Council of Printing Industries of Canada v. Graphic Communications International Union Local 500M, 1990 CanLII 5796

[1990] OLRB Rep. April 430

3063-89-U; 3064-89-U Council of Printing Industries of Canada on behalf of Photo Engravers & Electrotypers Limited, Applicant v. Graphic Communications Inter­national Union Local 500M (Roto Gravure) and those persons listed in Schedule "1" to the application, Respondents; Council of Printing Industries of Canada on behalf of Photo Engravers & Electrotypers Limited, Applicant v. Graphic Com­munications International Union Local 500M (Lithographers) and those persons listed in Schedule "1" to the application, Respondents

BEFORE: Robert D. Howe, Vice-Chair.

APPEARANCES: Cohn Morley, Jim Robinson and Franklyn R. Smith for the applicant; Harold F. Caley, Jim Nyman and Frank O'Reilly for the respondent trade union; no one appeared for the other respondents.

DECISION OF THE BOARD; April 3, 1990

1. These two applications for directions under section 92 of the Labour Relations Act were filed with the Board on March 12, 1990 by the Council of Printing Industries of Canada (the "Council") on behalf of Photo Engravers & Electrotypers Limited (the "Company"). The time for the filing of replies and for the service of notices of hearing was abridged in respect of each of the applications by decision of another Vice-Chair of the Board, and they were scheduled for hearing on March 14, 1990 commencing at 1:30 p.m. and continuing thereafter as necessary. At that hear­ing the above-noted appearances were entered on behalf of the applicant and the respondent Graphic Communications International Union Local SOOM (also referred to in this decision as the "Union" and as "Local 500M"). Although a number of the individual respondents were in atten­dance at the hearing, they opted to merely observe the proceedings and declined to enter an appearance or otherwise actively participate.

2. It was apparent from the opening statements of counsel that one of the major issues in dispute between the parties was whether or not at the time of the events to which these applica­tions pertain there was a collective agreement in effect between the Company and the Union in respect of the Roto Gravure bargaining unit, and in respect of the Lithographers bargaining unit. (During the course of the evidence and argument, employees in those two bargaining units were frequently referred to as the "engravers" and the "artists", respectively, which terminology has also been adopted in this decision for ease of exposition.) Consequently, counsel concurred with my suggestion that evidence and argument be initially confined to that issue, on the understanding that further evidence and argument would be heard if any other issues remained outstanding after that issue had been decided.

3. The sole witness called by the applicant was Franklyn Smith, the General Manager of the Council, who was the Company's chief spokesperson throughout the negotiations described below. The only witness called by the Union was Frank O'Reilly, who is one of Local SOOM's Executive Vice-Presidents. Twenty-five exhibits were also entered during the course of the hear­ing. After counsel had completed their submissions concerning the collective agreement issue dur­ing the evening of March 14, the hearing was adjourned until the following afternoon, at which time I delivered the following oral "bottom line" decision:

Having carefully considered all of the evidence and the submissions of coun­sel, I have concluded that there is no collective agreement in place between the applicant and the respondent union in respect of either of the bargaining units to which these two applications pertain. My reasons for reaching that conclusion will issue in a future written decision. Mr. Morley has acknowl­edged that he is unaware of any basis on which these applications could suc­ceed in the absence of a collective agreement being in force between those parties. Accordingly, in view of my conclusion concerning the collective agreement issue, these two applications are hereby dismissed.

My reasons for so deciding constitute the balance of this decision.

