The United Food & Commercial Workers Union, Local 206 v. Knob Hill Farms Limited, 1991 CanLII 6049

[1991] OLRB Rep. April 521

1171-89-FC; 1545-89-R The United Food & Commercial Workers Union, Local 206, Applicant V. Knob Hill Farms Limited, Respondent; Susan Caterina, Applicant V. The United Food & Commercial Workers Union Local 206, Respondent V. Knob Hill Farms Limited, Intervener

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Ronson and K. Davies.

APPEARANCES: Joanne L. McMahon, Ronald Springall and Michael Duden for the applicant; Michael Gordon and Howard Wood for the respondent.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR AND BOARD MEMBER K. DAVIES: April 9, 1991

I The Applications

11171-89-FC is an application, under section 40a of the Labour Relations Act, for a direction that a first collective agreement between the United Food & Commercial Workers Union, Local 206 ("Local 206") and Knob Hill Farms Limited ("Knob Hill") be settled by arbitration. The circumstances surrounding this application are far from typical. We note that partly because of that, and partly because the parties apparently found it to be in their interests to accommodate each other in the course of the proceeding, this matter did not progress with the usual speed of such an application.

2This first contract application was first filed on August 4, 1989 and first came on for hearing on August 16 and 17, 1989. At that time, Knob Hill moved to have the Board dismiss the application because the name used by the applicant to describe itself on it did not describe any entity which holds bargaining rights for any of its employees. In the alternative, Knob Hill moved that the Board dismiss the application as premature, or adjourn it pending the disposition of recon­sideration requests by, among others, both Knob Hill and Local 206, and a request for a represen­tation vote by a Group of Employees with respect to the certification of the trade union. In an oral decision delivered on August 17, 1989 (subsequently reduced to writing and reported at [1989] OLRB Rep. Aug. 852) the Board (differently constituted in part - the "first Surdykowski panel") dismissed Knob Hill's first motion and amended the applicant's name to match the one which appears on the certificate issued by the Board. The Board also dismissed Knob Hill's motion to dismiss the application but did find it appropriate to adjourn the application pending the disposi­tion of the requests for reconsideration and the request by the group of objecting employees in Board File Nos. 0542-86-R and 0035-86-U (the certification application and a related complaint under section 89 of the Act).

3Board File No. 1545-89-R is an application, under section 57 of the Labour Relations Act, for a declaration terminating Local 206's bargaining rights for the bargaining unit affected by the first contract application herein. It was filed on September 22, 1989 and came on for hearing before the Board, again differently constituted (the "Nairn panel"), on October 24, 1989. Upon hearing the representations of the parties, the Nairn panel adjourned the termination application to be scheduled to be heard together with the first contract application.

4In the result, both applications herein were left to await the disposition of the reconsid­eration requests made by, among others, Local 206 and Knob Hill. By (majority) decision dated January 3, 1990 (reported at [1990] OLRB Rep. Feb. 169) the panel of the Board which had certi­fied Local 206 (the "Petryshen panel") dismissed Knob Hill's request for reconsideration. Upon Knob Hill's request for reconsideration being dismissed, the remaining requests for reconsidera­tion, including Local 206's, were withdrawn with leave of the Board. The (majority of the) Petryshen panel also found that no effect could be given to the "petition" of the objecting employ­ees.

5Subsequently, the first contract application and the termination application were brought on for hearing before this panel beginning on February 16, 1990.

II Which Application Should be Considered First

6At the outset of the hearing, the termination applicant (Susan Caterina), supported by Knob Hill, asked that the Board consider her application first. Local 206 submitted that the Board should deal with its first contract application first.

7Section 40a(22) of the Act provides that:

(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.

Although this is not the first time that an issue has arisen with respect to the application of section

40a(22), the jurisprudence provides us with little guidance in the unusual circumstances before the Board in this proceeding.

8In Egan Visual Inc., [1986] OLRB Rep. Aug. 1071, the Board considered a situation in which a trade union had been certified on February 18, 1985, a termination application had been filed on April 4, 1986 and was scheduled to be heard on July 7, 1986, section 40a of the Act had come into force on May 26, 1986, and the trade union therein had filed its application for a direc­tion under section 40a on July 3, 1986. In concluding that the termination and the first contact applications should proceed together in order to enable the Board to properly determine which one it should consider first, the Board observed that the order in which the applications were filed was a relevant but not determinative factor. It also recognized that the wisdom or usefulness of directing that a first contract be settled by arbitration was open to question in circumstances where the employees affected no longer support the trade union concerned. On the other hand, observed the Board, if the trade union's support had been eroded as a result of the employer's actions in bargaining (or perhaps otherwise, we suggest), then an arbitrated first collective agreement may well be appropriate. As it turned out, the parties resolved the matters in dispute between them for themselves and the Board was not called on to make a determination under section 40a(22) or to comment further on it in that proceeding.

9In Mansour Rockbolting Limited, [1986] OLRB Rep. Oct. 1346, the Board had before it a section 89 complaint by the trade union on November 19, 1985, a termination application filed on July 17, 1986, a second section 89 complaint filed by the trade union on August 14, 1986, and a first contract application filed by the trade union on August 18, 1986. It appears that the Board considered the termination application, which it dismissed, first, it gave no reasons for doing so. Because it is not apparent why the Board found it appropriate to consider the termination applica­tion first, that decision is of little assistance to us.

10The Board decisions dealing with situations in which a termination application was filed when a first contract proceeding had been virtually or entirely completed were also of little assis­tance to us because of the nature of the considerations apposite in those circumstances (see, for example, Venture Industries Canada, Ltd., [1990] OLRB Rep. May 625, Northfield Metal Products Ltd., [1990] OLRB Rep. Mar. 302, Co-Fo Forming Construction Limited, [1987] OLRB Rep. June 828).

11Upon hearing the representations of the parties with respect to how it should proceed with these two applications, the Board unanimously ruled (orally) that it would hear them together and then make the requisite determination under section 40a(22). The Board was satisfied that that determination could not be made in this case in the absence of the evidence and representation of the parties with respect to applications.

