[1990] OLRB Rep. March 262
1213-89-U; 1224-89-U; 1225-89-U; 2034-89-U Prosper Brizzard, Richard Brizzard, Robert Casson, Richard Koski, David Jaggard, Manfred Krause, Robert Krause, David Ross, Aulius Tiitto, Darrell Westover, Raynard Jacobson, Bruce Nordstrom and Larry Jaggard, Complainants v. Wilf McIntyre, Fred Miron, Roland Frayne, Niels Husman, Larry Duhaime and International Woodworkers of America - Canada Local 2693, Respondents; Gravel and Lake Services Limited, Applicant v. Roland Frayne, Neils Husman and Larry Duhaime, Respondents; Gravel and Lake Services Limited, Applicant v. International Woodworkers of America - Canada Local 2693, Respondent; Gravel and Lake Services Limited, Applicant v. International Woodworkers of America - Canada Local 2693, Fred Miron and Wilf McIntyre, Respondents
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members R. M. Sloan and D. Patterson.
APPEARANCES: Paul Gordon, David Jaggard and Darrell Westover for the complainants in Board File No. 1213-89-U; F.J. W. Bickford, Y. Fricot and Paul LeCuyer for the applicant in Board File Nos. 1224-89-U; 1225-89-U and 2034-89-U; D. Dubinsky and Fred Miron for the respondents International Woodworkers of America - Canada Local 2693.
DECISION OF THE BOARD; March 5, 1990
Ostensibly, these matters are being heard together. However, on agreement of the parties, the Board is first inquiring into the complaint in Board File No. 2034-89-U. Accordingly, it is probably technically more accurate to say that these matters are being heard consecutively.
In Board File No. 2034-89-U, the complainant employer alleges that a strike engaged in by its employees is unlawful. This strike began in April 1989. In October 1989, the complainant requested a "final offer" vote under section 40 of the Labour Relations Act. The complainant asserts, in essence, that those of its employees in the bargaining unit represented by the respondent trade union voted to accept its "final offer" and that the respondent trade union has failed to sign a collective agreement reflecting that "final offer", but has instead continued with its strike. The complainant asserts that the respondent's actions constitute unlawful strike activity prohibited by the Labour Relations Act.
In the course of the second day of hearing, the respondents for the first time challenged the Board's jurisdiction to deal with any voter eligibility questions arising out of the section 40 vote taken in this case. On hearing the representations of the parties, the Board ruled (orally) that it does have the authority to determine, within the context of the complaint before it, the affected bargaining unit and employees in it for purposes of the vote conducted under section 40 of the Labour Relations Act. The Board's reasons for so ruling follow.
Section 40 of the Labour Relations Act provides that:
40.-(1) Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of such employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on such terms as he considers necessary direct that a vote of such employees to accept or reject the offer be held and thereafter no further such request shall be made.
(2) A request for the taking of vote, or the holding of a vote, under subsection (1) does not abridge or extend any time limits or periods provided for in this Act.
The respondents assert that because a vote under section 40 is directed by the Minister upon such terms as the Minister considers necessary, only the Minister can deal with questions involving voter eligibility.
Section 40 could be interpreted in the manner suggested by the respondents. The legislature has chosen to stipulate that it is the Minister who has the power to direct the taking of a final offer vote under section 40 and to establish any terms with respect thereto. The legislature could have used the word "Board" in every place where it used the word "Minister". It chose not to do so. We also observe that section 107(1) of the Act permits the Minister to refer certain questions in respect of his powers under sections 16, 44(4) and 45(1) of the Act to the Board (see also section 139 of the Act which enables the Minister to refer certain questions with respect to designations thereunder to the Board). There is no similar provision with respect to section 40. Indeed, there is nothing in the Act which specifically addresses the manner in which issues arising out of an employer's request under section 40 are to be dealt with.
Is the Board precluded from inquiring into the conduct and result of a vote held pursuant to section 40? We are unaware of any other case in which the Board's jurisdiction to deal with questions arising out of such a vote, in the context of a complaint or application before it, has been challenged and determined.
The Board first considered section 40 of the Act in Canada Cement Lafarge Ltd., [1980] OLRB Rep. Nov. 1583. There, the Board was faced with complaints from both the employer and the two trade unions involved. The employer's complaint included an allegation that the trade unions had, by failing to abide by and act in accordance with the outcome of the vote (that is, by failing to sign a collective agreement reflecting the "final offer" which had been voted on), failed to bargain in good faith as required by what is now section 15 of the Act.
