Liberato Petti, Herbert Clark, et al v. United Steelworkers of America, 1983 CanLII 974

Ontario Labour Relations Board

Citation: [1983] OLRB Rep. September 1496 File No.: 0747-83-U Date: September 15, 1983

Between: Liberato Petti, Herbert Clark, et al, Complainants, v. United Steelworkers of America, Respondent, v. Lilo Rail of Canada Limited and Modern Plating Limited, Interveners.

Before: M. G. Mitchnick, Vice-Chairman, and Board Members J. W. Murray and W. F. Rutherford.

Appearances: William S. Challis and George Biesma for the complainants; Keith Oleksiuk, George Teal and Brian Shell for the respondent; D. Jane Forbes-Roberts and Don Blake for the interveners.

DECISION OF THE BOARD; September 15, 1983

1This is a complaint under section 89 of the Labour Relations Act, alleging a violation of sections 68, 70 and 72 of the Act. While a good deal of evidence was called on the complaint, the issues are straightforward, and can essentially be decided on the basis of matters not in dispute.

2The respondent trade union was certified in the summer of 1982 to represent the employees of Lilo Rail of Canada Limited and Modern Plating Limited, the intervener/employer. The respondent served notice to bargain in August, and bargaining continued until the end of 1982. At that point the employer indicated to the union negotiating committee that it had put out everything that it had, and the parties signed a Memorandum of Settlement, subject to ratification. The union then summoned the employees to a ratification meeting with the following notice:

SPECIAL

MEMBERSHIP MEETING

TO: All Members of United Steelworkers of America at Lilo Rail and Modern Plating Company Limited

DATE THURSDAY, January 27th, 1982

TIME 4.40 p.m.

PLACE Employees' Lunch room at Lilo-Rail

AGENDA Discussion, and a VOTE will be taken on a tentative agreement

WE URGE ALL MEMBERS TO ATTEND THIS IMPORTANT MEETING!

On behalf of the Negotiating Committee, GEORGE TEAL

Staff Representative

At the meeting the company's offer was explained to the employees. It provided for a two-year agreement, with a 30C increase in the first year, and a further increase in the second. The effective date of the contract was to be January 1, 1983 (the notice of the meeting presumably should have read: "January 27th, 1983"), and the wage increase was to be retroactive to that date. Employees were given the choice to accept or reject the company's offer, and they voted 41-15 in favour of rejection. The union then told the employees that it would go back to the bargaining table to see what it could do, but made no promises.