4. The Council has represented the Company in collective bargaining for many years. The Company's unionized employees are currently divided into four bargaining units. Toronto Printing Pressmen and Assistants' Union, Local No. 10, G.C.I.U., holds bargaining rights for the Compa­ny's pressmen and paperhandlers. The employees in that bargaining unit have been locked out by the Company since February 20, 1989. The employees in the other three bargaining units are the Company's artists, engravers, and bindery employees. Local 500M is the bargaining agent for those three units. The three collective agreements that were in force between the Company and the Union in respect of those bargaining units each expired on December 31, 1989. (With respect to its bindery employees, during the period from January 1, 1988 to December 31, 1989, the Com­pany was bound by the "industry agreement" (between the Council and the Union) and a codicil to that agreement, but in the current round of negotiations the Company elected to separate itself from the industry bargaining and to attempt, through the Council, to bargain a bindery collective agreement covering only the Company.) On October 16, 1989, Earl McDonnell, who is one of Local 500M's Vice-Presidents, sent the Company a notice to bargain in respect of the engravers unit. A similar notice was sent to the Company by Mr. O'Reilly on October 27, 1989 in respect of the artists and bindery units. Bargaining proposals were subsequently exchanged and negotiations proceeded through conciliation, with "no board" reports being issued on February 19, 1990 for each of the three units. Thus, the time as of which legal strikes or lock-outs could begin was mid­night of March 7. On or about March 1, the Union arranged for Summons Meetings in respect of each of the three bargaining units to be held on March 8. (Under the By-laws of Local 500M, members for whom a Summons Meeting is called are obligated to attend the meeting or pay a $50.00 fine). There is no direct evidence concerning the purpose or purposes for which those meet­ings were called, but it may reasonably be inferred that one of the purposes was to update the membership concerning the negotiations.

5. Following receipt of the "no board" reports, mediation was arranged and a combined mediation session was held on March 6, at which the artists and bindery units were represented by Mr. O'Reilly, and the engravers unit was represented by Mr. McDonnell. Near the conclusion of that session, the Company gave the Union three "proposals for settlement" - one for each bargain­ing unit. Mr. Smith told the Union representatives that this was "as much as the Company could do" and that hopefully the proposals would be ratified but that if they were not there would be no work. When he was asked at that session whether he meant that if one group rejected the proposal there would be no work for employees in all three groups, Mr. Smith clarified the Company's posi­tion by indicating that there would be work for any group which accepted and no work for any group which rejected. He also confirmed that by saying there would be "no work", he meant that the employees would be locked out by the Company. Mr. Smith undertook to provide the Union with a sufficient number of copies of the Company's proposals for settlement to enable the Union to give each bargaining unit member a copy. Mr. O'Reilly volunteered to call Mr. Smith at the con­clusion of each of the two meetings for which he was responsible, to advise Mr. Smith of the voting results.

6. No memorandum of settlement was entered into at the mediation session, nor was any­thing signed by the Union or the Company. Mr. Smith was made aware at that meeting that the Company's proposals for settlement were not acceptable to the Union and that the Union was going to recommend that the membership reject them. There was no discussion of what the Union's position would be in the event that the employees nevertheless voted in favour of the pro­posals.

7. At each of the three Union meetings on March 8, employees were provided with the pertinent proposal for settlement (which specified all of the amendments the Company proposed to make to the previous collective agreement), and with a Union document that explained the Com­pany's proposal and outlined the Union's position on each item. Although the Union's position was the same as that of the Company on a few items, in most instances they were different. The results of the votes taken at those meetings were that the employees in the bindery unit voted to reject the Company's proposal pertaining to their bargaining unit, but the artists and engravers voted to accept the Company's proposals pertaining to their respective bargaining units. Mr. O'Reilly informed Mr. Smith of the results of the votes during telephone conversations on March 8 and 9. Upon being informed of the results of the bindery unit's vote, Mr. Smith relayed that infor­mation to Jim Robinson, the Company's Plant Manager, shortly before noon on March 8, and the employees in that unit were locked out by the Company as of that afternoon. When Mr. Smith asked Mr. O'Reilly during their telephone conversation on the morning of March 9 how many employees had voted each way, Mr. O'Reilly was unwilling to disclose the precise numbers but did tell him that the bindery had rejected by a substantial majority, that the artists had accepted by a substantial majority, and that the engravers' vote had been very close. There was no discussion about the consequences of those votes during any of their conversations.

8. After speaking with Mr. O'Reilly on the morning of March 9, Mr. Smith again con­tacted Mr. Robinson to convey to him the information received from Mr. O'Reilly. Mr. Robinson, who already had that information, informed Mr. Smith that the artists and engravers were not crossing the picket line. Mr. Smith then sent the following letter to Messrs. O'Reilly and McDon­nell:

This will confirm our conversations of March 8, 1990 and March 9, 1990 during which you informed me that your membership, working under three separate Collective Agreements, had dealt with the Company's Proposals for settlement as follows:

Bindery — Voted to reject Artists — Voted to accept Engravers — Voted to accept

The effective date of the renewed Agreements will be January 1, 1990 to December 31, 1992, and we will proceed to prepare full Agreement for your perusal and signature.

