[1988] OLRB Rep. May 439
3447-87-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Canada Blue Tanning Company Limited, Respondent v. United Food and Commercial Workers International Union, United Food and Commercial Workers - Region 18, Canada, and Ontario Council of Leather Workers, Local 0-116, Cobourg, Intervener
BEFORE: Judith McCormack, Vice-Chair, and Board Members G. O. Shamanski and E. G. Theobald.
APPEARANCES: L. N. Gottheil, Maureen Kirincic and Richard Rollings for the applicant; Robert Dunn, Richard Beasly and Jack Braithwaite for the Respondent; Michael Church and Ian Reilly for the intervener.
DECISION OF THE BOARD; May 12, 1988
The name of the respondent is amended to read: "Canada Blue Tanning Company Limited".
These are two applications for certification brought by the National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) ("CAW") and United Food and Commercial Workers International Union, United Food and Commercial Workers - Region 18, Canada, and Ontario Council of Leather Workers, Local 0-116, Cobourg ("UFCW") respectively, which the Board consolidated pursuant to section 103(3)(a) of the Labour Relations Act. UFCW also claims to be an incumbent union with a subsisting collective agreement, and as a result, it argues that the CAW's application is untimely and barred by the former's collective agreement. Its own application is brought without prejudice to this position. For its part, the CAW claims that the UFCW has abandoned its pre-existing bargaining rights, and that its new application is tainted by employer support. The CAW has also invoked section 8 in aid of its application for certification. Finally, there is a petition filed by employees in opposition to the UFCW, affirming their support for the CAW.
The parties were unable to agree on a procedure for hearing these matters. As a result, and after receiving their submissions, the Board ruled orally that the most expeditious manner of handling this case would be to hear and determine the issue of whether the UFCW had abandoned its bargaining rights and whether there was a subsisting collective agreement first. The parties then led evidence and made submissions on those issues, which this decision now addresses.
Clarence ("Bud") Mclvor testified on behalf of the UFCW. Mr. Mclvor started his working career in 1950 at the Cobourg tannery now occupied by the respondent, and he worked there in a variety of positions for 19 years. During this period, the tannery changed hands some five times with Robson-Lang Leathers Inc. acquiring the tannery in 1958 along with four other tanneries in Oshawa, Barrie, Kitchener and London. In 1969 Mr. Mclvor joined the staff of the UFCW as a staff representative. In this capacity, he serviced locals of the UFCW or its predecessor at all five Robson-Lang plants as well as a number of other tanneries in Ontario. Each Robson Lang plant eventually was covered by a separate collective agreement. In the mid-1970's, the Robson-Lang plants in London and Oshawa closed down. It is clear that the Oshawa closure had particular significance in Mr. Mclvor's mind, and goes some way towards explaining his subsequent actions. Prior to the closure, Robson-Lang had requested concessions from the local at the Oshawa plant, a request which the union rejected. After a resulting strike, Robson-Lang closed down the plant and 225 employees lost their jobs. This was followed by protracted litigation to obtain severance pay which only ended when the company went into receivership in the spring of 1985.
In March of 1983, the UFCW and Robson-Lang entered into the collective agreement at the Cobourg plant which the former now relies upon as a bar to these applications. This agreement covers the period March 1,1983 to November 30, 1985 and contains the following article
Article 36 - Termination
36.01 This Agreement shall remain in full force and effect from the 1st day of March, 1983, until the 30th day of November 1985, and shall continue in force from year to year thereafter unless in any year not more than ninety days and not less than thirty days before the date of termination, either party shall furnish the other with notice of termination or proposed revision of the Agreement, Arrangements to commence negotiation will be made within fifteen days of the giving of the notice.
When Robson-Lang went into receivership in 1985, all employees were laid off at the three remaining plants except for one who was retained to maintain and service the machines during the shut-down at the Cobourg plant. The receivers deducted dues and applied the Robson Lang Cobourg collective agreement to this employee until February of 1986. An adjustment committee was constituted to help place employees in other jobs and otherwise ease the effects of the plant closure, and Mr. Mclvor sat on the committee along with company and government representatives. No buyer could be found for the Barrie plant which was bought eventually by the City of Barrie and torn down. The Kitchener plant was bought by a Toronto company and Mr. Mclvor met with the buyer, who indicated he intended to hire some 20 employees. As a result, Mr. Mclvor agreed to give the buyer a "free" year during which the Kitchener plant collective agreement would not be applied. After that year, a new collective agreement was signed and 40 employees are now working at the plant.
