Ontario Labour Relations Board
[1987] OLRB Rep. July 955
0432-87-R Mohinder Gill, Applicant v. Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Respondent v. ABC Taxi (Brockville) Ltd., and Safe-drive Inc., carrying on business as City Cab, Intervener v. Group of Employees, Objectors
BEFORE: S. A. Tacon, Vice-Chair, and Board Members G. O. Shamanski and B. L. Armstrong.
APPEARANCES: Peter Milliken and Mohinder Gill for the applicants; Frank Reilly and Harry Ghadban for the respondent and for the employee objectors; N. S. Dillon, Mohan Gill for the intervener.
DECISION OF THE BOARD; July 10, 1987
The name of the respondent is amended to read: "Retail, Wholesale and Department Store Union, AFL:CIO:CLC."
The name of the intervener employer is amended to read: "ABC Taxi (Brockville) Ltd. and Safedrive Inc. c.o.b. as City Cab."
This is an application under section 59(1) of the Labour Relations Act seeking a declaration terminating the bargaining rights of the respondent union.
The parties agreed that the bargaining unit was described in the certificate issued to the respondent union on March 6, 1987, as all employees of the intervener employer (in this application) in Brockville, save and except supervisors, persons above the rank of supervisor, office and dispatch staff. The parties further agreed that the applicant was an employee in the bargaining unit.
There was no dispute that notice to bargain was given by letter dated May 29, 1987, from the respondent union and the employer replied in writing on June 4, 1987. The applicant conceded that the timing of the notice to bargain fell outside the sixty day period set out in section 59(1) of the Act. It is also appropriate to note at this juncture that the instant application was filed on May 12, 1987, shortly after the sixty day period expired.
The Board concurred with the parties' agreement that the respondent union lead its evidence with respect to its explanation for exceeding the statutory period for giving notice to bargain in section 59(1) of the Act. In this regard, the respondent union called one witness, H. Ghadban. The applicant and the intervener employer did not wish to call evidence on this issue. Having weighed and assessed the testimony, including the credibility of the witness, the Board makes the following findings of fact.
At the Board hearing on February 27, 1987, in respect of the union's certification application, the employer was represented by E. Rovet. Ghadban, an experienced union organizer in the taxi industry, had dealt with Rovet before as counsel of record in other certification proceedings involving taxi companies. As noted earlier, a certificate was issued dated March 6, 1987. Ghadban testified that a section 89 complaint brought by the union over the termination of M. Marshall was verbally settled at that time as well on the basis that Marshall was to be reinstated but the financial details were to be worked out later. (Five other grievors were named in that complaint as well). Marshall apparently was not reinstated. Several telephone calls between Ghadban and Rovet did not resolve the issues; ultimately, Rovet indicated that the employer was not prepared to reinstate Marshall.
Several other complaints were filed by the union pursuant to section 89 of the Act. One complaint, dated March 9,1987, named three persons as grievors, A. Chevrier, H. Schaub and M. Marshall. Another, dated March 23, 1987, named T. Johnston and D. Plumley as grievors. With respect to these complaints, the parties met with a Board Officer on March 30; hearings were held on May 25, 26 and 27, with five continuation dates set in July and August, 1987. A third complaint, concerning D. Plumley, G. Grant and H. Schaub, was filed on June 25, 1987, the day of the hearing of the termination application. Ghadban stated that the delay in filing resulted from the postal strike, necessitating personal delivery of the complaint. While Plumley had been terminated sometime in April, Ghadban had learned only recently the details of Plumley's departure.
It is useful to note here that on April 6, 1987, Ghadban met Rovet at an arbitration hearing unrelated to this employer. At that time, Rovet informed Ghadban that he was no longer acting for the employer and that the union should forward its bargaining proposals directly to the employer. At the February certification hearing, the two had agreed that the contract proposals would be sent to Rovet.
On March 8, 1987, Ghadban held a meeting at the Queen's Grant Hotel in Brockville to discuss bargaining proposals and elect a negotiating committee. Approximately twenty-five employees attended. When Ghadban explained that, although all employees in the bargaining unit could vote for ratification of the collective agreement, only union members could participate in the meeting, about six or seven employees, including the applicant, left. The three persons elected to the negotiating committee were: M. Marshall, T. Nicholson, and D. Plumley. Contract proposals were received from those attending the meeting.
