[1989] OLRB Rep. November 1099
1766-89-U Caterpillar of Canada Ltd., Applicant v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) and its Local Union No. 252, Ted Murphy and members of the respondent Local Trade Union employed as salaried employees by Caterpillar of Canada Ltd., Respondents
BEFORE: R. O. MacDowell, Alternate Chair.
APPEARANCES: Daniel J. Shields, John Lyons and Jerry Brust for the applicant; L. A. MacLean, Ted Murphy, Earl D. Cooper and Fred Simpson for the respondents.
DECISION OF THE BOARD; November 3, 1989
I
1This is an application under section 92 of the Labour Relations Act. The applicant employer contends that certain of its office employees are engaging in an unlawful strike, and that the respondent trade union has called or authorized that strike. The employer further contends that officials of the union have counselled procured supported or encouraged the strike.
2This application was filed at the end of the business day on Thursday, October 19, 1989. In accordance with its usual practice, the Board abridged the time limits for filing material and expedited the hearing. The matter came on before me on Monday, October 23. At the opening of the hearing counsel for the employer indicated that the company sought no specific remedy against individual employees, but only a declaration that their strike was unlawful and a general cease and desist direction. The union argued, for various reasons (some of which are explored in more detail below) that the strike was not unlawful. At the end of the day, I gave a brief oral decision dismissing the complaint and indicated that a more formal written decision would follow.
II
3The argument proceeded on the basis of agreed facts which were either set out in parties' pleadings, or stipulated by counsel. The relevant facts are these.
4The company operates manufacturing facilities at 100 Sandalwood Parkway West in Brampton, Ontario and at 1550 Caterpillar Road in Mississauga, Ontario. The union is the bargaining agent for two bargaining units of the respondents employees: an hourly-rated "plant production" bargaining unit, and a separate office, clerical and technical bargaining unit.
5The collective agreement respecting the hourly rated production employees has expired, and conciliation was unsuccessful. The Minister of Labour did not consider it appropriate to appoint a conciliation board. On October 18, 1989 the hourly rated production employees commenced a legal strike which is still continuing. The office employees went out on strike on the same day. That strike, too, is continuing, and is the subject of the current application.
6The company does not complain about the conduct of the hourly rated production employees. The company contends that the office workers are on an illegal strike because they are still bound by a collective agreement which contains the following provisions:
"Except as otherwise expressly provided for in this Agreement, this Agreement shall become effective on the first day of the first pay period following its ratification by members of the bargaining unit and shall remain in effect through the later of the:
(a) September 30, 1989; or
(b) the 30th day following the effective date of the Agreement covering hourly employees at Caterpillar of Canada Ltd. represented by Local 252 (Certification 14158-68-R, dated October 21, 1968) to succeed the Agreement expiring on August 31, 1989.
In the event either party desires to modify or terminate this Agreement, it shall notify the other party in writing between July 1, 1989 and August 1, 1989. If neither party gives such notice, this Agreement shall run from year to year thereafter until notice of modification or termination is given between July 1 and August 1 in a given year."
The company maintains that there is, as yet, no plant agreement to replace the one expiring on August 31, 1989 - indeed, that is what the strike of production employees is all about - and that therefore the agreement binding the office employees is still in effect. That being so, any work stoppage is untimely and unlawful.
7The bargaining history is not disputed and is largely a matter of record.
8By letter dated June 13, 1989 a representative of the union gave the company notice of its intention to open negotiations for the renewal of the collective agreements in both the plant and office units. The union took the position that there should be joint negotiations with a view to concluding a collective agreement covering both units. The company resisted that proposal asserting that there were two bargaining units established by law, and that there should therefore be separate negotiations leading to separate agreements reflecting the situation in each unit.
9This bargaining posture by the company was a matter of concern to the trade union. In 1987 there had been a bitter strike involving the office employees, at a time when the plant workers were obliged to cross their fellow employees' picket line. The result was confrontation on the picket line and disciplinary action against members of both units. In the union's view, the company was maintaining its "divide and conquer" position in order to weaken the bargaining position of the office unit. Accordingly, in various ways, the union pressed its demand that the two bargaining units be dealt with together.