If you disagree with the contents of this letter, I would appreciate you letting me know today.

9. Mr. O'Reilly responded as follows in a letter dated March 12, 1990, which was sent to Mr. Smith by fax and by regular mail:

We acknowledge receipt of your letter dated March 9, 1990.

We disagree with the contents of your letter.

The principal officers of the Local Union have carefully considered this matter and are of the view that the offers presented are not in the best interest of the Union and its members.

This decision will be reviewed by the full Executive Board of the Local Union later this week. We shall advise you of the determinations made at this meeting.

In the interim, we assume that all our of members will be allowed to work. Please advise us if our assumption is not correct.

We look forward to a resumption of bargaining.

10. Mr. Smith replied as follows in a letter which is also dated March 12, 1990:

We acknowledge receipt of your letter of today's date in which you disagree with the contents of our letter to you dated March 9, 1990.

We do not understand the basis of your disagreement and ask that you specify the matters in our letter with which you disagree.

In any case the members of those bargaining units which voted to accept the Company's last offer (i.e. the Artists and the Engravers) are bound by Collective Agreements and are therefore obligated to report for work.

Those members of the bargaining unit which voted to reject the Company's last offer (i.e. the Bindery) will not be allowed to work.

11. During his testimony in these proceedings, Mr. O'Reilly confirmed that after he had conveyed to Mr. Smith the aforementioned information concerning the results of the votes, the Union's Executive Officers met and, after reviewing the Company's proposals for settlement and the Union's last position, decided that the Company's proposals were unacceptable. He also tes­tified that the full Executive Board would be reviewing that decision at a meeting on March 15, and that a meeting had been scheduled for March 16 to inform the membership about what was hap­pening.

12. When he was asked during examination in chief why the three offers were put to a vote in the three groups, Mr. O'Reilly replied, "Because we didn't believe that they would be accepted." During cross-examination, Company counsel suggested to Mr. O'Reilly that in past negotiations with the Company there had never been a resumption of bargaining after membership acceptance. Mr. O'Reilly's response was: "I can only talk about my experience and in my experience, yes, you're correct." There is no evidence concerning the exact time frame covered by that response, but it is reasonable to infer from Mr. O'Reilly's evidence concerning the various posi­tions which he has held in the Local and one of its predecessors that his "experience" covers a number of rounds of bargaining. However, there is also no evidence concerning the circumstances surrounding the "membership acceptance" to which the question refers. Thus, it is unclear if such acceptance arose in circumstances similar to the instant case, or whether it occurred after the Union and the Company had entered into a memorandum of settlement which made the Union's acceptance of a Company offer subject to ratification. In the absence of that important informa­tion, this evidence was not of assistance in deciding these applications.

13. In Part II of the Constitution of the Graphic Communications International Union (the "International"), the following is set forth as one of the "laws governing Local Unions":

Chapter 13.2. All collective bargaining contracts shall be subject to approval by the Interna­tional President....

After the Local faxed the Company's proposals for settlement to the International's head office, Paul E. Golden, the Executive Assistant to the International President, wrote as follows to Mike R. Zajac, the President of the Local, in a letter dated March 9, 1990:

The faxed submission of the recent proposals voted on by the Artists and by the Photoengravers are not going to be approved by the International Union. Cursory review by the Contract and Research Department disclosed quickly that conditions in both agreements are substandard to corresponding contracts in Local 500M.

Please advise the Scale Committee of the respected [sic] contracts to reconvene and continue negotiations.

The expired collective agreements between the Company and the Union were signed only by offi­cials of the Local and did not contain any language which made them subject to approval by the International.

14. After writing to Messrs. O'Reilly and McDonnell on March 9, Mr. Smith began to revise the expired collective agreements for the artists and engravers units so as to reflect the amendments included in the Company's proposals for settlement. Draft copies of those revised agreements were mailed to the Union on the evening of March 13.

