Wright v. Retail, Wholesale and Department Store Union, 1985 CanLII 1034

Ontario Labour Relations Board

[1985] OLRB Rep. August 1309

0412-85-U; 0413-85-U S. Wright, Dinah Teffer, M. A. Mothersell, Andrea Porter and C. Boreland, Complainants, v. Retail, Wholesale and Department Store Union, Respondent, v. The T. Eaton Company Limited, Intervener; Suzanne O'Hagan, Barbara Murray, Jean Robbins, Jeff Nelander, Maria Santos and Jean Christie, Complainants, v. Retail, Wholesale and Department Store Union, Respondent, v. The T. Eaton Company Limited, Intervener

BEFORE: Ian C. Springate, Alternate Chairman, and Board Members J. A. Ronson and P. V. Grasso.

APPEARANCES: Stewart D. Saxe, Cheryl Elliot, Barbara Murray and Leslie Freeman for the complainants; James Hayes, Patrick Macklein and Thomas Collins for the respondent; F. G. Hamilton, Q. C. and R. A. Hubert for the intervener.

DECISION OF IAN C. SPRINGATE, ALTERNATE CHAIRMAN, AND BOARD MEMBER P. V. GRASSO; August 19, 1985

1. These are two complaints under section 89 of the Labour Relations Act which allege that Retail, Wholesale and Department Store Union ("the union") has violated sections 68, 72 and 80 of the Act. The complainants in File No. 0412-85-U are employees of The T. Eaton Company Limited ("the company") at its store at the Scarborough Town Centre in the City of Scarborough. The complainants in File No. 0413-85-U are employed by the company at its Bramalea store in the City of Brampton.

2. Most of the facts giving rise to the complaints are not in issue. Indeed, the complainants and the union filed with the Board a jointly executed document setting out many of the relevant facts. The parties also agreed that the Board could rely on the facts set forth in the Board decision in T. Eaton Company Limited, [1985] OLRB Rep. March 491. The only witness called in these proceedings was Mr. Thomas Collins, an international representative of the union responsible for co-ordinating the union's bargaining activity at the six company stores where it holds bargaining rights.

3. Between March 28 and July 11, 1984, the union was certified to represent employees at six of the company's stores in Southern Ontario, including the Bramalea store and the store at the Scarborough Town Centre. In all, the union became the bargaining agent for approximately 1,000 of the company's employees. These employees represented less than four per cent of the company's total work force of about 35,000 employees.

4. The union's general practice is to acquire its bargaining rights in the name of the international union. After a first collective agreement has been entered into, it will generally transfer the bargaining rights to a local of the union. In line with this general practice, during the union's organizing campaign employees were approached to sign applications for membership into the international union as opposed to a local of the union. The international union was certified by the Board as the bargaining agent of employees in the various bargaining units. The resulting bargaining rights were never transferred to a local but rather continue to be held by the international.

5. Negotiations for first collective agreements between the company and the union commenced on May 16, 1984. It was the union's hope that in these negotiations it would be able to make major progress towards improving the terms and conditions of employment of the employees it represented. However, apart from a 7.8 per cent general wage increase implemented by the company for both unionized and non-unionized employees, the company took the position that the wages and benefits being received by the employees were competitive and appropriate. Although the company did agree to a number of proposals which would afford increased job protection to employees and enable the union to challenge certain company actions, the company adamantly opposed most of the union's proposals that would limit management's flexibility. The fact that the union represented only about four per cent of the company's work force meant that the company was in a relatively strong bargaining position. Further, the company was prepared to make full use of its bargaining power in order to resist most of the union's demands.

6. On November 18, 1984, the union conducted strike votes among employees in the bargaining units. Although we have no direct evidence on point, we gather that all employees, whether union members or not, were permitted to participate in these votes, and that a majority of employees in each of the bargaining units approved strike action.

7. On November 30th. 1984, the union commenced strike action at all six stores where it held bargaining rights. The union's already relatively weak bargaining position was made more difficult by the fact that a sizeable number of employees either refused to support the strike at all, or struck for a few days and then returned to work. In order to seek to bolster its clout at the bargaining table, the union called upon consumers to boycott the company's stores. Neither the strike nor the boycott produced any change in the company's position. Shortly prior to the events described below, the leaders of two major religious groups spoke out in favour of the striking employees. According to Mr. Collins, this action gave some strength to the union, but, given the situation at the time, he felt the support had come too late to do much good. Indeed, it was Mr. Collins' view that it would take several more months of strike activity, coupled with the consumer boycott, to get the company to materially improve its outstanding collective agreement proposals.

