[1985] OLRB Rep. March 405
2787-84-U Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Complainant, v. Diversey Wyandotte Inc., Respondent, v. Brewery Malt and Soft Drink Workers, Local 304, Intervener
BEFORE: Robert D. Howe, Vice-Chairman, and Board Members F. W. Murray and P. Grasso.
APPEARANCES: Chris G. Paliare and Linda Rothstein for the complainant; C. M. McKeown, Q. C., for the respondent; Paul Cavalluzzo, J. Cameron Nelson, and Patrick Macklein for the intervener.
DECISION OF THE BOARD; March 12, 1985
The name of the respondent is amended to "Diversey Wyandotte Inc."
This is a complaint under section 89 of the Labour Relations Act in which the complainant (also referred to in this decision as the "National") alleges that the respondent (also referred to in this decision as the "Company") has contravened section 15 of the Act.
The intervener (also referred to in this decision as the "Local") holds bargaining rights in respect of a unit of the Company's employees. Negotiating sessions between the Local and the Company were held in September, October, and November of 1984. On November 12 the Local requested the appointment of a conciliation officer pursuant to section 16 of the Act. During October, November, and December, the Local took various steps in an effort to disaffiliate from the National. (Article XV of the Constitution sets forth a procedure by which a local union may disaffiliate from the National.) On December 13, a Trial Board appointed by the National Secretary-Treasurer recommended to the General Executive Board of the National that the Local be placed under trusteeship "to ensure that the disaffiliation procedure is carried out pursuant to the provisions of the National Union Constitution". The General Executive Board accepted that recommendation and purported to place the Local under trusteeship on December 20 by a declaration of trusteeship appointing Robert Booth (a staff representative with the Food and Beverage Council of the Canadian Labour Congress, and a member of the National) as trustee, "to succeed to perform all of the rights, powers and duties heretofore exercised and possessed by [the Local] and its officers, business agents, including the power to.. .negotiate agreements for and on behalf of [the Local]... ." On the afternoon of December 20, Mr. Booth delivered the declaration of trusteeship to Cameron Nelson, an elected business agent of the Local. Mr. Nelson advised Mr. Booth that in his view the trusteeship was illegal. Accordingly, he refused to give Mr. Booth possession of the office, books, records, and other property of the Local. On the following day, the 1,977 ballots cast by the members of the Local in the "disaffiliation vote" were counted. 1,871 of those ballots were marked in favour of disaffiliation, 101 were marked against it, and 5 were rejected as spoiled ballots.
S.G. Craig, who had been appointed as a conciliation officer in respect of the aforementioned negotiations, advised the parties that a conciliation meeting would be held on January 10, 1985. On January 8, counsel for the Company wrote to Victor Pathe, Assistant Deputy Minister of Labour, as follows:
We act for Diversey Wyandotte Inc., the employer in this matter.
Conciliation has been fixed for January 10. 1985 pursuant to the attached letter of Mr. S. Craig.
We are writing to express our concern with respect to the practicality of conciliation services on January 10. 1985. The request for conciliation services was submitted by the Union on November 12, 1984 and the employer did not object to the request at that time. Subsequently, the employer received a notice dated December 20 and December 21 purporting to place Local 304 in TRUSTEESHIP. By letter dated December 28, 1984 the business agent of Local 304 advised our client that the Trusteeship is invalid. Our client has also received a letter from the alleged "Trustee" claiming an interest in the Union dues.
The Conciliation Officer has a duty to confer with "the parties" and there is real uncertainty as to who speaks for the Union party at this time. Our client has real concern that it could seriously jeopardize its collective bargaining relationship if it is obliged to proceed with conciliation on January 10, 1985. For this reason we are writing to advise you and your Conciliation Officer that we will be asking for an adjournment of the conciliation meeting until this status question is resolved.
For your consideration we enclose copies of the following papers:
Copy of Declaration dated 20th December, 1984 of Secretary — Treasurer Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers.
Copy of letter of Robert Booth (Trustee) dated December 21, 1984.
Copy of letter of Cameron Nelson, Business Agent, Local 304 dated December 28, 1984.
The January 10 conciliation meeting was subsequently adjourned to January 28. In this regard, the Conciliation Officer sent the following letter to the parties on January 18:
Pursuant to my appointment as a Conciliation officer in respect of the above captioned matter, this is to advise that I shall hold a meeting on Monday, January 28, 1985, at 10:00 am. in a meeting room, Ministry of Labour, 400 University Avenue, 5th Floor, Toronto, Ontario.