15. Counsel for the applicant submitted that collective agreements came into force in respect of the artists and the engravers as a result of the foregoing events. Having acknowledged that some Board decisions (such as Marsland Engineering Limited, [1970] OLRB Rep. Apr. 133, and Graphic Centre (Ontario) Inc., [1976] OLRB Rep. May 221) contain statements which indicate that a collective agreement cannot be found to exist until the parties have finally agreed on all the provisions to be contained in it and have signed a document or documents embodying all of the provisions agreed to, applicant's counsel referred the Board to two additional awards and another Board decision in support of his contention that a more flexible approach is warranted. In this regard he placed particular reliance upon Re Canteen of Canada and Retail, Wholesale and Depart­ment Stone Union, Local 414 (1984), 1984 CanLII 5278 (ON LA), 15 L.A.C. (3d) 305 (Mitchnick). In that case, during the course of mediation the employer presented the union with a final offer on all matters in dispute. That offer was not accepted by the union negotiating committee but was presented to the employ­ees and accepted by them at a meeting called by the union. The union subsequently advised the employer that the offer had been accepted and confirmed this in a letter from the union's business agent, who closed the letter with the following sentence: "I would appreciate 8 copies of each con­tract signed hopefully in the near future." Notwithstanding the fact that it was "clear to all that the negotiations were over", and the fact that the agreed-upon wage increases had been immediately implemented by the employer, in arbitration proceedings concerning a discharge the employer argued that the grievance was not arbitrable because, at the time of the discharge and grievance, no collective agreement was in effect as no employer signature appeared on any of the documents exchanged by the parties. In rejecting that argument, the arbitrator wrote as follows (at pp. 307-12):

Labour and arbitration boards have long held that the existence of a collective agreement is not dependent upon the execution of a formal document, which traditionally occurs a good deal later than the successful conclusion of negotiations. Because of what rides on it in terms of the tabling of new positions or resort to economic sanctions, what tribunals have always required is a certainty that the bargaining has been brought to an end, as well as sufficient documentation of the settlement that its precise terms can be identified and interpreted by a third party, if nec­essary. As the Ontario Labour Relations Board stated in U. E. W. v. Marsland Engineering Ltd., [1970] O.L.R.B. Rep. 133 (O'Shea) at p. 138, para. 13 for example:

……until such time as the parties complete their negotiations by resolving all outstand­ing issues and bring their bargaining to an end, it cannot be said that a collective agreement has been consummated.

The important thing is that the parties know when their negotiations are complete, and the sim­plest indication for an adjudicator that that has occurred is a clear statement to that effect signed by each of the parties. Experience has shown, however, that negotiations are not always con­cluded in quite such a model form, and labour tribunals have had to take care to respond to the realities of how collective bargaining takes place. This is the thrust of the remarks of the Ontario Labour Relations Board once again, for example, in Graphic Arts Int'l Union, Local 12-L v. Graphic Centre (Ontario) Inc., 76 C.L.L.C. para. 16,041, [1976] O.L.R.B. Rep. 221 (Burkett). There the board observed [pp. 615-6 C.L.L.C.]:

11. The Act defines a collective agreement as follows:

"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.

The collective agreement is the cornerstone of our labour relations system. It evi­dences the existence of bargaining rights and other than during a stipulated period serves as a bar to either the termination or transfer of these rights. It evidences a bar­gain struck between the parties as to terms and conditions of employment for a term specific and requires that any dispute as to its interpretation, application or adminis­tration be resolved by binding arbitration. Its existence or lack thereof can be determinative of the legality or illegality of certain activities engaged in by an employer, a trade union or by employees. The Board in lending an interpretation to section 1(1)(e) has been influenced by both the realities of the collective bargaining process and by the practical need for consistent and easily understood criteria. The parties to collective bargaining do not normally execute a formal document until some time after the bargaining process has been completed. The process is one wherein the agreement of the parties is reduced to a memorandum of settlement subject to ratifi­cation by the respective principals which is then followed by the drafting and execu­tion of the formal document. It would not be sound industrial relations policy to require as a condition of entering into a collective agreement the execution of the for­mal document thereby precipitating an often prolonged extension of the open period. The parties, however, must know, with a high degree of certainty and predictability, precisely when they have entered into a collective agreement so as they may properly assume their respective duties and responsibilities and conduct themselves in a man­ner consistent with the existence of a subsisting collective agreement.