III The Direction that a First Collective Agreement Be Settled by Arbitration

12Section 40a(1) and (2) of the Labour Relations Act provide that:

(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.

Since Nepean Roof Trust Limited, [1986] OLRB Rep. July 1005, the seminal decision dealing with the first contract provisions in the Act, the Board has consistently acknowledged that section 40a is remedial legislation which should be liberally construed, but also that it is not intended to supplant the primacy of free collective bargaining or to provide automatic access to arbitration in all cases where the parties are unable to negotiate a first collective agreement. The provisions of section 40a are a statutory recognition of the importance of and difficulties which may be encountered in situa­tions where a first collective agreement is being negotiated. Since there would be no application under section 40a if a first collective agreement was achieved, the mere lack of one does not, by itself, mean that the process of collective bargaining has been unsuccessful or, even if it has been unsuccessful, that is appropriate that a first collective agreement between the parties be settled by arbitration. Further, as the Board's decisions in Teledyne Industries Canada Limited, [1986] OLRB Rep. Oct. 1441 and Juvenile Detention (Niagara) Inc., [1987] OLRB Rep. Jan. 66 illustrate, an application under section 40a may be premature. However, and as the Board's jurisprudence also amply illustrates, there is no absolute minimum point prior to which an application cannot be suc­cessfully made. What the minimum point is in any given case will depend on the circumstances of that case.

13As its preamble suggests, the Labour Relations Act is designed to encourage collective bargaining between employers and trade unions representing their employees. The Act contem­plates that the certification (or voluntary recognition) of a trade union will initiate a collective bar­gaining process which will lead to a collective agreement between the employer and the trade union, which regulates the terms and conditions of employment of the bargaining unit employees. On occasion, the process does not result in a collective agreement. The Act does not require that an employer be happy that its employees are represented by a trade union. Nor does it guarantee that a collective agreement will ultimately be achieved after a successful application for certifica­tion. However, the Act does require an employer to bargain in good faith and make every reason­able effort to make a collective agreement with a trade union which has been certified as the exclu­sive bargaining agent for its employees. Section 40a is intended to provide a remedy where the process of collective bargaining in a first collective agreement situation has been unsuccessful for any of the reasons set out in it.

IV Summary of Events Leading to These Applications

14The history of the applications herein is both lengthy and complex. That history may be traced through the several Board decisions which detail various portions of it. We find it unneces­sary to review that history in detail. For our purposes a brief summary will suffice.

15Local 206 began an organizing campaign of employees of Knob Hill in March 1986. Local 206 applied for certification on May 23, 1986. By decision dated December 22, 1987 (re­ported at [1987] OLRB Rep. Dec. 1531), Local 206 was certified as the exclusive bargaining agent for all employees of Knob Hill at Oshawa, Ontario, save and except Assistant Store Manager, per­sons above the rank of Assistant Store Manager and office staff pursuant to section 8 of the Act which provides that:

8. Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support ade­quate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

16Knob Hill immediately (by letter dated January 4, 1988) sought reconsideration of that decision. This was dismissed by decision dated March 2, 1988. The Group of Employees, Objec­tors which had participated in the certification proceedings sought judicial review of the Board's decision in an application filed on March 25, 1988. Knob Hill filed its own application for judicial review on March 29, 1988. Knob Hill also sought a stay of the Board's decision pending the dispo­sition of its application for judicial review. Its application for a stay was dismissed by the Divisional Court on May 30, 1988.

17In the meantime, Local 206, by letter dated January 15, 1988, had given Knob Hill notice of its desire to commence collective bargaining, as it was entitled (and indeed, required) to do by section 14 of the Act. By letter dated January 28, 1988, the respondent acknowledged receipt of Local 206's notice to bargain and advised that:

As you are aware, the Ontario Labour Relations Board has been requested to reconsider its decision of the 22nd day of December, 1987. The reconsideration is the first step in the review process of this decision.

18By letter dated April 13, 1988, counsel for Knob Hill asked that Local 206 provide its available days for bargaining and a copy of its proposed collective agreement. In response, an indi­vidual who, although employed by Local 175 of the United Food & Commercial Workers Interna­tional Union, had been designated to assist Local 206 in its bargaining with Knob Hill, suggested twelve dates between April 28 and May 13, 1988. Counsel for the respondent replied that he was not available at all until May 31 or June 1, 1988. It is hardly surprising that the Union was not satis­fied with this response and promptly (on or about April 26, 1988) applied for conciliation. What is surprising is that the application was made in the name of "United Food & Commercial Workers International Union, Local 175 (formerly Local 206)" ("Local 175"). Knob Hill objected to the application for conciliation on the basis that it was premature. It was not until mid-May, 1988 that, to borrow the expression of Howard Wood (Knob Hill's general counsel and its sole witness in this proceeding), "the light went on" and Knob Hill realized that it was Local 175, not Local 206, which had applied for conciliation. Knob Hill seized upon this as a further basis for objecting to the appointment of a conciliation officer.

19Although we have the undoubted benefit of hindsight, it is difficult to understand why the Union began to and subsequently persisted in taking the position that Local 175 held the bar­gaining rights which Local 206 had obtained, particularly when, to this day, Local 206 itself takes the position that the merger between itself and Local 175 has not been completed. Doing so did nothing to further collective bargaining. Instead, it led to further litigation which did much to delay both the collective bargaining between the parties and the first contract application herein.

20In any event, pursuant to section 107 of the Act, the Minister (to whom an application for conciliation is made pursuant to section 16 of the Act) found it appropriate to seek the advice of the Board with respect to Knob Hill's challenge to his authority to appoint a conciliation officer as requested by Local 175.

21By decision dated July 28, 1988, the Board (the "Knopf panel") adjourned the section 107 referral so that the proper materials could be filed and proper notice given to the employees in the bargaining unit of Local 175's request therein that the Board declare that a merger had occurred between Local 206 and Local 175. Subsequently, Ron Springall, who was then and is now the sole officer of Local 206, filed a reply confirming that such a merger had taken place notwith­standing that, as he testified in this proceeding, he did not then and does not now believe that such a merger had or has in fact effectively occurred. Knob Hill, and the Group of Employees which had objected to and participated in certification proceeding opposed Local 175's application in that respect.