3When the union did try to resume bargaining, it found that the company was refusing to bargain because of certain charges which the company had by then filed with the Ontario Labour Relations Board, relating back to the union's initial certification. That suspended matters until May of 1983, when the Board rendered its decision dismissing the charges. Mr. Teal, the union representative in charge of negotiations for this unit, then contacted the conciliation officer who had been assisting the parties, and indicated his desire to resume bargaining. The conciliation officer arranged a meeting for June 17th, and the parties apparently met across the table. The company negotiator indicated that the company "wouldn't change a period" on its prior offer, and that the union had seen the company's final offer. The company's president as well conveyed to the union that the company was in serious financial difficulty, having lost a number of orders in the past several months, and that there was no possibility of it improving on its previous offer. The company negotiator also indicated that the contract and wage increase would now be effective upon ratification. Mr. Teal prevailed upon the company to enter into a certain degree of negotiation on these latter points, with the result that the company ultimately agreed to the contract remaining effective from January 1, 1983 (which would bring the parties back to the bargaining table a little sooner) and retroactivity of two months to May 1st. Mr. Teal and his employee committee at that point left the room to caucus on their own, and, knowing that the company was in fact in financial difficulty, decided to take the company at its word when it indicated that this was indeed its final offer. They accordingly decided that they had no alternative but to accept the offer, and agreed to recommend it to the bargaining unit. Again, a notice was distributed of the ratification meeting, in the identical terms to the notice of January. A new date and time were shown, and the location, instead of being in the employees' lunch room, was at the Steelworkers hall in Brampton. At the meeting Mr. Teal, with the help of an Italian interpreter from the union, explained to the employees the terms of the company's "new" offer, and the reasons why the bargaining committee had agreed to recommend it. The employees, however, quickly recognized that the offer over the two-year period was in fact an inferior one compared to the offer they had rejected in January, since the effective date of the first increase had now gone from January to May. The meeting accordingly became quickly unruly. Mr. Teal then began to explain the form of ballot that he had selected for the vote. On this occasion it was not simply the accept/reject form of ballot that the employees had seen in January. Rather, Mr. Teal had decided that bargaining had reached the point where the employees had to vote either to accept the company's final offer, or to authorize a strike. When employees began to realize the thrust of the ballot through the Italian interpreter, a number of questions began to come forward from the floor. The substance of the employees' remarks was that they did not like the contract, but they also did not like the idea of going on strike. They accordingly argued with Mr. Teal that he ought to split the ballot into two questions, and let the employees vote first on the contract, and then on the question of a strike. Mr. Teal responded that would be a waste of time, and that he was not going back to the bargaining table without a strike vote. He stated that he was not prepared to change the form of the ballot. At that point, one employee, a Mr. DeMarco, said: "Well, if you're not going to change the ballot, we're not going to vote", and shouted to the rest of the employees to leave the room. Another employee, Mr. Clark, who had earlier been one of the most vociferous in decrying the terms of the recommended settlement, also, according to Mr. Teal, began shouting: "Leave the room, leave the room". Mr. Teal urged all of the employees to participate in the voting, but also said that any employees who did not wish to vote, should leave the room. The objectors, like Mr. Clark, apparently refused to leave the room at that point, and instead continued to interfere with Mr. Teal's attempt to run the meeting. At this stage Mr. Teal admits to having been "upset at least to a degree", and began to march down the hall toward Mr. Clark, whom he had identified as the main agitator at that point. Mr. Clark testified that Mr. Teal grabbed him by the front of the shirt (Mr. Teal testified that he put his hand on Mr. Clark's shoulder) and told him to get out if he wasn't going to vote. Mr. Clark told Mr. Teal to take his hands off him, and Mr. Teal did so. Mr. Teal then told Mr. Clark that he'd asked him to leave twice, and that if he did not do so immediately, Mr. Teal would call the police. Mr. Clark then turned and left the room. Another employee, Florence Constantino, testified that Mr. Teal pushed her on his way to Mr. Clark, but Mr. Teal indicated no recollection of this incident. Ms. Constantino essentially corroborated Mr. Clark's version of how Mr. Teal grabbed him, as did other employees who testified. Ms. Constantino was asked if she was still in the room at the time the incident between Mr. Teal and Mr. Clark occurred, and her answer was that "we were all about to walk out at that point, but yes, I was still in the room when Mr. Teal came down to Mr. Clark".

4There are some 55 employees in the bargaining unit, and it appears that approximately 45 were in attendance initially at the meeting. Only 10, however, remained to cast their ballot, the remainder having removed themselves to the hallway outside of the meeting room. Before closing the polls, Mr. Teal went out into the hallway and again urged the employees to come inside and exercise their franchise. Mr. Teal waited a few minutes but no further employees came in to vote. He then closed the polls, and tabulated the ballots. He asked for a volunteer amongst the employees in the hallway to come inside and verify the count, and a Mr. Biesma agreed to do so. The count showed 8 employees in favour of the company's final offer, and 2 in favour of strike action. The respondent is accordingly prepared to enter into a collective agreement with the employer.

5Mr. Teal was cross-examined extensively on his choice of ballot. He explained that he had used the simple accept/reject form of ballot back in January, because at that point he was not one hundred per cent satisfied that they had reached the end of bargaining. Neither had he made arrangements with the conciliation officer at that point to issue a "No-Board" report if the contract failed to be ratified. By June, however, he sensed that the situation was different. The message was clear, from the company itself as well as through the conciliation officer, that this was the company's "final offer", and Mr. Teal believed that. Both parties agreed that the countdown would begin towards the strike/lockout deadline if the contract was not accepted by the employees. Mr. Teal actually received legal advice from the Steelworkers head office, to the effect that he was within his rights to simply sign the contract without putting it to a vote if he felt that was the best the employees were going to be able to do, but Mr. Teal felt strongly that it was the prerogative of the employees to make the choice. When he began to explain the form of ballot at the meeting, he was well aware that some of the employees in the room were not happy with the "hard" choice that they were being given. It was Mr. Teal's view, however, as he explained at the meeting, that after you've given it your best shot, there comes a time when bargaining has to end. Mr. Teal made it plain to the employees that he was not going to waste everyone's time by going back to the company for more, unless the employees were prepared to give him a strike mandate. He acknowledged that he himself was not particularly pleased with what the union had been able to obtain in the contract, but that it did at least provide for some raises and benefit improvements, and provided a base to bargain upon the next time. Had he agreed as asked to split the ballot, and got both a contract rejection and a strike rejection, where, he queried in cross-examination, was the union supposed to go from there? This realistic assessment of the situation stands in contrast to the approach of some of the leading spokesmen for the complainants. Mr. Biesma, for example, when asked what it was he expected the union to do if the employees did not want the contract but also did not want a strike, suggested that the union should simply go back to the company and ask for more.