Normally, the last step in the collective bargaining process is employee ratification, and tribu­nals have initially held that this pre-condition of a settlement must be evidenced in writing before a collective agreement can be said to have been unequivocally achieved. But that requirement quickly led to results that were unrealistic and unwarranted, and room had to be made for a more flexible approach, although carefully reserved for appropriate cases. The Graphic Centre case, once again, expanded on this point as follows [pp. 616-7 C.L.L.C.]:

13. In a number of cases the Board has been faced with situations where the parties have signed a memorandum of settlement subsequent to which confusion has arisen as to whether ratification has occurred. In certain of these situations the Board has responded to the extrinsic evidence and drawn the inference that ratification has occurred without there being signed evidence of this fact. (See Versa Services Limited case [1972] OLRB Rep. Apr. 306, Service Employees Union Local 210 case supra, Field-Price Limited case [1973] OLRB Rep. Oct. 543.) In other similar situations however the Board has stated that the parties must signify their ratification of the memorandum in writing (see Marsland Engineering Limited case supra, Civil Service Association of Ontario case [1971] OLRB rep. Sept. 596) in order for there to be a collective agreement within the meaning of the Act. Although each case must be con­sidered within its own circumstances a signed memorandum of settlement coupled with compelling evidence of ratification must be considered by the Board as evidence of a collective agreement within the meaning of the Act. Whereas a Memorandum of Understanding subject to ratification is not a collective agreement (see John Inglis Co. Ltd. case [1974] 1 Can. LRBR 481 (B.C.)), evidence which clearly establishes that ratification has occurred elevates the memorandum to the status of a collective agreement within the meaning of the Act. Ratification satisfies the condition prece­dent thereby giving rise to what is then an unconditional agreement in writing (i.e. signed by the parties) on all outstanding matters. Although signed evidence of ratifi­cation is perhaps the most satisfactory evidence in this regard, the Board cannot ignore other evidence which supports the singular inference that ratification has occurred. It should be added that if the Board were to require signed evidence of rati­fication in all cases it would be denying the parties use of the equitable doctrine of estoppel in those situations where there is evidence of ratification, other than signed notification which has been relied upon by one or the other of the parties. (See Garden City Laundry Limited case [1970] OLRB Rep. May 240.)

I can see no logical reason for rejecting this kind of common sense approach when what is at issue is not employee ratification but, for example, whether the company, for its part, has une­quivocally signified its acceptance of the written terms of settlement. It seems to me that so-called expert labour tribunals inexcusably fail to serve their constituency if they cannot have regard to that kind of reality. This seems particularly so when one considers that the courts, in dealing with the Statute of Frauds, which, as union counsel points out, was passed for the sole purpose of requiring certain types of agreements to be in writing, soon developed a principle of finding the contract to exist where "signed writing was lacking but other convincing proof was present": Cheshire and Fifoot's Law of Contract, 8th ed. (1972), p. 142).

It seems to me that that is precisely what was being done in the labour board's Versaservices Ltd. v. Canadian Union of General Employees [1972] O.L.R.B. Rep. 306, (Shime), cited to me by the union. There the company considered that negotiations had been concluded, and sent the union in the usual way unsigned collective agreements in draft for the union's perusal. The sig­nature of the company's industrial relations officer was on the letter accompanying the docu­ments, but no company signature was on the documents themselves, and the case was dealt with as one with an absence of company signature formally accepting the terms of settlement. The board wrote [p. 311]:

We are also of the opinion that the preparation of the collective agreement by Versas­ervices Limited in accordance with the terms of the Memorandum of Settlement and the forwarding of that collective agreement to the union for signature is sufficient indication in the circumstances of this case that the employer had accepted the terms of the collective agreement pursuant to paragraph 2 of the Memorandum of Settle­ment.