10As I have already mentioned, on June 13, 1989 the union gave written notice to bargain in respect of both bargaining units. It continuously demanded joint bargaining (which the company resisted) and submitted its proposals or replies, jointly, for both bargaining units. On July 14, 1989 it applied for conciliation in respect of both bargaining units, and the Minister of Labour responded by appointing one conciliation officer to deal with both units. Conciliation was unsuccessful, and by letter dated August 28, 1989 the Minister of Labour advised the parties that he did not consider it appropriate to appoint a Board of conciliation for either unit ("the no Board report"). Subsequently, the union conducted a strike vote in both units and by letter dated September 12, 1989 advised the company of the results. The union warned that there would be strike action as of "12:00 noon on October 18, 1989".
11There followed a telephone conversation between Mr. Murphy, a union representative, and Mr. Lyons, an official of the company. Murphy confirmed that strike action would indeed commence on October 18th, and that it would involve both the office and plant bargaining units. This telephone conversation was apparently in response to the company's letter of September 14, 1989 asserting that office employees were obliged to comply with the stipulated terms of their collective agreement. Accordingly, by at least September 15th, the company was aware that, regardless of the terms of the office workers' collective agreement, they were scheduled to go out on strike on October 18th. The company's view was repeated in a memo to office employees, dated October 17, 1989, in which the company reiterates that, in its opinion, the union and its members are not entitled to repudiate the terms of the article set out above. It knew that the union did not accept this position.
III
12Before turning to my conclusions in this matter it may be useful to briefly sketch in the statutory framework within which the parties' rights must be determined. As I observed at the hearing, this case is not particularly novel. It is not at all unusual for parties to "freely negotiate" (i.e. bowing to superior logic or bargaining power) collective agreement language which is inconsistent with the terms of the governing statute. To cite but a few examples: language which purports to allow employees, as a gesture of union solidarity, to refuse to cross a picket line (see King Paving, [1976] OLRB Rep. June 291, Associated Freezers of Canada Limited, [1972] OLRB Rep. May 445); language which purports to authorize a work stoppage in the event of a jurisdictional dispute (see Pigott Construction Company Limited, [1970] OLRB Rep. Mar. 1459); language which purports to allow employees, in concert, to refuse to perform "struck work" to support a sister trade union; (see Empress Graphics Ltd., [1989] OLRB Rep. June 587) provisions purporting to permit "contract re—opener" on one or more issues with resort to a strike prior to the nominal expiry of the collective agreement (see Kroehler Mfg. Co., [1976] OLRB Rep. Sept. 525; and so on. In each of these cases, language favourable to trade union or employee interests was held to be inconsistent with the terms of the Labour Relations Act. The context of the instant case is somewhat novel, but the problem is not.
IV
13It is trite to say that, at common law, a "collective agreement" had no legal recognition. It was not a "contract", nor was the trade union a "person" or other entity recognized by law. Indeed, it is not a "contract" today, and cannot be the subject of an action in the Courts. A collective agreement, therefore, has such characteristics, requirements, or limitations, as the statute provides. Those provisions of the statute to which particular reference will be made are as follows:
1.-(1) In this Act,
(e) "collective agreement" means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees, and includes a provincial agreement;
52.-(l) If a collective agreement does not provide for its term of operations or provides for its operation for an unspecified term or for a term of less than one year, it shall be deemed to provide for its operation for a term of one year from the date that it commenced to operate.
(2) Notwithstanding subsection (I), the parties may, in a collective agreement or otherwise and before or after the collective agreement has ceased to operate, agree to continue the operation of the collective agreement or any of its provisions for a period of less than one year while they are bargaining for its renewal with or without modifications or for a new agreement, but such continued operation does not bar an application for certification or for a declaration that the trade union no longer represents the employees in the bargaining unit and the continuation of the collective agreement may be terminated by either party upon thirty days notice to the other party.
(3) A collective agreement shall not be terminated by the parties before it ceases to operate in accordance with its provisions of this Act without the consent of the Board on the joint application of the parties.
(4) Notwithstanding anything in this section, where an employer joins an employers' organization that is a party to a collective agreement with a trade union or council of trade unions and he agrees with the trade union or council of trade unions to be bound by the collective agreement between the trade union or council of trade unions and the employers' organization, the agreement ceases to be binding upon the employer and the trade union or council of trade unions at the same time as the agreement between the employers' organization and the trade union or council of trade unions ceases to be binding.
