The London Soap Company Limited v. London and District Service Workers' Union, Local 220, 1987 CanLII 3008

The London Soap Company Limited v. London and District Service Workers' Union, Local 220

[1987] OLRB Rep. February 241

2390-86-R The London Soap Company Limited, Applicant, v. London and District Service Workers' Union, Local 220, Respondent, v. Group of Employees, Intervener

BEFORE: G. T. Surdykowski, Vice-Chairman, and Board Members D. A. MacDonald and J. Redshaw.

APPEARANCES: Morton Adelson for the applicant; R. Jacques for the respondent; Cindy Collins and Lee Woods for the intervener.

DECISION OF THE BOARD; February 23, 1987

1This application made pursuant to section 59 of the Labour Relations Act by the London Soap Company Limited on behalf of itself and (some) bargaining unit employees for a declaration that the respondent London and District Service Workers' Union, Local 220 no longer represents the bargaining unit employees of that company for which it holds bargaining rights came on for hearing in Toronto on January 19, 1987. The respondent opposed the application. After hearing the "best case" representations of fact and law of the applicant and the group of employees who sought, at the hearing, to intervene in support of the application, the Board dismissed the application. The Board's reasons follow.

2The employer's application asserts, in paragraph 5 that:

5. There is no contract and 13 of 19 employees have indicated their desire that they do not wish to be represented by the union, and copies of their notations are attached hereto.

They represent 70% of the employees of the Union.

Enclosed with the application were 13 separate handwritten statements made by persons said to be bargaining unit employees and indicating on their face that they do not want the respondent or any union representing them at The London Soap Company Limited.

3The respondent trade union filed a reply which states, in Appendix "A", as follows:

(1) On August 1, 1986 the parties attended at the Labour Relations Board whereby the parties agreed to waive their rights to a formal hearing (see Board File Number 1198-86-R and Board decision dated August 6, 1986).

(2) Notice to bargain pursuant to section 14 was given on or about August 1, 1986.

(3) The parties met in negotiations in London on August 27, 1986, October 14, 1986, and on November 5, 1986.

(4) An agreement was reached on November 5, 1986 whereby the parties would recommend acceptance to their respective principals.

(5) On November 20, 1986 the Union membership rejected the proposed agreement at a ratification vote.

(6) On December 1, 1986, Roy Jacques spoke to Peter Soumalias (Owner) about resuming negotiations and discussed wages for the "packers". Mr. Soumalias said he would consider this.

(7) On December 11, 1986 Mr. Jacques called Mr. Soumalias and was informed that the Employer did wish to resume negotiations.

(8) On December 11, 1986 the Union applied for conciliation.

(9) On December 31, 1986, the Union received correspondence from the Ministry of Labour dated December 22, 1986 advising the Union that a Conciliation Officer has been appointed (see File No. 86-2252)

4It was not disputed that the facts alleged by the respondent in its Reply are substantially correct. However, counsel for the applicant employer asked the Board to direct a representation vote of the bargaining unit employees to determine whether or not the respondent's bargaining rights with respect thereto should be terminated. He submitted that the Board should do so pursuant to either section 59 or its powers under section 106(1) of the Act because a substantial number of the employees in the bargaining unit have indicated that they no longer wish to be represented by the respondent, a situation which, according to counsel and to Mr. Soumalias, has made it impossible for the trade union to properly represent the employees or for the company to bargain with the respondent. Counsel cited Addidas Textile (Canada) Ltd., [1980] OLRB Rep. May 639 and R v. Ontario Labour Relations Board, Ex. p. Genaire Ltd., [1958] O.R. 637, 1958 CanLII 130 (ON HCJ), 14 D.L.R. (2d) 201 sub. nom. Genaire Ltd. v. International Association of Machinists et al (Ont. H.C.); affirmed at (1959), 1958 CanLII 352 (ON CA), 18 D.L.R.(2d) 588 (Ont. C.A.), in support of his position. The group of employees supported the application. They complained about the manner in which the respondent has served and represented them and asserted that they no longer desire to be represented by the union. It was also asserted that there has been a substantial turnover in employees in the bargaining unit since the respondent was certified and that this constitutes a material change in circumstances that should cause the Board to direct that a representation vote be held.

