Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351 v. Ridgewood Industries, 1990 CanLII 5673

[1990] OLRB Rep. March 331

2249-89-M Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Applicant v. Ridgewood Industries, Respondent v. United Steelworkers of America and Objecting Employees, Interveners

BEFORE: M. G. Mitchnick, Chair, and Board Members R. M. Sloan and C. McDonald.

APPEARANCES: B. Fishbein, Gary Caroline and Bill Gillet for the applicant; Barry Blidner and William I. Madigan for the respondent; P. Turtle and D. Lipton for the interveners.

DECISION OF THE BOARD; March 9, 1990

1. This is a joint application under section 53(2) of the Labour Relations Act for early termination of the parties' collective agreement originally scheduled to expire on March 1, 1990. The application was filed with the Board on December 12,1989, and stated as follows:

We, Textile Processors, Service trades, Health Care, Professional and Technical Employees International Union, Local 351 ("the Union") and Ridgewood Industries ("the Company") hereby jointly apply pursuant to Section 52 of the Labour Relations Act for consent to the early termination of our Collective Agreement effective from April 1, 1987 until March 1, 1990, a copy of which is enclosed. We have negotiated a new Collective Agreement which has now been ratified by the subject employees.

The Board, in accordance with its Rules and practice, sent Notices of the Application to the employer to be posted in the workplace, accompanied by the following standard form of letter:

Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351 and Ridgewood Industries.

(Section 52(3) of the Act)

I am in receipt of a joint application from the above parties, for the termination of the current collective agreement. A copy of the current collective agreement has been filed with the Board.

The Board is prepared to give consideration to the parties' request that the collective agreement between them be terminated provided that it is first assured that such action will not prejudice the rights of any interested individual or organization.

Accordingly, you will please see to it that the enclosed Notices are posted without delay on your premises, in such conspicuous locations that they will most likely come to the attention of the employees concerned. The Notices shall remain so posted for a period of five working days from the posting thereof.

After the Notices have been posted for five working days, please complete the enclosed Declaration of Posting and return to the Board.

Upon receipt of the Declaration of Posting the case will be placed before the Board for disposition.

Very truly yours,

T. A. Inniss

Registrar

The said Notices were in fact posted by the employer on January 12, 1990, and stated:

TO THE EMPLOYEES OF: Ridgewood Industries

A JOINT APPLICATION, copies of which are attached hereto, has been made by the above named Employer and Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351.

The aforementioned Agreement would normally terminate on March 1, 1990.

Any person having objection to the granting of such consent shall file the same with the board, on or before the 19th day of January, 1990.

In default of filing a Notice of Objection as aforesaid, the Board may take such action in the matter as may appear to the Board to be just.

DATED this 10th day of January, 1990.

"T. A. Inniss"

Registrar.

On January 16th the Board received the following letter from the United Steelworkers of America:

Dear Ms. Inniss:

Re: United Steelworkers of America and Ridgewood Industries Ltd.; Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351; Application for Early Termination of collective Agreement; Board File: 2249-89-M; Our File: OLRB-856

The United Steelworkers of America has been advised that an Application for Early Termination of an existing collective agreement between Ridgewood Industries Ltd. and Local 351 of the Textile Processors has now been received by the Board.

The United Steelworkers of America represents employees in the bargaining unit of the above-captioned employer. The United Steelworkers of America opposes the Application for Early Termination and requests that the Board reject the application and thus prevent the granting of early termination which would result in shortening of the "open period". Consistent with this position it is requested that a hearing be scheduled in this matter and that the United Steelworkers of America be included as an intervener in these proceedings.

Thank you for your assistance in this matter.

Sincerely,

"Keith Oleksiuk"

Keith Oleksiuk

Associate Canadian Counsel

That was followed the next day by a further letter on behalf of the Steelworkers providing as follows:

Dear Ms. Inniss:

Further to Mr. Oleksiuk's letter to the Board on behalf of the United Steelworkers of America, and in support of the Steelworker's request to intervene in these proceedings whereby the Company and the incumbent Union seek early termination of the current collective agreement, which will bar our displacement application, in the context of our current organizing campaign, enclosed please find applications for membership/receipts already collected by us.

Thank you for your attention and assistance.

"D. Lipton"

David Lipton

for: United Steelworkers of America

As well, the Board received the following letter dated January 17th from 2 individuals apparently being employees in the bargaining unit:

Ms. Theresa Inniss

Registrar

Ontario Labour Relations Board

400 University Ave.

4th floor

Toronto, Ont.

