Ontario Labour Relations Board
[1987] OLRB Rep. December 1613
1588-87-R International Woodworkers of America, Applicant v. Wire Rope Industries Ltd., Respondent v. Lumber and Sawmill Workers' Union, Local 2693, of the United Brotherhood of Carpenters and Joiners of America, Intervener
BEFORE: Patricia Hughes, Vice-Chair, and Board Members R. M. Sloan and D. A. Patterson.
DECISION OF THE BOARD; December 16, 1987
Reasons for Decision
1By decision dated October 7, 1987, the Board directed that a pre-hearing representation vote be taken in this application for certification. The vote was held on October 20, 1987, and the ballot box sealed until certain outstanding matters have been resolved.
2The Board finds that the applicant is a trade union within the meaning of clause l(l)(p) of the Labour Relations Act ("the Act").
3Wire Rope Industries Ltd. ("Wire Rope" or "the employer") had objected to the presence on the ballot of the intervener, Lumber and Sawmill Workers' Union, Local 2693, of the United Brotherhood of Carpenters and Joiners of America ("Local 2693") on the basis that because Local 2693 did not commence to bargain within sixty days following the giving of the notice to bargain on April 23, 1987, in accordance with the collective agreement and the Act, it no longer represented the employees in the bargaining unit and the Board should so declare in accordance with subsection 59(2) of the Act. The employer objected in the alternative that the application was untimely.
4In its decision of October 7th, the Board ruled that there having been no application to terminate Local 2693's bargaining rights or a declaration to that effect at the time of the application, the name of Local 2693 would be properly on the ballot. It also stated that the issue of timeliness could be addressed by the parties after the vote had been taken. In addition, the Board raised an issue that had not been the subject of dispute between the parties. They had agreed on the description of the bargaining units which were the descriptions in the collective agreement between Wine Rope and Local 2693. One of those units was composed of only one employee, however. The Board cannot determine a bargaining unit of only one employee, pursuant to subsection 6(2) of the Act. The Board thus struck a single voting constituency that would encompass all the employees in both bargaining units, ordered the segregation of each ballot and sealing of the ballot box and invited the parties to make submissions on the appropriate bargaining unit(s).
5By letter dated October 27, 1987, the employer filed written submissions on the issue of timeliness (these were in addition to submissions filed with its reply to the application) and on the appropriate bargaining unit(s). The applicant, International Woodworkers of America ("IWA"), and Local 2693 are represented by the same counsel who replied to the employer's submissions by letter dated November 20, 1987, pursuant to the date set by the Registrar when she forwarded the employer's letter of October 27, 1987 to the IWA and Local 2693. None of the parties seeks an oral hearing in this matter. Accordingly, this decision sets out our rulings and reasons therefore with respect to the two outstanding matters on the basis of the written submissions of the parties.
6The collective agreement between Wine Rope and Local 2693 ("the agreement") has a term of operation from August 1, 1985 to July 31, 1987. Article 2:01 of the agreement reads as follows:
Article 2 - Period
2:01 The Company and the Union agree one with the other that they will abide by the Articles of this Agreement from August 1, 1985 to July 31, 1987 inclusive, and from year to year thereafter unless either party desires to change or terminate the Agreement, in which case the party desiring the change or termination shall notify the other party, in writing, at least sixty (60) days prior to July 31st. Either party opening the Agreement in the manner provided above shall notify the other party in writing as to the changes desire.
Thus the collective agreement continues in operation unless one of the parties takes action to terminate it. Notification of desire to change the agreement terminates the agreement as of the expiry date. Subsections 53(1) and (2) of the Act read as follows:
53.-(1) Either party to a collective agreement may, within the period of ninety days before the agreement ceases to operate, give notice in writing to the other party of its desire to bargain with a view to the renewal, with or without modifications, of the agreement then in operation or to the making of a new agreement.
(2) A notice given by a party to a collective agreement in accordance with provisions in the agreement relating to its termination or renewal shall be deemed to comply with subsection (1).
Accordingly, the notice to be given under the collective agreement complies with the notice provisions of the Act.