(5) Nothing in this section prevents the revision by mutual consent of the parties at any time of any provision of a collective agreement other than a provision relating to its term of operation.
[emphasis added]
I will not burden these reasons with the reproduction of sections 5, or 57 of the Act, although they too, will be referred to briefly below.
14A collective agreement must be in writing. It must clearly set out the terms to which the parties have agreed (section 1(1)(e)). But those terms are not entirely within the parties' control. There must be a recognition clause (section 41 of the Act) and a "no strike clause" (section 42 of the Act), and if a trade union demands a dues deduction clause, it too must be included. There must also be an arbitration clause complimenting the no strike obligation (section 44).
15Pursuant to section 52 of the Act the collective agreement must have a minimum term of operation of at least one year, and if it does not, the statute "deems" that it will be in force for one year. Pursuant to section 52(3) the collective agreement cannot be terminated even by the parties that negotiated it, before its stipulated term of operation, without the consent the Labour Relations Board on their joint application. In other words, the very parties who negotiated the collective agreement in a framework of "free collective bargaining", cannot terminate it early.
16Section 52(1) requires a minimum term of one year to provide a degree of stability to the collective bargaining relationship. It requires a "specific" term so that any employee wishing to change bargaining agents or terminate bargaining rights will be able~ by merely looking at his collective agreement, to determine when this can be done. The requirement for a specific term is necessary to give practical affect to the employees' right to change or reject their bargaining agent. Similarly, the collective agreement cannot be terminated early without the consent of the Board, because this might foreclose the "open period" when representation questions can be raised. That is why the Board will not grant its consent for early termination of a collective agreement until it is satisfied that no employees are seeking to exercise that option.
17The rather stringent requirement for a specific term of not less than one year is tempered by section 52(2) of the Act. The Legislature has recognized that, in many cases, it may be useful for the bargaining parties to extend the terms of their collective agreement while they are bargaining for a new one. Such extension may be effected "in a collective agreement or otherwise and before or after the collective agreement has ceased to operate". The collective agreement itself can provide for its own extension while bargaining is ongoing, but there are three qualifications:
such extension cannot last for more than one year;
such extension cannot be a bar to a certification application by another trade union or an application for the termination of bargaining rights; and
such extension may be terminated upon 30 days notice by either the trade union or the employer.
18The Legislature has recognized the utility of these extension arrangements, but has limited their maximum term of operation and has provided a kind of "escape clause" permitting either party to bring the extension arrangement to an end upon 30 days notice to the other; moreover, it is not without significance that the underlined portions of section 52(2) were added shortly after the release of the Divisional Court's opinion in Hotel and Restaurant Employees and Bartenders International Union, Local 197 v. Wentworth Arms Hotel Limited et al, 75 CLLC ¶14268 which canvassed a number of alternative interpretations of then section 44, the predecessor of section 52. It is also interesting to note that when this case eventually made its way to the Supreme Court of Canada the majority opinion expresses concern about the possibility of a perpetual extension, eliminating the right to strike forever, and the concurring judgement expresses concern about the ability of the parties, in their initial collective agreement, to provide for an indefinite extension. Both concerns were eliminated by the statutory amendment. The parties can provide in their agreement for its own extension, but such extension is limited to one year and terminable on 30 days notice.
V
What does article 25 mean? It seems to me that the language is clear and unambiguous. The parties have agreed that the collective agreement for the office workers will terminate either on September 30, 1989 or 30 days after the effective date of the new agreement with the plant workers whichever is later. The parties have devised the formula which ensures that the office workers will never be in a strike position at the same time as the plant employees and that, probably, the office agreement will only be finalized after the agreement with the plant. This reading is consistent with both the language of article 25, the parties' bargaining history, and the employer's current stance. However, it does not necessarily follow that the objective which the employer has sought to achieve is possible within the statutory framework to which all collective agreements must adhere.
