[1987] OLRB Rep. April 570
2892-86-R Norris Transport Limited, Applicant v. Teamsters Local Union No. 879, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent
BEFORE: Robert J. Herman, Vice-Chair, and Board Members J. A. Rundle and J. Sarra.
APPEARANCES: Patricia Conway, Phil Saunders and Gerald Gills for the applicant; Eric del Junco and Dan Mdllravey for the respondent.
DECISION OF THE BOARD; April 13, 1987 as amended May 6, 1987
The name of the respondent is amended to read: "Teamsters Local Union No. 879, affiliated with the International Brotherhood of teamsters, Chauffeurs, Warehousemen and Helpers of America".
This is an application under section 59 of the Labour Relations Act for a declaration that the respondent no longer represents the employees in a bargaining unit of drivers for the applicant.
For the most part the facts are not in dispute. The respondent was certified as bargaining agent of the applicant's employees on September 27, 1967. The respondent continued to represent the bargaining unit employees from that time until the time of this application. The most recent collective agreement between the parties expired on March 31, 1986. Shortly before that, around October, 1985, due to a reorganization of the applicant in an effort to maximize efficiency, the applicant put on a permanent lay-off a large number of employees in the bargaining unit, with the result that the bargaining unit was reduced from approximately 18 employees to 3. The size of the bargaining unit remained approximately three from October, 1985 to the present.
As the collective agreement was due to expire on March 31, 1986, the union served notice to bargain on the applicant by a letter dated January 9, 1986. The administrative system followed by the union noted dates of expiry for particular collective agreements and noted when notices to bargain had to be sent, and the union personnel accordingly automatically sent such notices. The union official with responsibility for this bargaining unit was Daniel Mcllravey, a vice-president of the respondent. Since the notice to bargain sent on January 9 was sent automatically by union staff, Mcllravey was unaware the notice had been sent to the applicant.
No negotiations took place between the applicant and the respondent subsequent to the sending of the notice to bargain. Indeed, there was no further contact between the applicant and the respondent from January 9, 1986, when the notice to bargain was sent, to the date of the filing of this decertification application, January 22, 1987.
On two occasions the company president, Phil Saunders, attempted to reach Mcllravey by phone to suggest that they commence bargaining. Both in March and sometime during the summer of 1986, Saunders phoned Mcllravey and, as he was not available at the time, left messages for Mcllravey to return his call. Neither of those calls were responded to by the union.
Additionally, in the three month period from March to May of 1986, the union steward phoned Mcllravey approximately four times, also in an effort to prompt the start of negotiations. The steward, Gerald Gills, knew bargaining unit employees were unhappy with the complete absence of bargaining activity, and he was trying to discover why no bargaining was taking place. For two of those phone calls, Gills left his name. No union official ever returned those calls. (Although the union argued that neither Saunders nor Gills left phone messages, we have found as a fact that they did. The union relied heavily on evidence that the union's office message books did not contain messages from either Saunders or Gills, but it did not call evidence from the individual responsible for the messages to attest to their accuracy. Accordingly, we gave little weight to this evidence of Mcllravey.)
During this approximate twelve months of inactivity, no grievances were filed by employees and the applicant continued to honour all terms of the expired collective agreement.
During the hearing both parties attempted to lead evidence of events that had occurred subsequent to the filing of this application. Although we entertained evidence of such events and discussions (except where such evidence dealt with the employee wishes that they no longer wanted to be represented by the respondent, which evidence we did not allow, for reasons given at the hearing and in reliance upon Rule 73 and section 111 of the Labour Relations Act), we did not find such evidence particularly useful, except insofar as it touched upon the respondent's explanation for not having actively pursued its bargaining rights. Unless events subsequent to the filing of a termination application, in these circumstances, can shed some light upon why the union did not actively pursue bargaining, or upon any other matter relevant to our consideration (for example, whether there has been any prejudice to the employer or employees during the period up to the application date), such evidence is of little utility.
