United Food and Commercial Workers International Union, Local 175 v. Canton - East Ferris - Township

[1988] OLRB Rep. September 866

0146-88-U; 048 1-88-R United Food and Commercial Workers International Union, Local 175, Complainant v. Canton - East Ferris - Township, Respondent v. Robert R. Voyer, Intervener; Mr. Robert R. Voyer, Applicant v. United Food and Commercial Workers International Union, Local 175, Respondent

BEFORE: S. A. Tacon, Vice-Chair, and Board Members R. W. Pirrie atid R. Montague.

APPEARANCES: Harold F. Caley and Jim Crockett for the complainant in Board File No. 0146-88-U and for the respondent in Board File No. 0481-88-R; Robert R. Voyer on his own behalf as intervener in Board File No. 0146-88-U and as applicant in Board File 0481-88-R; C. C. White and F.B. Claridge for the respondent in Board File No. 0146-88-U;

DECISION OF THE BOARD; September 21, 1988

1. In a decision dated July 4, 1988, the Board (differently constituted in part) recorded its oral ruling, inter alia, that the section 89 complaint be heard first when the hearing was to be reconvened on August 18,1988.

2. Accordingly, on that date, the Board heard the evidence and representations of the parties with respect to the section 89 complaint (Board File No. 0146-88-U) and, as well, with respect to the potential impact on the termination application (Board File No. 0481-88-R) of the Board's disposition of that unfair labour practice complaint. Having weighed and assessed the testimony, in the context of the usual factors going to credibility, the documentary evidence and what is reasonably probable in the circumstances, the Board makes the following findings of fact.

3. The complainant, the United Food and Commercial Workers International Union, Local 175, ("the union"), was certified on April 9, 1987. The parties entered negotiations and held a series of bargaining sessions. Representing the union were J. Crockett (regional director and chief negotiator), Bill Richardson (a union official) and V. Guillemette (a bargaining unit member). The employer bargaining committee comprised F. Claridge (town clerk), W. Vrebosch (mayor), D. Sanders (councillor) and W. Hotten (consultant hired as chief negotiator). At a conciliation meeting on October 9, 1987, the bargaining committee reached a tentative settlement. The employer called a special meeting of the town council and, subject to the insertion in the text of certain matters also agreed to by the bargaining committees, passed a resolution accepting the terms of the collective agreement to be effective from October 27, 1987 to October 26, 1989. For its part, the union convened a ratification meeting at which the tentative agreement was reviewed. This contract, however, was rejected on a secret ballot vote by a five to one margin. Several concerns were raised by the membership including the inclusion of a part-time employee (R. Perron) on the recall rotation schedule~ an additional statutory holiday, the rate bargaining unit members were to be paid if recalled on rotation to the position of "wing-man" arid the inclusion in the bargaining unit of the arena supervisor (R. Voyer) and the roads supervisor (R. Boudreau). To elaborate briefly on the latter issue, the union had accepted the employer's position that the two supervisors should be in the bargaining unit to enable them to continue to perform their usual duties, given the size of the bargaining unit and the employer's limited financial resources. Apparently, the two supervisors in question (Voyer and Boudreau) attended the ratification meeting and were permitted to vote on the proposed contract.

4. Following the meeting, Crockett informed Claridge by telephone that the membership had rejected the tentative agreement. The parties resumed negotiations and, on January 4, 1988, again reached a tentative settlement which added another statutory holiday. As well, the letter of understanding resolved the recall rotation status of R. Perron and the wage rate for recall to the position of wing-man on the basis desired by the membership.

5. The union negotiating committee recommended acceptance of the collective agreement at a meeting on January 27, 1988. In Crockett's view, the agreement addressed the members' earlier concerns except with respect to the inclusion of the two supervisors. In that regard, Crockett reiterated his view that it was realistic and reasonable to accept the employer's position that those two persons should be included in the unit in the circumstances. At that meeting, a new issue was raised by the members. That is, it appeared the members now wanted to base recall from layoff on seniority rather than rotation, contrary to their earlier view. Crockett explained that the union could not return to the bargaining table with an entirely novel proposal without violating its duty to bargain in good faith. Further, Crockett indicated that, as matters now stood, the membership could either ratify the agreement or reject the deal on the basis that the rejection also amounted to a vote to strike. The ballot, therefore, gave two options: accept the employer's offer or reject the offer and strike. The vote was again by secret ballot. R. Perron was not permitted to vote in the (mistaken) belief that the amendments to the collective agreement excluded her from the bargaining unit entirely rather than just the recall rotation schedule. The result was four against and one for acceptance. At this point, Crockett stated he would return the following week with picket signs and such like and a legal strike would be commenced. Discussions became somewhat heated. Voyer and Boudreau left the meeting. Crockett continued to speak with the remaining bargaining unit members as to why the offer had been rejected.

