Ontario Labour Relations Board
[1990] OLRB Rep. May 625
2740-89-FC; 3167-89-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Venture Industries Canada, Ltd., Respondent; Randy Burke, Applicant v. National Automobile Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Respondent
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W. Pirrie and C. McDonald.
APPEARANCES: Daniel Harris, Leo Rustin, Joey Gander and Gerry Hanna for the applicant union; Frank Angelletti and Randy Burke for the applicant in Board File No. 3167-89-R; Patrick F. Milloy and Stephen Cheifetz for the respondent, Venture Industries.
DECISION OF THE BOARD; May 31, 1990
1This decision concerns an application for direction of settlement of a first contract by arbitration (the "first contract application") and an application for termination of the bargaining rights of the union involved in the first contract application (the "termination application").
2The relevant statutory provisions are as follows:
40a.-(1) Where the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minister has released the report on a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.
(2) The Board shall consider and make its decision on an application under subsection (1) within thirty days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 15 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of,
(a) the refusal of the employer to recognize the bargaining authority of the trade union;
(b) the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification;
(c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or
(d) any other reason the Board considers relevant.
(19) The parties, by agreement in writing, or the Minister may extend any time limit set out in this section, notwithstanding the expiration of such time.
(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.
(23) An application for a declaration that a trade union no longer represents the employees in the bargaining unit filed with the Board after the Board has given a direction under subsection (2) is of no effect unless it is brought after the first collective agreement is settled and unless it is brought in accordance with subsection 57(2).
3The background of this matter is as follows. The applicant union filed an application for certification on March 25, 1988 and was certified for the relevant bargaining unit by a decision of the Board (differently constituted) dated March 15, 1989 after fifteen days of hearing. A petition was filed in opposition to the union, but was withdrawn after an election to call no evidence on November 9, 1988. Notice to bargain was given on March 23, 1989 and bargaining took place between June 27 and October 23, 1989.
4A section 89 complaint was filed in January 1989 protesting lay-offs in December 1988 and January 1989. The first contract application was filed on February 8, 1990 and incorporated particulars of the section 89 complaint in its pleadings. Section 40a(2) instructs the Board to make its decision within thirty days of receiving the application, which would have been March 10, 1990. The first hearing date was set for February 19, 1990, but was occupied with preliminary matters. Discussions with a Labour Relations Officer ensued on the next two hearing days, February 21 and 22. The parties agreed on February 22 that the time lines in section 40a would be treated as commencing on the first day of hearing evidence, February 26. The hearing had been anticipated to take three days, and was scheduled to continue on February 27 and conclude on February 28. Three days proved to be insufficient to finish the case. An additional three days were set on February 28, being March 6, 8 and 22, with a view to making it possible to at least render a "bottom line" decision by March 27, the date thirty days from the commencement of hearing the evidence, the new agreed deadline for the Board's decision.
5The evidence was substantially complete on March 8, 1990. A small amount of evidence and full submissions were heard on March 22, and the Panel reserved its decision. In the meantime, an application for termination of the union's bargaining rights had been sent, by two methods, courier and registered mail. The courier copy reached the Board on March 21 and the registered mail copy reached the board on March 23, 1990. Under Rule 75(1), the termination application is considered to have been filed on the day of mailing of the registered mail copy, being March 20, 1990.
6Therefore, an application for termination of bargaining rights had been filed before a decision issued on the first contract application. Section 40a(22) contemplates that the Board will determine the appropriate order in which the two applications will be considered. However, due to the fact that the termination application had not yet gone through the administrative process and reached the panel, the decision directing arbitration of the first collective agreement (with reasons to follow) was issued on March 27, 1990, with no reference to the termination application as the panel itself was not yet aware of it, although it had been filed with the Board.