Meanwhile in Cobourg, the one remaining employee was laid off and the respondent entered into negotiations to purchase the tannery. Mr. Mclvor knew Richard Beasly, the respondent's principal, because he had visited the plant previously in February of 1986. Mr. Mclvor sent the following letters as a result of discussions between the two men:
Richard Beasly 1219 Northgate Crescent Oshawa, Ontario LIG7C4
Dear Richard:
This is to confirm that 0116, Cobourg, has no liabilities against the old company of Robson Lang, Inc., in Cobourg, as to do with money.
We have an Union agreement in force now, and for the future. The only outstanding issue is the Pension Plan, and is [sic] supposed to be cleared up by the end of February, 1986.
Yours truly, (signature) Clarence (Bud) Mclvor
Richard Beasly 1219 Northgate Crescent Oshawa, Ontario L1G7C4
Dear Richard:
As to our telephone conversation on Wednesday, February 12, 1986, this will confirm that we are going to have a meeting with you on Friday, February 21,1986, about going over some of the things in our agreement for 0116, Cobourg. I will be there about 10:00 a.m.
Yours truly, (signature) Clarence (Bud) Mclvor
In fact, the arrangement to meet with Mr. Beasly on February 21st fell through, and Mr. Mclvor met with Tim Peake, the plant superintendent, on March 11th to review the collective agreement. The respondent's operations are different in some respects from those of Robson Lang, and Mr. Mclvor and Mr. Peake were examining the collective agreement with an eye to any modifications which might be necessary as a result. During 1986, Mr. Mclvor attended the plant on 16 occasions at regular intervals, either to sit on the adjustment committee or to have discussions with Mr. Peake or Mr. Beasly. At some point in 1986, employees were hired by the respondent and by March of 1987, five or six people were employed in the plant.
In May of 1987, Mr. Mclvor met with Mr. Beasly to discuss the application of the collective agreement. The gist of that conversation was that Mr. Mclvor agreed not to enforce the terms and conditions of the collective agreement until the respondent was on a better financial footing. Mr. Mclvor then spoke to one of the employees in the plant and advised him of the agreement. He also told him that the union would be waiving dues in the interim because employees were making so little in the way of wages. In total, Mr. Mclvor attended at the plant on seven occasions in 1987. During this period, the number of employees gradually increased until by the end of 1987 the number was close to 20.
In the meantime, the UFCW was litigating the disposal of a surplus amounting to twenty thousand dollars in the collective agreement pension plan which had been wound up after the plant closure in 1985. That litigation is ongoing, and the parties are awaiting a hearing by the Ontario Pension Commission. Mr. Mclvor retired from employment with the UFCW on March 1st, 1988. Shortly thereafter, the CAW brought its application, followed by that of the UFCW.
The parties agreed that the UFCW held bargaining rights for employees at the time it entered into the 1983-1985 collective agreement with Robson-Lang, and also that the respondent was a successor employer to Robson-Lang within the meaning of the Labour Relations Act. The UFCW conceded in addition that the collective agreement had not been applied to employees from February of 1986 to the present.
On the basis of the foregoing, the CAW argues that the UFCW has abandoned its bargaining rights, and hence the 1983-1985 collective agreement cannot act as a bar. Among other things, counsel points to the Board's jurisprudence which indicates that after two automatic renewals of a collective agreement, an onus shifts to the union to satisfy the Board that it has not abandoned its bargaining rights, and in this regard he notes the UFCW's admission that the collective agreement has not been applied since 1986. In his view, the collective agreement is so fundamental to the collective bargaining relationship that its non-application in these circumstances reflects an abandonment of bargaining rights. Counsel also points to section 59(1) of the Act which allows the Board to terminate bargaining rights where no notice to bargain has been given under section 53, and notes that it is not disputed that no notice to bargain was given in this case.
Counsel for the UFCW argues that his client's failure to apply the collective agreement is a fact which relates to the quality of representation provided (which he concedes might have been better) rather than indicating any abandonment of the bargaining rights. Section 59(1) does not apply in these circumstances, he argues, because the presence of the automatic renewal clause obviates the necessity of giving notice. In his view, Mr. Mclvor's approach to labour relations at the respondent's plant was prompted by the vulnerability of the leather industry and a tenuous economic climate, and there was no indication that he had turned his back on the UFCW's bargaining rights or "walked away" from them.