8. On May 2nd and 3rd, 1985, union and company representatives met with mediators from the Ministry of Labour. Mr. Collins used these two days to "feel out" the company as to whether or not it was prepared to make any changes to its outstanding proposals. The impression he received was that the company was not prepared to make any major changes. Mr. Collins testified that at that point he and two other union representatives who had been involved in the negotiations met to consider the situation and what steps the union should take. According to Mr. Collins, there was a concern that some of the strikers were hurting financially. Also, some strikers were voicing concerns about losing their automatic right to return to work once the strike had lasted more than six months. Pursuant to section 73(1) of the Act, during the first six months of a lawful strike a striking employee can apply for and receive his job back. The actual wording of the section is as follows:

73.-(l) Where an employee engaging in a lawful strike makes an unconditional application in writing to his employer within six months from the commencement of the lawful strike to return to work, the employer shall, subject to subsection (2), reinstate the employee in his former employment, on such terms as the employer and employee may agree upon, and the employer in offering terms of employment shall not discriminate against the employee by reason of his exercising or having exercised any rights under this Act.

9. Mr. Collins also testified that the union representatives were concerned that if the strike went on much longer, some of the employees who were not on strike might file applications to terminate the union's bargaining rights. Section 57 of the Act provides that if a trade union has not entered into a collective agreement within one year of its certification, an employee within the bargaining unit can apply to terminate the union's bargaining rights and attempt to demonstrate that the union no longer has the support of a majority of the employees in the bargaining unit. The one-year period within which a union is protected from a possible termination application is extended by section 61(3) of the Act if such an extension is necessary to allow the union to engage in strike activity for at least six months without a termination application becoming timely. Given the time considerations involved in this case, once the strike against the company had passed the six-month point, termination applications would have become timely.

10. In light of the factors discussed above, on Friday, May 3, 1985, Mr. Collins and the other two business representatives concluded that it would be appropriate to try to bring the strike to an end and get the strikers back to work. On Monday, May 6th, the three union representatives met with the approximately twenty-five employees on the union's bargaining committee to discuss the matter. At this meeting Mr. Collins indicated to the committee members that if the decision was reached to have the striking employees return to work, the matter of the collective agreements would have to be left in the hands of the union representatives. After a heated discussion, the committee voted in favour of getting the striking employees back to work. Later that same day, Mr. Collins advised the company through the mediators that the union was prepared to accept the company's last offer. Some discussion then ensued as to what time period the collective agreements were to cover. On the following day the company and the union reached agreement both as to the time period to be covered by the collective agreements as well as the contents of a "back to work agreement" that was to form part of each of the collective agreements. The back-to-work agreement dealt with issues relating to the recall to work of striking employees, the effect of the strike on vacation entitlements, when dues deductions were to be commenced, how dues were to be calculated for commission sales staff, a "no reprisal" clause providing that no action would be taken against employees for engaging or not engaging in the strike, and the setting of time limit for the company to notify the union as to certain "merchandise groupings" referred to in the proposed collective agreements.

11. On May 7, 1985, representatives of the company and the union entered into a number of memoranda of settlement, setting forth the terms for a number of collective agreements, one for each bargaining unit. Attached to each memorandum was a copy of the back-to-work agreement. Each memorandum contained the following paragraphs which clearly indicated that a condition precedent to the documents becoming formal collective agreements was that they be ratified by both parties:

12. The undersigned representatives of the parties do hereby agree to recommend complete acceptance of all the terms of this Memorandum by their respective principals.

13. The parties herein agree that the term of the collective agreement shall be one year effective from date of ratification.

14. Although no direct evidence was led on point, it appears that the appropriate officials of the company either expressly or by implication ratified the terms of the various memoranda of settlement. For the union, however, ratification created some difficulties. Generally, on the union side, ratification of a proposed collective agreement is done by way of a ratification vote among the employees who will be covered by the agreement. As discussed in the George Magold case, [1975] OLRB Rep. Oct. 758, the function of such a ratification vote is to test the acceptability of the proposed collective agreement among those who are to be governed by its terms and conditions. We believe we can take notice of the fact that from time to time proposed collective agreements are defeated in ratification votes by employees who are dissatisfied with the terms of settlement. When this occurs, the employer involved may make a new offer acceptable to the employees. If the employer does not make a new offer, generally the employees will either re-consider their decision and ratify the agreement, or commence strike action (or continue an existing strike) as a way of seeking to force the employer to improve its offer.