7Accordingly, a hearing was scheduled to hear the parties' submissions on how the Board should deal with the termination application. Counsel for the applicants in the termination application (the "petitioners") and counsel for the employer each took the position that the Board should set aside the decision in the first contract application and hear the termination application in its entirety to remedy the prejudice they argued their clients would otherwise suffer. Both urged the Board to give priority to the determination of the wishes of the employees by directing a representation vote. In addressing the Board's decision in Co-Fo Concrete Forming Construction Limited, [1987] OLRB Rep. June 828 counsel for the employer submitted that the Act does not differentiate among applications depending on the status of hearings, and that this was an irrelevant consideration. Counsel argued that the Board, in doing so, elevated administrative convenience over substantive rights. Employer counsel also argued that we were "past section 40a(22)" as the Board was now biased in favour of the path on which it had already embarked.
8The union took the opposite position, arguing that the status of the hearing was a relevant consideration in the exercise of the discretion under section 40a(22). Union counsel submitted that to do as the other parties suggested would be to ignore the substantive rights of the union, and that he was aware of no case where first contract and termination applications were consolidated where the hearing on one had already started. The union took the position that the first contract application was appropriately considered first and asked that the termination application be dismissed.
9The Board has considered the petitioners' and the employer's requests as an application for reconsideration. This is a two step process, firstly determining whether or not to reconsider, and secondly, whether or not to vary or revoke the decision made. See, among others, Wallcraft Painting and Decorating Ltd., [1989] OLRB Rep. March 306. The Board exercises its discretion to reconsider in very limited circumstances, but these include situations in which there has been no previous opportunity to raise submissions on an issue. (See Practice Note 17.) The situation relating to the termination application described above clearly falls within that category. Therefore, we will reconsider the decision of March 27, 1990. The question to be addressed is whether, on the facts of this case, the Board should vary or revoke the decision.
10If the Panel had had the two applications before it and the parties' submissions on the order of proceeding before it issued the decision in the first contract application, what would the appropriate order have been? It is clear that each determination under section 40a(22) requires the Board to decide what is the appropriate order, based on the factual circumstances of each case. In Northfield Metal Products Ltd., [1990] OLRB Rep. March 302, the Board received an application for termination of bargaining rights prior to the start of a second group of hearing days, which had been separated from the first group of hearing days by a number of months while the parties attempted, unsuccessfully, to settle the matter at the bargaining table. Referring to the jurisprudence on the issue of the order of consideration of applications under section 40a and applications to terminate bargaining rights, the Board observed at paragraph 11 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.
In deciding to continue with the 40a application, the Board said as follows:
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.
11The decision of the Board which deals with the fact situation closest to the one before us is Co-Fo Concrete Forming Construction Limited, supra. A panel of the Board gave an oral direction for arbitration of a first collective agreement where an application for termination had been filed the day before, but was not before the first contract panel. In deciding that it was appropriate in any event to consider the termination application subsequent to the first contract application in the circumstances of the case, the Board said as follows:
In our opinion, given the time of the filing of the instant application, in the midst of the hearing of the application made under section 40a, it appears to us that this application ought to be considered subsequent to the application for a direction under section 40a. We do so principally on the ground that the panel seized with the application under section 40a had nearly completed its hearing of that application. An application affecting the right of a trade union to represent employees in a bargaining unit requires time to process under the Board's Rules of Procedure since a terminal date must be fixed and notices to employees must be posted. We do not think it is appropriate to suspend the continuation of a hearing in a section 40a application in order to process the kind of applications contemplated by section 40a(22)(a) and (b).
The Board then went on to dismiss the termination application.
12We agree with the decisions in Co-Fo Concrete and Northfield Metal Products, supra, and are of the view that it is appropriate in the circumstances of this case for the Board to consider the first contract application first. The termination application was filed in the week of the last day of hearing with little more than argument left to complete the case. The parties had already litigated the issues contained in the first contract application for five days.. Witnesses for both parties had given detailed evidence of the negotiations and their dissatisfaction with the behaviour of the other party. This represents an investment, not just of time and money, but of expectation of resolution, so the parties can get on with their affairs. Leaving live issues unresolved is generally not healthy for labour relations unless there is a substantial reason for doing so. This expectation must also be viewed in light of the truism that "labour relations delayed is labour relations denied." The Legislature has seen fit to raise this concern to the level of giving the Board very tight time lines in which to issue its decision in section 40a, an extraordinary provision in the context of legislation which deals with a host of other very important rights without imposing such time lines. To have suspended the first contract application to deal with the termination application would have defeated the legitimate expectation of both parties that the Board would resolve the multi-faceted dispute before it in a timely fashion. We also observe that as in Northfield Metal Products, supra, what delayed the matter to a point where a termination application was even timely was an attempt to settle the matter prior to starting the evidence, an effort entered into in an attempt to avoid the inevitably difficult and sometimes acrimonious process of litigating the issues present in this case.