M7A 1V4

January 17, 1990

Re: Board file #2249-89-M; Ridgewood Industries and the Textile Processors

Dear Ms. Inniss:

Enclosed please find a statement of desire expressing our opposition to the early termination request of the company and the incumbent union.

We wish to intervene in these proceedings. We do not want the board to grant the early termination request.

This request affects our right to change our bargaining agent. We want to change our bargaining agent. We understand that the Steelworkers will also intervene in these proceedings. We want the Steelworkers to be our bargaining agent.

Thank you very much for your assistance.

cc: Dave Lipton, USWA

Brian Shell, USWA

On January 30th the Board received the following letter from the employer, Ridgewood Industries:

Dear Ms. Inniss:

Ridgewood Industries Ltd. entered into negotiations for an early termination of our Collective Agreement, at the request of our Employees, and their representatives Textile Processors, Local 351. We believe their sincerity in this request, and as a result, the employees ratified a memorandum of Agreement on December 5, 1989.

This memorandum of Agreement provides a wage increase retroactive to December 1, 1989 subject to approval of the Ontario Labour Relations Board for early termination. We would urge the Board to approve this early termination so that our employees might enjoy this much needed wage adjustment.

Ridgewood supports the wishes of their employees in this matter, and is further prepared to provide full assistance and co-operation to the Board~ in their efforts to bring this request for early termination, to a conclusion, that represents the best interest of our employees.

Yours very truly,

"B. Blidner"

Barry Blidner

General Manager

And on January 31st the Board received a further document bearing the signatures of 96 "employees", and which read:

Re:O.L.R.B. File No. 2249-89-M

We have just learned of the intervention of the United Steelworkers of America in the above matter. We do not wish to be represented by the Steelworkers and want the labour board to do everything necessary so that our recently ratified collective agreement between the company and Local 351 can be immediately implemented.

2. A hearing was then convened on February 16, 1990, to hear the representations of the interested parties. Appearing in addition to the parties to the joint application was Ms. Paula Turtle, on behalf of the United Steelworkers of America and certain employees it claimed to represent. Ms. Turtle advised the Board that the Steelworkers had been conducting an organizing campaign in the subject bargaining unit since July of 1989, with a view to tendering an application for certification during the course of the January 1-March 1 "open period" in 1990. Ms. Turtle pointed out that it was open to the parties to the collective agreement to make whatever adjustments they saw fit, so long as the term of the agreement itself was not altered in such a way as to purport to close out all or part of the "open period". Ms. Turtle added that there can be any number of reasons why an organizing union may hold back its application for certification until the very last minute, and urged the Board not to permit the parties to do anything which would abridge the established open period, or otherwise interfere with the normal opportunity granted to employees to exercise their own "freedom of choice" as to representation in the workplace.

3. Mr. Fishbein, on behalf of the incumbent union, provided the Board with the history of the current re-negotiation of the parties' collective agreement. The original agreement had had a term of April 1, 1987 to March 1, 1990, and had specifically provided for the possibility during that term of the establishment of a third shift in the company's operation. The implementation of such a shift, however, was subject to negotiation with the union of its terms, and failing agreement, to binding arbitration. On July 31st, 1989, the company posted a notice proposing the introduction of a third shift, and that notice was met with a resoundingly negative response. The company then indicated to the union that it was prepared to approach the matter on a broader basis, and to sit down early to re-negotiate the whole agreement. The union agreed, and matters proceeded on that basis, with, Mr. Fishbein asserts, no knowledge whatever on the part of his client of the organizing activities concurrently being undertaken by the Steelworkers. Negotiation meetings in August and September led to a Memorandum of Settlement between the parties, but that Settlement was turned down by the employees on October 3rd. After further discussion a settlement was again put before the employees and overwhelmingly ratified by a vote of 106 to 22. The parties then made the present application to the Board.

4. Aware, as always, of the Board's jurisprudence, Mr. Fishbein acknowledged that the Board on questions of early termination has always been guided by its concern that it not "deprive another Union of a fair opportunity to complete its organizing campaign". On the facts here, however, Mr. Fishbein submitted that it simply cannot be said that the Steelworkers have not had a "fair" opportunity to organize the employees in this bargaining unit; by Ms. Turtle's own statements the Steelworkers have been going at it since last July, and in addition have had, as of the date of hearing, the benefit of all but the last ten days of the originally-scheduled "open period". Yet there has been not a trace of any application to displace the incumbent union as the bargaining agent, and the most obvious explanation for that, Mr. Fishbein suggested, is that the Steelworkers simply do not have the support. In the circumstances, Mr. Fishbein submitted, the Board should simply say to the Steelworkers: "It's too late", and allow the new arrangement worked out between the company and the incumbent (and overwhelmingly supported by the employees who wrote to the Board) to be put into effect without further delay. In fact, Mr. Fishbein noted, the new agreement called for a signing bonus of 100 dollars per employee, and that money has already been paid to the employees.