The apparently absolute statements of the labour board contained in the Marsland Engineering case and cited in the Graphic Centre case, and upon which the company is relying, in my view must be read in light of the ambiguity which surrounded the alleged settlements in both of those cases. One of the statements in Marsland Engineering, e.g., was as follows, at pp. 138-9, para. 13:

Until the parties have finally agreed on all the provisions to be contained in the collec­tive agreement and have documented their agreement and have agreed on the date of commencement and the term of operation or duration of the agreement and have evi­denced the existence of their agreement by affixing their signatures to the document or documents which embodies all the provisions agreed to, it cannot be said that the parties have executed an agreement in writing which can be characterized as a collec­tive agreement within the meaning of section 1(1)(c) of the Act. It may be that at com­mon law the parties have an enforceable contract if the doctrine of part performance or estoppel applies, however, such common law contract is not necessarily a "collective agreement within the meaning of the Act.

(Original emphasis.) But in Graphic Centre the union was itself talking about a strike vote after the date that it later alleged bargaining to have been completed. Noting this uncertainty in the union's own perception of the negotiations, the board wrote [p. 617]:

There is no signed evidence before the Board which would allow the Board to con­clude that at a particular point in time the bargaining process had been completed and the parties were ad idem with respect to all the terms and conditions of employment. The Board has before it a signed offer by the company dated February 24, 1976 . -. and a signed covering letter from the union March 12, 1976 which was enclosed with unsigned draft copies of the proposed collective agreement ... The Board cannot con­clude that these two documents, when taken in the context of this case, constitute a collective agreement.

(Emphasis added.) The board then refers to the union's own ambiguity concerning a strike vote and its legal strike position and added:

There is evidence before the Board which does not permit the Board to conclude that the parties were ad idem as of March 12, 1976, the date upon which the union first sig­nified, although somewhat obliquely, its acceptance of the company offer of February 24, 1976, and the first time as of which the required union signatures were affixed to any documents.

In Marsland Engineering the negotiations were for a first agreement and not all terms of the agreement had been fully fleshed out. The union notified the company only orally that the com­pany's offer had been accepted and the company began to balk immediately when it learned at the same time that a majority of employees had voted against the offer and in favour of a strike. In the context of those two cases, as well as developments in the cases since 1970 when Marsland Engineering was decided, the apparently bald statements in Marsland, such as at p. 140, para. 16, that "the only way that an individual can evidence his agreement in writing is by signing his name or perhaps by signing his initials to a document which contains or identifies the provisions agreed to in such a manner that his intent to consummate the agreement is clear" must be qualified by an introductory phrase like "where the slightest ambiguity in a party's intention exists". I do not believe that that case ever meant to say more than that, and if it did, I do not believe that it represents the law as it exists today.

In the present case, the proposed terms of settlement now relied upon by the union were the terms proposed by the company itself. They were handed across the bargaining table and were clearly stated to represent the basis on which the company was prepared to settle the contract. The only question left open for the parties at that point was whether the employees would accept it. The employees did in fact accept and the company received from the union unequivo­cal confirmation in writing that that was the case. All of the terms of settlement had been set out in the document which the company had tabled on February 17th, and nothing remained to be done except formal execution of the so-called "long form" of collective agreement.

Can it really be said that the parties would be in a different legal position today if the company representative, in handing the final offer across the table on February 17th, either directly or through the mediator, had attached a letter signed by himself saying 'attached is our final offer", or had happened to scrawl his signature or initials at the bottom of the final offer docu­ment itself? I think not. The parties knew that they had a deal on February 28th, when the union advised that the offer was accepted, and they know that they have a deal today. I agree with Mr. Hayes that on the basis of the agreed facts, the union could undoubtedly petition the labour board to direct the company to execute the formal agreement under the provisions of ss. 15 and 89 of the Labour Relations Act. But that is unnecessary. As Mr. Hassell, on behalf of the company, candidly points out, there is, apart from the issue over this grievance, no reason what­ever why the company would not now voluntarily execute such a formal agreement. And that is because, as everyone knows, the negotiations for this renewal agreement have been completed. The terms of settlement are in writing and clearly identified and the union~ s acceptance of the company's proposal, the only issue left open from the February 17th meeting, has been unequi­vocally evidenced in writing. I am satisfied that there presently exists between the parties a col­lective agreement within the meaning of s. l(1)(e) of the Labour Relations Act. I would only add, to keep the issue in perspective, that I would have come to the same conclusion had the union, subsequent to February 28th, become disenchanted and led the employees out on strike, and had the issue before me then been the lawfulness of that strike.