15. Although ratification votes among employees are common, the Labour Relations Act does not make them mandatory. A union is entitled to send to the bargaining table a negotiating committee with authority to enter into a collective agreement not subject to ratification. Further, there is nothing in the Act which precludes a proposed agreement from being ratified by some method other than a vote of employees. What the Act does do, however, is provide that if a ratification vote is held, it must be by secret ballot with all of the employees in the bargaining unit being entitled to vote. The relevant provisions of the Act are as follows:

72.-(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.

14. The union before us has a general practice of conducting ratification votes. The complainants and the union agree that given this general practice, union officials when describing the collective bargaining process prior to the commencement of the strike quite naturally referred to the holding of ratification votes. The actual agreement on point reads as follows:

During the (organizing) campaigns, union organizers from time to time in explaining the bargaining process to prospective members included in their remarks references to ratification votes.

In fact, the union, in the past has almost without exception conducted such votes and so its representatives may have naturally included it from time to time in describing the usual process.

On November 18, 1984 the union conducted strike votes in the units. At each meeting and before the vote, the future of the bargaining process was described and reference was made to ratification votes. No "promises" of any kind were made in this regard on this nor on any other occasion in the future. For obvious reasons, the question of ratification was not an issue in the mind of union leaders in November, 1984.

15. The complainants filed with the Board two pieces of union campaign literature which made reference to ratification votes. The first, dated February 14, 1984, contained the following two references:

The initiation fee is one dollar when you sign the card and two hours pay per member per month, tax deductible and only after a collective agreement is voted on and accepted by you.

Employers are required by law to bargain in good faith. Only you and your fellow workers have the right to vote on your collective agreement. It is as strong and as good as you make it.

The second piece of literature, dated April 9, 1984, repeated the second paragraph quoted above.

16. Although the union's general practice is to hold ratification votes, approximately three months into the strike the three union representatives became concerned as to whether such a vote would be appropriate. Mr. Collins indicated that the concern arose out of the possibility that non-striking employees might vote down a proposed collective agreement, and put the union in the situation where it had no collective agreement and no real chance of getting one. Mr. Collins also discussed the wisdom of holding a ratification vote with Mr. A. Heaps, the union's International President. The possibility that the union might not hold a ratification vote also occurred to a number of non-striking employees working at the Bramalea and Scarborough Town Centre stores. At the end of April or early May 1985, these employees presented the union with petitions requesting "that a ratification vote be held on any proposal before it is accepted by the union as a collective agreement". It appears that a majority of employees at the Bramalea and Scarborough Town Centre stores signed the petitions. With the exception of one employee who had been out for most of the strike and then returned to work, it also appears that those who signed the petitions either did not strike at all, or struck for fairly brief periods of time before returning to work. The petitions were one of the factors that led Mr. Collins to conclude that ratification votes would not be appropriate.

17. Over the two-day period of May 6th and 7th, the three union representatives consulted with each other, the union's Canadian director, the union's International President and with legal counsel on the question of how the proposed collective agreements should be ratified. As a result of these consultations, a decision was reached that the International President would decide whether or not to ratify the agreements. It was also decided to hold a series of "back to work" votes among the striking employees to ascertain whether or not they desired to return to work, and to convey the results of these votes to the International President to be used by him in deciding whether or not to ratify the agreements. In accordance with these decisions, the union representatives organized meetings of the striking employees, one meeting per store. The meetings with respect to the Bramalea and Scarborough Town Centre stores were held on May 10, 1985. Employees not on strike were not invited to the meetings. A number of non-strikers showed up at the meeting held with respect to the Bramalea store, but were turned away.