5. Mr. Madigan, on behalf of the employer, simply re-iterated the position, set out in the earlier correspondence to the Board, that the company's only concern was to do what was best for its employees, and to see the agreed-upon wage increase implemented as soon as possible. The response of Ms. Turtle to the submissions of Mr. Fishbein was that the intervener was not prepared to accept without evidence the statements as to motivation and knowledge set out by Mr. Fishbein, although submitted that the Board has never adopted the approach of trying to determine what in fact it was that lay behind the re-negotiation and request for an "early termination~~ of a collective agreement. Neither, Ms. Turtle noted, has the Board been prepared to "speculate" in circumstances such as the present what the current level of support for one union or the other might be, leaving that rather to the "open period" and the Board's normal channels for determining what the employees' own choice as to representation might be.

6. The Board's limited jurisprudence in this area was well canvassed by the parties at the hearing before us. The case most often referred to, as the "seminal" case under the subsection, is Firestone Tire & Rubber Company Limited, 54 CLLC 1484. That case in fact is of limited assistance, since there was no objection made to the application other than, in a conditional way, by the employer party to the agreement, but is nonetheless referred to in the case closer to our own of National Cash Register, [1967] OLRB Rep. April 90. In the latter case the Board set out the facts and its concerns as follows:

7. This is a joint application for early termination of a collective agreement. The agreement currently in effect between the parties became effective on July 6th, 1964 and would by its terms, expire on July 6th, 1967. In the normal course, the "open season within which an application for a declaration terminating bargaining rights or an application for certification by another trade union might be brought would be the period from May 6th to July 6th, 1967. If the Board were to give its unqualified consent to the application now before it, such an application for certification or termination would be effectively foreclosed.

8. Notice of the application was posted pursuant to the Registrar's direction, and the intervener has objected to the application. It is agreed that the intervener had begun an organizational campaign among employees of the applicant company and that it represented employees of the company. There is no evidence as to the number of employees which the intervener might claim as members.

9. Counsel for the intervener urged the Board to grant consent to the early termination of the collective agreement only on terms similar to those which the Board imposed in the Firestone Tire & Rubber Company Limited Case, 54 CLLC 1484. In that case, the Board stated in part:

where a collective agreement is made for a term of more than one year and it has been in effect for at least the minimum period stipulated in subsection 1 of section 37 of the Act, there would seem to be no reason for the Board to refuse consent to its early termination unless it is made to appear that any person would be prejudiced thereby. For example, consent might be refused if it could be shown that the purpose or effect of early termination of the agreement would be to deprive another union of a fair opportunity to complete its organizing campaign among the employees bound by the agreement with a view to applying for certification in order to displace the established bargaining agency. Nothing of this sort came to the Board's attention in this case.

In that case, there was no objection to the application and no suggestion that another union might be deprived of the opportunity to organize. Nevertheless, the Board in granting consent to the early termination did so by providing for the giving of two months' notice of such termination. The effect of this was to substitute an earlier "open season" for that which would otherwise have preceded the termination of the agreement. In the instant case, of course, there is objection to the application and there is evidence of the sort contemplated in the Firestone decision.

4. It is true, as counsel for the company pointed out, that the intervener cannot rely on any "right" to organize established under The Labour Relations Act since the Act makes no reference to organizational campaigns. There is undoubtedly, however, a right of employees to join the trade union of their choice (section 3) and for this right to have any practical value there must be the concomitant possibility of the chosen unions applying for certification at a time when it would be possible to do so.

5. Counsel for the applicant trade union urged that the intervener should be required to show a substantial degree of successful organization among employees of the company before the Board would give serious consideration to its objection. On this count, it is noteworthy that in the Firestone case the Board preserved an open season even though there was no evidence whatever that any other union sought to represent employees. It is our view that the Board ought not to attempt to assess the chances of success of any union's organizational campaign nor should it attempt to establish what might constitute a "substantial degree of successful organization" in any particular case.

6. In our view, it is of vital importance that an open season be preserved at least where any person or organization having an interest takes objection to its foreclosure. It has not been the Board's practice in recent years to preserve the open season where no objection has been taken to a joint application of this sort. Thus, in a joint application by the instant employer and the Canadian Office Employees Union No. 159 N.C.C.L., Board File No. 12757-66-M, the Board on April 12th, 1967, granted consent to the termination effective January 1st, 1967 of a collective agreement in effect between those parties. Where there is objection taken, however, it is our view that foreclosure of the open season would constitute a denial of the rights of employees under The Labour Relations Act.