5We note that in Addidas Textile (Canada) Ltd., supra, the respondent in an application for certification sought reconsideration of the Board's decision to certify the applicant on the basis that the membership evidence relied upon by the trade union was obtained through the support of management personnel, contrary to the Act. There, the Board was concerned that the circumstances, including the involvement of the management personnel in the trade union's organizing campaign, cast some doubt on the applicant trade union's membership evidence as being a true expression of the wishes of the employees. Accordingly, the Board revoked the certificate it had granted and exercised its discretion under section 7(2) of the Act to direct the taking of a representation vote. There is no suggestion in this proceeding that there was any improper management involvement with the respondent trade union. Further, the events that caused the Board to decide as it did in the Addidas case occurred prior to the matter coming before the Board. Consequently, that decision was of no assistance to the Board in this proceeding.

6Section 59 of the Act provides as follows:

(1) 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, allows a period of sixty days to elapse during which it 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.

7Unlike sections 57 and 60, section 59 does not provide a means by which the wishes of the bargaining unit employees can be used to trigger a representation issue. It has long been recognized that the purpose of section 59 is to protect the employer and the employees from a trade union that fails to exercise its right to bargain on behalf of the bargaining unit it represents (see for example, Prescott Machine of Welding Inc., [1983] OLRB Rep. Feb. 250 and the line of cases beginning with Dominion Stores Ltd., 56 CLLC ¶18,047). Section 59 is not a mechanism for monitoring the support enjoyed by a trade union.

8The allegations of the respondent trade union, which the parties accepted as being accurate, made it abundantly clear that the trade union has not failed to bargain on behalf of the employees it represents. Accordingly, there was no basis on which the respondent's bargaining rights could be terminated pursuant to section 59 of the Act.

9Though we doubted that the request for reconsideration was properly before us, we did consider the argument that the Board should make use of its powers under section 106(1) of the Act to reach the result sought by the employer and group of employees. Section 106(1) provides that:

The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

The Board is an administrative tribunal established by the legislature of this Province to regulate labour relations by administering the Labour Relations Act. In doing so, the Board applies both legal principles and labour relations considerations. Although the Board is a statutory body which has only those powers conferred upon it by or under the Act, the structure of the Act is such that the Board nevertheless enjoys a considerable discretion in exercising its powers. (see Re International Union of Operating Engineers Local 793 and Trauggott Construction Ltd., (1984), 45 O.R. (2d) 127 Div. Ct.; Re Shopman's Local Union No. 743, International Association of Bridge, Structural and Ornamental Iron workers AFL, CIO, CLC and Brayshaws Steel Ltd. et al., Re Brayshaws Steel Ltd. and United Steelworkers of America, (1972) 1971 CanLII 364 (ON CA), 26 D.L.R. (3d) 153 (Ontario Court of Appeal)).

10In Genaire Ltd., supra McRuer, CJHC, upon application by the employer for an order in the nature of certiorari with mandamus in aid, held that the Board erred in refusing to entertain the company's application for a declaration terminating the trade union's bargaining rights made on the basis that a majority of the employees in the bargaining unit no longer support the union. McRuer CJHC held that the Board's power to reconsider its previous decisions, pursuant to what is now section 106(1) of the Act, was sufficient to permit the Board to entertain the employer's application and accordingly the Board's decision was quashed and the matter was remitted to the Board. The Board (in a decision reported at 59 CLLC ¶18,140) then held that the employer had failed to establish that a majority of bargaining unit employees no longer wished to be represented by the trade union and dismissed the application on that basis. The Board specifically stated that it found it unnecessary to decide whether or not, in exercising its powers for reconsideration, it should distinguish between circumstances that occurred before and those that occurred subsequent to the date of the initial hearing.

