[1985] OLRB Rep. November 1679
1261-85-R Iris Price et al, Applicant, v. United Steelworkers of America, Respondent, v. Storwal International Inc., Intervener, v. Group of Employees, Objectors
BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. Kobryn and I. Stamp.
DECISION OF THE BOARD; November 6, 1985
In a written decision dated October 2, 1985, the Board recorded the facts that this application to terminate the bargaining rights of the respondent had been dismissed. The Board noted that it had reserved its decision on the request of the respondent that a bar be imposed on any further applications to terminate its bargaining rights. The Board stated that it would provide written reasons for dismissing this application and would also make a decision on the request for a bar. These reasons are now set forth.
The applicant applied to the Board for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is the bargaining agent.
The respondent is the bargaining agent for a bargaining unit of all office, clerical and technical employees of Storwal International Inc. in Pembroke, save and except secretary to the general manager, secretaries in the personnel department, the accountant, supervisors and persons above the rank of supervisor and outside sales staff. There were challenges by the respondent to the list of employees filed by the intervener. After a review of these challenges it was agreed by the parties that the list for the purpose of the count consisted of thirty-three names and that the applicant had filed a statement of desire in support of the application which had apparently been signed by sixteen of these thirty-three persons. It appeared to the Board that not less than forty-five per cent of the employees of the respondent in the bargaining unit may have signed the statement of desire. In these circumstances, the Board would normally have inquired into the origination, preparation and circulation of the statement of desire in order to determine whether not less than forty-five per cent of the employees in the bargaining unit had voluntarily signified in writing on August 29, 1985, the terminal date of the application and being the time as determined under section 103(2)(j) of the Labour Relations Act, that they no longer wished to be represented by the respondent. However, the objectors filed a counter statement of desire in opposition to the application to terminate the bargaining rights of the respondent. The counter statement of desire appeared to contain the signatures of fourteen employees of the intervener. Three of the persons who had apparently signed the statement of desire in support of this application had also apparently signed the counter statement of desire in opposition to this application. The Board explained to the parties that because of the apparent degree of correspondence between the names on the statement of desire and the counter statement of desire, it would inquire into the origination, preparation and circulation of the counter statement of desire because if the Board were to find that the counter statement of desire represented the voluntary wishes of the employees who signed it, the number of employees who had unequivocally signed the statement of desire would be reduced from sixteen of thirty-three employees to thirteen of thirty-three employees, which is less than the forty-five per cent referred to in section 57(3)' of the Labour Relations Act.
The Board inquired into the origination, preparation and circulation of the counter statement of desire. After hearing the evidence and representations with respect to the origination, preparation and circulation of the counter statement of desire, the Board ruled that it represented the voluntary wishes of the employees who had signed it.
The respondent accepted that the statement of desire represented the voluntary wishes of the employees who had apparently signed and adopted the position that there was no need for the Board to inquire into the origination, preparation and circulation of the statement of desire if the Board found that the counter statement of desire represented the voluntary wishes of the employees who signed it. The applicant agreed that there was no need in such circumstances to inquire into the origination, preparation and circulation of the statement of desire. After hearing the representations of all the parties, the Board ruled that it would not inquire into the origination, preparation and circulation of the statement of desire.
Three employees apparently had changes of mind in that they initially apparently signed the statement of desire in support of this application and subsequently signed a counter statement of desire revoking their support for the statement of desire against the respondent and reaffirming their allegiance to the respondent. In considering the voluntary acts in this application, the last voluntary response prior to the terminal date was the counter statement of desire. In these circumstances, the Board found that the effect of the counter statement of desire was to reduce the number of persons who had apparently signed the statement of desire in support of this application from sixteen to thirteen. See Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387. In these circumstances, the Board was not satisfied that not less than forty-five per cent of the employees of the respondent in the bargaining unit had voluntarily signified in writing on August 29, 1985, the terminal date fixed for this application and the time as determined under section 103(2)(j) of the Act, that they no longer wished to be represented by the respondent.
The respondent urged the Board to apply a bar of between four and six months to any further application to terminate their bargaining rights. This request was opposed by the other parties to this proceeding. Section 103(2)(i) of the Act states:
(2) Without limiting the generality of subsection (1), the Board has power,
(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any trade union representing such employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application.
The Board clearly has a discretion to exercise the powers under section 103 (2)(i). Any consideration of the exercise of this discretion has taken into account the policy considerations which the Board set forth in Trinidad Leaseholds (Canada) Ltd., 52 CLLC 17,005, where the Board stated at page 1355:
The intent clearly is to stablilize the conditions essential to collective bargaining for a reasonable period following a determination of the question of representation so as to encourage, in the one instance, the initiation and development of an effective collective bargaining relationship, and in the other, the maintenance and improvement of an established collective bargaining relationship. Regulations 7(3) and 7(4), in short, propose that where a rightfully established collective bargaining relationship exists, the right of employees to select a new bargaining agent and so of that bargaining agent to seek certification, shall be weighed against the desirability of securing stablility and continuity in collective bargaining.