In his evidence, Mcllravey explained the passage of twelve months on the basis he had forgotten about this bargaining unit. The notice to bargain was automatically sent by his office, and he would have no involvement with it except for receiving a copy, which he conceded he probably received but could not recollect. Although he also conceded that Saunders and the union steward, Gills, might well have phoned during the previous year, he testified they could not have left messages including their names, for the message book kept by his receptionist did not show that they had phoned. All messages were recorded by his receptionist, Mcllravey testified, if callers left their names. Counsel for the respondent had with him those message books and there was no dispute that no messages from Saunders or Gills were recorded therein.
Based on these facts, the respondent submitted it had provided an explanation for the period of inactivity. Although the respondent conceded its actions were not justifiable, it argued that they were understandable in the circumstances. Counsel for the respondent further submitted that although Saunders and Gills might well have phoned, they could not have left their names. The message books did not indicate that messages had been left and they would certainly have been recorded in those books had either of them left such messages. Accordingly Mcllravey would not have been put on effective notice they were trying to start bargaining. Counsel further submitted that in the circumstances the company also had a duty to expeditiously bargain, as contained in section 15 of the Act, and the company's hands were far from clean. Insofar as the wishes of the employees were concerned, the union suggested this issue was a "red herring". No statement of desire had been filed in a timely fashion, indicating opposition to continued representation by the respondent, and neither had a termination application been filed pursuant to section 57 of the Act during the open period for filing such applications. Counsel noted there was no evidence of any prejudice to the applicant throughout the period, nor any demonstration of prejudice to employees. Finally, counsel submitted an analogy should be drawn in the instant case to those cases where automatic renewal clauses were contained in collective agreements, where the Board has generally held a union need not actively bargain the first time an automatic renewal clause is relied upon. Analogously, suggested counsel, the freeze provisions pursuant to section 79 of the Act had in effect automatically renewed the agreement throughout the twelve months period and therefore the respondent ought to be given the same period of grace that respondents in automatic renewal cases have been given by the Board. Accordingly, respondent suggested that the application ought to be dismissed. In support of these submissions, counsel referred to the following cases: Sheet Metal Workers International Association Local 397, [1968] OLRB Rep. Oct. 731; Interchem Presstite Limited, [1969] OLRB Rep. April 98; Dominion Stores Limited, 56 CLLC ¶18,047; Armco Canada Ltd., [1970] OLRB Rep. June 334; Medi-Park Lodges Inc. [1979] OLRB Rep. Oct. 1007; Yarntex Perk, Division of Yarntex Corporation Limited, [1975] OLRB Rep. Feb. 137; Kingston Terminal Restaurant Ltd. 60 CLLC ¶16,163; Pinkerton's of Canada Limited, [1986] OLRB Rep. June 818; Queen's Hotel, [19631 OLRB Rep. Dec. 519; Canadian Transportation Workers Union, No. 197, [1967] OLRB Rep. May 154; and Barrie Tanning, Limited, [1966] OLRB Rep. May 128.
Section 59 of the Act reads 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.
- In Dominion Stores Limited, supra, the Board noted as follows:
"The purpose of section 43 of the Act is to protect the employees and, in a proper case, the employer against a union which stakes out a claim to represent certain employees and then takes no steps within a reasonable time to forward the interests of those employees. However, the section is to be used as a shield, not as a sword. Section 43 should not be used to penalize a union which has failed to give notice under section 10 of the Act, but rather to afford an opportunity for an interested party to bring that fact to the attention of the Board so that the Board may call upon the union to give an explanation for the delay in commencing or continuing negotiations as the case may be. If no satisfactory explanation is forthcoming, the Board will no doubt in many cases terminate the bargaining rights of the union instantaneously. If a reasonable doubt arises as to the desires of the employees at that stage, the Board may test those desires by directing a representation vote."