The negotiating committee met with Ghadban to prepare contract proposals. Ghadban was to draft specific contract language to reflect the committee's concerns. Plumley however, was terminated from his employment and began working for another taxi company in Brockville. Plumley felt he thereby had a conflict of interest and resigned from the committee. Nicholson also left his job and, likewise, resigned from the negotiating committee.
On May 3, 1987, Ghadban convened another meeting of the employees to elect replacements for the two persons who had left the negotiating committee. About twenty-five persons attended. Ghadban again explained that only union members could participate. On this occasion, though, six or seven employees, including the applicant, joined the union by signing membership cards and paying one dollar. Ghadban also explained at both this and the previous meeting that the union took the position that Marshall had been terminated contrary to the Labour Relations Act and, until the Board ruled otherwise, he was entitled to participate in meetings and sit on the negotiating committee. The applicant stood for election but two others, M. Ferguson and D. Bak, were e]ected by the employees. Sometime thereafter, Ghadban queried Bak with respect to her support f9r the termination application. Bak confirmed her involvement with the petition supporting the termination application and resigned from the negotiating committee.
Ghadban decided to proceed with the two person committee. As mentioned earlier, the notice to bargain was dated May 29, 1987. Ghadban testified that the notice was sent before he learned of the termination application, although the latter application was filed with the Board on May 12, 1987. In all, about four or five meetings of the union negotiating committee were held in addition to numerous telephone discussions. The first negotiating meeting with the employer was held on June 17, 1987, where the union presented a complete set of proposals. Ghadban indicated that the employer wished to receive a full set of proposals rather than demands on a piecemeal basis.
Ghadban also testified that, in his experience, both the certification process and preparation of contract proposals in the taxi industry were complex and time-consuming. With respect to bargaining, he stated that "standard form" contracts used in plant settings were not appropriate to the taxi industry and, even within that field, the differences in issues, terminology and employer operations precluded a standardized approach. In cross-examination, Ghadban stated that compliance with the sixty day period for notice to bargain would not have permitted sufficient time to formulate bargaining proposals and meet within the period (15 days) prescribed in the Act (section 15).
The representative for the respondent union reviewed the evidence in the context of the Board jurisprudence dealing with the purpose of section 59 of the Act. It was argued that, if the Board was satisfied with the union's explanation for the delay, the application should be dismissed. The union's representative submitted that the union had not "slept" on its bargaining rights but had been actively involved in representing the employees in the bargaining unit. Cases referred to in support included: Walmer Transport Co. Limited (Hamilton) 53 CLLC ¶17,062; Dominion Stores Limited, Wallaceburg, 56 CLLC ¶18,047; Medi-Park Lodges Inc., [1979] OLRB Rep. Oct. 1007; Canwood Lachute, [1979] OLRB Rep. Dec. 1140; Fuller's Restaurant, [1981] OLRB Rep. Feb. 156; Darn go's Supermarkets Ltd., [1982] OLRB Rep. Jan. 32; Prescott Machine and Welding Inc., [1983] OLRB Rep. Feb. 250; F.C.M. Construction Limited, [1982] OLRB Rep. May 670; West Bend of Canada, [1982] OLRB Rep. July 1091; Rapid Ready-Mix Limited, [1982] OLRB Rep. Sept. 1348; Comstock Funeral Home Ltd., [1982] OLRB Rep. Oct. 1436; Bois A. Lachance Lumber Limited, [1984] OLRB Rep. Jan. 1; Nepean Roof Truss Ltd., [1986] OLRB Rep. Sept. 1279.
The intervener employer made no submissions.
