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Ontario Labour Relations Board
[1984] OLRB Rep. July 905
0508-84-R William Baziuk & Doris Baziuk, Applicant, v. United Steel Workers of America, Respondent
**BEFORE:** Ian C. Springate, Vice-Chairman, and Board Members J. Wilson and C. A. Ballentine.
**APPEARANCES:** William Baziuk and M. W Baziuk for the applicant; Keith Oleksiuk and Henry G. Gareau for the respondent.
**DECISION OF IAN C. SPRINGATE, VICE-CHAIRMAN, AND BOARD MEMBER C. A. BALLENTINE;** July 31, 1984
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[1] This is an application for a declaration terminating bargaining rights. The application itself does not refer to any particular section of the Labour Relations Act. However, in a letter to the Board dated April 30, 1984 counsel for the applicants indicated that the application was being filed under section 59 of the Act.
[2] Section 59 of the Act provides as follows:
"59.-(1) If a trade union fails to give the employer notice (i.e. notice to bargain) 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of any of the employees in the bargaining unit, and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.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 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of any of the employees in the bargaining unit and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit."
[3] No evidence was led before the Board. However, at the hearing the representative of the applicants set out certain facts relevant to the applicants' business activities which were not challenged by the representative of the respondent. By the same measure, the representative of the respondent trade union set out certain facts relating to the status of the union's bargaining rights which were not challenged by the representative of the applicant. From the statements of the parties it appears to be common ground that the applicants, William and Doris Baziuk, were at one time involved with the operations of an incorporated company known as Great Lakes Rail Limited. This company was engaged in the fabrication of iron, steel and metal products at a shop located in the City of Thunder Bay. The two applicants are also connected with a construction company in Thunder Bay. The respondent trade union, however, has no bargaining rights with respect to this company and its operations are in no way affected by these proceedings.
[4] In April of 1979 the respondent trade union was certified as the bargaining agent for certain employees of Great Lakes Rail Limited. In 1980 the company entered into a collective agreement with the union which was to expire on January 16, 1982. On or about October 22, 1981 the union served on the company a notice to bargain for a renewal agreement, and on October 28, 1981 forwarded certain proposals to the company. On December 29, 1981 the Minister of Labour appointed a conciliation officer to assist the parties to negotiate a new collective agreement. No such agreement was ever concluded, however. Due to certain financial problems, in early March, 1982 the company ceased operations and laid off all of its employees. In these circumstances the trade union made no attempt to continue bargaining. At the hearing, the representative of the union stated that it was only a lack of any employees within the bargaining unit which caused the union to cease trying to negotiate a collective agreement.
[5] The financial problems of Great Lakes Rail Limited came to a head in March of 1982 when the Bank of Montreal laid claim to the firm's inventory and receivables. Following this, the two applicants, William and Doris Baziuk in their personal capacities, took possession of certain of the assets of the company. At the hearing, the representative of the applicants contended that the company is now "dead" and that it would be appropriate to terminate the union's bargaining rights so that the applicants can dispose of assets formerly used by Great Lakes Rail Limited, free of any union connection.
[6] The position of the respondent trade union is essentially two-fold. Firstly, the respondent contends that this application is not properly brought under section 59 of the Act. Secondly, it submits that the termination of its bargaining rights would be inappropriate since in the event of a sale the purchaser might, in fact, prove to be a successor employer of Great Lakes Rail Limited.
[7] We are satisfied that this application is not properly brought under the provisions of section 59. Section 59 applies where a trade union has failed to serve notice to bargain or having done so, but before the Minister has appointed a conciliation officer, allows sixty days to elapse in which it has not sought to bargain. Here the union did serve notice to bargain and did engage in bargaining up until the time that a conciliation officer was appointed. This fact by itself is sufficient to dispose of this application. We would note, however, that even if the lay-off of employees and the cessation of bargaining had occurred prior to the appointment of a conciliation officer, such that an application under section 59 would have been timely, nevertheless we would not be prepared to exercise our discretion under that section to terminate the union's bargaining rights. Section 59 is meant to ensure that a trade union that represents a unit of employees actively seeks to forward the interests of those employees and does not "sleep on its rights". In the instant case, so long as there were employees in the bargaining unit the union actively sought to bargain on their behalf. Once all of the employees were laid off it was not unreasonable for the union to cease its activities in this regard since they might prove to be of no useful purpose. The lack of employees in a bargaining unit, however, does not necessarily mean that the bargaining rights themselves are meaningless. For example, it is not unknown for a company that has halted operations and laid off its employees to later call back the employees and resume operations. In such a situation it is quite appropriate for the union that represents the employees to recommence negotiating on their behalf. We would note that in the instant case there is no guarantee that if the union's bargaining rights were to be terminated the business of Great Lakes Rail Limited might not later be revived.
[8] The applicants contend that the business of Great Lakes Rail Limited is in fact "dead", and that they wish to sell off some of the company's assets free of any union connection. If it is the case that the business of Great Lakes Rail Limited no longer exists, then any sale of the assets would not, in fact, involve the trade union. If, on the other hand, a sale actually involves all or part of the business of Great Lakes Rail Limited, then the union's bargaining rights would continue, and the union would be entitled to bargain for a new collective agreement with the purchaser. The relevant provisions of the Act with respect to the sale of all or part of a business provide as follows:
"63.-(1)In this section,
(a) "business" includes a part
minicounsel