6. It should be noted that Crockett also met prior to the scheduled start of the January 27th meeting with Guillemette and two brothers in the bargaining unit (R. Champagne and D. Champagne) to explain, in the absence of the supervisors, the rationale for the inclusion of the supervisors in the bargaining unit. Crockett emphasized that, if the supervisors tried to take advantage of another bargaining unit member by using their supervisory position, the member could seek redress from the executive board of the union for such improper conduct by one member against another.

7. The following morning, Claridge was telephoned by Crockett and told the contract had again been rejected and the apparent reasons for that rejection. Crockett also indicated that, after consulting with other union officials, he would get back to Claridge as to the next step. Shortly following the membership meeting, the union received a letter dated January 28, 1988 signed by five of the six bargaining unit members (including R. Perron) raising several concerns and emphasizing that they would neither go on strike nor accept any collective agreement presented by the union. Only Guillemette did not sign the letter. Faced with the prospect of a refusal to either strike or accept an offer, the executive board was authorized by the international president to decide whether to accept or reject the final offer, pursuant to Article 23(D)(6) of the International Constitution. By letters dated February 26, 1988, the union informed all bargaining union members that the union would be accepting the collective agreement. The employer was also informed of the union's decision in a letter of the same date. The employer replied in writing on March 29, 1988 that it would not ratify the contract at that time given that it was unaware of the union's constitutional provisions purportedly allowing for ratification without membership approval and given its concern over the contents of the January 28th letter sent to the union by all but one of the bargaining unit members (and copied to the employer). The union did not conitact the employer following this letter (copies of the finalized collective agreement had been forwarded to the employer on March 15, 1988 for signature.) Rather, the instant complaint was filed on April 18th. It is useful to hear note the termination application was filed on May 18th.

8. The Board next states the representations of the parties in a highly abbreviated form.

9. Counsel for the complainant union reviewed the evidence to support his assertion that the respondent had violated sections 15 and 64 of the Act in refusing to execute the collective agreement. In short, it was argued that the January 28th letter from the bargaining unit members to the union was not the "employer's business". Neither the matters raised in that letter nor the provisions of the union's constitution justified the refusal to sign the collective agreement. Counsel also reviewed the relevant jurisprudence dealing with ratification of collective agreements in the context of the bad faith bargaining and interference with a trade union: The T. Eaton Company Limited, [1985] OLRB Rep. Aug. 1309; K-Mart Distribution Centre, [1981] OLRB Rep. Oct. 1421; Lilo Rail of Canada Limited, [1983] OLRB Rep. Sept. 1496; Wilson Automotive (Belleville) Ltd., [1980] OLRB Rep. Sept. 1337; Municipality of Casimir, Jennings & Appleby, [1978] OLRB Rep. June 507; Fotomat Canada Limited, [1981] OLRB Rep. Feb. 145; Saville Food Products Inc., [1986] OLRB Rep. Apr. 552; Nortec Air Conditioning Industries Ltd., [1988] OLRB Rep. Feb. 179; Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138; Corporation of the City of Thunder Bay, [1983] OLRB Rep. Oct. 1722; Sparton of Canada Limited, [1985] OLRB Rep. Sept. 1420; Selinger Wood Limited,, [1980] OLRB Rep. Nov. 1688; Treco Machine & Tool Limited, [1982] OLRB Rep. Dec. 1954.

