaining agent of the employees affected. Little purpose was served if the right of the intervener to continue to represent those employees was immediately thereafter again subject to question at the instance of the same applicant. The respondent and the intervener have inevitably been hampered in their collective bargaining activities during the period when they would ordinarily have been directing every reasonable effort toward the negotiation of a renewal of the collective agreement. It is our view that before the Board undertakes a further consideration of the question of representation on an application by the present applicant the respondent and the intervener must be permitted a reasonable period of time during which to carry on collective bargaining without hindrance.

(emphasis added)

12. The evidence in the case at hand clearly establishes that the employer and incumbent union have an active bargaining relationship. Since notice to bargain was served on June 1, 1983, they have not had a reasonable opportunity to conclude a collective agreement. After the first application was filed on July 8th, negotiations were suspended. Although meetings have occurred since this application was launched, a union whose status is in question has little leverage at the bargaining table. With these facts in mind, we have restricted our review of the Board's jurisprudence and our analysis to like situations, in which a second application is filed before a reasonable time for collective bargaining has passed. In this setting, continuity in collective bargaining always points towards barring a second application. Employee free choice points in the opposite direction, but the force of this vector varies.

13. Concern for employee free choice is least compelling shortly after an election has been held. A representation vote provides an accurate guage of employee wishes at the time they cast their ballots. The validity of the election outcome may be slowly eroded as weeks and months pass, but the public policy of employee free choice is largely satisfied by relying upon the tally on election day for some time thereafter. Barring a second application in these circumstances gives due weight to ongoing collective bargaining.

14. An election is not the only way to determine a question of representation. Another method is to canvass the employees in a bargaining unit, as may occur when a raiding union solicits membership or an employee seeking to terminate bargaining rights circulates a petition. Consider a case in which the applicant initially enlists enough employees to support an application, but changes of heart or employee turnover later deprive the application of sufficient support, so that it is dismissed. If all members of the bargaining unit have been canvassed, they have had a full opportunity to express their views on the question of representation. In this setting, a raiding union that fails to sign up forty-five per cent of the employees is clearly not embraced by a majority. When an application to terminate bargaining rights is not accompanied by the signatures of forty-five per cent of the work force, one can safely infer that a majority still favour collective bargaining. But an applicant is not required by law to approach all employees, and may stop canvassing upon achieving sufficient support to succeed in the absence of changes of heart or employee turnover. In these circumstances, one cannot say employees have had a full opportunity to express their wishes. Consequently, employee free choice weighs more heavily in favour of entertaining a second application then when an election has been held. There are at least four earlier cases in which a second termination application was filed after the first was dismissed because the applicant suffered a loss of support in the manner described. Seven-Up (Ontario) Limited, [1971] OLRB Rep. Dec. 791; Chapleau Lumber Co. ,[1973] OLRB Rep. Nov. 574; Dunnville Supermarket Limited, [1980] OLRB Rep. Aug. 1193; and Browning-Ferris Industries Ltd., [1982] OLRB Rep. Sept. 1253. In each case, the Board declined to entertain the later application in order to facilitate collective bargaining. The Board made no finding as to whether or not all, or most, employees had been canvassed, suggesting that this factor is not relevant. Even though the evidence did not establish that employee wishes had been fully tested, the second application was barred.

15. The same balance between stable industrial relations and employee free choice was struck in Contenintal Can Co. of Canada, [19641 OLRB Rep. Dec. 459, a case involving three successive termination proceedings. The first application was accompanied by a petition signed by the requisite number of employees, but the applicant failed to prove that the signatures were voluntary. In other words, the Board was not satisfied that employees had not signed the petition to avoid retaliation at the hands of their employer. In this context, no firm conclusion can be drawn about the level of support for a union. All of the signatories may have been union supporters who signed the petition to please their employer; or they may have been opposed to the union before the petition appeared and therefore signed it for a reason unrelated to any apprehension relating to their employer. A third possibility is that some employees acted for one reason and some for the other. One cannot conclude with any certainty that less than forty-five per cent of the employees were opposed to the union when the first application was filed. Unable to draw this conclusion, one cannot infer from it that a majority of the employees continued to support the union at that time. Although the wishes of employees had not been fully tested, the Board declined to entertain the second application so as to foster collective bargaining.

16. This approach was also followed in two early cases where a flaw in the union's membership evidence led to the dismissal of an application to displace an incumbent bargaining agent. In Filey-Hall Paper Box Co., 52 CLLC ¶ 17,037 sixty per cent of the employees had paid one dollar and signed a union card, but they did so before the holding of the meeting at which the union was formed, and the time sequence invalidated the membership evidence. The applicant in Windsor Lumber Co., 58 CLLC ¶18,104 possessed fresh membership evidence, but by mistake filed older cards that were stale. In both cases, a second application was not entertained.

17. In all of these cases, the Board refused to permit a second application until a reasonable time for collective bargaining had elapsed, even though the wishes of employees had not been tested. By contrast, the Board has on at least three occasions allowed a second application on the heels of the first in the course of an open season.