16. A similar approach was adopted in Re Mississauga Hydro commission and International Brotherhood of Electrical Workers, Local 636 (1984), 1984 CanLII 5126 (ON LA), 17 L.A.C. (3d) 299 (P.C. Picher). Both of those awards were cited with approval by the Board in Sears Canada Inc., [1986] OLRB Rep. Aug. 1159. After quoting from each of them, the Board wrote:

11. We are inclined to accept this general approach which, in our view, is in accordance with the realities of collective bargaining. The fact is that (as in the instant case) hard bargaining and the possible threat of a strike or lockout frequently lead to a document or series of documents (sometimes handwritten, modified or amended at the eleventh hour) which together constitute a final settlement of the matters in dispute. So long as the terms of the settlement do not them­selves contemplate further bargaining and both parties purport to ratify the agreed terms of a settlement, we do not think that we should lightly conclude that there is no collective agreement in effect - even though the parties may wish to "tidy things up" by incorporating all changes, amendments, or final agreements on individual issues into a single more formal document. To hold otherwise would encourage parties to resile from written settlements which, at the time, were regarded as a final resolution of their collective bargaining dispute, but may have lacked the form or formalities usually associated with a collective agreement.

17. I also respectfully agree that the approach embodied in those awards is in accordance with the realities of collective bargaining and represents the present state of the law in Ontario. However, each of those cases is distinguishable from the instant case. In Sears Canada Inc., there was a signed memorandum of agreement which had been ratified by each of the parties. In Mississauga Hydro, the parties' negotiations were concluded by a written document which expressly indicated that it constituted "full settlement of all matters in dispute and shall be recom­mended by the Committees to their respective principals." That document also bore a "crude form of 'signatures' ", and had been ratified by each of the parties. Although the facts in Canteen of Canada are similar to those of the instant case in a number of respects, there is an important differ­ence. In that case, the union obviously elected to accept the employer's final offer on the basis of its acceptability to the employees. As noted above, the letter from the union's business agent to the employer confirmed the acceptability of the offer and closed with a sentence requesting eight signed copies of each contract. In the instant case, Mr. O'Reilly advised Mr. Smith of the results of the votes taken at the Union meetings but did not at any time indicate that the Union was prepared to treat those votes as dispositive or that, in light of the vote results, the Company's offers had become acceptable to the Union. Quite to the contrary, when Mr. O'Reilly became aware through Mr. Smith's letter of March 9 that the Company was mistakenly of the view that the votes had resulted in collective agreements coming into force in respect of the artists and engravers, he responded by means of his faxed and mailed letter of March 12 which expressed disagreement with the contents of Mr. Smith's letter, indicated that the principal officers of the Union had concluded that the Company offers were not in the best interest of the Union and its members, and closed with the following statement: "We look forward to a resumption of bargaining."

18. The votes conducted by the Union in the instant case were not ratification votes. Such votes are typically conducted after an employer and a union have entered into a memorandum of settlement by which they agree upon all of the terms to be included in a collective agreement, sub­ject only to ratification by the employees in the bargaining unit and by the principal(s) of the employer. In that type of situation, it is well established in the Board's jurisprudence that once such ratification has occurred and been communicated, the parties are bound by a collective agree­ment: see, for example, Sears Canada Inc., supra. It is also possible for a union to enter into a memorandum of agreement with an employer by which the union agrees to conduct an employee vote on an employer offer that the union is not prepared to recommend to the employees, and by which the union further agrees to be bound by the results of the vote. However, no such memoran­dum was entered into in the instant case, and the evidence falls far short of establishing that there was any tacit agreement to that effect. Indeed, the constitutional requirement that all collective bargaining contracts be subject to approval by the International President, although by no means dispositive of these applications, does reinforce the unlikelihood that the Union intended to be bound by the results of the votes.