22By decision dated August 18, 1988 (by the "first Gray panel") and reported [1988] OLRB Rep. Aug. 810, the Board concluded that Local 175 could not be a successor trade union within the meaning of sections 62 or 107(2) of the Act, and that Local 175 held no bargaining rights with respect to employees of Knob Hill and was not a "party within the meaning of section 16". The Board therefore advised the Minister that he did not have the authority to appoint a concilia­tion officer at the request of Local 175. The Minister accepted this advice and declined to appoint a conciliation officer.

23Local 206 then itself sought the appointment of a conciliation officer. It chose also to seek reconsideration of the certification decision, asking that Local 175 be substituted on the certif­icate issued to Local 206, albeit without prejudice to its request for conciliation. This strategy led directly to further delays in the collective bargaining between the parties as demonstrated by the decision of the first Surdykowski panel. The International Union and Local 175 sought to intervene in Local 206's request, seeking the same relief. Knob Hill opposed Local 206's application for con­ciliation on the basis that it was premature, and on the basis that Local 206 no longer existed. The Minister again found it appropriate to refer the question of his authority to appoint a conciliation officer as requested by Local 206 to the Board for its advice. By majority decision dated November 8, 1988 (written reasons written on February 9,1989 and reported at [1989] OLRB Rep. Feb. 149) the Board (the "second Gray panel") advised the Minister that he did have the authority to appoint a conciliation officer at the request of Local 206. The Minister again accepted the Board's advice and, by letter dated November 17, 1988, appointed a conciliation officer. By letter dated November 14, 1988, Knob Hill again sought reconsideration of the original certification decision, essentially on the basis that Local 206 and its counsel had violated section 58 of the Act by reason of their failure to make proper and timely disclosure of the merger agreement and proposed merger between Locals 206 and 175. Knob Hill took the position that this constituted a fraud on the Board within the meaning of section 58 and that the Board should therefore void the certificate which it had issued to Local 206. Also, by letter dated December 12, 1988, a Group of Employees, delivered another "petition" to the Board and to the Minister seeking a representation vote. This could also be characterized as being in the nature of a request for reconsideration of the original certification decision.

24It took some time for the various requests for reconsideration to come on for a hearing.

It would not be useful to recount the delays or the reasons for them. Suffice to say that while no one participant was responsible for all of the delays, Local 206 requested and obtained several adjournments which delayed the hearing.

25In the meantime, Knob Hill and Local 206 had, at long last, begun actual collective bar­gaining, nearly a year after Local 206 had delivered its notice to bargain. Local 206 tabled its first collective bargaining proposal on December 21, 1988. Knob Hill tabled its first proposal on Janu­ary 11, 1989. Then, on January 18, 1989, Knob Hill took the position that it would not release wage and benefit information with respect to bargaining unit employees or bargain monetary issues until the Group of Employees received a response to their "petition" from the Minister.

26Notwithstanding that, Local 206 tabled a second collective bargaining proposal on Feb­ruary 1, 1990. Knob Hill tabled its second proposal on February 9, 1990 and February 16, 1989. Local 206 tabled a third proposal on February 16, 1989 and Knob Hill tabled its third proposal on February 23, 1989.

27Local 206 also filed a complaint under section 89 of the Act alleging that Knob Hill had contravened section 15 by failing to provide the information it had requested. That matter was resolved between the parties and, by decision dated May 1, 1989 (by the "MacDowell panel") the Board issued a "consent order and direction" as follows:

The Board directs that the respondent Knob Hill Farms Limited provide Local 206 of the United Food and Commercial Workers Union with a recapitulation of the wage rates payable to employees in the bargaining unit as at the week ending December 18, 1988 at Knob Hill Farms in Oshawa, Ontario, no later than 5:00 p.m. Tuesday, May 16, 1989. Delivery by facsimile machine to Local 206 at #519-744-8357 will be sufficient compliance with this Order. Upon compliance with the Order, the complainant will withdraw the instant complaint.

This Board order reflects the information which was requested prior to and in the section 89 com­plaint and Knob Hill's agreement to provide the wage rate information which had been requested. Knob Hill did indeed comply with the Board order. What it failed to do, however, was to disclose to either Local 206 or to the Board that it had in the interim implemented a wage increase which affected the bargaining unit employees and that the information it had agreed to provide was therefore inaccurate for collective bargaining purposes. Further, as the evidence before the Board in this proceeding revealed, the information provided by Knob Hill did not accurately reflect the wages being paid to bargaining unit employees in any event.

28Local 206 tabled a further proposal on April 10, 1988. Knob Hill responded by letter dated May 16, 1989 with a written summary of the parties' respective positions in bargaining including Knob Hill's position as at that date.

29The applications for judicial review (see paragraph 16, above) were dismissed by the Divisional Court on June 9, 1989 (leave to appeal those decisions was dismissed by the Court of Appeal on October 22, 1990). The union tabled a further proposal on June 19, 1989 and sought a "no-board report" on that day as well. Over the objection of Knob Hill, the Minister released a notice to the parties that he did not consider it advisable to appoint a conciliation board on July 28, 1989.

30The first contract application herein was filed on August 4, 1989. By oral decision given at a hearing on August 17, 1989 (written decision issued August 21, 1989 and reported at [1989] OLRB Rep. Aug. 852), the Board adjourned the first contract application pending the disposition of the requests for reconsideration of the certification decision (see paragraph 2, above).

31The application for termination was then made on September 27, 1989 (see paragraph

3, above).

32The, requests for reconsideration were heard on November 2 and 3, 1989. By decision dated January 31, 1990 (reported at t1990] OLRB Rep. Feb. 169), Knob Hill's request for recon­sideration and its complaint that Local 206 and its counsel had violated section 58 of the Act were dismissed by the Petryshen panel. The Petryshen panel also determined that no effect could be given to the December 1988 "petition". The various unions' requests for reconsideration were withdrawn with leave of the Board (see paragraph 4, above).