The respondent referred only one authority to the Board. The case referred to by the respondent was Seven-Up (Ontario) Limited, [1971] OLRB Rep. Dec. 791. In that case an earlier application by the same employees, made during the open period, was dismissed on the merits several days before the instant application and on the same day as a conciliation board was appointed. At pages 804-805, the Board stated:
The Trinidad Leaseholds Case and subsequent decisions based on its principles stand for the proposition that when a second application for certification or termination is made upon the heels of a prior application involving the same parties, in determining whether it should refuse to entertain the second application, the Board must balance the right to test an incumbent trade union's strength among the employees it represents at an appropriate time against the maintaining of continuity and stability in an existing collective bargaining relationship. Stated another way, once a representation issue has been dealt with on its merits and in the absence of special circumstances, then an incumbent trade union ought to be afforded a reasonable opportunity to demonstrate, without undue impediment, its ability to bargain with that employer for a collective agreement on behalf of those employees it represents.
In the instant case, the original application to terminate the bargaining rights of the respondent was dismissed because the applicants were unable to satisfy the Board that a majority of the employees in the bargaining unit no longer wished to be represented by the respondent. Following the giving of notice by the respondent of its desire to bargain, it did not try to enter into active negotiations with the intervener pending the Board's disposition of the termination application. The respondent, however, wasted no time in asserting its bargaining rights when the initial application was dismissed and immediately made a request for conciliation services. In other words, the respondent did everything that could reasonably be expected of it in the circumstances to maintain the continuity of its collective bargaining relationship with the intervener. We cannot accept the argument that there had been no undue interference with or disruption of bargaining by reason of the second application for termination of bargaining rights. The two applications have not just hampered collective bargaining activity between the respondent and the intervener. They have effectively prevented any bargaining taking place between the parties.
The Board refused to entertain the instant application to terminate the bargaining rights of the respondent trade union. In the same decision, the Board distinguished an earlier decision in Soo Dairies Limited, [1971] OLRB Rep. July 439. In Soo Dairies an earlier application to terminate bargaining rights had been dismissed on a technicality. The Board stated at page 441:
On the facts of the case as set out above, we are of the view that to dismiss the instant application would be too harsh a result for the Board to adopt. The mistake that led to the dismissal of the first application, while fatal to that application, was innocently made. To find that such an innocent mistake should deprive the employees of the remedy afforded by section 43 [now 57] of the Act in the absence of evidence of harassment of the respondent or a failure to act expeditiously, thereby causing undue interference with bargaining, would in our view be a high-handed and arbitrary treatment of the facts of this case. The mere fact that there has been an unsuccessful application (whether it be for certification or for termination) does not of itself preclude the making of a subsequent timely application. To find otherwise would be tantamount to a refusal by the Board to exercise its discretion under section 77(2)(i) [now 103(2)(i)] in a judicious manner.
Although there has been some interference with bargaining as a result of these applications, since these applications were made and heard by the Board within the two month open period contemplated by section 46 [now 61] of the Act, the interference caused by the applications cannot be characterized as "undue" interference which would cause the Board to exercise its discretion under section 77(2)(i) [now 103(2)(i)] against the applicants.
In Soo Dairies the Board entertained the application to terminate bargaining rights.
The circumstances in Soo Dairies involved an innocent mistake and technical reasons for the previous dismissal and no "undue" interference with the bargaining rights. On the other hand, in Seven-Up, the dismissal occurred where a trade union had actively pursued its bargaining rights and where an application to terminate bargaining rights had caused undue interference and disruption of bargaining. The Board now considers these circumstances in the present application.
An earlier application was filed on May 16, 1985, and was dismissed orally by the Board on July 15, 1985. This decision was confirmed by a written decision dated August 19, 1985. In that decision, the Board held that the application had been filed too early and was untimely under the provisions of the Labour Relations Act. The present application was filed on July 15, 1985, and was dismissed orally at the hearing on October 2, 1985, for the reasons set out in this decision. The representations before the Board did not reveal that any bargaining had been engaged in by the parties. The intervener has held itself out as being prepared to meet and bargain with the respondent when it is ready. There is no suggestion before the Board that the respondent has actively attempted to pursue its bargaining rights. In these circumstances, it may not be said that there is any undue interference with the respondent's bargaining rights.
For the foregoing reasons, the Board is not, in the exercise of its discretion, prepared to impose a bar pursuant to the provisions of section 103(2)(i) of the Labour Relations Act.