[1986] OLRB Rep. April 552
2378-85-U United Food and Commercial Workers International Union, Local 1105-P. Complainant, v. Saville Food Products, Inc., Respondent
BEFORE: Robert J. Herman, Vice-Chairman, and Board Members L M. Stamp and W. F. Rutherford.
APPEARANCES: Susan Ballentine and Don Dayman for the complainant; Jack Kazdan for the respondent.
DECISION OF THE BOARD; April 7, 1986
This is a complaint alleging that the respondent employer has violated sections 15, 50 and 64 of the Labour Relations Act.
At the commencement of the hearing scheduled in this matter the representative of the respondent requested an adjournment, in order to obtain the assistance of legal counsel. The respondent did not deny having received approximately one and a half months' notice of this hearing, nor did the respondent suggest why it was unable to retain counsel prior to the hearing date. After entertaining the submissions of the parties with respect to the adjournment, the Board denied the request. As noted, ample notice had been provided and no reason for the late request for the adjournment had been offered.
Although the complainant pleads and relies on the three sections of the Labour Relations Act set out in paragraph 1, the evidence and submissions made clear that a violation of section 15 and the duty to bargain in good faith is the essential matter at issue in these proceedings. Section 15 of the Act states as follows:
The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.
The parties were in agreement as to many of the facts. The parties had commenced meeting with a view to negotiating a new collective agreement in June of 1985. By the time of the meeting held on September 3, 1985, the parties were agreed that the term of the collective agreement would be one year, while remaining in disagreement as to when this one-year period would commence. The union's position was that the one-year term of the collective agreement was to be retroactive to August 15, 1985 and to run until August 14, 1986. The employer's position was that the one-year term was to commence as of the date of ratification. The Board was called upon to decide whether agreement had subsequently been reached on this point.
A meeting was held on September 20, 1985 with the assistance of a mediator from the Ministry of Labour. The parties were unable to resolve all matters as a result of the September 20th meeting and a strike began on September 23, 1985. During the strike various meetings continued to be held between the parties, with the final meeting occurring on October 22, 1985. At a meeting of the employees held on October 24, 1985 the employees purported to ratify the collective agreement.
The employer agrees that the proposal placed before the employees at the ratification meeting on October 24, 1985 was correct in all respects except for the subject matter of this complaint; that is, the employer continues to maintain that the one-year term of the agreement was to be effective from the date of ratification and to run for one year thereafter. The employer does acknowledge that, notwithstanding this effective date, the parties had agreed that the new wage rates were to be retroactive to August 15, 1985 and the employer has in fact been paying such rates retroactive to that date.
The union alleges that the effective date of commencement of the collective agreement had been agreed to by the parties by the September 20, 1985 meeting with the mediator, and that no further discussions as to the effective commencement date took place subsequent to that meeting. The union alleges that the employer sought to withdraw from this agreement only upon being advised that the employees had ratified the collective agreement (including the effective commencement date of August 15, 1985), subsequent to the ratification meeting of October 24, 1985. The union submits that it is bargaining in bad faith and a violation of section 15 for the employer, subsequent to the ratification vote and notification of the results of that vote, to seek for the first time to resile from its prior agreement as to the effective commencement date. The employer maintains simply that the effective date had never been agreed to throughout the course of negotiations.
The only witness for the union was Mr. Don Dayman, the Business Representative with the applicant and responsible for negotiating the collective agreement in question. In direct examination Mr. Dayman was asked if he was familiar with the statements contained in Appendix A of the complaint. Appendix A of the complaint reads as follows:
The Complainant union gave notice to bargain a renewal collective agreement to the Respondent on May 14, 1985.
Subsequent to this notice, the parties met on at least one occasion, but were unsuccessful in concluding a collective agreement. The Complainant then applied for conciliation and the parties met with the conciliation officer on several occasions. They were still unable to conclude a collective agreement.
The predecessor agreement expired on August 15, 1985. A no-board report was issued by the conciliation officer and was subsequently received by the Complainant on August 15, 1985.
The parties met on September 3, 1985. At that point, Jack Kazdan, on behalf of the respondent, proposed a wage increase that would come into effect upon the ratification date. Mr. Don Daymon, on behalf of the Complainant, refused the offer - both in respect of the amount of the increase and in respect of the date the Respondent proposed to put it into effect. Both parties were agreed that the agreement would be in effect for one year.
The parties met with the assistance of a mediator on Sept 20, 1985. At that point, the parties agreed that the agreement would be retroactive to August 15, 1985. In particular, it was agreed that wages would be retroactive to that time although the actual amount of the wages was not yet agreed upon.
The Complainant went on strike on September 23, 1985.
The parties met again on October 3, October 15 and October 22, 1985. The Respondent's wage offer improved and the total package was accepted by the membership of the Complainant at a meeting held on October 24, 1985. The duration clause was not discussed since it had been agreed at the meeting on September 3, 1985 that the agreement would be retroactive to August 15, 1985 (when the previous agreement expired), and would last for a period of one year.
Mr. Daymon prepared a collective agreement incorporating the amendments the parties had agreed upon, and took it in to Mr. Kazdan for his signature. Mr. Kazdan refused to sign the agreement unless the duration clause was amended to provide that the agreement would run for a period of one year from the date of ratification.
This dispute is the only obstacle to the signing of the collective agreement.
The Complainant's position is that by changing its position on the duration clause at the last minute, the Respondent is not bargaining in good faith, and is not making every reasonable effort to conclude a collective agreement. Ii; is the Complainant's position that this conduct violates sections 15, 50 and 64 of the Act.
