Marc Dallaire v. Lumber & Sawmill Workers' Union, Local 2995

[1984] OLRB Rep. January 1

2002-83-R Marc Dallaire, Applicant, v. Lumber & Sawmill Workers' Union, Local

2995 of the United Brotherhood of Carpenters and Joiners of America, Respondent,

v. Bois A. Lachance Lumber Limited, Intervener

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members F. W. Murray and H. Kobryn.

APPEARANCES: J. F Gaetan Brisson, Marc Dallaire and Roger La chance for the applicant and intervener; Paul Falzone and Raymond Boissoneault for the respondent.

DECISION OF THE BOARD; January 23, 1984

1. This is an application pursuant to section 59 of the Labour Relations Act for a declaration that the respondent no longer represents the employees of the intervener for which it is the bargaining agent. Section 59 of the Act reads as follows:

59.-(l) If a trade union fails to give the employer notice 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of any of the employees in the bargaining unit, and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining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. aillows a period of sixty days to elapse during which is [sic] has not 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of any of the employees in the bargaining unit and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.

2. The applicant, Marc Dallaire, is a lumberjack. He works for Bois A. Lachance Lumber Limited ("Bois Lachance") in its woods operation. Bois Lachance is a family operation in which three Lachance brothers are engaged: Roger, Gaetan and Remi. The woods operation of Bois Lachance is active in the winter months. The wood cut during that operation is taken to the Bois Lachance mill in Harty, Ontario, where the wood is processed during the summer months. Some Bois Lachance employees work just in the mill, some work just in the woods operation and some work in both. Dallaire just works in the woods operation. This is his third winter working for Bois Lachance.

3. Around the end of August, 1983, Remi Lachance telephoned Dallaire and asked him to report to work in the woods operation on September 19th. Before he started work, Dallaire heard rumours that a union had come in at Bois Lachance. A few days after he started work, he asked Remi Lachance whether that was true. Lachance said it was. Lachance was not happy about that, and made his feelings known to Dallaire.

4. On September 29th, Dallaire heard there was to be a meeting that evening. It had been called by the union. He understood it was only for the men working in the mill. He was told all this by a friend who is not employed by Lachance and was not present at the meeting. Dallaire does not know how his friend knew about the meeting. He did not attend the meeting, nor did he later approach any of the mill employees to find out what had happened there. He did, however, go to a la so, he told the Board, because he did not want to work under the conditions of a union. At around this time, Dallaire received a typewritten document which has a preamble in English and French. The English preamble reads:

We, the undersigned employees of Bois A. Lachance Lumber Limited, concur in the application of Marc Dallaire for a declaration terminating the bargaining rights of the Lumber & Sawmill Workers' Union, Local 2995.

Dallaire at first testified he received this document from the company secretary. He later testified he received it from his lawyer. What he received from the company was a list of employees.

5. Dallaire waited until November 20th, a Sunday, to see the employees on the list to get their signatures on the document. He got eight signatures that day. Six were of employees, including laid-off employees, of Bois Lachance. One was the signature of the wife of a laid-off Bois Lachance employee. The other was the signature of another member of the family of that employee. These last two signatures were later crossed out. One of the signatures he got on Sunday was the signature of Gaetan Lachance. Dallaire got five more signatures on Monday, November 21st, including the signature of Remi Lachance. On Tuesday or Wednesday he got the signature of the person whose other family members had signed on Sunday.

6. The document bearing these signatures was mailed to the Board along with Dallaire's application. The application is completed in English and signed by Dallaire. Dallaire does not speak English. He thinks the document was translated to him by his lawyer before he signed. Paragraph 5 of the application reads:

THE UNION HAS NOT GIVEN NOTICE OF ITS INTENT TO BARGAIN AND HAS NOT COMMENCED TO BARGAIN WITH THE EMPLOYER. ALL EMPLOYEES WHOSE NAMES AND SIGNATURES APPEAR ON THE SCHEDULE ATTACHED HERETO CONCUR IN THIS APPLICATION.

Dallaire testified that by the time he signed this application he had not asked anyone whether the union had sent any letter or notice to his employer asking the employer to bargain. Asked how he knew that paragraph 5 was true when he signed the application, Dallaire then said he had been alking about that off and on with Remi Lachance.

7. On September 14, 1983, the respondent trade union was certified as the bargaining agent for a unit of employees described as follows:

All employees of Bois A. Lachance Lumber Limited at its Sawmill and Planing Mill in Harty, Ontario, and its Wood Operation in the District of Cochrane, save and except foremen, those above the rank of foreman, sales and office staff.

