[1990] OLRB Rep. March 302
1569-89-FC; 2727-89-R Glass, Molders, Pottery, Plastics & Allied Workers International Union, Applicant v. Northfield Metal Products Ltd., Respondent; Dave Mikel and Group of Employees, Applicant, v. Glass, Molders, Pottery, Plastics & Allied Workers International Union (AFL-CIO-CLC), Respondent v. Northfield Metal Products Ltd., Employer, Intervener
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members G. O. Shamanski and E. G. Theobald.
APPEARANCES: Joanne L. McMahon, E. C. Whitthames and J. Erskine for the applicant; Irwin Duncan and Gary Becker for the respondent; Terence J. Billo, David Mikel and Stephen Stairs for the Group of Employees.
DECISION OF THE BOARD; March 16, 1990
1This decision concerns the order in which an application for direction of the settlement of a first contract by arbitration under section 40(a) (the "first contract application") and an application under section 57 for termination of bargaining rights (the "termination application") respecting the same bargaining unit should be heard.
2Submissions were heard on the above issue on March 2, 1990. The termination application was not scheduled to be heard until March 15, 1990, but counsel for the applicants in the termination application (the "petitioners") asked to address the Board on the above question before the scheduled hearing concerning the first contract application. Union and employer counsel agreed the Board should hear Mr. Billo's request, although Union counsel took the position his request should be heard on March 15, and that status should not be granted to him in the section 40a application. The Board found it expeditious to deal with the matter at the outset and ruled orally at the hearing on March 2, 1990 that it would continue to hear the section 40a application and the termination application would be adjourned pending the outcome of that matter. Mr. Shamanski reserved his decision on this matter at the time and the Board said that reasons would follow in writing. The background of the matter, and our reasons for the oral decision, follow.
3The union was certified on January 31, 1989, after a representation vote which was described by counsel for the petitioners as close. The results were disputed by the employer and a group of employees, but was upheld by the Board in a decision reported at [1989] OLRB Rep Jan. 57. The first contract application was filed on September 26, 1989 and first came on for hearing on October 11, 1989. It was adjourned on consent on October 11, 1989 to allow for negotiations with the help of a mediator, at which point an agreement was signed by the parties extending the time limits in which the Board is required to issue a decision in the section 40a application. This was an open-ended extension, with no provision that the time limits would begin to run again at some later date. On November 23, 1989, the matter was adjourned sine die (without a fixed date), again on consent, after three days of hearing in which evidence had been called, to allow the parties to return to the bargaining table with new chief negotiators. This they did, but were not successful in concluding a collective agreement.
4On January 25, 1990, the union requested that the Board re-list the first contract application for hearing. Several hearing dates were set, the first of which was March 2. On February 6, 1990, the termination application was filed, supported by a petition bearing 195 signatures. There are said to be approximately 240 employees in the bargaining unit.
5The termination application is, on its face, timely. The union was certified on January 31, 1989. There being no collective agreement in place to date, section 57(1) comes into play and employees in the bargaining unit have the right to apply for termination of the union's bargaining rights.
6The Legislature anticipated the interplay of sections 40a and section 57 when it passed the first contract provisions. It inserted section 40a(22) which provides as follows:
(22) Notwithstanding subsection (2), where an application under subsection (1) has been filed with the Board and a final decision on the application has not been issued by it and there has also been filed with the Board, either or both,
(a) an application for a declaration that the trade union no longer represents the employees in the bargaining unit; and
(b) an application for certification by another trade union as bargaining agent for employees in the bargaining unit,
the Board shall consider the applications in the order that it considers appropriate and if it grants one of the applications, it shall dismiss any other application described in this section that remains unconsidered.
Thus, the Board has a wide discretion to consider what is appropriate.
7Counsel for the petitioners submitted that the consideration of what was appropriate would include fairness, expedition, and the right of employees to decide whether they should continue to be represented by the union. Given the fact that the union had not contested the voluntariness of the petition in filing its reply, Mr. Billo submits that the wishes of such a large majority of the employees, as expressed in the statement of desire, should cause us to adjourn the first contract application and hear the termination application first.
8Mr. Billo suggested that we should treat the request to bring the 40a application back on, dated January 25, 1990, as a fresh application, and that due to the short time between it and the termination application, little weight should be given to the fact that it was filed first, especially given the "coincidence" that it was brought back on in the face of its knowledge of the petition which eventually supported the termination application.
9Union counsel argued that the fact that three days of evidence had already been heard in this matter was an important fact. Although she agreed with the petitioners' counsel that the order in which the applications were filed was not determinative, she submitted that the fact that the Board was actually in the middle of the evidence should be a weighty factor. Equally, Ms. McMahon submits, it is fair to have the union's allegations in the first contract application dealt with first because the dissatisfaction which lead to the termination application may "have something to do with" the company conduct of which the union complains in that application.
10Company counsel submitted that on the unusual facts of this case, all fairness is in the direction of allowing the petitioners to have their application heard first. The first contract application, although filed on September 25, 1989, was twice adjourned. Negotiations continued as late as February 22, 1990, after the request to bring back on the first contract application. Mr. Duncan submits that the one year time period in section 57 should have some meaning; the employees should not have to wait because the union chose not to proceed expeditiously with the first contract application, referring to the time limits in section 40a as mandatory. Since it is the union that has delayed, (presumably referring to its agreement to the extension of the time limits and agreement to the adjournments set out above), he submits that they cannot now argue prejudice. Additionally, he points out that there are now a large number of additional negotiation meetings to deal with, so that the first contract application will not likely conclude quickly. As to Ms. McMahon's submission that the company is responsible for the dissatisfaction among the employees, he refers to the dissatisfaction present in the bargaining unit as early as January, 1989, some of which is set out in the Board's 1989 reported decision, as well as to the fact that no allegation of employer encouragement of the termination application was made in the union's reply to it.
11All counsel agreed that there were no cases "on all fours" with this fact situation. However, reference was made to Co Fo Concrete Forming Construction Limited, [1987] OLRB Rep. June 828, Mansour Rockbolting, [1986] OLRB Rep. October 1346, Egan Visual Inc., [1986] OLRB Rep. Aug. 1071 and Knob Hill Farms Limited, Board File 1545-89-R, dated October 26, 1989, unreported. None of these fact situations is close to the one before us, although it is clear that the status of each application (which has included, depending on the facts, such things as whether hearings have started, whether the evidence is interrelated, whether a decision is about to issue) is a consideration that has been taken into account in the exercise of the discretion.
12When the first contract application was adjourned in November, 1989, it was in the hope that harmonious labour relations could be furthered by a negotiated settlement of the issues outstanding. The Board took the parties' consent as an indication that this was a shared hope. The Board also was hopeful, as it considered it consistent with the stated purpose of the Act, to "further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining", to encourage the parties to try again. Accordingly, we are of the view that it would be inappropriate to treat the current situation as a new application filed on January 25, 1990, or there would be little incentive to parties in similar circumstances to continue to try to negotiate. Therefore, the Board considered the request to adjourn the first contract application in the context of the scheduled continuation of an application filed on September 26, 1989, on which the Board had already heard three days of evidence, with the related expense to the parties. In making our oral decision we were of the view that it would be most appropriate in the circumstances of this case to continue with the first contract application so that the parties could have the benefit of the Board's determination of the issues contained therein.