13We are not of the view that we should simply ignore the fact that the first contract hearing was nearly finished and put on the termination application for hearing as suggested. That would produce a result which would not have occurred if the Board had exercised its discretion under section 40a(22) before the issuance of the decision in the 40a application after substantial completion of the hearings. It would also be inconsistent with the furthering of harmonious labour relations, for the reasons set forth above. In considering this matter, it is important to note that no one argued that the evidence in the two applications would have been interrelated, which has been the basis for hearing applications together in cases such as Mansour Rockbolting, [1986] OLRB Rep. Oct. 1346 and Egan Visual Inc., [1986] OLRB Rep. Aug. 1071.
14We do not agree with counsel for the employer that the status of the hearing is an irrelevant consideration. The weight it should be given will obviously depend on all the facts of the case, but it will bear increasing weight as the conclusion of a hearing is approached. Other considerations may make its relative weight insufficient to be acted upon. No considerations of that order pertain in the case before us. This is not an elevation of administrative convenience over substantive rights. Both applications deal with substantive rights. The lack of direction in section 40a(22) as to which application is to be heard first is, in our view, entirely consistent with the fact that all the applications referred to in the section involve substantive rights, which must be balanced on a case by case basis by the Board.
15Absent clear direction from the Legislature, we see no reason that we should consider the rights of the petitioners as superior to the rights of the trade union so as to constitute a sufficiently compelling reason to cause us to suspend the first contract hearing, as suggested by the employer and the petitioners. The union was duly certified by the Board after lengthy hearings and consideration of many issues. Although the petitioners assert that the union is no longer wanted by the employees, under the Labour Relations Act it is the exclusive bargaining agent with rights under section 40a. Section 40a contemplates that a termination application will get prior consideration to a first contract application only where the Board considers it appropriate that this should occur. If the Legislature had considered that the fact of an application alone put the union's bargaining rights in sufficient question to require a representation vote, it could easily have said so. It chose not to. We think this is in accord with the sound policy of allowing the Board to give weight to relevant labour relations considerations in each case when deciding what is appropriate.
16Employer counsel argues that the Board is inevitably biased in favour of the course embarked upon on March 27, 1990. We do not agree. We have considered the matter of the order that is appropriate without giving any weight to the fact that the decision had already issued. If we were to accept the employer's submission, we would have to consider the reconsideration power given the Board redundant. The Legislature clearly recognized that the Board can take a second look at events without being biased. We consider the facts of this case, involving administrative inadvertence, to constitute a good example of why the power to reconsider is provided.
17In this case, for the reasons articulated above, it is clear that the Board would have continued the 40a application even if it had had the termination application before it on the date of filing. The prejudice argued from the administrative inadvertence in this case was that the petitioners' application is foreclosed after the direction to arbitrate. Where this would nonetheless have been the case if the section 40a(22) consideration had been done at the earliest opportunity, we do not find merit in the arguments of prejudice. The petitioners rights are not forever foreclosed, in any event. They are postponed until the next open period provided in the legislation.
18For all these reasons, we find that the appropriate order to consider these applications is to consider the first contract application before the termination application. Nothing said or argued before us impacts on the consideration of the evidence and argument in the first contract application. We therefore see no grounds to vary or revoke the decision issued on March 27, 1990. Accordingly the termination application is dismissed pursuant to section 40a(22).
[Randy Burke sought judicial review of this decision as well as a stay of further Board proceedings. The High Court on June 21, 1990 denied the applicant leave to have the judicial review application expedited and also dismissed the stay: Editor]