After reviewing the contents of Appendix A as set out immediately above, Mr. Dayman was asked if the facts contained therein were accurate and he responded yes. In cross-examination, Mr. Dayman testified that the term and effective commencement date had been agreed to between the parties, and at the meeting on September 20, 1985 Mr. Dayman had advised the mediator of this and that the agreement would expire on August 15, 1986. The employer's representative, Mr. Kazdan, was present in the room when Mr. Dayman made this statement to the mediator. No further evidence was called by the union.
Mr. Kazdan was the only witness for the respondent employer. Contrary to Mr. Dayman's evidence, Mr. Kazdan testified that there had been no agreement on the effective commencement date prior to the September 20, 1985 meeting and indeed it had not been agreed to at that meeting either. Mr. Kazdan further testified that at the subsequent meeting on October 3, 1985 the parties were still in disagreement as to the effective commencement date but either at that meeting or at a subsequent meeting later in October the union had agreed to the company's position that the effective date be from the date of ratification.
Having observed both Mr. Dayman and Mr. Kazdan testify, the Board accepts the evidence of Mr. Dayman where it conflicts in any respect with the testimony of Mr. Kazdan. Mr. Kazdan's testimony was riddled with inconsistencies. For example, in testifying about what occurred at the meeting on September 20th with the I)rovincial mediator, Mr. Kazdan initially testified that he did not remember Mr. Dayman referring at all to when the collective agreement was to expire. He subsequently conceded that Mr. Dayman had stated what the expiry date of the agreement was to be, but that Mr. Kazan had thereupon remarked that he could not agree with that position. In further cross-examination, Mr. Kazdan changed his testimony again and stated that he did not recall Mr. Dayman making any remarks about the expiry date. Later on, Mr. Kazdan again conceded that Mr. Dayman did state to the mediator the expiry date of August 15, 1986.
A second example of the inherent unreliability of Mr. Kazdan's testimony revolves around the events which occurred at the meeting on October 3, 1985. He initially testified that by the time of the meeting of October 3, the union had abandoned its position with respect to the effective commencement or expiry date of the collective agreement. When further questioned on the matter, Mr. Kazdan conceded that the union had not officially abandoned its position but rather nothing had been said about the expiry date at the October 3rd meeting. Further on in cross-examination, Mr. Kazdan again changed his testimony to state that the union had agreed on October 3rd that the agreement was to be effective from ratification. In support of his testimony with respect to the October 3rd meeting, Mr. Kazdan submitted notes which arose out of that meeting and were signed by both parties. Those notes consist of two pages, handwritten, indicating in the left column the union position and in the right column the company position. It is worth noting that although numerous items are listed as still in dispute between the parties, the document is silent as to the effective date of the commencement of the collective agreement. The document does however note that at the October 3, 1985 meeting the parties were still in disagreement as to the wage rates, while agreeing that the wage rates were to be retroactive to August 15, 1985. It is of course possible that an employer would agree that the increased wage rates would be effective at a time earlier than the effective date of the collective agreement. However, the document setting out the positions of both parties, as of October 3, 1985, makes no mention of the continuing disagreement over the effective commencement date of the agreement. When these factors are taken together, the more logical inference to be drawn from the document is that the effective commencement date of the collective agreement was in fact no longer in dispute, as was testified to by Mr. Dayman.
Based on all the evidence, the Board finds that the effective commencement date of the collective agreement was agreed to at the meeting held on September 20, 1985 and the collective agreement was to commence its one-year term as of August 15, 1985. The Board is not prepared to give any weight to the testimony of Mr. Kazan where he suggests that at the subsequent meeting on October 3, 1985, this matter was still very much in dispute.
In the result, the Board finds that the parties had reached agreement on September 20, 1985 and that there had been no further discussions whatsoever nor any indication from the employer that it could no longer agree to the effective commencement date, prior to the ratification of the collective agreement by the employees on October 24, 1985, and the union so notifying the employer. When the respondent was presented with the collective agreement ratified by the employees, it was bargaining in bad faith and a violation of section 15 of the Act for the respondent to refuse to execute the agreement for the reasons stated, that the employer had never agreed that the collective agreement was to run from August 15, 1985 to August 14, 1986. In this regard the Board adopts the principles set out in Sparton of Canada Limited, [1985] OLRB Rep. Sept. 1420. The union, on the strength of the agreement obtained at the meeting of September 20, 1985 with respect to the effective commencement date of the agreement, and based on the agreements in all other respects subsequently reached between the parties, put that proposal to the membership and the membership subsequently confirmed their acceptance of that proposal by voting to ratify. The respondent cannot now be permitted to renege on the position previously agreed to, without any indication to the union, prior to the ratification vote and notice of said ratification to the employer, that it was no longer willing to abide by that prior agreement. After the agreement reached on September 20, 1985 it was incumbent upon the respondent to notify the applicant if it was no longer prepared to be bound by that agreement.
The Board accordingly finds that the respondent has acted in violation of section 15 of the Labour Relations Act in refusing to ratify and execute the collective agreement as ratified by the complainant. The respondent is thus directed by the Board to enter into a collective agreement with the complainant, effective from August 15, 1985 to August 14, 1986 with all terms of that agreement to reflect the negotiated terms agreed to previously by the parties. No further relief is warranted as the complainant suggested that no additional forms of relief were appropriate in the circumstances.
The Board will remain seized of this matter in the event any dispute exists over the implementation of the order which the Board has made.