33Pursuant to the first Surdykowski panel's decision in the first contract application and the Nairn panel's decision in the termination application the two applications herein came on for hearing together beginning February 16, 1990 and continuing on twelve further dates.

V The Decision

34We start then with a situation in which Local 206 was certified as the exclusive bargain­ing agent for certain of Knob Hill's employees in Oshawa, pursuant to the extraordinary provisions of section 8 of the Act, as a result of breaches of the Labour Relations Act by Knob Hill which made it unlikely that the true wishes of the employees could be ascertained. In the course of its decision in that respect, the majority of the Petryshen panel addressed an argument advanced by Knob Hill the use of section 8 in the context of legislation which includes first contact arbitration provisions as follows:

57. Counsel for the Employer submitted that the approach the Board has adopted in section 8 cases should be reconsidered as a result of the amendment to the Act providing for first contract arbitration. Counsel suggested that section 8 conflicts with the generally accepted majoritorian [sic] principle. Prior to the recent first contract amendment, the true test of whether a union had sufficient support to engage in bargaining occurred at the bargaining table. If the bargaining unit employees were not in favour of the union or its bargaining stance, a union would likely not be able to conclude a collective agreement. Since the first contract provisions of the Act provide for a situation where the union may get a first collective agreement (even though support for the union is very low) from bargaining unit employees, it was submitted that the Board should lean towards the majoritorian [sic] principle in its application of section 8.

58. We reject the suggestion that the recent first contract legislation provides a basis for altering the way in which the Board interprets and applies section 8 of the Act. As noted earlier, the purpose of section 8 is to provide a remedy for trade unions where illegal employer activity has destroyed the ability of employees to choose freely. In part, the first contract provisions represent another remedy to assist trade unions and employees in their initial efforts at collective bargaining in situations where the failure of the union to gain or maintain support from employees is attribut­able to illegal or other undesirable conduct on the part of an employer. The certification stage and the first collective agreement stage represent the first two steps in a continuing process, and the section 8 and the first contract remedies are two distinct legislative responses designed to pro­mote collective bargaining. An approach by the Board which leaned towards the majoritarian principle would limit the availability of a section 8 remedy, a remedy which attempts to address situations where the Union has not succeeded in receiving majority support because of an employer's illegal conduct. In our view, such a result was not intended by the Legislature when it enacted the first contract provisions. A greater emphasis on the majoritarian principle would be inconsistent with the purpose of section 8 which addresses circumstances where the true wishes of employees (the majority view) are not likely to be ascertained. In addition, Counsel's argument appears to suggest that access to an arbitrated first collective agreement is automatic. This, of course, is not the case. Since there can be no direction to settle the first collective agree­ment by arbitration unless it can be demonstrated that bargaining has been unsuccessful because of one or more of the reasons set out in section 40a(2), it is clear that a certificate does not auto­matically entitle a union to an arbitrated collective agreement under the Labour Relations Act.

It is difficult to appreciate why the existence of the first contract remedy should affect the way in which section 8 is interpreted and applied when its availability is anything but certain.

[emphasis added]

And, as the Board suggested in Zenith Wood Turners Inc., [1987] OLRB Rep. Nov. 1443, section 40a may provide an appropriate remedy in circumstances where the effects of unfair labour prac­tices committed during an organizing campaign extend to the process of collective bargaining which follows certification.

35Knob Hill reacted to the certification decision by immediately applying for reconsidera­tion and, subsequently, for judicial review. In addition, Knob Hill failed to implement the Petryshen panel's direction that it reinstate fourteen employees which it had improperly termi­nated. The Petryshen panel's March 23, 1988 decision in that respect reveals that Local 206 had complained to the Board of Knob Hill's failure in that respect by letter dated January 27, 1988. The Petryshen panel was satisfied that Knob Hill had failed to comply with the Board's direction as alleged by Local 206 (including the Board's direction that the company post certain specified notices to employees) and directed that a copy of the directions in that respect be filed with the Supreme Court of Ontario pursuant to section 89(6) of the Act. Still Knob Hill did not comply. Instead, by letter dated April 13, 1988, Knob Hill sought "clarification" of the Board's directions. Before receiving a response, Knob Hill sent out recall notices, dated May 12, 1988, to the fourteen employees, some four and a half months after being directed to do so, and more than two months after its request for reconsideration had been dismissed. Even then, ten of the fourteen employees were instructed to report for work on May 30, 1988 and the remaining four were advised that they had been reinstated in employment but laid off. Knob Hill offered no satisfactory explanation for its dilatory conduct, either in seeking "clarification" earlier or for its failure to reinstate and recall earlier the employees in the manner it did in May, 1988.

36Knob Hill was also slow to come to the bargaining table. Knob Hill's response to Local

206's notice to bargain was wholly inadequate and inappropriate. In effect, it was a refusal to bar­gain as required by section 15 of the Act and a refusal to recognize Local 206's bargaining authority (s.40a(2)(a)). This, together with its response to the dates for bargaining subsequently suggested by Local 206, its response to Local 206's request for collective bargaining information (including wages and benefits) in respect of bargaining unit employees, and its general approach to bargaining (including its insistence that some items be settled before others were bargained) all demonstrate that it was less than anxious to conclude a collective agreement with Local 206 and constitute a fail­ure to make reasonable and expeditious efforts to conclude a collective agreement (s.40a(2)(c)).