And in Medi-Park Lodges Inc., supra , the Board said:
"Certification gives a union an effective monopoly in the representation of a group of employees. Section 51 of the Act is therefore intended to insure that the rights of representation extended through a Board certificate are actively advanced by the union charged with that responsibility. While nothing in the Act can insure that the granting of bargaining rights will result in the consummation of a collective agreement, section 51 acts as a spur to require immediate and continuous efforts in bargaining on behalf of the employees concerned. A union that does not meet the minimum requirements of the section is liable, upon a successful application, to have its bargaining rights reviewed through the test of a representation vote, or to have them directly terminated.
The termination of bargaining rights under section 51 is within the discretion of the Board. The purpose of the section is not to punish a union but to protect employees and employers from the hardship that can result when bargaining rights are tied up by a union that fails to discharge its responsibilities. Thus section 51 should not be applied mechanically and without regard to its purpose to insure active union representation to all employees who are subject to collective bargaining. Even where the objective conditions of section 51 are met the Board may not terminate a union's bargaining rights or order a vote when, although the union has missed the deadlines within the section, it has in fact been active in advancing the interest of the employees concerned. (Walmer Transport Co. Ltd. 53 CLLC ¶17,062; Dominion Stores Ltd. 56 CLLC ¶18,047)"
We do not find the analogy with automatic renewal cases to be particularly analogous or persuasive. Similarly, we find of little assistance respondent submissions that the company also had a duty to bargain and its hands are not clean in this matter. The issue before us is as stated in the excerpts from Dominion Stores and Medi-Pqrk Lodges Inc. as set out above. While we do not adopt the language of Dominion Stores Limited which states that section 59 "is to be used as a shield, not as a sword", in other respects we adopt those statements.
More apposite then the cases referred to us by the respondent, is F.C.M. Construction Limited, [1982] OLRB Rep. May 670, wherein the Board stated at paragraph 11:
"In instances where a union has not met the time requirements set out in section 59, but has either subsequently sought to bargain within some relatively short time period, or has advanced some reasonable explanation for its delay, the Board has declined to terminate its bargaining rights. See: Walmer Transport Co. Ltd., 53 CLLC ¶17,062. The Board has also refused to terminate a union's bargaining rights in situations where, although a few months have passed without any bargaining, the union has, prior to the filing of the termination application, demonstrated a renewed interest in bargaining. See: Mohawk Construction Limited [1981] OLRB Rep. Aug. 1156. In the instant case, however, the union's delay involved more than just a few months, and the union has not advanced any justifiable reason for not seeking to engage in collective bargaining. Further, there is nothing in the evidence to indicate that subsequent to November of 1979, the union has had any contact with employees in the bargaining unit. Given these circumstances, we are of the view that the employees should be given an opportunity to indicate whether or not they still desire to be represented by the union."
In the instant proceeding, the union has offered no valid explanation for complete inactivity during the approximately twelve month period following the giving of the notice to bargain, other than it simply forgot about the bargaining unit in question. It appears to us that the union has indeed slept on its bargaining rights, without reasonable excuse, and the employees would necessarily have been prejudiced with no bargaining occurring. Additionally, we heard evidence that employees were dissatisfied with the failure to negotiate. Whether or not the mere passage of time over such a lengthy period will necessarily demonstrate prejudice to an employer we need not decide, as we are satisfied that the employees have been prejudicially affected by this delay.
Accordingly, in all these circumstances we consider it appropriate that employees be given an opportunity to indicate whether or not they still desire to be represented by the respondent union. The Board directs that a representation vote be taken among the employees in the bargaining unit of the applicant. Those eligible to vote are all employees of the respondent save and except foremen, persons above the rank of foreman, office staff, sales staff, security guards, and office janitors, on March 11, 1987 who do not voluntarily terminate their employment or who are not discharged for cause between that date and the date the vote is taken.
Voters will be asked to indicate whether or not they wish to be represented by the respondent union in their employment relations with the applicant.
The matter is referred to the Registrar.