18. Mr. Collins testified that he advised the employees who attended the meetings on May 10th that tentative agreements had been reached and that the International President would decide whether or not to ratify them. He also indicated that the President wanted to know if the striking employees desired to return to work. According to Mr. Collins, a number of questions were asked by employees relating to the proposed collective agreements, to which he replied that he was not in a position to discuss the agreements or their contents, because if he did, he would be turning the meeting into a ratification meeting. However, near the commencement of each of the meetings, Mr. Collins did advise the employees present that there was "nothing new" from mediation, and also that union officers did not expect that a better agreement was currently possible with the company. Given the history of this situation, we believe it likely that most employees present would have concluded that the tentative collective agreements were based on the offer earlier made by the company, and that they were familiar with at least the general outline of the offer. One document Mr. Collins did review at the meetings was the back to work agreement.

19. Near the conclusion of the meetings on May 10th, the striking employees were asked to vote on a bargaining unit basis as to whether or not they desired to return to work. The two choices on the ballot were "I wish to return to work at this time" and "I do not wish to return to work at this time". According to Mr. Collins, employees were not advised of the vote results at previous meetings because of a concern that this might influence their views. Mr. Collins testified that union officials were not certain as to how the vote might go, and indeed, he was of the view that a majority of those voting in at least some of the bargaining units would vote against returning to work. Mr. Collins indicated that his recommendation to the International President as to whether or not he should ratify the proposed agreements would depend on the number and size of the bargaining units where the strikers wanted to return to work as against those where they wanted to continue the strike. As it happened, a majority of striking employees in all of the bargaining units voted to return to work, a result which Mr. Collins stated surprised him. Mr. Collins telephoned the results of the votes to Mr. Heaps, the International President, along with a recommendation that the president ratify the proposed agreements. On May 11, 1985, Mr. Heaps forwarded to Mr. Collins a telegram which reads as follows:

Having regard to the information I have received, I hereby authorize Tom Collins to execute all of the collective agreements between the Retail, wholesale and Department Store Union and The T. Eaton Company. This telegram will constitute ratification of these agreements by the international union.

A copy of this telegram was delivered to the company on May 13, 1985. Later that same day, the company delivered to the union copies of formal collective agreements already executed on behalf of the company.

20. The complainants have raised a number of grounds in support of their claim that the union's conduct violated the Act. The company supports certain of these grounds. It is the position of both the complainants and the company that the Board should direct the taking of ratification votes in which all employees represented by the union are entitled to vote.

21. The company submits that only the employees represented by the union, and not the union's International President, were legally entitled to ratify the proposed collective agreements. This submission is based on the premise that the union's status is only that of an agent of the employees and accordingly the principals with the authority to ratify the memoranda must have been the employees. We do not agree. While it is true that when a union is certified to represent a unit of employees it becomes the "exclusive bargaining agent" of the employees, it is more than simply an agent of the employees. Rather, so long as it continues to hold bargaining rights, it has a status independent of the employees and deals with the employer, and enters into collective agreements, in its own right. This point was expressed as follows in Wilson Automotive (Belleville) Ltd., II 1980] OLRB Rep. Sept. 1337, as follows:

22. Under The Labour Relations Act an employer makes his contract with the union and not with the employees. It is common to refer to a union as a "bargaining agent". A union is, however, much more than a mere agent when it comes to negotiating and administering a collective agreement. A union has an independent legal existence which the employer is bound to respect. This critical distinction was recognized by the Supreme Court of Canada in McGavin Toastmaster Ltd. v. Ainscough (1975), 1975 CanLII 9 (SCC), 54 D.L.R. (3d) 1. Here at p. 6, Laskin C.J.C. adopted the following language of Judson J. in Syndicat Catholique des Employes the Magasins de Quebec, Inc. v. Compagnie Paquet Ltee (1959), 1959 CanLII 51 (SCC), 18 D.L.R. (2d) 346 at 355;

The union contracts not as agent or mandatory but as an independent contracting party and the contract it makes with the employer binds the employer to regulate his master and servant relations according to the agreed terms.

19. By refusing to accept the union's execution of the collective agreement and insisting on a ratification vote among all of the employees the respondent has in fact refused to recognize the union as the body with the exclusive authority to make a collective agreement. By this failure to recognize the union the employer has violated the most fundamental aspect of its duty to bargain in good faith set out in section 14 [now 151 of the Act. (De Vilbiss (Canada) Ltd., [19761 OLRB Rep. Mar. 49.)