19Counsel for the union argues that when section 52(2) and article 25 are considered in light of the Supreme Court of Canada decision in the Wentworth Arms case ([1979] CLLC ¶14189), I must conclude that article 25(b) is illegal and void, leaving only 25(a) governing the termination of the collective agreement. If that is so, the strike is legal because, by October 18, the office group had satisfied the statutory requirements: they had gone through conciliation, received a "no Board report", and there was no collective agreement in existence. In the alternative, the union contends that the company received adequate notice to terminate the agreement in accordance with section 52(2) of the Act.
20I have read with interest the various Wentworth Arms decisions in the Divisional Court, Court of Appeal, and Supreme Court of Canada, and have noted the conflicting views expressed by judges at all levels as to the meaning of the collective agreement there under review, and its relationship to the then existing provisions of the Labour Relations Act. However, since the Legislature immediately amended the statute to address the concerns ultimately enunciated in the Supreme Court of Canada, I am not at all convinced that its decision is very helpful. It seems to me that this case can be resolved on much narrower grounds based upon an interpretation of section 52(2) as it now is.
21The employer in this case has sought, for tactical reasons, to separate the bargaining of its office and plant employees. It insists that because they are separate bargaining units, there must be a separate bargaining process leading to separate collective agreements. To buttress that position, it was able, through the exercise of its bargaining power, to achieve a clause in the office agreement which, on its face, makes it more difficult to engage in any form of joint or coalition bargaining, and rules out the possibility of joint strike action.
22But the formula that the employer embraced must be consistent with the Labour Relations Act and it clearly involves (as counsel for the employer concedes) reference to section 52(2) of the Act. The application of article 25(b) entails not only the possibility, but also the real likelihood - verified by the situation here - of a collective agreement with an indefinite term. That, in my view, triggers not just section 52(2) upon which the employer relies, but also the "escape clause" which the Legislature provided by its amendment in response to the Divisional Court decision in Wentworth Arms Hotel. The "escape clause" in the statute provides that even if the bargaining parties have entered into an extension arrangement for an indefinite term, that arrangement may be terminated by either of them on 30 days notice. The term "notice" is undefined.
23Section 14 of the Act refers to written notice to bargain. Likewise, section 53(1) contemplates "notice in writing" of a desire to bargain with a view to renewal of a collective agreement. Section 52(2) speaks merely to "notice". I conclude, therefore, that all that it is required is 30 days actual notice that a bargaining party no longer wishes to be bound by a previously agreed to extension arrangement. That right is a reciprocal. The union and employer both have the right to repudiate their temporary truce and return to a regime of free collective bargaining where either of them can resort to economic sanctions if the statutory conciliation process has been completed.
24In my view, that is what has happened here.
VI
25In the instant case, the union, despite the company's opposition, took the position that there should be joint bargaining and a fusion of bargaining units. Bargaining demands were submitted together. The union sought conciliation at the same time and a common conciliation officer was appointed. A "no Board" report was issued on the same day for both bargaining units. The union notified the employer that a strike vote would be taken, at approximately the same time, in both bargaining units. It was. The employer was also notified, specifically, by September 15, that both units would go on strike on October 18.
26It is clear from the events and the company's correspondence, that while the company was insisting upon the application of article 25(b) to the office group, the union was repudiating any extension of the office workers' collective agreement or any purported bar to the employees' right to strike. The telephone conversation from a union official verifying this position, was made in response to a letter from the company restating its position that the extension agreement prohibited strike action. There can be no doubt, therefore, that the company had more than 30 days notice that the union was rejecting, repudiating, or terminating the extension arrangement contemplated by article 25(b).
27Counsel for the employer argues that there must be an express written submission from the union, unequivocally indicating, pursuant to section 52(2), that it is terminating the extension arrangement to which it had previously agreed. However, I do not think the statute requires such formality - however desirable it might be. In my view, it is sufficient if, upon 30 days notice, the union conveys a clear and unequivocal intention to terminate the effect of any extension agreement which may be outstanding. That is certainly what happened here.
28For the foregoing reasons, I conclude that the company had notice of the union's intention to terminate the extension provided in article 25(b) and that the extension or "bridge" agreement was terminated, by October 18, 1989. Having completed the statutory conciliation process and received a "no Board" report, the office employees were entitled to engage in a lawful strike.
29This application is therefore dismissed.