37Knob Hill's response to the section 89 complaint filed by Local 206 as a result of the company's failure to provide the collective bargaining information requested is also telling. First, it waited until the very last possible moment to settle the complaint in a way which constituted a complete capitulation. Then, although it provided the information it had agreed to provide, it failed to reveal that it had implemented a wage increase in the interim and that the information it was providing was therefore inaccurate. Indeed, up to and including the hearing of these applica­tions, Knob Hill has failed to provide accurate information in that respect. This too constituted a failure by Knob Hill to make reasonable or expeditious efforts to conclude a collective agreement (s.40a(2)(c))

38Once at the bargaining table, Knob Hill's conduct did nothing to further collective bar­gaining between the parties. On the contrary, Knob Hill attempted to deflect the focus of the real matters as in issue between the parties and made proposals calculated to evoke a negative response and to extend the bargaining. For example, one of Knob Hill's proposals (subsequently dropped) purported to dictate what use could be made use of union dues, a purely internal trade union mat­ter. Knob Hill also insisted, and has, to a great extent, continued to insist, that things remain as they were prior to certification. This is illustrated by, for example, Knob Hill's management rights, wages, benefits, and job classifications proposals. As indicated above, Knob Hill also insisted that it would not negotiate any monetary items until all non-monetary issues were resolved. Despite Knob Hill's assertion to the contrary, it is evident that Local 206 did not agree to this procedure. On the contrary, the evidence reveals that Local 206 repeatedly sought wage and benefit informa­tion and sought to bargain monetary items. Indeed, it had some, albeit limited, success in that respect. That success served to reveal both Knob Hill's refusal to focus on monetary matters and its position in that respect. For example, Knob Hill insisted throughout that if its unionized employees (that is, those represented by Local 206) received a wage increase, either in the exercise of Knob Hill's discretion (which it insisted it should continue to have) or through collective bar­gaining, its non-unionized employees will receive the same wage increase, and vice-versa. In a sim­ilar vein, Knob Hill has insisted that, to accommodate that position, the status quo on wages is to be maintained. Knob Hill failed to provide any justification (reasonable or otherwise) for that posi­tion. Further, Knob Hill insisted and continues to insist that it should have final unilateral right to establish not only new bargaining unit positions but also the job duties and wage rates for such new positions. Knob Hill also insists on the right to unilaterally change existing job duties and, it appears, the wage rates associated with a position when its job duties are changed. Knob Hill offered no adequate explanation for that position either.

39With respect to benefits other than vacation, Knob Hill also insists on the status quo, again without adequate explanation. With respect to vacations, Knob Hill steadfastly maintains that bargaining unit employees should only be entitled to the bare minimum provided for in that respect by the Employment Standards Act, even though it could not say that there aren't bargain­ing unit employees who presently receive a greater vacation benefit than that. Knob Hill's position in this respect too has been uncompromising without reasonable justification (s.40a(2)(b)).

40Knob Hill has also refused to bargain with Local 206 with respect to the payments which it has historically made to employees at or about the end of each calendar year. It maintains that these are not "bonuses", as Local 206 sometimes refers to them, but rather ex gratia payments which are not part of the bargaining unit employees present "contract of employment". Knob Hill has taken the position that whether and in what amounts it continues to make such payments is a matter which is for it alone to determine, and that it is not required to either discuss these pay­ments with Local 206, or to provide Local 206 with any information regarding them. This amounts to a refusal to recognize Local 206's bargaining authority (s.40a(2)(a)).

41There is a very fine line between hard bargaining (which is lawful), and surface or oth­erwise improper bargaining (which is not lawful - see, for example The Daily Times, [1978] OLRB Rep. July 604, Radio Shack, [1979] OLRB Rep. Dec. 1220; application for judicial review dis­missed 80 CLLC 26 14,017 (Ont. Div. Crt.); application for leave to appeal to the Court of Appeal dismissed March 10, 1980; Fotomat Canada Limited, [1980] OLRB Rep. Oct. 1397). Knob Hill engaged in surface bargaining. Its conduct clearly demonstrates an unwillingness to accept that Local 206 has been certified as the exclusive bargaining agent for certain of its employees in Osh­awa, or to bargain a collective agreement with Local 206. It has pursued every possible avenue, both legitimate and otherwise, to defeat, or at least delay for as long as possible, the enforcement of those bargaining rights. It has sought reconsideration and judicial review as it is entitled to do. It's conduct in bargaining, or rather its failure to conduct itself properly in bargaining, is another matter, however.

42Knob Hill's refusal to bargain after Local 206 had delivered its notice to bargain was improper. The fact that a request for reconsideration or an application for a judicial review has been made does not stay either the effect of a Board decision (which Knob Hill's application to the Divisional Court for a stay demonstrated it was well aware of) or the obligation to bargain in good faith and make reasonable effort to make a collective agreement as required by section 15 of the Act. We recognize that, as a practical matter, parties will sometimes mutually agree to suspend bargaining pending the disposition of an application for judicial review. Whatever the propriety of such an agreement, there was no such mutual agreement between Knob Hill and Local 206 in this case, notwithstanding Local 206's inaction in response to Knob Hill's refusal to bargain. No party has a right to refuse to bargain because of a reconsideration request or an application for judicial review is pending (see, for example, Cabletech Wire Co. Ltd., [1978] OLRB Rep. Oct. 895, 4-B Manufacturing Ltd., [1978] OLRB Rep. Aug. 741). Knob Hill's position constituted an improper refusal to recognize Local 206's bargaining authority (s.40a(2)(a)).

43Further, .we recognize that it is not uncommon for parties to agree to bargain with respect to certain matters or classes of matters before moving on to discussing other issues. There is nothing wrong with doing that in order to give some structure to the negotiations. In the absence of such an agreement, however, one party is not entitled to insist on discussing particular items or classes of items to the exclusion of others or to refuse to bargain certain matters until one or more other matters have been settled (see, for example, The Journal Publishing Co. of Ottawa Ltd.,. [1977] OLRB Rep. June 309, Rolph-Clark-Stone Packaging, [1980] OLRB Rep. July 1045). In the circumstances of this case, as recounted above, we are satisfied that non-monetary items be bar­gained to the exclusion of monetary items constituted a failure to make reasonable or expeditious efforts to conclude a collective agreement (s.40a(2)(c)).