20. The company and the complainants both contend that the constitution of the union does not permit the International President to ratify the terms of a proposed collective agreement. In this regard, they note that while the constitution is silent on the issue of whether the International President can ratify agreements, the following excerpt from Article XVIII of the constitution specifically refers to ratification votes:

Section 2. The right to bargain collectively for the whole membership of a local union shall lie with the executive board of the local union or officers designated by it and with the International Union or its representative when the local union so requests. The result of negotiations and the agreement shall be subject to ratification by the local union or by the members affected thereby.

Section 3. The International Executive Board shall guide and advise the course of negotiations by the local unions.

Section 4. If a majority of those voting ratify the results of the negotiations, the contract shall be drafted and signed by proper officers of the local union and thereupon it shall be binding upon all members. the International Secretary-Treasurer shall receive, upon request, copies of contracts from local unions.

23. It is not at all clear to us that in the circumstances present here the union's International President lacked the constitutional authority to ratify the memoranda of settlement. The sections of Article XVIII quoted above relate to negotiations conducted by a local union with respect to employees who are members of a local union. At The T. Eaton Company, however, the bargaining rights are held by the international union and not by a local. Further, although the constitution does not expressly empower the International President to ratify a collective agreement on behalf of the international, it does indicate that the President has wide powers to act on behalf of the international union, subject only to being reversed by the union's Executive Board, General Council or convention. The following sections of Article VI of the constitution set out the International President's powers:

Section 6. The International President shall be the chief executive officer of the International Union and shall coordinate and administer the affairs of the Union in all of its phases, subject to the approval of the International Executive Board and/or the International General Council and the Convention. The President's decision shall be binding unless reversed by the Executive Board or General Council or Convention.

He shall act for the International Union between meetings of the International Executive Board and the International General Council and shall be a delegate to all conventions of the American Federation of Labor-Congress of Industrial Organizations or any subordinate body thereof and the conventions of all affiliates. He shall preside at all conventions of the International Union and at all meetings of the International Executive Board and International General Council. He shall, together with the International Secretary-Treasurer, sign all charters for affiliates.

Subject to the approval of the International Executive Board and/or the International General Council, he shall appoint directors, International Representatives and Organizers, and shall hire such other employees as may be necessary to conduct the affairs of the International Union, and shall fix their compensation.

Section 8. He shall perform all such other duties as appertain to his office. For the faithful performance of his duties, he shall receive such annual salary payable weekly in equal amounts, as shall be determined from time to time by the International Executive Board. He shall be reimbursed for his expenses incurred while performing his duties as International President.

These provisions suggest to us that the International President has wide authority to act on behalf of the international union, including the authority to ratify proposed collective agreements to be entered into by the international union. Further, it is apparent that the International President, who is the chief executive officer of the union, interprets the constitution as giving him such authority. In these circumstances we are led to conclude that the International President did have authority under the union's constitution to ratify the various memoranda of agreement on behalf of the international union.

24. The company contends that pursuant to Article XIX of the union's constitution, the strike against the company could only have been brought to an end by a vote of all employees in the bargaining units. The article in question provides as follows:

Section 1. A strike may be called and terminated by a local union provided that the members within the unit affected, by a secret ballot, or the local executive board when authorized by the local union's constitution or by-laws have voted approval thereof. Determination shall be by a majority of those voting.

Section 2. The International President shall be kept informed of the settlement of any strikes. This article shall be applicable to joint councils, and divisions and other affiliates vested with authority to call or terminate strikes.

From the wording of this article, it is apparent that it relates to strikes called and terminated by a local union or some other internal division within the union. It does not, however, refer to strikes called by the international union itself. Given this fact, as well as the wide authority of the International President already referred to, we are of the view that the President likely did have authority to bring the strike to an end by ratifying the proposed collective agreements.

25. The complainants contend that the union's conduct in purporting to have the memoranda of settlement ratified by the International President was a breach of section 68 of the Act. Section 68 provides as follows:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

26. The complainants contend that the union acted in bad faith, and thereby violated section 68, by denying employees an opportunity to participate in a ratification vote after advising employees during its organizing campaign and at the time of the strike vote that a ratification vote would be held. As noted above, although the parties agreed that the union did not actually promise employees that a ratification vote would be held, nevertheless, union officials when describing what they understood would happen indicated orally and in writing that a ratification vote would be held. It is not disputed that these comments were made in the good faith belief that ratification votes would be held. The only issue is whether the subsequent decision not to hold ratification votes demonstrated bad faith on the part of the union.