In Belleville and District Builders' Exchange, [1963] OLRB Rep. May 114 the Board put forward the proposition that after two automatic renewals of a collective agreement, an evidentiary onus shifts to the union to satisfy the Board that it has not abandoned its bargaining rights. In this case, the automatic renewals are stated to be from year to year in Article 36, and thus two automatic renewals had taken place as of November 30, 1987, giving rise to the onus. On the basis of the evidence before us, however, we conclude that the onus has been satisfied. Mr. Mclvor addressed labour relations with the respondent gingerly because of his previous experiences with the failure of businesses in the tanning industry. He testified that his plan was to allow the respondent to establish its business to some extent before insisting upon the application of the old collective agreement or negotiating a renewal. It was obvious that he felt that a cautious approach had been fruitful at the Kitchener plant, and that anything more forceful might well prove to be shortsighted. We are inclined to agree that many of the points raised by counsel for the CAW relate to either the quality of representation provided by the UFCW or the effectiveness of the particular strategy chosen by Mr. Mclvor, and not to any abandonment of rights. It is evident that Mr. Mclvor maintained consistent and regular contact with the respondent in his capacity as the UFCW's staff representative for the Cobourg plant, and that it was his intention, when he judged that the respondent was in a financially sound enough position, to re-negotiate the collective agreement. Whether or not this course of action was appropriate in labour relations terms is irrelevant; it does not reveal any intention to abdicate as the bargaining agent of the respondent's employees.
There may well be situations in which the quality of representation is so inadequate that it might lead to an inference that bargaining rights have been abandoned. Similarly, we share the view that the dormancy of a collective agreement may be a very significant factor in assessing whether such an abandonment has occurred. In the circumstances of this case, however, the totality of the evidence suggests otherwise. We conclude that the UFCW has not abandoned its bargaining rights.
There was no dispute that the 1983-85 collective agreement was valid during its initial fixed term. Thereafter Article 36 operated to continue the agreement in effect unless notice of termination or proposed revision was given. The facts before us indicate that no such notice was sent within the terms of Article 36. While Mr. Mclvor's letter of February 14th setting up a meeting to review the collective agreement might be characterized as a notice of proposed revisions of the collective agreement, it was not sent within the window stipulated in Article 36, and as a result, the automatic renewal mechanism was not deactivated. There was no dispute that as a successor employer, the respondent became bound by the agreement.
Counsel for the CAW argued that the bargaining rights could be terminated under section 59(1) because no notice under section 53 had been given. However, the Board has noted previously in Kingston Terminal Restaurant, 60 CLLC ¶16,163 that the purposes of section 59(1) would not be served by requiring such notice in the presence of an automatic renewal clause:
The manifest object of section 38 is to facilitate or promote collective bargaining for the purpose of renewing or negotiating a new collective agreement. Here the parties, by mutual agreement, have, apart from this statutory provision, provided a means whereby, if neither gives notice to the other, the agreement shall be renewed without any further collective bargaining on their part. The construction of sections 38 and 43(1) [now sections 53 and 59(1)] urged by Counsel for the Applicant would override and nullify this. It would in effect require the giving of notice and participation in further collective bargaining to renew or modify an agreement, the renewal of which the parties have already provided for by other means, solely for the purpose of ensuring that such renewal would operate as a bar to an application by the company for termination of the Union's bargaining rights. This construction is manifestly repugnant to one of the major objects of the legislation which is to enchance industrial peace and stability in collective bargain. ing and would result in an absurdity.
Without plain and inexorable language in The Act in support thereof, this Board cannot accept the Applicant's interpretation of sections 38 and 43(1) [now sections 53 and 59(1)] as reflecting the true intent of the legislature. Under the circumstances of this case there was no obligation on the part of the Union to give notice under section 38 [now section 53].
Moreover, if the automatic renewal clause did not take the place of such notice, the protection it offers would be largely vitiated, since notice under section 53 would terminate the collective agreement, and lack of notice would trigger section 59(1), enabling the Board to terminate the union's bargaining rights. In Pinkerton's Canada Limited, [1986] OLRB Rep. June 818 the Board recently adopted Kingston Terminal Restaurant, supra.
We find it somewhat troubling that the UFCW can decline to apply the terms and conditions of a collective agreement to employees and at the same time raise that very agreement as a bar to the organizing attempts of another union. However, the evidence before us does not suggest that Mr. Mclvor and Mr. Beasly had terminated the collective agreement in its entirety. It was apparent both from Mr. Mclvor's testimony and his letters of February 14, 1986, that he was relying on Article 36 to continue the collective agreement in effect. His arrangement with Mr. Beasly amounted to a temporary suspension of many, if not most, of the collective agreement's terms and conditions, but there was no suggestion that the duration or the recognition clause had been amended, or that Article 36 was modified.
Thus, the 1983-1985 collective agreement constitutes a bar to the applications before us which are accordingly dismissed. We note in passing that whether or not notice is given in accordance with Article 36, an open period is provided by statute under section 57(2)(c) in several months.