At the time the certification application was made, there were no employees in the woods operation. The woods operation was included in the bargaining unit by agreement of the parties, and granted by the Board on the parties' explanation that certain of the sawmill employees customarily transferred to the woods operation during the winter months. There were 13 or 14 employees in the bargaining unit on the date of the certification application. Two of the employees were Remi and Gaetan Lachance, whom the union did not then challenge as "managerial". The union received its certificate September20, 1983. Raymond Boissoneault, Vice-President of the union, then sent letters to all the employees in the bargaining unit other than the Lachance brothers, whose presence Boissoneault thought would be inappropriate. The union had the addresses of all those employees as a result of its organizing campaign. The letter informed them of a union meeting to be held September 29, 1983. All or nearly all of the invited employees attended the meeting. Boissoneault chaired the meeting. He explained to the employees the way the union operated and what a collective agreement was, and discussed the sort of terms and conditions usually covered by a collective agreement. While these matters might normally have been covered in the course of an organizing campaign, the campaign to organize these employees had been very brief because in this case the employees had invited the respondent to organize them. After this introduction, Boissoneault sought and obtained from the employees information with respect to their work place, working conditions, wages, benefits and so forth. He asked them about the woods operation. He was told the names of approximately four persons who normally transferred from the mill operation to the woods operation, as well as the names of other employees who were regularly hired to work just in the woods operation. The employees present who expected to transfer into the woods operation thought they would be starting shortly, but did not have a firm date. There was a rumour that the company might be ceasing its woods operation. Information about the woods operation was indefinite. The employees still at work in the mill had been given notice that they would be laid off within the week following the meeting. Based on past experience, the employees did not expect the mill to open again until the following April.

8. The respondent and its sister Local, Local 2693, represent the employees of other sawmills and woods operations in Northern Ontario. Boissoneault used an agreement the respondent has with an employer in the Hearst area as an example in explaining what the union would look for in negotiations with Bois Lachance. He told the employees, however, that the negotiations the union and its sister Local would soon be starting with certain employers in the Hearst area normally set the pattern for other settlements with employers whose employees were represented by those Locals. This had been the modus operandi of these two Locals for 10 years. Boissoneault advised the employees that it would be to their advantage to have negotiations with their employer wait until the pattern settlement had been obtained. The employees agreed. They were in no rush.

9. At the September 29th meeting, the employees present elected one Elie Fortin as the employee bargaining committee representative, with the expectation that he might later be selected as shop steward once the employees had a collective agreement. Boissoneault told Fortin he would let him know when dates had been set for negotiations. The meeting ended. One of the employees, Denis Marchand, stayed behind to speak to Boissoneault about a problem. Prior to the shutdown of the Lachance mill, he had requested and been granted a layoff because he had found other employment. Bois Lachance had then given him a separation certificate which stated that he had quit. Marchand felt the certificate should have shown he had been laid off. On October 5, 1983, Boissoneault wrote to Bois Lachance about this. Bois Lachance received the letter, but did not reply. Boissoneault heard nothing further from Marchand about his complaint. There was no further or other written or oral communication between the union and Bois Lachance at any material time after certification. No written notice to bargain was given in the time frame stipulated in section 59(1) of the Act, and no bargaining took place.

10. After the September 29th meeting, Boissoneault kept an eye on the Bois Lachance mill, which he drove past on his regular trips to and from Hearst. He was looking to see if lumber was arriving at the mill, which would have been a sign that the woods operation had commenced. He saw no such sign and received no communication either from the company or from any of its employees until this application was filed. Fortin, who was one of the employees expected to transfer to the woods operation, had not started to work in the woods operation until November 21st. Prior to being served with this application, Boissoneault was unaware of Dallaire' s start in the woods operation on September 19th, or that Dallaire had been joined by others in mid-October.

11. The purpose of section 59 of the Labour Relations Act was explained in the Dominion Stores Limited, 56 CLLC ¶ 18,047 in the following terms:

The purpose of section 43 [now section 59] of the Act is to protect the employees and, in a proper case, the employer against a union which stakes out a claim to represent certain employees and then takes no steps within a reasonable time to forward the interests of those employees. However, the section is to be used as a shield, not as a sword. Section 43 should not be used to penalize a union which has failed to give notice under section 10 [now section 14] of the Act, but rather to afford an opportunity for an interested party to bring that fact to the attention of the Board so that the Board may call upon the union to give an explanation for the delay in commencing or continuing negotiations as the case may be. If no satisfactory explanation is forthcoming, the Board will no doubt in many cases terminate the bargaining rights of the union instantaneously.