Counsel for the applicant stressed that the application was brought by an employee in the bargaining unit and submitted that the test was less stringent than where an employer was seeking to terminate a union's bargaining rights. In reviewing the evidence, counsel stated he was not asserting that the union had exhibited an uncaring attitude but that the union had failed to comply with the period prescribed by section 59(1) for giving notice to bargain and, further, there was disaffection amongst employees as to the manner in which the union was representing them. Counsel contended that the Board should not immediately terminate the union's bargaining rights but, rather, should direct a representation vote. Specifically, counsel emphasized the time-consuming and costly hearings before the Board (differently constituted) in respect of several complaints under section 89 of the Act and noted yet another section 89 complaint filed with the Board on the day of the instant hearing (although not before the Board dealing with the termination application). In response to a Board query, counsel clarified that he had given final argument and took the position that the voluntariness of the petition in support of the application and the reaffirmations of support for the union were irrelevant as the application was brought under section 59(1), not 57, of the Act. Counsel noted that he was prepared to lead evidence as to the voluntariness of the petition if the Board so wished and that counsel for the applicant sought to reserve his right to call evidence regarding the petition and reaffirmations of support should the Board not be satisfied with the explanation offered by the respondent union for the delay.
Section 59(1) of the Act reads:
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.
- It is also useful to refer to the following passage from Prescott Machine and Welding Inc., supra:
The purpose of section 59 is to protect employees (and, in a proper case, the employer) against a bargaining agent which neglects to forward the interests of the employees but instead "sleeps" on its bargaining rights. As the Board has indicated in a number of cases, the section is not meant to be used to penalize a union, but rather is a means by which an interested party can bring the material facts to the attention of the Board so that the Board can call upon the trade union to provide an explanation for its failure to bargain. In instances where the union has not met the time requirements set out in section 59, but has either sought to bargain relatively soon afterwards or has some reasonable explanation for its delay, the Board will generally dismiss the application outright. See, Trizec Equities Ltd., [1978] OLRB Rep. Feb. 189 and Mohawk Construction Limited, [1981] OLRB Rep. Aug. 1156. If, on the other hand, the union has been inactive for a substantial period of time, or if it appears that the union has made a decision not to exercise its rights, the Board will generally terminate its bargaining rights. See, Darn go's Supermarkets Ltd., [1982] OLRB Rep. Jan. 32. It is generally only in those cases where a union has failed to bargain for a fairly lengthy period of time without any reasonable explanation for its delay, but where nevertheless the facts suggest that it is still interested in actively representing the employees, that the Board will direct the taking of a representation vote. See F.C.M. Construction Limited, [1982] OLRB Rep. May 670.
The Board possesses a wide discretion under section 59 of the Act to determine the appropriate response to a termination application under this provision. This discretion is to be exercised with a sensitivity to the statutory purpose to ensure active representation of employees in a bargaining unit by their bargaining agent. Even where the objective conditions in section 59 are met, that section is not to be applied mechanically nor are a union's bargaining rights to be automatically terminated: Medi-Park Lodges mc, supra; Walmer Transport Co. Ltd., supra.
In the instant case, the respondent union cannot be characterized as "sleeping" on its rights. Rather, the union was actively involved in advancing the interests of the bargaining unit members. Firstly, the union repeatedly sought to protect bargaining unit members from alleged unfair labour practices. The three unfair labour practice complaints filed on behalf of a number of bargaining unit members prior to the application date (including the February 27, 1987, complaint which the union thought was settled in principle) attest to a continued concern by the union for the welfare of those whom it represents. Secondly, with respect to its collective bargaining obligations, the union proceeded methodically to canvass the views of union members, elect a negotiating committee and formulate proposals. Meetings with the membership were held on March 8 and May 3. The negotiating committee was convened on four or five occasions in addition to numerous telephone calls from Ghadban to discuss proposals. The resignations from the negotiating committee do not reflect negatively on the union; indeed, Ghadban acted promptly to replace those vacancies. It is, however, reasonable to expect that the turnover would delay the preparation of a complete set of proposals. As noted in Medi-Park Lodges, supra, the union should not be penalized for th9rough preparation, for doing the groundwork necessary to present a complete set of bargaining proposals, particularly where the employer evidently preferred to await the presentation of a full text rather than receive demands on a piecemeal basis. Moreover, the Board accepts the uncontradicted evidence of Ghadban that collective bargaining proposals are complex and difficult to develop in the taxi industry because of the diversity of employer operations and the concomitant absence of standardized contract language. In the Board's view, throughout the period from certification to the date the termination application was filed, the union was actively working on behalf of the bargaining unit.