27. At the time that the union decided upon the method by which it would ratify the proposed collective agreements it was in a most unenviable situation. It was the view of Mr. Collins, who had responsibility for coordinating negotiations on behalf of the union, that the company was not likely to make a better offer unless the strike and associated consumer boycott continued for an extended period of time. However, striking employees faced the real possibility that they might lose their jobs if the strike continued much longer. Although at the time the striking employees had not yet been asked if they desired to return to work, from Mr. Collins' evidence it is clear that he suspected that many of them did not wish the strike to continue. In addition, unless collective agreements were entered into fairly quickly it was quite possible that employees who did not support the union might file termination applications. On top of all of this, the union was concerned that if it held ratification votes, non-striking employees might vote down the proposed agreements and put the union in a situation where it had no agreements and no chance of getting any. The Labour Relations Act contemplates that the result of collective bargaining will be a collective agreement. The purpose of a ratification vote is to allow employees to indicate whether certain proposed terms for a collective agreement are acceptable to them as opposed to possible other terms. The union felt that if ratification votes were held in this case, and the proposed agreements defeated, its bargaining rights would be effectively destroyed. The Act, however, stipulates that votes to terminate a union's bargaining rights are to be conducted in response to proper and timely termination applications. They are not to be conducted in the guise of ratification votes. Given these considerations, we do not believe that the union acted in bad faith when it decided not to follow the normal ratification procedures that had previously been described to employees. The reality of the matter was that this was not a normal situation.

28. The complainants contend that the union violated its duty of fair representation by acting in a hostile fashion towards non-striking employees. In support of this claim, they rely on the fact that the union declined to hold formal ratification votes because it was concerned that non-strikers would be permitted to cast ballots in such a vote. They also point to the fact that non-strikers were excluded from the meetings where strikers were asked to indicate whether or not they desired to return to work. We do not agree that the union acted in a hostile fashion towards the non-striking employees. The union was not under any legal obligation to hold ratification votes. Further, given the union's concern that any such votes would have the potential to destroy its bargaining rights, in our view the union's refusal to conduct such votes falls far short of demonstrating any unlawful hostility on its part. We also do not view the union's refusal to allow non-strikers to participate in meetings where striking employees were asked to signify whether or not they wanted to return to work, as indicative of bad faith on the part of the union. The union wanted to ascertain whether the striking employees desired to return to work. It was a logical time to survey the striking employees in that the six-month period during which they had an automatic right to return to work was drawing to an end. It would have made no sense at all for the union to ask employees who were not on strike if they desired to return to work. In our view, the union's action in denying the non-strikers an opportunity to participate in the back-to-work votes did not reflect any ill will on the part of the union towards the non-strikers, but rather a desire to ascertain whether those who would have to bear the financial costs and possible loss of their jobs if the strike were to continue, desired return to work.

29. With respect to the back to work votes, the complainants allege they violated subsections (5) and (6) of section 72. These provisions stipulate that all employees in a bargaining unit are entitled to participate in a strike vote or a vote to ratify a proposed collective agreement, and that those entitled to vote are to have ample opportunity to cast their ballots. The complainants allege that the back to work votes violated section 72 because the votes were "strike votes", and non-striking employees were not given an opportunity to participate in the votes. It will be recalled that on November 18, 1984, prior to the commencement of the strike, the union conducted strike votes in which all employees were permitted to participate. The complainants, however, contend that the back to work votes were also strike votes in that they dealt with the issue of whether the ongoing strike should be continued. We do not agree. The term "strike vote" is generally used to refer to a vote among employees in a bargaining unit as to whether the union should commence strike action or a vote as to whether or not the union's negotiating committee should be authorized to call a strike in the future should the committee deem it necessary. The term is not generally used to refer to votes related to the issue of whether employees currently on strike desire to return to work. If we were to conclude that a vote on the issue of whether employees currently on strike desire to return to work is a "strike vote" within the meaning of section 72, it would accord to non-striking employees a say as to the fate of employees actually on strike. Non-striking employees might tip the balance in favour of having others continue strike action, even though they themselves would not have to bear any of the personal consequences of the strike. In some situations, employees hired as strike replacements might vote in favour of continuing a strike solely out of a desire to keep working at the expense of long-term employees who are out on strike. In our view, if the Legislature had intended these types of results, it would have so provided in more express language than that found in section 72. Taking all of these considerations into account, we are of the view that the back to work votes were not "strike votes" within the meaning of section 72, and, consequently, the failure to let non-striking employees participate in these votes was not a violation of section 72.