18. The first such decision was Dupont of Canada Limited, [1967] OLRB Rep. Nov. 737, a most unusual case involving three unions. In the first proceeding, the incumbent bargaining agent was challenged by the other two unions — one applied for certification five days after the other. The Board fixed the date of the earlier application as the application date for both raiding unions, and refused to extend the terminal date at the instance of the union that filed last. Deprived of the normal length of time to submit membership evidence, this union failed to demonstrate the requisite degree of support to have its name on a ballot. An election was held between the remaining two unions, and the incumbent won. The union that had not been on the ballot then brought a second application. Weighing the right of employees to select a new bargaining agent against continuity in collective bargaining, the Board decided to allow the second application. Any other result was rejected as unfair and unduly technical, given the reason why the first application failed.

19. In Calvin W Goldbeck, [1978] OLRB Rep. June 543, counsel for the applicant, unaware that his client bore the burden of proving that a termination petition was voluntary, failed to adduce any evidence. Calling this error an innocent oversight, the Board once again chose employee free choice over stable labour relations. The same result was reached in analogous circumstances in Soo Dairies Limited, [1971] OLRB Rep. July 439.

20. These three cases might be taken to establish the proposition that a second application is not barred when the first fails on some "technical" ground or is aborted by an "innocent error". But this analysis runs head on into cases like Filey Hall Paper Box Co., and Windsor Lumber Co., supra, in which the Board imposed a bar. Why is filing stale cards, rather than the fresh ones on hand, any less of an "innocent error" than failing to call a petitioner as a witness? And how is the rule that cards signed before a union is formed are invalid any less "technical" than the rule that fixes a common application date for two raiding unions? The answers to these questions are not obvious. The difference in outcome between the cases that have allowed a second application and those that have not might be explained on a different footing. In both lines of cases, the wishes of employees had not been tested in an election and a reasonable opportunity for collective bargaining had not yet elapsed. These two lines of authority assign differing relative weights to the competing policy objectives of employee free choice and continuity in collective bargaining.

21. In the absence of any other considerations, we would balance these conflicting goals by refusing to entertain the second application in the case at hand. As the evidence called by the first applicant did not demonstrate that the petition was a voluntary expression of those who signed it, that application was dismissed without directly testing the wishes of employees. Employee free choice would be served by allowing a second application. But to permit another challenge to the union's bargaining authority would be to seriously impede negotiations for a new contract to the detriment of those who favour collective bargaining.

22. Counsel for the group of employees urged us to consider, along with the issues already discussed, another factor never before addressed in the Board's jursprudence - the manner in which the union has represented employees in the bargaining unit. The alleged facts upon which this argument rests are set out above; counsel contended that these facts if proven would establish a violation of section 68 of the Act by the union. The gist of the argument was that a collective bargaining relationship between an employer an a union which has contravened the duty of fair representation is not worthy of protection against repeated termination applications. Counsel did not seek a remedy under section 89 for a violation of section 68. Rather, we were asked to entertain the second termination application, because the union allegedly has not fulfilled its duty of fair representation.

23. No authority was cited in support of the contention that the stipulated facts amount to a contravention of section 68. A large part of the complaint is that employees who are not union members have been excluded from the union's decision-making processes. Both this Board and the British Columbia Labour Relations Board have ruled that in certain circumstances this is not improper: see Britnell, 111974] OLRB Rep. May 275; Esco Limited, [1977] 2 Can. LRBR 564 (B.C.). However, we decline to rule upon the application of section 68 to the stipulated facts, because the existence of a violation would not alter the outcome of this case. The premise that a union has violated section 68 does not lead to the conclusion that a collective bargaining relationship should not be protected against repeated termination applications. The approach we prefer is to foster ongoing bargaining while also remedying the contravention. The legislature has given the Board a broad remedial mandate, set out in section 89 of the Act, to remedy unfair labour practices, including breaches of the duty of fair representation. Not only does section 89 give the Board ample power to rectify any violation, but a section 89 complaint poses less of a threat to ongoing collective bargaining than does a second termination proceeding. Such a complaint can be initiated at any time, unlike a termination application which can only be brought during the open season when negotiations are typically underway. In the case at hand, the alleged violation is a continuing one that began long before the current round of collective bargaining. Yet the applicant has never sought relief under section 89. For these reasons, even assuming there has been a violation, in exercising our discretion under 103(2)(i), we could not consider a contravention of section 68 without also taking into account the availability of a section 89 remedy. Weighing both of these factors along with those discussed earlier, we decline to entertain the application before us.

24. Counsel for the applicant contended the Board should have imposed a bar in the decision dismissing the first application, and that the failure to do so precluded a subsequent refusal to entertain a second application. This contention misconstrues the breadth of the discretion created by section 103(2)(i). The Board is authorized to either "bar an unsuccessful applicant" prospectively when dismissing a first application or to "refuse to entertain a second application" when it is made.

25. Counsel for the employer argued that a refusal to entertain this application would infringe upon the employees' freedom of association and so contravene the Charter of Rights. We do not accept that the freedom of association entails the freedom to terminate a union's bargaining rights. But even if we did, we are not convinced that by refusing to entertain this application we are doing other than implementing a limit prescribed by law that is demonstrably justified in a free and democratic society.

26. Decision of Board Member J.A. Ronson will follow shortly.