Section 40 does not itself prescribe the consequences which will flow from a vote conducted under it. As an extraordinary procedure which has been injected into the normal collective bargaining process, the consequences of a section 40 vote will depend on the circumstances. In that respect, one must first consider, as the Board did in Canada Cement Lafarge Ltd., supra, how section 40 fits into the scheme of the Act and, more specifically, how it interacts with other provisions in the legislation. In Canada Cement Lafarge Ltd., supra, for example, the Board considered the effect of a section 40 vote juxtaposed with the duty to bargain in good faith. The Board determined that what consequences flow from a section 40 vote, for purposes of a complaint brought before the Board, will depend on the circumstances surrounding the vote as well as the vote result itself:
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We are satisfied that this section is not simply a method by which an employer can sample employee opinion with no legal effect on the trade union. It is our view that the wording of the section makes it abundantly clear that a vote in favour of accepting a last offer creates, in the usual case, the basis upon which a binding agreement between the employer and trade union is to be entered into. When the effect of the vote has been properly recorded in the form of a collective agreement, the officials of the trade union are obligated to execute the document. The failure to execute the agreement may constitute a violation of section [15] which can be remedied by the Board on the filing of a complaint under section [89] of the Act. However, we emphasize the qualification "in the usual case" because there may be circumstances where a trade union would be justified in refusing to submit to the results of a vote. For example, if a vote has been influenced by improper or illegal conduct of an employer, it would be patently silly to conclude that the trade union is violating section [15] by continuing to negotiate and refusing to submit to an outcome that does not represent the true wishes of the employees in the affected bargaining unit. Or a last offer may appeal to the majority of bargaining unit employees and, yet, be in blatant violation of the trade union's duty under section [68] because of the invidious treatment of a minority of employees.
A similar but much more difficult situation may arise where the outcome of the vote has been clearly influenced by the segregated ballots cast by a large number of strike replacement employees. If the vast majority of the employees in the bargaining unit who are employed at the commencement of the strike have, however, voted to reject the last offer and to continue their strike, it would be counter-intuitive, in an industrial relations sense, to conclude that the trade union is automatically bound by the wishes of employees it does not really represent. Indeed, the employer's offer in such circumstances might even contain terms which are very damaging to the trade union as an entity, i.e. see Wilson Automotive (Belleville) Ltd., [1980] OLRB Rep. July 1136 where an employer's offer contained a demand that the trade union compensate it for losses sustained during a strike. Whether the trade union is obligated to submit to the balloting in these kinds of situations may well depend on the duration of the strike at the time of the vote and other important industrial relations facts. Quite different approaches may also be needed where the employer and trade union have agreed at the outset of negotiations to multi-plant negotiations or other format conditions of bargaining. All of the above, therefore, are useful examples by which to illustrate that a collective agreement need not automatically follow an affirmative vote in a bargaining unit to accept an offer and that section [15] must be applied in light of accepted principles of collective bargaining. As will be elaborated below, the section is intended to end industrial conflict and cannot be used as a vehicle to achieve some destructive aim wholly inconsistent with the overriding purposes of the statute.
But with all this talk of "majority" and "minority", it is important to emphasize that section [40] does not itself stipulate that the outcome of a vote is that opinion attracting "more than 50 percent of the ballots cast" as does, for example, section 7(4). In the facts at hand we are prepared to define the outcome in this way because the Minister did not direct otherwise and because there is no industrial relations consideration in this case which would support a definition of the outcome in terms other than a simple majority. In fact, although the International's constitution speaks only in terms of members instead of employees, it too requires a simple majority to ratify a collective agreement. See Article 18, section 3 and see section 63[(5)] of The Labour Relations Act.
This then brings us to CCL's section [151 complaint and a consideration of whether the trade union [sic] (International and Local 368) was justified in refusing to execute the tendered collective agreement. What ought the Board's role be in disputes of this kind and, more particularly, what standard of review ought to be applied to pre-vote communications and propaganda, if any? We must also inquire whether the trade union's constitution and the related refusal of approval by the International Vice-President constitute a justification for the trade union's refusal to submit to the outcome of the section [40] vote. Turning to the first issue, CCL's counsel submitted that a "hands-off" policy was the appropriate posture for the Board to take or, at most, the Board's involvement should be limited to obviously unlawful acts or communications. Counsel for the trade union, on the other hand, submitted that the standard of review ought to be as rigorous as that applied in representation elections. It was his submission that, for older employer [sic] with substantial years of service, a threatened plant closing can be every bit as coercive as the kind of conduct that is often censured by this Board in the context of organizing campaigns and representation votes.
We are of the view that the Board ought to adopt a position drawing from both of these submissions and that our jurisdiction to do so flows from sections [15] and [891 of The Labour Relations Act. The event of a last offer vote has legal significance to both parties in light of their respective rights and duties under section [15]. Such a vote occurs in the context of collective bargaining negotiations and, thus, falls under the Board's general regulatory provisions pertaining to the negotiation process. Presumably, no more specific enforcement provision was thought necessary or wise because of the great variety of situations possible and because of the inevitable inter-relationship of section [15] in all such cases. Section [15] provides:
The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.