30. The complainants further contend that the back to work votes were "ratification votes" within the meaning of section 72 and since the non-striking employees were not permitted to vote, section 72 was violated. The complainants acknowledge that the votes were described as back-to-work votes, but contend that in reality they were ratification votes. In this regard, the complainants note that the striking employees would reasonably have been able to deduce the terms of the proposed agreements and that the strikers had been advised of the terms of the back-to-work agreement, which was to form part of the collective agreements. The complainants contend that although formal ratification was to be by the International President, the President was likely to follow the results of the vote, and accordingly, in reality, the ratification was accomplished by a vote of some, but not all, of the employees. We do not agree. It is clear that the final decision as to whether to ratify the proposed agreements was left to the International President. Doubtless in deciding what course to follow, the President would take into account the views of the striking employees as to whether or not they desired to return to work. He would already have been aware of the views of the non-striking employees in this regard. If the vote result had been as Mr. Collins projected, namely, with the strikers in some of the bargaining units indicating a desire to return to work and strikers in other units indicating that they desired to continue the strike, it is not at all clear what decision the International President would have made. Given the realities of the situation, it is doubtful that the President would have ratified some of the proposed agreements and permitted the strike to continue with respect to only certain of the bargaining units. More likely, he would have decided to ratify all or none of the proposed agreements. In all of the circumstances, we are satisfied that ratification the back-to-work votes involved only a polling of the striking employees as to whether or not they desired to return to work and were not ratification votes such as to bring into play section 72 of the Act.

31. The final aspect of the complaints relate to the alleged breach of section 80(2) of the Act on the part of the union. Section 80(2) provides as follows:

No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condition of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.

32. Mr. Collins indicated that one of the reasons why the union decided to accept the company's offer and not hold ratification votes was a concern that employees who did not support the union might file termination applications once the strike had gone on longer than six months. The complainants contend that the union's decision not to hold ratification votes was a form of discrimination against them, and a penalty imposed on them, so as to avoid the possibility that they would file termination applications, and as such amounted to a violation of section 80(2). We do not, however, view the union's conduct as involving a violation of section 80(2). While a union cannot discriminate against or seek to punish employees because of a belief that they might file a termination application, we do not view it as improper or unlawful for a union to seek to order its affairs so as to take advantage of the provisions of the Act relating to when termination applications can be filed. In this regard we would refer to the Beatrice Foods (Ontario) Limited case, [1982] OLRB Rep. April 519, where in a somewhat different fact situation, the Board commented:

There is nothing unlawful in a trade union using normal vigilance and alert planning to preserve and protect its bargaining rights; in our view the timing of a ratification or a strike vote to coincide with the approaching anniversary of certification is a reasonable business practice predicated on the scheme of the Act. We do not see how a union can be faulted for exercising prudence in the timing of its affairs in a way that maximizes its own interests.

We would note that the union has not and cannot remove the right of employees, if they so desire, to raise the issue of whether the union should continue as their bargaining agent. What has happened is that in accordance with the terms of the Act, the possibility of this occurring has been postponed until the last two months of the collective agreements now in operation.

33. The complainants have failed to demonstrate any breach of the Act on the part of the respondent trade union. These complaints are hereby dismissed.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. I have had the opportunity of reading the decision of my colleagues, and I must respectfully disagree with their findings. The evidence persuades me that the respondent union acted with ill-will in deliberately excluding the complainants from participating in a ratification vote.

2. We heard testimony from Thomas Collins, who is an International Representative of the union, and who co-ordinated the bargaining at the stores in question. In the fifth month of an unsuccessful strike, he stated that the union had concerns about:

(a) the effect of the long strike on the strikers - "they were hurting.";

(b) the fact that the strikers would lose their right to their jobs if the strike went past six months; and

(c) the fact that "strike-breakers" could apply for a de-certification if the strike went past six months.

When cross-examined on these concerns, Mr. Collins had to admit that if the strikers went to work without concluding a collective agreement, then the only concern remaining would be the de-certification of the union. If there was a successful application for de-certification it would be a severe blow to his union and an embarrassment to the efforts of the trade union movement to organize the employees of department stores.