44Even before the introduction of the first contract arbitration provisions in section 40a, it had long been recognized that negotiations for a first collective agreement must be pursued with reasonable diligence. Such reasonable diligence requires that parties make themselves available to bargain (see, for example, Fotomat Canada Ltd., sup ra). Knob Hill's response to Local 206's notice to bargain, the dates for bargaining subsequently suggested by Local 206, to Local 206's request for collective bargaining information, and its general approach to bargaining demonstrates that Knob Hill was less than reasonably diligent in its approach to collective bargaining. The man­ner in which Knob Hill responded to Local 206's requests for information, both before and after the section 89 complaint filed by Local 206 in that respect was also completely improper and served to substantially delay and sidetrack collective bargaining. It has long been established that a trade union is entitled to such information for collective bargaining purposes (DeVilbiss (Canada) Ltd., [1976] OLRB Rep. Mar. 49, Globe Spring and Cushion Co. Ltd., [1982] OLRB Rep. Sept. 1303, The Windsor Star, [1983] OLRB Rep. Dec. 2147, The Ontario Cancer Treatment and Research Foundation (Thunder Bay Clinic), [1985] OLRB Rep. May 705, Forintek Canada Corp., [1986] OLRB Rep. Apr. 453, Ford Glass Limited, [1986] OLRB Rep. May 624, among others). Further, as the Board noted in Forintek Canada Corp., supra:

33. A belief that some number of bargaining unit employees did not wish the requested informa­tion disclosed to the union is no answer to a complaint that the failure to disclose it violates sec­tion 15 of the Act, any more than a belief that some number of employees did not wish the union to represent them would justify a refusal to bargain with a union which is entitled by law to act as exclusive bargaining agent for a bargaining unit which included those employees. The union's right to and need for the requested information were and are concomitants of the rights and obligations which flow from its status as exclusive bargaining agent, a status which continues until its bargaining rights are abandoned by the trade union or terminated by vote of a majority of employees in the bargaining unit. Although the union has not made a separate complaint about the past survey on which the employer relied during bargaining when it refused to provide requested information, we are bound to observe that it is quite inconsistent with recognition of a trade union as exclusive bargaining agent of all employees in a bargaining unit for the employer to have asked those employees individually (or collectively) whether they approved of the employer's giving information about their salaries to their bargaining agent. The respondent's demand for individual written authorizations was equally inconsistent with its obligation to rec­ognize the union as exclusive bargaining agent, and neither the union's delay in providing nor its attempts to obtain such authorizations can in any way excuse the respondents' conduct. The fact that Forintek had refused to provide requested particulars of existing terms and conditions of employment during the bargaining which led to previous collective agreements without its refusal then becoming the subject matter of an unfair labour practice complaint is no answer to this complaint that its refusal to do so during these negotiations violated section 15 of the Act.

There was no legitimate basis for Knob Hill's refusal to provide the requested information to Local 206. Further, even though Knob Hill acted in accordance with the letter of the settlement and Board order with respect to the section 89 complaint its failure to provide accurate information to Local 206, either pursuant to that settlement and Board order or otherwise, is the very antithesis of good faith bargaining and constituted a failure to make reasonable or expeditious efforts to con­clude a collective agreement (s.40a(2)(c)).

45Some of the delay in bargaining, particularly that period between May, 1988 and August 18, 1988, arose out of the union's identity confusion. In that respect, there is merit to Knob Hill's explanation that it was concerned about whether it should be bargaining with Local 206 or Local 175 (since an employer is prohibited from bargaining or entering into a collective agreement with any trade union other than the one which holds the bargaining rights for its employees - sec­tion 67 of the Act). Knob Hill properly took the position that it could not bargain with Local 175. Local 206 argued that however legitimate the company's concern was, Knob Hill made no effort to contact anyone from either Local 206 or Local 175 with respect to its concern. It is curious that Knob Hill did not identify its concern until some two and a half months after it began to corre­spond with Local 175 with respect to collective bargaining. However, judging by the conduct of the unions in persisting in their assertion that there had been a merger between Locals 206 and 175 such that Local 175 held the bargaining rights for Knob Hill employees which Local 206 had been granted even after Knob Hill questioned Local 175's status as a collective bargaining representa­tive, it is unlikely that these concerns would have been alleviated as a result of any such enquiries. However, taken in context, Knob Hill's response to this situation does shed some light on its motives and intentions in collective bargaining.. We find it significant that Knob Hill dragged its feet in responding to Local 175's request for information to which a collective bargaining represen­tative is clearly entitled before it recognized or raised any question of Local 175's status to make such a request or to receive such information. We are satisfied that no small part of Knob Hill's motive was its desire to delay or entirely stop collective bargaining.

46To the extent that Knob Hill suggests that Local 206's conduct with respect to the pur­ported merger with Local 175 constituted a fraud or was otherwise improper, its allegations have been disposed of by the Board in other proceedings. In our view, they are irrelevant to the Board's considerations in this proceeding except insofar as they complete the background against which the applications herein were brought. Whatever criticisms may be made of Local 206's conduct, the fact remains that it has, at all material times, held the bargaining rights granted to it by the Board on December 22, 1987, and there is nothing which could reasonably have led Knob Hill to think otherwise. To the extent that Local 206's conduct has resulted in delays in either the collective bar­gaining process or its first contract application herein, Local 206 will itself suffer the prejudice which almost always operates to the detriment of the trade union rather than to the employer. In any case, Local 206's conduct in this respect cannot excuse the conduct of Knob Hill.

47The evidence before the Board does indicate that further collective bargaining between the parties would likely result in some of the matters which remain outstanding between them being resolved. However, we are not satisfied that further collective bargaining would be likely to result in a collective agreement. Rather, we are satisfied that the process of collective bargaining between the parties has been unsuccessful.

48To summarize, we are satisfied that the conduct of Knob Hill as aforesaid, including its initial refusal to even meet to bargain, its subsequent attempts to delay the commencement of bar­gaining, and its refusal to provide Local 206 with accurate collective bargaining information to which the union was clearly entitled, amount to a refusal by Knob Hill to accept or recognize the bargaining authority of Local 206, and constitute a failure of the company to make reasonable or expeditious efforts to conclude a collective agreement with Local 206. We are also satisfied that Knob Hill was engaged in no more than surface bargaining. Its positions in bargaining with respect to management rights, wages, benefits, and classifications (the very foundation of a collective agreement) were both uncompromising and adopted without reasonable justification, and amount to a failure by Knob Hill to make reasonable or expeditious efforts to conclude a collective agree­ment.