22, The Board is also concerned with the extreme haste with which the termination application was filed, just a few days after the sixty day period set out in section 59. That haste is a relevant consideration in the Board's decision: Bris A. Lachance Lumber, supra; Holley Electric Ltd., [1965] OLRB Rep. May 136; Grant Ready Mix Limited, [1967] OLRB Rep. Dec. 892. Moreover, in the instant case, the applicant, after leaving the first meeting on March 8 because he refused to sign a union card, reversed his stance and not only joined the union at the second meeting on May 3 but stood for election to the negotiating committee. Approximately one week later, having failed to be elected, the applicant sought to decertify the union.
Section 59 is directed at protecting bargaining unit members from an "absentee" bargaining agent. The section is not a vehicle for triggering an otherwise untimely representation vote: Prescott Machine and Welding, supra; The London Soap Company Limited, [1987] OLRB Rep. Feb. 241. Counsel for the respondent asserted that the "petition" in support of the termination application (and the reaffirmations of support) were irrelevant as the application was brought under section 59 rather than section 57 of the Act. The Board agrees with this view: The London Soap Company, supra. In section 59 applications, the Board's focus is the conduct of the bargaining agent during the relevant period. Section 57 of the Act permits a testing of the wishes of the bargaining unit employees with respect to their continued support for their bargaining agent during specified time periods and subject to the other conditions in that section. The conduct of the bargaining agent may well be relevant to the extent of that agent's continued support amongst its employees but is not the focus of the Board in dealing with a section 57 termination application, in contrast to an application under section 59.
For the foregoing reasons, then, the Board is satisfied that the respondent union was actively fulfilling its obligation to represent the employees in the bargaining unit. The Board does not regard it as appropriate to exercise its discretion under section 59 of the Act to direct that a representation vote be held or to terminate the respondent union's bargaining rights outright. In the alternative, if the signatures on the petition are relevant, and assuming those signatures are voluntary while those on the reaffirmations of support are not, the Board would not have reached a different conclusion in all the circumstances of the instant case.
The Board intends to deal briefly with one other aspect, namely, whether the Board should consider conduct following the date on which the termination application was filed. The Board notes that Ghadban testified that the notice to bargain was given in a letter dated May 29, 1987, before he received notice of the termination application. The first negotiating meeting with the employer was on June 17, 1987, where the union presented a complete set of bargaining proposals.
The following excerpt from West Bend of Canada, supra, is apposite:
The Board notes that the respondent in this application sought to have the Board consider evidence of its conduct in representing members of the bargaining unit after this application was filed. In view of the Board's disposition of this application, the Board does not consider it appropriate to decide whether such evidence could ever be relevant to the question which section 59 raises. Such evidence could obviously suffer from the weakness of being self-serving in nature, and the Board notes that no previous case has been cited in which the Board has ever looked beyond the date of the application. As the Board commented in Mohawk Engineering, [1981] OLRB Rep. Aug. 1156, at paragraph 7:
The Board looks at the conduct of the parties during the whole period from the giving of notice to bargain to filing of the application under section 51 in order to decide how to exercise its discretion.
The Board affirms the concerns expressed above with respect to the self-serving nature with which one would generally regard such evidence. Nor need the Board here conclusively determine whether such evidence could be a relevant consideration in section 59 applications. In the instant case, though, given the filing of the application just days after the expiry of the sixty day period, if the period at least to May 29, 1987, (the date of notice to bargain) is considered, the concerns about self-serving evidence are not applicable as the Board accepts Ghadban's testimony that, at that point, he had not learned of the termination application. In this context, the Board is further satisfied that the union was not derelict in fulfilling its obligations as bargaining agent. Thus, even if the relevant period is extended to May 29, 1987, the Board would not terminate the union's bargaining rights or direct a representation vote.
For the foregoing reasons, then, this application is dismissed.