10. Counsel for the respondent employer also reviewed the evidence and asserted the facts did not support a finding of a breach of section 64 of the Act. With respect to the section 15 duty to bargain in good faith, it was argued that the ostensible refusal to execute the collective agreement in Claridge's letter of March 29th was not a prima facie breach of that duty but, rather, a request for clarification to which the union did not respond. Counsel stressed the unique circumstances for this case, in his view, namely, the January 28th letter from the bargaining unit members to the union, the small size of the bargaining unit, the decertification application and the tone of the employer's letter of March 29th itself. Counsel acknowledged that his assertion amounted to a departure from the jurisprudence but contended that departure was warranted in this instance. In the alternative, it was asserted that the remedial relief should comprise only a declaration of a breach of section 15 and any direction to execute a collective agreement should not operate so as to render the termination application untimely. With regard to this latter issue, counsel referred to: North American Plastics Co. Ltd., [1969] OLRB Rep. Sept. 797; Rock Haven Motels (Peterborough) Limited, [1980] OLRB Rep. Aug. 1240.

11. R. Voyer, the applicant in the termination application who participated in the section 89 complaint as an intervener, agreed with the respondent counsel's submissions that the termination application should proceed even if the Board found a violation in the section 89 complaint.

12. In reply, union counsel distinguished the cases cited by the respondent, asserting the Treco Machine case, supra, had dealt with the question of the impact on a termination application filed, as here, subsequent to a section 89 complaint of a finding of bad faith bargaining. That is, counsel argued the termination application should be dismissed as untimely should the Board uphold the section 89 complaint and direct execution of the contract.

13. The issue of ratification votes has not infrequently arisen in Board proceedings. In dealing with that question, the Board has recognized that ratification votes, while not uncommon, are not mandatory under the Labour Relations Act. The Board has found that an employer's insistence on such votes fails to recognize the union's role as the sole and exclusive bargaining agent of the employees in the bargaining unit and, thus, contravenes section 15 of the Act: The T. Eaton Company Limited, supra; Wilson Automotive (Belleville) Ltd., supra; Fotomat Canada Limited, supra; Northwest Merchants, supra; Treco Machine Tool Limited, supra; Nortec Air Conditioning, supra. Even if a ratification vote is held, the union is not bound by that result: The T. Eaton Company, supra; K-Mart Distribution Centre, supra. Moreover, in testing the wishes of the employees, the union is entitled to characterize the question as either a vote for acceptance of the employer's offer or a vote to reject that offer and to strike: Lilo Rail of Canada, supra. The Board affirms the reasoning in those cases but does not regard it as necessary to set out the relevant passages hereto.

14. In the instant case, it was not disputed that the two negotiating committees had resolved all matters in dispute between them in January 1988. The respondent did not argue that there was any further conduct needed in the nature of "ratification" of the contract on the part of the employer given the town council resolution of October 1987. For its part, the union negotiating committee agreed to recommend the contract to the employees. In Crockett's opinion, there was "no where else to go in negotiations", the employees should either accept the deal or strike. As noted earlier, there was nothing improper in characterizing the ballot as "acceptance" or "rejection and strike". The result of the strike vote (four to one rejecting the offer) coupled with the sentiments expressed in no uncertain terms in the January 28th letter meant the union was faced with a bargaining unit which refused to ratify a contract but also refused to strike. Relying on the provisions in its constitution, specifically Article 23(D)(6), the union decided to accept the contract. It was not asserted the union failed to act in accordance with the terms of Article 23(D)(6) in reaching its decision and notifying the employer on February 26th that the contract was accepted. In the Board's view, the employer was not justified in refusing to execute the collective agreement on the grounds set out in its letter of March 29th. In the context of the jurisprudence, that refusal amounted to a violation of a duty to bargain in good faith. An employer is not entitled to avoid its obligations to execute a collective agreement by raising concerns about the wishes of the employees in the bargaining unit or the provisions in the union's constitution regarding ratification and/or acceptance/rejection of tentative settlements. Both concerns undermine the union's role as sole and exclusive bargaining agent by insinuating the employer into the relationship between the union and those it is entitled, and obliged, to represent. The Board is not persuaded that the facts of the instant case warrant a departure from the reasoning in the cases noted earlier. Thus, the Board finds the employer has contravened section 15 of the Act.