49We are satisfied that the process of collective bargaining between the parties has been unsuccessful because of Knob Hill's refusal to recognize the bargaining authority of Local 206, the uncompromising positions adopted in bargaining by Knob Hill without reasonable justification, and the failure of Knob Hill to make reasonable or expeditious efforts to conclude a collective agreement.

50We are satisfied that Knob Hill's conduct, and its approach to bargaining, were designed to not only defeat collective bargaining, but also to communicate to bargaining unit employees a very simple message: unionization has not and will not bring you anything. That this message was received by the employees is demonstrated by the evidence of Susan Caterina, the applicant in the termination proceeding, who testified before the Board that "I just know the union hasn't done anything for us" and who, in preparing to bring her application, circulated a let­ter soliciting support, which letter contains the following statement:

I don't believe that the Union has done anything for us since it got in and I don't want to start paying union dues each month for the same wages and benefits we would have received with or without a union.

(In that regard, see Peacock Lumber Limited, [1990] OLRB Rep. May 584).

51The sections of the Labour Relations Act which provide for the termination of a trade union s bargaining rights contemplate that the trade union which has been certified by the Board will have some time (a minimum of six months in the construction industry and one year outside of the construction industry) to prove itself to the employees it represents. In our view, Local 206 has not had that opportunity in its relations with the employees of Knob Hill. While Local 206 has itself contributed to that situation, its primary cause is the product of Knob Hill. In the circum­stances, including the certification of Local 206 pursuant to section 8 of the Act, Knob Hill's failure to comply with the directions of the Petryshen panel, the dates of the two applications herein, and the conduct of Knob Hill and the effect of that conduct, we find it appropriate, in the exercise of our discretion under section 40a(22) of the Act to consider the first contract application herein first.

52In the circumstances herein, and having regard to our findings as aforesaid, the Board finds it appropriate to direct that a first collective agreement between Knob Hill Farms Limited and the United Food and Commercial Workers Union, Local 206 be settled by arbitration. Pursuant to section 40a(22) of the Act, the termination application in Board File No. 1545-89-R is there­fore dismissed.

DECISION OF BOARD MEMBER JAMES A. RONSON; April 9, 1991

1. The United Food & Commercial Workers Union, Local 206 (the Union or UFCW, Local 206) has applied for a direction that a first collective agreement be settled by arbitration as between it and Knob Hill Farms Limited (the Employer). As well, Susan Caterina has applied on behalf of a group of employees (the Petitioners) for an order directing a vote to determine whether or not the bargaining rights of the Union should be terminated.

2. With this situation of conflicting applications the Labour Relations Act (the Act) stipu­lates that the Board must choose which application to hear and determine first. This choice is an exercise of pure discretion and, as in this case, is essentially fact-driven. In order to facilitate the exercise of its discretion the Board ordered that the two applications be heard together.

3. Mr. Gordon, counsel for the Employer, filed a comprehensive, chronological statement of the facts in issue. Mr. Gordon led evidence to prove these facts, item by item, during the hear­ing. Whenever possible, I have quoted verbatim from the Employer's statement of fact and I am indebted to Mr. Gordon for making my task that much easier.

4. FACT:

4.1 March 6, 1986 - UFCW, Local 206 organizing campaign starts at the Oshawa store. Between March 6 and March 21, 1986, 85 member­ship cards are obtained.

4.2 May, 1986 - UFCW, Local 206 receives permission to enter merger discussions with UFCW Locals 175, 409 and 486.

4.3 May 23, 1986 - UFCW, Local 206 applies to the OLRB for certifica­tion as bargaining agent of the employees of the Employer at Osh­awa, Ontario.

4.4 May 29, 1986 - Donna Baydak begins the circulation of a petition against the Union's certification application.

4.5 June 7, 1986 - is the terminal date for the certification application. For the period between March 21 and June 7, 1986 the Union obtains signatures on 24 cards. For the period between May 29 and June 7, 1986, Donna Baydak obtains the signatures of 156 people on a petition against the certification of the Union.

4.6 June 19, 1986 - first hearing by the Board at which the certification application and a section 89 application are consolidated for the pur­poses of hearing.

4.7 August 15, 1986 - evidentiary hearings before the Board commence and continue over 14 days of hearing, concluding on February 19, 1987.

4.8 November 1, 1986 - UFCW, Local 206 and its counsel (Messrs. Ahee and Associates) believe and subsequently assert at a later date that UFCW, Local 206 has successfully consummated a merger. The International Executive Committee of the UFCW approves the merger effective that date and determines that the merged locals will be known as the United Food & Commercial Workers Union, Local 175.

4.9 February 19, 1987 - hearings before the Board are completed. No mention is made during the course of hearing by counsel for UFCW, Local 206 or anyone on behalf of Local 206 that a merger has occurred. There is no evidence adduced before the Board of man­agement support for or complicity in the petition of Donna Baydak.

4.10 December 22, 1987 - the Board releases its decision certifying UFCW, Local 206 as bargaining agent pursuant to s.8 of the Act. The Board finds that the Employer committed unfair labour prac­tices and orders the reinstatement of 14 employees.

5. COMMENT:

The decision of the Board was released approximately 11 months after the hearings were com­pleted. That is a period which is 4 months longer than the period in which the parties were able to bargain before the first contract application was filed by the Union.

6. FACT:

6.1 January 4, 1988 - the Employer seeks reconsideration of the certifi­cation decision of the Board.

6.2 January 15, 1988 - UFCW, Local 206 sends a notice to bargain to the Employer. No copy of the letter is sent to Messrs. Ahee and Associ­ates (counsel to Local 206) and no copy is sent to UFCW, Local 175. The letter notes, "Our proposals will follow shortly". (emphasis added)

6.3 January 28, 1988 - the Employer advises UFCW, Local 206 that it has received the notice to bargain. The letter also advises that the Employer has asked the Board to reconsider its decision as "the first step in the review process of this decision".

6.4 March 2, 1988 - the Board releases its decision denying the Employ­er's request for reconsideration.

6.5 March 25, 1988 - Donna Baydak and 156 objecting employees apply for Judicial Review.

6.6 March 27, 1988 - the Employer applies for Judicial Review.

• 6.7 April 7, 1988 - the Board renders its decision in the Villette China case, wherein UFCW, Local 175 is recognized as the successor of UFCW, Local 206.