I am asking the following persons to attend the meeting: John McNamee, Business Agent for Local Union No. 304, Robert Booth who purports to be the Trustee of Local 304, and C. M. McKeown, counsel for Diversey Wyandotte Inc. I am holding this meeting so that I may fulfill my obligation under Section 18(1) of the Labour Relations Act to "confer with the parties" in these negotiations. The current dispute between Local Union No. 304, the Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers which places in question the status of Local 304, has made it difficult to ascertain who are the proper and lawful representatives of the bargaining agent and I wish to make every effort to ensure that I do "confer with the parties" through their proper and lawful representatives.
At the January 28 conciliation meeting (and at the hearing of this complaint), the Company took the position that it wished to remain neutral in respect of the dispute between the National and the Local. However, it also advised the Conciliation Officer that negotiations could proceed if the National (through Mr. Booth) and the Local would agree that if a memorandum of settlement was ratified by the bargaining unit employees, they would both be bound by the result, subject to a determination of their respective rights by a court or tribunal of competent jurisdiction. When that proposition was put to Mr. Booth, he indicated that he could not accept it. Accordingly, it was not put to the Local, and the conciliation meeting was adjourned, to resume after the dispute between the National and the Local had been resolved.
On January 18, 1985, Mr. Nelson received the following letter from the solicitors for Carling O'Keefe Transport Limited, Labatts Ontario Breweries, and Molson Ontario Breweries Limited:
As you are aware, we are solicitors for the above three companies. Our clients have received certain telegrams and letters indicating that the Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers has placed its Local 304 into trusteeship and is directing our clients to pay all funds due by them to Local 304, to the Trustee. Our clients have also received notification from officers of Local 304 of the Local's disaffiliation together with requests that the above funds be paid directly to the Local. Our clients arc ready, willing and able to pay these dues to the proper party.
In light of these conflicting demands which the National Union through its Trustee, and the Local, are placing on these three companies with respect to the dues, we are hereby notifying both parties that these amounts will be deposited in bank accounts by each of the above companies to be held in escrow. We would suggest that the National Union and the Local Union resolve the dispute between themselves and forward to this office and/or the above companies a jointly executed Direction as to the disposition of these funds.
Shortly after receiving that letter, the Local took steps to file a judicial review application for an order in the nature of certiorari in respect of the actions of the Trial Board, the Secretary-Treasurer, and the General Executive Board, by which the National purported to place the Local under trusteeship. The grounds upon which the Local relies in challenging the validity of the trusteeship include acting contrary to the principles of natural justice, erring in law, acting in excess of jurisdiction, acting without jurisdiction, and ignoring procedural safeguards set out in the Constitution. The Local sought to have that application heard by a judge of the High Court (pursuant to section 6(2) of the Judicial Review Procedure Act, R.S.O. 1980, c. 224), but it was transferred to the Divisional Court, on the agreement of counsel, as there was insufficient time for the judge to deal with it on February 8 (the day on which it was returnable), and as it appeared that the matter could be disposed of more quickly by Divisional Court than by the High Court.
The instant complaint was filed with the Board on January 17, 1985. It is the complainant's contention that the Company has contravened section 15 of the Act by refusing to meet and bargain exclusively with Mr. Booth. The sole relief sought by the complainant is a declaration that Mr. Booth is the trustee of the Local and that the Company must meet and bargain exclusively with Mr. Booth. The intervener, on the other hand, asks the Board to find the trusteeship to be invalid or, in the alternative, to defer to the Divisional Court proceedings and to make an interim order directing the Company to negotiate exclusively with the Local. Counsel for the Company submitted that his client has not contravened the Act, but also asked the Board to provide guidance to the parties concerning who is legally entitled to speak on behalf of the bargaining unit employees for purposes of collective bargaining.
Having considered all of the evidence and the able submissions of counsel, we have concluded that the Company has not contravened section 1 5 of the Act in the circumstances of this case. It is clear that the Company was quite willing to bargain in good faith and make every reasonable effort to make a collective agreement. However, it was thwarted in its efforts to do so by the internal dispute between the National and the Local. There is no suggestion that the Company has been using that internal dispute as a pretext to avoid its bargaining duty. To the contrary, the Company was (and is) anxious to have that internal dispute resolved as expeditiously as possible so that bargaining may proceed. Indeed, the Company has asked the Board to express its view concerning who is entitled to speak for the Local for purposes of collective bargaining. While we are sensitive to the labour relations problems which the continuance of that dispute may entail, we are not persuaded that any comments by this Board concerning the validity of the trusteeship (or the disaffiliation vote) would resolve those problems, as our comments, which would be in the nature of obiter dicta in the circumstances of this case, would not be binding upon the parties. Moreover, such comments could cause substantial additional problems for the parties if negotiations proceeded on the basis of our opinion and that opinion was not ultimately shared by the Courts.
For the foregoing reasons, this complaint is hereby dismissed.