19. Counsel for the Company also sought to analogise the votes in this case to votes under section 40 of the Act. However, the votes conducted by the Local in the instant case were not votes directed by the Minister under section 40 of the Act in respect of "the offer of the employer last received by the trade union". In order to obtain such a vote, an employer must make a request to the Minister. The uniqueness of such a vote is emphasized by the fact that section 40 provides that once such a request has been made, "thereafter no such further requests shall be made." More­over, even in the context of section 40, a majority vote in favour of accepting the employer's last offer does not automatically create a collective agreement: see Canada Cement Lafarge Ltd., [19801 OLRB Rep. Nov. 1583. That decision also indicated that the substantive provision of the Act which enables the Board to deal with a union's refusal to sign a collective agreement on the basis of a section 40 vote is section 15 (then section 14) of the Act. In the present case, neither of the applications contains an allegation that the Union has contravened section 15. Thus, it is unnecessary to determine whether such an allegation could be adjudicated and remedied in pro­ceedings under section 92, or whether the Board would only do so in a complaint under section 89 of the Act.

20. Company counsel also argued that a collective agreement had come into force as a result of the artists' and engravers' votes by virtue of basic contract law. It was his contention that the employer's offer had been accepted by the employees. However, as submitted by Union coun­sel, although section 50 makes it binding upon bargaining unit employees, a collective agreements a contract between an employer and a union, not between an employer and bargaining unit employees. This is clear from the section 1(1)(e) definition of "collective agreement", and is rein­forced by various other provisions of the Act, including sections 41, 64, and 67. It is also well established in the Board's jurisprudence. See, for example, The T. Eaton Company Limited, [1985] OLRB Rep. Aug. 1309, in which the Board made the following observation (in paragraph 21): "While it is true that when a union is certified to represent a unit of employees it becomes the 'exclusive bargaining agent' of the employees, it is more than simply an agent of the employees. Rather, so long as it continues to hold bargaining rights, it has a status independent of the employ­ees and deals with the employer, and enters into collective agreements in its own right." (See also Wilson Automotive (Belleville,) Ltd., [1980] OLRB Rep. Sept. 1337, and the authorities cited therein.) Thus, subject to the aforementioned considerations relevant to section 40 votes, if an employer offer is to become a collective agreement, it must be accepted by the union. In deciding whether or not to accept such an offer, a union must give due consideration to the results of employee votes concerning the acceptability of the offer. However, unless the union has agreed with the employer to be bound by the voting results, it will not automatically be bound by them. Indeed, the Board has held that, in appropriate circumstances, a union may accept an employer offer which bargaining unit employees have voted to reject: see, for example, K-Mart Distribution Centre, [1981] OLRB Rep. Oct. 1421. In so finding, the Board indicated that a heavy onus lies upon a union which flouts the will of the majority of the employees in the bargaining unit, to dem­onstrate that its conduct does not amount to a breach of section 68. Although Company counsel referred to section 68 in the course of argument, that provision was not pleaded in either of the applications. Moreover, the section 68 duty is owed not to the employer but to bargaining unit employees. Thus, as acknowledged by Company counsel, an employer is not entitled to rely upon that provision. Accordingly, the Board is not called upon to decide, and expresses no opinion on, whether the Union contravened section 68 of the Act in the circumstances of this case.

21. Counsel for the Company further submitted that unless the Union was bound by the results, the votes conducted by the Union would be an academic exercise. However, such votes can and frequently do have a significant effect on a union's bargaining power. In the instant case, the Union conducted the aforementioned votes with the expectation that the employees would reject the Company's offers, thereby strengthening the Union's bargaining position. The results of the artists' and engravers' votes clearly came as a surprise to Mr. O'Reilly, and obviously did not for­tify the Union's bargaining position in respect of those units. Thus, there clearly are risks associ­ated with such votes, even in the absence of an agreement to be bound by the results.

22. For the foregoing reasons, the Board concluded that there was no collective agreement in place between the Company and the Union in respect of either the artists or the engravers. Con­sequently, the applications were dismissed.