7By letter dated April 23, 1987, W. McIntyre, Business Representative of Local 2693, wrote to Paul Groeneveld, Branch Manager of Wine Rope, requesting changes in the collective agreement "to become effective on the 1st day of August 1987". There is no dispute that this aspect of the notification procedure - notice of desire to make changes - is timely in accordance with the provisions of the agreement. The letter concludes that "the proposed changes will follow in a separate letter". In fact, the proposed changes were not made until September 16, 1987 when they were set out in a letter of that date from Mr. McIntyre to Kevin Smith, Branch Manager of Wine Rope. In a reply to Mr. McIntyre, dated September 25, 1987, Claude Poinier, Manager-Industrial Relations for Wine Rope, acknowledged receipt of Local 2693's proposed changes and stated
We would like to inform you that we will wait to know the decision of the Labor [sic] Board concerning the current issue i.e. Application for certification from the IWA.
The application by the TWA had been filed on September 4, 1987. If the collective agreement continued in operation after July 31, 1987, the application would therefore be untimely. The timeliness issue had been raised by reply filed by Wine and Rope dated September 18, 1987. No reference to the September 16th, letter sent by Local 2693 to the employer is made in the reply; however, the employer does state that the failure to bargain within the sixty days following the filing of the notice to bargain "should be deemed to have the effect of continuing the collective agreement in effect until July 31, 1988, in which case the application by the applicant is not timely as required by section 5(4) of the Act". In its submissions of October 27th, the employer modified this argument somewhat by submitting that first, the notification process was not complete and second, a failure to bargain (or to seek a continuation of the term of the agreement under subsection 52(2) of the Act) by Local 2693 means "it slept on its rights and consequently the Board should find that it waived the amendment on termination process and in so doing activated the year to year continuation mechanism provided by the collective agreement".
8Local 2693 and the IWA argues first that the notice to bargain of April 23, without notice of the changes, triggered the termination of the agreement as of July 31, 1987. The suggestion, then, is that notice of the changes is not a required part of the process. If it is a required part of the process, Local 2693 and the IWA argue that a delay in providing notice of the changes is sufficient to cure any problem resulting from failure to give notice of the changes within the sixty days prior to July 31, 1987, but that if it is not, the only recourse is an application to terminate Local 2693's bargaining rights. (Local 2693 and the TWA explain the delay as resulting from vacations and unavailability of employees.)
9In our view, the April 23rd notice by Local 2693 is the notice to bargain contemplated by Article 2:01 of the collective agreement and, by virtue of subsection 53(2), that contemplated by subsection 53(1). Thus the collective agreement expired on July 31, 1987 and the application by the TWA is timely. A party seeking the content of the changes desired by the other party where the other party has failed to provide them, has recourse through sections 15 and 59 of the Act or through the grievance process set out in the agreement.
10The second issue which must be considered is the description of the bargaining unit. The employer contends that the two units proposed by the parties have existed "for the duration of the relationship between the Respondent and the Intervener" and reflect the Board's practice of separating office and plant units. It states further that there has been a history of two persons in the office unit, but concedes that there are no immediate plans to hire a second individual. The employer thus supports two units on, in the alternative, determination of only one plant unit. The union maintains that while two units are described in the collective agreement, they effectively comprise one unit which could be described either in "two segments" reflecting the current description on in the manner in which the Board described the voting constituency. Local 2693 and the IWA do not dispute that there were previously two persons in the office unit.
11While it is connect that it is the Board's normal practice to separate office and plant employees in different bargaining units, that practice is departed from where an employee may be deprived of collective bargaining if the practice is followed: The Corporation of the Town of Oakville, [1973] OLRB Rep. May 260, at para. 6. In this case, the small number of employees (three in total) the fact that only one person who would be in an office unit is employed, and the fact that at most two "office" people have been employed in the past and that there is no expectation of others being hired in the immediate future are factors the Board should take into account in determining the appropriate bargaining unit. The Board finds that:
all employees of the respondent at Thunder Bay, save and except non-working forepersons, persons above the rank of non-working forepersons, and outside salespersons
constitute a unit of employees of the respondent appropriate for collective bargaining.
12The matters in dispute having been determined, the Board appoints a Labour Relations Officer to open the ballot box and count the segregated ballots in this application.
13This matter is referred to the Registrar.