11The Board's jurisdiction to reconsider a decision is a broad one. However, both the Act and the realities of labour relations dictate that the premise from which the Board begins is that its decisions should be final and conclusive for all purposes. Practice Note No. 17 accurately sets out the circumstances under which the Board will reconsider a decision. In recognition of the need for finality, the Board will not usually reconsider a decision unless an obvious error has been made; or the request raises important issues of Board policy; or, it is satisfied that the party requesting it proposes to adduce new evidence that it could not, with the exercise of due diligence, have obtained previously, and that the new evidence, if adduced, would be virtually conclusive; or, if a party wishes to make representations or objections it had no previous opportunity to raise. The Board has entertained applications for reconsideration alleging that events that occurred subsequent to (as opposed to having occurred prior to but only discovered subsequent to) the hearing of a matter had so altered the situation that a remedial order made by the Board was clearly inappropriate (see for example The Journal Publishing Co. of Ottawa Ltd. [1977] OLRB Rep. Sept. 549 and Nov. 748; Culverhouse Foods Ltd. [1978] OLRB Rep. March 219). However, it does not appear that the Board has ever reconsidered a previous finding of fact or, other than in Genaire Ltd., supra, its disposition of an application for certification on the basis of events that occurred subsequent to the hearing of the matter. Notwithstanding Genaire Ltd., supra, it is difficult to imagine any situation where it would be appropriate for the Board to reconsider such findings or dispositions, as opposed to remedial orders, on the basis of subsequent events (even in Atlantic Packaging Products Ltd. [1980] OLRB Rep. Feb. 158 the Board reconsidered its decision to certify a trade union not because of the build-up in the employer's workforce that occurred subsequently, but because the parties knew, on the date of application, that the build-up was planned and imminent and because, had that planned build-up been brought to the Board's attention, a certificate would not have been issued). The fluid nature of labour relations is such that changes in circumstances are common. A less stringent approach to reconsideration would result in a lack of finality and certainty that would have a destabilizing effect on the labour relations of this province. This is particularly true of Board decisions, such as that which the employer (and the group of employees) asked the Board to reconsider in this application, which certify a trade union as the bargaining agent for a group of employees.

12The certification process and the manner in which the Board ascertains the wishes of the employees concerned has been described by the Board in a number of previous decisions (see for example Unlimited Textures Company Limited [1984] OLRB Rep. Jan. 138 at paras 15-17 and Famz Foods Limited [1985] OLRB Rep. June 857 at paras 10-14). In an application for certification, the Board must, pursuant to section 7(1) of the Act, ascertain the number of employees in the bargaining unit at the time the application was made and the number of those employees who were members of the applicant trade union on the date assessment date established, under section 103(2)(j) of the Act, to be the time for ascertaining membership under section 7(1) of the Act. The Board's determinations with respect to the membership support enjoyed by the trade union are made on the basis of the circumstances that exist on the assessment date, prior to the hearing. Once the Board has made these determinations, subsections 7(2) and 7(3) govern the manner in which the Board determines whether or not the trade union is to be certified. Thereafter, the Act, subject only to sections 58 and 59, guarantees a newly certified bargaining agent a period of stability by giving it a minimum of twelve months to achieve a collective agreement with the employer free of any risk of being displaced as the bargaining agent. That this is so is abundantly clear from the manner in which the provisions of the Act relating to certification and to the termination of bargaining rights are structured. Consequently, the need for finality in decisions where the Board certifies a trade union, particularly where, as here, the parties have, by bargaining collectively, acted and relied on the decision, is dictated not only by the nature of bargaining in a first collective agreement situation, but also by the provisions of the Act. There is no room for any reassessment of the support enjoyed by a certified bargaining agent except as specified in the Act and it is not appropriate for the Board to entertain a termination application made in the guise of a request for reconsideration. Consequently, and quite apart from the question of the propriety of the applicant employer's purporting to speak on behalf of employees for whom the respondent is the exclusive bargaining agent, it would not, in our view, be appropriate for the Board to reconsider its decision to certify the respondent herein even if the facts asserted by the employer and the group of employees were established to the Board's satisfaction. Those circumstances are more appropriately brought before the Board by way of a new proceeding commenced within the framework and time limits, if any, specified by the Act. Accordingly, assuming that it was properly before us, the request for reconsideration was dismissed.

13For all of the foregoing reasons this application was dismissed. The London and District Service Workers' Union, Local 220 continues to be the exclusive bargaining agent for the employees in the bargaining unit for which it has been certified until such time as the Board declares otherwise. In addition, the London Soap Company Limited remains obliged to bargain with the union in good faith to make every reasonable effort to make a collective agreement.