6Counsel for the complainants argues, firstly, that any use of the ratify/strike form of ballot employed in this case is a violation of the duty of fair representation, because it precludes the employees in the bargaining unit from expressing their "true wishes" on each of these two questions individually. Counsel conceded that, absent anything in the union's constitution, the union is not required to take a vote of its members on a proposed contract. Compare K-Mart Distribution Centre, [1981] OLRB Rep. Oct. 1421, at paragraph 15. But once it purports to do so, counsel argues, the trade union must do so in a way that is "meaningful", and not a mere "sham". And if it is not an offence to use this form of ballot in every case, counsel argues, it is at least an offence to do so when the trade union has clear indications that a significant number of the employees are in favour of neither the contract nor a strike. Counsel argues that Mr. Teal should have governed himself by analogy with the "fair and democratic" procedures for dealing with new matters at local union meetings (which this was not), and should have allowed a motion and debate on the question of changing the form of ballot. Counsel also suggested in this case that Mr. Teal was anxious to have the contract accepted, in order to protect the union's bargaining rights, and accordingly chose a form of ballot which was most likely to produce that result.

7The issue is not dissimilar from that before the Board in K-Mart, supra. There the company's offer had been rejected by the bargaining unit, but on the resumption of bargaining, the company made it plain that that was its "final offer" and, being aware of the lack of support for a strike, stated that it had no intention of making any improvements. The union then decided to recommend the contract as the best that could be obtained in the circumstances, and put the offer back to the members for a second vote. At the ratification meeting were a large number of employees openly hostile to the union's bargaining rights, and the contract was turned down by a margin of 67-68. The union recognized that it did not have the strength to call a strike, and so exercised its prerogative under its constitution to sign the contract, in spite of the negative vote. A group of dissident employees complained to the Board that the union's duty of fair representation had been breached. The complainants made many of the same arguments that were put to the Board in the present case, and the Board was firm in rejecting all of them. The Board discussed the critical points as follows:

33. It is argued by the complainants that the union's conduct was "undemocratic" and thus contrary to section 60 [now 68]. There are several answers to this submission. First the Act does not purport to regulate internal union democracy per se — perhaps in recognition of the fact that a union is a "fighting organization" and may have its effectiveness as a collective bargaining mechanism impaired if its officers were regarded as "delegates" rather than "representatives" of the employees in the union. Secondly, the reference to democracy is not really very helpful. Not only does it ignore the special collective bargaining context but even in "democratic" institutions such as the Legislature or Parliament, once representatives are elected they are left to vote as they wish or enact laws even though a majority of their constituents may not agree with their position. The remedy is at the ballot box, or in the present context, through a termination application. In determining whether there has been a breach of section 60 [now 68] in the instant case, we have found it more helpful to ask what the union could/should have done? What were its options?

In line with those latter questions, the Board observed:

35. We do not think that the union was required to resume futile bargaining, engage in an unpopular and abortive strike, or walk away from its bargaining rights, for, to hold that it was required to adopt any of these options would be to say either that it must participate in a pointless charade, and engage in an exercise in self-destruction, or that the repudiation of the employer's offer should be construed (as Mr. Bhatia did) as an effective termination of its bargaining rights. We are not prepared to make such finding. There is no doubt that the union carefully considered the options open to it, and weighed all of the circumstances —including the collective bargaining reality of the situation, the terms of its constitution, and the motivation of its opponents.

8In a more general vein, it is significant to note that the Board in K-Mart specifically approved of the following statement in an earlier decision of the Board in Diamond Z Employees Association, [1975] OLRB Rep. Oct. 791, at paragraph 13:

... We are of the view that the representative trade union despite its obligation to employees in complying with the duty of fair representation must necessarily have "a free hand" in setting strategies that will best forward employees' interests irrespective of their expectations. (See: The Nicholas E. Erdely case, OLRB M. R. September 1972 — 844).