[emphasis added]

There, as here, there had been a "ratification" vote taken by the incumbent union of the terms of

the new agreement (as well as of the application itself). About that the Board had this to say:

7. In a letter to the Board accompanying the application, the applicant trade union stated that following notice to employees a ratification meeting was held with respect to a new collective agreement which had been negotiated by the parties. Some 180 employees attended the meeting (the applicant company has approximately 480 employees) and a majority voted in favour of ratification. The meeting then voted unanimously in support of the present application. It was not argued at the hearing of this matter that these events raised any estoppel against objections to this application. We would observe, however, that it would require clear evidence of waiver of each employee's right to participate in proceedings leading either to certification of another trade union or termination of the incumbent union's bargaining rights for such an objection, if taken, to succeed. Even assuming that no question as to the propriety or sufficiency of notice to employees arose, it would not be the case that "ratification" proceedings necessarily implied the waiver of their rights under the Act by those employees who received such notice.

The Board then stated its conclusion as follows:

8. Having regard to all of the foregoing, the Board consents to the early termination of the collective agreement now in effect between the parties as of June 12th, 1967, being two months from the date of this endorsement. The Board directs that copies of this endorsement be posted in conspicuous places on the premises of the employer in accordance with instructions to be issued by the Registrar.

9. Canada Building Materials, [1968] OLRB Rep. Mar. 1210, was a similar case in which parties to a collective agreement that was scheduled to expire in August of 1968 asked the Board for its consent to terminate the agreement in March -- thus, once again, eliminating the pending "open period" altogether. Objection to the application was raised and is set out in the following terms:

10. Notice of the application was posted pursuant to the direction of the Registrar of the Board and the intervener has objected to the application. The intervener filed with the Board three application for membership cards on behalf of three employees of the company applicant. Counsel for the intervener submitted that if consent was to be granted at all in this case the Board should not shut out the opportunity of the intervener to organize. Further he stated that the intervener had relied on the provisions of the Act with respect to the "open season" for the current contract between the applicants hereto and alleged that this should remain available to it where it has objected and submitted evidence of membership for employees in the bargaining unit involved.

The Board simply adopted the comments contained in the National Cash Register case, and again granted the early termination only on the basis that it would be effective two months from the date of the Board's decision. To the same effect was Standard Products (Canada) Limited, [1969] OLRB Rep. Apr. 123, and the Board granted the application on precisely the same terms.

8. In the present case, the Board recessed to consider the foregoing case law and the submissions of the parties, and then delivered oral reasons for dismissing the application, as follows:

As Ms. Turtle has noted, parties to a collective agreement are given wide latitude to make amendments or adjustments to their collective agreement should they so choose. Section 52(5) of the Labour Relations Act makes that clear:

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.

In addition to that one proviso, section 52(3) of the Act also stipulates:

A collective agreement shall not be terminated by the parties before it ceases to operate in accordance with its provisions or this Act without the consent of the Board on the joint application of the parties.

That sole exception to the ability of the parties to order their own affairs reflects a clear policy on the part of the Legislature to preserve the two-month "open period" established by the statute for the bringing of representation applications. The requirement for Board consent is set out in the Act and is well known, as is the fact that what the Board effectively does is to act as an intermediary to ensure that notice of the parties' intention to alter the term of their existing collective agreement is posted in the workplace. That posting often produces no objection, and the Board grants its consent as a matter of course. Where it does produce an objection, however, it is difficult to conceive of a case where the Board would grant the early termination in a way that would abridge the rights initially guaranteed by the Act. Certainly the Board is unaware of any case to date that has done that; at best, the Board has sought to accommodate the interests of those seeking to implement a new collective agreement by moving the open period forward -- but that has always been done on advance notice to any interested parties, by way of the Board's decision in the application, and never for a period less than the two months that the legislators originally held to be appropriate.

Here the parties have only 10 days of the prescribed open period left to run. Or to put it conversely, as Mr. Fishbein has, any interested party already has had the benefit of 50 of the 60 days that the open period was projected by the statute to run. We are not prepared, however, to try to decide in each individual case whether "50" days should be considered to be "enough", or "40", or "30", or "20"; the "open period" chosen by the Legislature is specifically prescribed to be two months, and we are not persuaded that the intention of the Act would be met by a decision to shorten that period to something less.