The concern addressed by the section is the prejudice which may be caused to the employees, or to the employer, when a trade union sleeps on its rights: Walmer Transport Co. Ltd., 53 CLLC ¶17,062; Yarntex Perth, Division of Yarntex Corporation Limited, [1975] OLRB Rep. Feb. 137. While an incumbent union holds exclusive bargaining rights, section 67 of the Act prevents both the employees and the employer from dealing with each other directly or through another bargaining agent more willing or able to act. While in applications under section 57 of the Act the focus of concern is on the desire of employees for continued representation by the incumbent trade union, the focus of section 59 is the continued willingness or ability of the incumbent to bargain on behalf of the employees. It is not the purpose of section 59 to afford an opportunity, particularly to an employer, to re-determine the wishes of employees outside the time periods provided for in section 61 of the Act: Prescott Machine and Welding Inc., [1982] OLRB Rep. Feb. 250.

12. The failure of a trade union to reply to or attend at the hearing of an application under section 59 is the best evidence of circumstances to which that section was intended to be responsive, and will lead to a granting of the application: Darrigo 's Supermarkets Ltd., [1982] OLRB Rep. Jan. 32; Fuller's Restaurant, [1981] OLRB Rep. Feb. 156; Canwood Lachute, [1979] OLRB Rep. Dec. 1140. Where the trade union demonstrates its continued desire to represent employees by coming forward with an explanation which the Board nevertheless finds unsatisfactory, the Board may exercise its discretion to order a representation vote: Moyer Sand (1965) Limited, [1966] OLRB Rep. Mar. 913; Kap Imperial Service Station, [1969] OLRB Rep. Feb. 1186. Any number of circumstances may satisfactorily explain a trade union's delay in commencing or continuing collective bargaining. For example, the Board will not act under this section to terminate a trade union's bargaining rights with respect to a bargaining unit in which there are no employees: BLH — Bertram Ltd., [1967] OLRB Rep. Oct. 652; Scarborough Public Library Board, [1968] OLRB Rep. May 196; international Harvester Company of Canada, Limited, [1972] OLRB Rep. july 762; Yarntex Perth, Division of Yarntex Corporation Limited, supra. A trade union's failure to give notice to bargain for the renewal of a collective agreement may be satisfactorily explained if the union establishes that it was carrying out the wishes of the employees affected: Nurses' Association St. Mary 's General Hospital Kitchener, [1971] OLRB Rep. Sept. 556. The Board will consider the length of the delay: FC.M. Construction Limited, [1982] OLRB Rep. May 670. The "haste" with which the applicant has brought the application is also a relevant consideration: Holley Electric Ltd., [1965] OLRB Rep. May 136; Grant Ready Mix Limited, [1967] OLRB Rep. Dec. 892.

13. A trade union may delay bargaining intentionally, in order to develop its bargaining strategy with respect to a number of employers or to conclude with other employers a "pattern settlement" on which bargaining demands may thereafter be based. The Board has usually recognized the bona fide existence of such an intention as a reasonable explanation for delay: Holley Electric Limited, supra; Moyer Sand (1975) Limited, supra; Muskoka Ambulance Service, [1974] OLRB Rep. Sept. 590; and, Trizec Equities Ltd., [1978] OLRB Rep. Feb. 189 (but see Kap Imperial Service Station, [1969] OLRB Rep. Feb. 1186).

14. The unusual and disturbing feature of this case is the total failure of the respondent to give the intervener employer any notice, whether written or otherwise, of its desire to bargain for a first collective agreement or its intentions with respect to bargaining. The union s disdain of communication with this employer is an inauspicious start to a collective bargaining relationship. We observe that communication with the employer might have answered the questions on which Mr. Boissoneault remained uncertain at the conclusion of his meeting with employees of September 29, 1983. Mr. Boissoneault could, for example, have asked the employer when the woods operation was expected to start and who was employed in it once it did. The timing of negotiations could and should have been discussed with Bois Lachance at an early date.

15. While the respondent's approach to communication with the intervener leaves something to be desired, we balance against that the fact that the intervener made no complaint about the respondent's approach to negotiation. Although Roger Lachance was present at the hearing in this matter, he was not called to testify and there is no evidence before us that the intervener was prejudiced by the respondent's delay in giving notice to bargain or commencing bargaining. Indeed, because no one was called on behalf of the

intervener, we have no way of knowing whether the intervener was aware of the respondent's meeting with its employees and, if so, how much it learned about the bargaining strategy approved by the employees present at that meeting.

16. We are not satisfied that the respondent's delay in giving notice to bargain or commencing bargaining prejudiced employees. Indeed, it is uncontradicted that the employees present at the meeting of September 29, 1983 agreed with the respondent that its approach was appropriate in the circumstances. Employees who came on the scene later made no effort to convey any contrary view to the union.

17. Considering all the circumstances, including the haste with which this application was brought, we are satisfied that the respondent has not slept on its rights and that this is not an appropriate case either to terminate bargaining rights or to order a representation vote. It is therefore unnecessary for us to consider whether the applicant's "petition" represents a voluntary expression of desire of a number of employees sufficient to lead us to dispense with a representation vote.

18. This application is, accordingly, dismissed.