3. Mr. Collins was also alarmed by various petitions that he had received wherein employees at the stores were asking to be allowed to vote on any contract reached with the employer. Apparently, less than 1/3 of the employees at the stores were still on strike at the time. "The large number of employees alarmed me. We felt it was being engineered by the employer." Mr. Collins had to admit that he had no direct evidence to back up his feelings, and counsel for the union agreed that there was "no bonfire" ie. the union was making no allegations about unlawful activity by the company.

4. Mr. Collins decided to call the meetings of the striking employees. He realized that there was a possibility that "some units would vote against returning to work." He prepared a hand-printed agenda for the conduct of the meetings. It reads as follows:

RETURN TO WORK PRESENTATION - EATONS.

(1) DIFFICULT DECISION. - NOT A RATIFICATION MEETING.

(2) WHY? LAW (1) RECALL

(2) DECERTIFICATION

(3) SCABS VOTE

(3) MEDIATION - NOTHING NEW

(4) INTERNATIONAL PRESIDENT HAS ASKED ME TO:

(a) FIND OUT IF YOU WANT TO RETURN

(b) REPORT TO HIM

(c) HE WILL DECIDE WHETHER TO RATIFY

(CONSTITUTIONAL AUTHORITY)

(5) RETURN TO WORK DOCUMENT

(6) VOTE - BALLOTT (sic) BY CERTIFICATE.

(7) RESULTS - HAVE THEM SIGN BACK TO WORK FORMS.

Mr. Collins testified that the reference to "SCABS VOTE" referred to potential de-certification proceedings by the employees in the units who were working.

5. Mr. Collins stated that it was possible that some of the striking units would vote against returning to work, but that he had not considered how to advise the International Union president if that should happen. In any event, all of the striking units agreed to go back to work and subsequently the International President ratified the collective agreements for all the stores. This was the first time that this union procedure had ever taken place in Ontario.

6. Mr. Collins testified that "if a unit voted against returning, then I would report to the President with my recommendation and he would have to decide what to do" but that he had not made up his mind what to recommend. Contrasted with that evidence is his earlier statement that "I expected the strike would go on for a long time if the employees refused to return to work."

7. From that evidence I can only conclude that the union took a ratification vote under the guise of asking the strikers if they wanted to return to work. Further, there was a deliberate attempt to exclude the Complainants from participating in the vote because they had abandoned or refused to participate in the strike and were working. The ill-will against the working employees is demonstrated by the use of the term "SCABS VOTE" in Mr. Collins' notes. In some situations, I suppose, the term "scab" can be used in a descriptive sense, but at the end of a 5 month strike and in these circumstances, it can only have a perjorative meaning. It is akin to the use of the word "trouble-maker" by management during a union organizing campaign which allows this experienced tribunal to infer anti-union animus on the part of the employer.

8. I would find that the union has violated s.72(5) and s .68 of the Act by its actions of deliberately excluding the complainants from participating in a ratification vote. If there is going to be a ratification vote, then there is a duty imposed on a union to allow all employees in the bargaining unit to participate.

9. We have been asked to void the contracts as part of the remedy if we find a violation of the Act. But there is no duty or obligation on a union to hold a ratification vote nor 15 a union bound by the results of a ratification vote. K-Mart Distribution Centre [1981] OLRB Rep. Oct. 1421. Inter-Bake Foods Ltd. [1981] OLRB Rep. Aug. 1145. And I believe that even if a properly conducted vote had turned down the contracts the union International President would have ratified them. Nor are there any allegations that the union acted unfairly in representing the interests of all the bargaining unit employees vis-a-vis the employer. It would appear that all unionized employees were treated at least the same as the non-union employees of the company.

10. The issue of whether the International Union President had authority to ratify the contracts is one to be pursued in other forums or proceedings. That may not be a satisfactory result to the Complainants who quite rightly believed that they were "the You in Union", but that is the net result of the legal authorities which give the union independent status in concluding contracts on behalf of bargaining units. It is a "bargaining agent" only in name, a fact that is little understood by employees when they are asked to join a union.

11. I would order the union to sign and mail to each employee in the units a notice in the Board's usual form stating that it had violated the Act by not allowing the Complainants to participate in a ratification vote.