This is really the nub of the matter at hand. While the Board in such cases as Corporation of Thunder Bay, [1983] OLRB Rep. May 781, and Dufferin Aggregates Limited, [1982] OLRB Rep. Jan. 35, makes it clear that the duty of fair representation applies at the negotiation stage of collective bargaining as well as administration, those cases deal with the manner in which the trade union carries out the balancing of disparate interests within the bargaining unit. The trade union is, nonetheless, the "bargaining agent", and in fact under our Act the exclusive bargaining agent, so that matters of bargaining strategy, in dealing with the employer vis-a-vis the bargaining unit as a whole, generally fall within its domain of both prerogative and responsibility. Counsel for the complainants argued that Mr. Teal in his testimony offered essentially no explanation for his refusal to split the ballot as requested, other than to say that it was not his policy to change the form of the ratification ballot simply because an employee or employees demand it, and to assert his theory that bargaining must at some point be brought to a head. The Board, on the contrary, finds this to be a perfectly acceptable response by Mr. Teal to the questions which the complainants have raised. Mr. Teal clearly had turned his mind to the point to which bargaining had come, and was only assessing the "collective bargaining reality", as the Board in K-Mart, supra, put it, in deciding that no further purpose could be served by returning to the bargaining table, unless it was with a strike mandate from the employees. That may not have been as easy a choice as some of the employees would have liked Mr. Teal to have put to them, but it is a fair and realistic appraisal of where the situation stood. The "sham" in the circumstances would have been to have gone through the ritual of another two-part ballot, with the results essentially predictable, and the value, in terms of advancing the situation, to have been nil. Mr. Teal was not required, as counsel for the complainants suggests, to permit a negative vote on both questions, and then to choose between going back to the bargaining table without any additional leverage, and calling a strike in the face of an express vote showing it would not be supported. Neither was Mr. Teal required to allow the bargaining, and hence the union's bargaining rights, to dangle in limbo, and become subject to a termination application by employees disgruntled with the lack of a contract, or an argument of abandonment by the employer. The choice which Mr. Teal accordingly put to employees was an informed and realistic one, and one which the respondent, in its capacity as bargaining agent, was entitled to dictate.

9And because Mr. Teal was entitled to insist on the form of ballot which, in his judgment, he considered appropriate, he was also entitled to ask those employees who did not wish to participate in the voting process to leave the hall, and not interfere further in the running of the meeting. It is essentially common ground in the evidence that Mr. Teal extended numerous and unequivocal invitations to all the employees at the meeting to stay and vote. Ms. Rousal, the final witness for the complainants, was able to remember very little, but she remembered that without hesitation. That Mr. Teal became upset with the manner in which various employees were refusing to either participate or leave the meeting is not surprising or unreasonable in the circumstances. Although he may have lost control at the point where he actually laid his hands on Mr. Clark, this momentary flare-up could not in any way be said to have "intimidated" or "coerced" anyone, as argued, from staying and exercising their rights under the Act if they had wished. On the contrary, as one of the complainants, Ms. Constantino, herself testified, the incident between Mr. Teal and Mr. Clark occurred "just as we were about to leave" anyway, and that is precisely the sense that the Board gets from the overall evidence. The complaint under sections 68 and 70 is accordingly dismissed.

10That leaves the complaint under section 72 of the Act. The material portions of section 72 read as follows:

72.-(4) A strike vote or a vote to ratify a proposed collective agreement taken by a trade union shall be by ballots cast in such a manner that a person expressing his choice cannot be identified with the choice expressed.

(5) All employees in a bargaining unit, whether or not such employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement.

(6) Any vote mentioned in subsection (4) shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots.

The complainants argue that the respondent has failed to comply with these subsections in a number of respects. Firstly, counsel argues that the use of the word "or" between "a strike vote" and "a vote to ratify a proposed collective agreement" is meant to indicate that the two votes could never be taken in one and the same ballot. The Board does not agree. The use by trade unions in appropriate circumstances of a ratify/strike form of ballot has a long history and, as discussed above, an important labour relations purpose in this province. In the Board's view, had the Legislature meant to effect such a fundamental change in the practice and prerogatives of trade unions, it would have done so expressly. There will, of course, continue to be many situations in which the trade union will elect not to combine the two questions (as occurred in the first ratification vote in this very case), and the use of the disjunctive continues to have meaning in contemplation of that possibility. Counsel cites in support of his argument a decision of the British Columbia Labour Relations Board in Metal Industries Association and Letson and Burpee Limited, [1977] Can. L.R.B.R. 151, where that Board, commenting on a provision of its own Act calling for a secret ballot prior to the calling of a lockout in multiple-employer bargaining, noted that: "The ballot should pose the question in a fair manner". That comment, as a reading of the sister case reported in [1977] 3 Can. L.R.B.R. 101 makes clear, was in reference to the complaint that the question on the ballot in that case was ambiguous. Clearly it is not an argument that can be made in the present case: the employees who protested were only too aware exactly what it was they were being asked to vote upon. Once again, we feel that if the Legislature had intended to insulate employees from the kind of "hard choice" presented by this form of ballot, it would have dealt with the matter expressly.