This section, therefore, constitutes an important vehicle for regulating the conduct of the parties in the context of a section [40] vote as it has assisted in related situations. See Municipality of Casimer, Jenning, and Appleby, supra; Noranda Metals Industries, supra. We would also observe that the Minister could, in his direction, stipulate certain ground rules for a section [40] vote and rules such as a 48 or 72 hour 'silent period" before the vote might well be useful. But clearly, in the absence of Ministerial guidance, this Board cannot take the position that no standard of review is proper. Pre-vote conduct or communications involving coercion, intimidation, threats, or undue influence can undermine the reliability of a directed vote and cannot be tolerated or have been intended. To require the trade union to execute a collective agreement where an employer has engaged in such conduct would simply contribute to the illegality and reward the wrongdoer. On the other hand, the collective bargaining process is that times highly charged with emotion and centres on economic conflict or the threat thereof. In many situations, the very survival of the parties can be at stake and in all instances it embraces an admixture of pr ssure and persuasion. The complex role of tactic in bargaining through the use of threats, persuasion and public commitment [sic] lies at the centre of the bargaining process. See Schelling The Strategy of Conflict (1960); Walton and McKersie, A Behavioural Theory of Labour Negotiations (1965); Stevens, Strategy and Collective Bargaining Negotiations (1963); Brown, Interest Arbitration, Study No. 18, Task Force on Labour Relations (1970); Sanderson, The Art of Collective Bargaining, (1979).
Of course, in order to dispose of a matter brought before the Board in which the material circumstances include a section 40 vote, the Board must know what those material circumstances, including the vote result, are. In Canada Cement Lafarge Ltd., supra, the result of the vote (i.e., the ballot count) was not a fact in dispute. In the complaint in Board File No. 2034-89-U, both the vote result and the effect it should have are in issue.
- There were 94 ballots cast in the section 40 vote in question in this proceeding. Of these, 14 were cast in favour of accepting the complainant's "final offer" and 80 were cast against it. However, the right to vote of all but 2 persons who cast ballots has been challenged. Both of the persons who it is agreed were entitled to vote voted to reject the complainant's "final offer". The complainant challenges the right to vote of 77 persons, all of whom voted to reject its "final offer".
The respondents challenge the right to vote of 15 persons who cast ballots, 14 of whom voted to accept the "final offer". Notwithstanding the numerous challenges, all of the ballots were counted and the "results" set out above were released to the parties by the Returning Officer assigned to conduct the vote. The Minister has issued nothing with respect to the "results" of the vote. Nor does it appear that he has any intention of doing so, or that he has been asked to do so by any interested party.
We find it neither necessary nor appropriate to determine or comment on what the Minister can or should do with respect to section 40 votes. However, we do observe that the Minister has no authority to adjudicate or determine disputes in which breaches of the Labour Relations Act are alleged. Consequently, to adopt the respondent's interpretation of section 40 in this case would effectively require a two step approach to the adjudication of the dispute between the parties (and probably to all complaints under the Labour Relations Act which involve issues arising out of the taking and outcome of such votes); that is, at one step the Minister would have to determine the result of the vote, and at the second step, the Board would have to determine the complaint under the Labour Relations Act which involves the effect of the results of the vote. This is an undesirable labour relations result since it would, at the very least, result in multiple proceedings and delay in circumstances which require as speedy a resolution as possible. We are mindful of the maxim that labour relations delayed are labour relations defeated and denied (see Journal Publishing Co. of Ottawa Ltd. et al., v. Ottawa Newspaper Guild, Local 205, OLRB et al., March 31, 1977, Ont. C.A., unreported).
Further, we have already noted that the Minister, although granted certain powers under the Labour Relations Act, is not prescribed any adjudicative role under it. The structure of the Act contemplates that the Board will perform any necessary adjudicative functions and gives the Board the exclusive jurisdiction to determine rights and obligations under the Act. As the administrative tribunal established to adjudicate disputes under the Labour Relations Act, the Board is well equipped to adjudicate questions arising out of section 40 votes. It is also consistent with the structure of the Act, having regard to section 40's place in it (see Canada Cement Lafarge Ltd., supra, at paragraph 16) for the Board to determine such questions in the course of dealing with matters brought before it.
The complaint in Board File No. 2034-89-U alleges that the respondents have failed to abide by the section 40 vote requested by the complainant and have thereby engaged in or encouraged unlawful strike activity, contrary to the Labour Relations Act. In order to dispose of the unlawful strike complaint, which is within the Board's exclusive jurisdiction, the Board must first determine the vote result, a matter which is in dispute between the parties. To determine that, the Board must also be in a position to determine the voter eligibility questions which appear to be an issue. Only then can the complaint before the Board be disposed of. It is apparent that the Board must be able to determine questions arising out of the taking of a section 40 vote for the purposes of disposing of matters brought before it.
In the result, there is little to recommend the respondent's interpretation of section 40. It would leave the Board without any authority to inquire into questions arising out of a vote taken under that provision. On the other hand, there is, in our view, much to be said in support of an interpretation which permits the Board to do so, at least within the context of a complaint or application which is within its exclusive jurisdiction to dispose of. Consequently, and there being nothing in the legislation which constrained us to come to a different conclusion, we found, and so ruled as aforesaid, that the Board can and will deal with questions concerning the conduct of the section 40 vote requested by the complainant in this case insofar as it is necessary for the Board to do so in order to dispose of the complaint in Board File No. 2034-89-U.
The hearings continue.