15. The Board next considers the relief appropriate to that violation. In addition to a declaration, the Board directs the respondent formally execute the collective agreement agreed to by the parties. This direction does not constitute the imposition of a collective agreement but, instead, recognizes what the parties have themselves negotiated: Fotomat Canada, supra; Treco Machine & Tool, supra. In the instant case, as noted, there is no doubt that bargaining had concluded nor is there any doubt as to what terms and conditions had been agreed to by the employer and the union: Sears Canada Inc., [1986] OLRB Rep. Aug. 1159; Mississauga Hydro Commission (1984), 1984 CanLII 5126 (ON LA), 17 L.A.C. (3d) 299 application for judicial review dismissed June 21, 1985; Canteen of Canada Ltd. (1984), 1984 CanLII 5278 (ON LA), 15 L.A.C. (3d) 305; Graphic Centre (Ontario) Inc., [1976] OLRB Rep. May 221. Where one party improperly refuses to formally execute a collective agreement, the Board has directed such execution: Treco Machine & Tool, supra; Fotomat Canada, supra; Wilson Automotive (Belleville), supra; Municipality of Casimir, Jennings and Appleby, supra; Landmark Motor Inn (Board File 2342-87-U unreported August 2, 1988).

16. The respondent and intervener asserted that any direction to execute a collective agreement should not operate to bar the termination application as untimely. The Board does not consider the cases cited by counsel for the respondent (North American Plastics, supra; Rock Haven Motels, supra) as useful, at the very least, in view of the timing of the bad faith bargaining complaint in relation to the filing of the termination application in the instant case. In contrast, the analysis in Treco Machine & Tool, supra, implies that a successful bad faith bargaining complaint which results in a direction to execute a collective agreement would create a bar to a termination application filed after the section 89 complaint.

17. The Board is satisfied that, had the respondent not refused to execute the collective agreement on receipt of the union's written notification on February 26, 1988 of its acceptance of the contract, the collective agreement, effective from October 27, 1987 to October 26, 1989, would have been executed and in force in February of 1988, well in advance of the filing of the termination application. That is, the termination application would be barred as untimely by operation of statute. An opportunity to test the union's representation rights should not be created by virtue of the respondent's unlawful conduct where no such opportunity would otherwise exist within the statutory scheme. Such a result is neither consonant with the statutory scheme nor with sound labour relations policy. At the time that the collective agreement would have been formally executed but for the respondent's unfair labour practice, the trade union was acting as the duly authorized bargaining agent of the employees in the bargaining unit. That collective agreement, by virtue of section 50 of the Act, would have bound the employer, the trade union and the employees in the bargaining unit.

18. The Board possesses a broad remedial authority under section 89(4) to fashion "make whole" remedies which effectively return the parties to the position they would have been in had the unlawful conduct not occurred: Radio Shack, [1979] OLRB Rep. Dec. 1220 upheld 80 CLLC ¶14,017 (Ont. Div. Ct.), application for leave to appeal to the Court of Appeal refused March 10, 1980. To do less than this would provide a strong incentive to breach the Act. In the instant case, such a "make whole" remedy consists of a Board direction that the employer formally execute the collective agreement composed of those terms and conditions to which it had indisputably agreed and to make that collective agreement binding as of February 9,1988 when it would have been binding had the employer not violated its obligations under section 15 of the Act. [The undisputed duration of the collective agreement is October 27, 1987 to October 26, 1989.] The consequent effect of the "make whole" remedy which would restore the employer and the bargaining agent of the employees in the bargaining unit to the position that would have existed "but for" the unlawful conduct, is that the termination application is untimely under section 57 of the Act. Another effect of the Board's remedial direction is that the employees in the bargaining unit are entitled to the benefits of the collective agreement negotiated by their bargaining agent.

19. In view of the Board's findings with regard to section 15 of the Act, it is not necessary to consider separately the remaining allegations, particularly, that section 64 was likewise violated.

20. Having regard to the foregoing, the Board:

(a) declares that the respondent breached the section 15 duty to bargain in good faith by refusing to execute the aforementioned collective agreement when notified of the union's acceptance;

(b) directs the respondent to formally execute and implement forthwith the aforementioned collective agreement and further directs that the collective agreement shall have binding effect under section 50 of the Act as of February 26, 1988, and that its duration shall be from October 27, 1987 to October 26, 1989 (as agreed by the parties);

(c) dismisses the termination application (Board File No. 0481-88-R).

21. The Board remains seized in the event any dispute arises over the interpretation or implementation of the Board's order.