11Of more concern to the Board are the complainants' arguments centering on the heading on the Notice of the ratification meeting, together with the manner of describing the proposed subject matter of that meeting.

12On its face the Notice was addressed, once again,

"TO: All Members of United Steelworkers of America at Lilo Rail and Modern Plating Company Limited"

Given that the express purpose of subsection (5) (which counsel for the respondent duly noted was incorporated into the Act at the same time as the dues deduction provisions of now section 43) was to ensure that both members and non-members of the trade union be permitted to participate in the vote, the Board has to be more than a little concerned at the lack of attention given to this matter by the respondent in the drafting of its Notice. There is, of course, a difference between being required by law to pay dues, and being a "member" of a trade union, and again between being a "member" of the trade union, and being a "member" of the bargaining unit. Mr. Teal testified that in his view, "everyone in the bargaining unit" were his "members". But this explanation, which we accept as bona fide, is of little comfort in the face of a Notice which is patently defective.

13Rather than setting out a strict format to be followed in the case of every vote, subsection (6) of section 72 puts the question in terms of "ample opportunity", thus preserving the widest possible latitude for a trade union with respect to the possible procedures that it wishes to adopt. At the same time, however, the Board agrees with the observation of the British Columbia Board in the second of the Letson and Burpee Limited cases cited above, that this lack of detail in the legislation "requires the Board to make practical, common-sense judgments about the adequacy of the procedures followed in a particular vote". Again on the adequacy of notice in this case, the Board notes that the only reference to the purpose of the meeting was:

"AGENDA: Discussion, and a VOTE will be taken on a tentative agreement."

While a vote to ratify a proposed contract can, as occurred here, be simultaneous with or lead to a vote on the question of a strike, clearly it need not always do so. As the present case so amply demonstrates, there may be times when a proposed contract is put to the membership, but the trade union is not of the view that bargaining has come to a "head" so as to require the taking of a strike vote. This was precisely the situation at the January meeting in the matter before us. It is interesting to note that precisely the same language was used in the notice for that January meeting, at which the trade union did not intend to hold a vote upon a strike, as in the notice of June, when the trade union did have that in mind. It cannot be argued, therefore, that employees ought reasonably to infer one set of circumstances or the other from the form of notice which the respondent has used, or that reference to a vote to ratify necessarily carries with it the implication of a vote to strike. Here the Board feels that the use of the disjunctive 'or" in the subsections is of significance, and shows a recognition by the Legislature that a vote on the one question is not necessarily synonymous with a vote on the other. Where, as here, the trade union in June had formed the view that the bargaining had to come to a head, and a strike vote was considered timely, the employees in the bargaining unit were entitled to express notice of that possibility, prior to any decision on whether or not to attend the meeting.

14Had a single employee come forward to testify that the lack of proper notice had caused the employee to miss the meeting in question, the Board might well have had to consider the legal consequences of such inadequacies in the circumstances of the case before it. There was, however, no such complaint made out before the Board. Not a single employee who testified had not attended the meeting in question, and been given a fully adequate opportunity, we have found, to take part in the ratification or strike vote which ensued. Counsel for the complainants indicated to the Board at one point, in response to questioning from the Board, that as far as he understood (and he was retained in the matter well after the present complaint was filed) he represented, amongst the list of 35 complainants, 5 employees who were not in attendance at the meeting. No such employees, however, ever appeared at the hearing or came forward to testify. Indeed, it is difficult to see how an employee who did not attend the meeting could have signed the complaint in its present form, which begins:

The undersigned hereby state as follows:

(1) We are employees of Lilo-Rail of Canada.

(2) On or about the evening of Thursday, June 23, 1983, we attended a meeting called by our union

and continues in that vein throughout. The Board is not satisfied, therefore, that it has before it any supported claim on the basis of lack of proper notice of the meeting in question. The apparent defects, as a result, become academic in nature, and this last leg of the complaint is dismissed as well.

15For all of the foregoing reasons, the complaint is dismissed.