6.8 April 13, 1988 - counsel for the Employer writes to counsel for UFCW, Local 206 requesting a list of dates ". . . upon which the appropriate union representatives may be available for a first meet­ing..." and also for a "...draft form of collective agreement which he wishes to discuss in advance of whatever date comes to be selected as being an appropriate one for the first meeting..."

7. COMMENT:

The Employer, in April, 1988 is requesting meeting dates and the union proposals which were "to follow shortly" after the letter of January 15, 1988.

8. FACT:

8.1 April 25, 1988 - James Hastings, business representative of UFCW, Local 175 (and previously the organizer for UFCW, Local 206 in the certification proceedings) writes, putting forward suggested dates for meeting. His letter states that UFCW, Local 175 will forward a draft form of collective agreement and a list of the negotiating committee. No copy of this letter is sent to UFCW, Local 206. (emphasis added)

8.2 April 22, 1988 - counsel for the Employer writes to James Hastings of UFCW, Local 175 suggesting May 31 and June 1 for meetings.

8.3 April 26, 1988 - James Hastings, on behalf of UFCW, Local 175, rejects the suggested dates. His letter refers to a notice to bargain sent by UFCW Local 175 on January 15, 1988.

9. COMMENT:

The notice to bargain of January 15, 1988 was sent by UFCW, Local 206.

10. FACT:

10.1 April 26, 1988 - UFCW, Local 175, by its counsel (Messrs. Ahee and Associates, who had been counsel for UFCW, Local 206) apply for conciliation. The application erroneously states that UFCW, Local 175 gave notice to bargain on January 15, 1988.

11. COMMENT:

At the date of the request for conciliation, the Employer had not received any proposals as men­tioned in the letter of January 15, 1988. No notice of merger or successorship between UFCW, Local 206 and UFCW, Local 175 had to this point in time been given to the Employer or to its employees. Copies of the UFCW, Local 175 correspondence, including the application for concilia­tion, were not forwarded to UFCW, Local 206.

12. FACT:

12.1 April 29, 1988 - the Employer objects to the appointment of a concil­iation officer.

12.2 May 5, 1988 - UFCW, Local 175 writes to the Minister of Labour stating that the Employer by its January 28, 1988 letter ". . .essentially

refused to meet with the union...". A copy of this letter goes to "James Hastings UFCW, Local 175", but not to Ron Springall, the President of Local 206.

12.3 May 11, 1988 - James Hastings of UFCW, Local 175 writes to coun­sel for the Employer seeking bargaining information. No copy of this letter is sent to Mr. Springall or to UFCW, Local 206. A copy is sent to Messrs. Ahee and Associates.

12.4 May 12, 1988 - the Employer sends notices of recall to 14 employees (see paragraph 4.10).

12.5 May 12, 1988 - counsel for the Employer writes to the Assistant Dep­uty Minister of Labour further objecting to the appointment of a conciliation officer at the request of UFCW, Local 175 and referring to the provisions of section 67 of the Act.

13. COMMENT:

Section 67 of the Act makes it illegal for the Employer to bargain with UFCW, Local 175 when UFCW, Local 206 is certified as the bargaining agent for the employees.

14. FACT:

14.1 May 25, 1988 - Messrs. Ahee and Associates write to the Office of Arbitration, to the attention of G.R. Thompson, Deputy Minister, advising that "...effective November 1, 1986, UFCW Local 206 merged with UFCW Local 175". The letter states further that "the merger has been recognized in Board file #3154-37-R, UFCW Local 175 and Vilette China Canada Limited". The letter is not addressed to the Assistant Deputy Minister of Labour to whom all previous correspondence has been directed on this matter. No copy of the let­ter is sent to Ron Springall or to UFCW, Local 206.

14.2 June 22, 1988 - Counsel for 156 objecting employees writes a letter asking that bargaining information not be released by the Employer.

14.3 June 23, 1988 - The Deputy Minister of Labour writes to counsel for UFCW, Local 175 and advises that the question of his authority to appoint a conciliation officer at the request of that union will be referred to the Labour Relations Board for its advice pursuant to section 107 of the Act.

14.4 June 27, 1988 - the Union commences contempt proceedings against the Employer.

14.5 June 28, 1988 - Messrs. Ahee and Associates write to the Registrar of the Board requesting that the 107 reference be brought on before the Board "forthwith". No copy of this letter is sent to UFCW, Local 206 or to Ron Springall.

14.6 June 29, 1988 - counsel for the Employer writes to James Hastings, the business representative of UFCW, Local 175 and declines to give the information requested on May 11,1988 because UFCW, Local 206 is the bargaining agent, not UFCW, Local 175.

14.7 June 30, 1988 - the Registrar of the Board sends out notice of hear­ing pursuant to section 107 of the Act, appointing July 14, 1988 as the hearing date.

14.8 July 6, 1988 - UFCW, Local 175 sends a grievance to the Employer.

14.9 July 11, 1988 - UFCW, Local 175 convenes a meeting of employees to formulate contract proposals.

15. COMMENT:

Presumably, these are the proposals that were to "follow shortly" after the letter of January 15, 1988.

16. FACT:

16.1 July 14, 1988 - at the s.107 hearing before the Board the question of notice to employees is raised. A majority of the panel (the Knopf panel) rule that the section 107 hearing be adjourned to the week of August 15, 1988 and that the trade union file, by July 21, 1988, par­ticulars of the facts and circumstances upon which "...the claim of merger is based". The decision is reduced to writing and issues on July 28, 1988.

16.2 July 20, 1988 - United Food and Commercial Workers International Union, Local 175 applies to the Board pursuant to a Ministerial ref­erence under section 107 of the Act for a declaration that the United Food and Commercial Workers International Union, Local 175, "has acquired the rights, privileges and duties of its predecessor the United Food and Commercial Workers International Union, Local 206 by reason of a merger, amalgamation or transfer of jurisdiction". The application is made by Messrs. Ahee and Associates on behalf of UFCW, Local 175.

17. COMMENT:

This is the first time any reference has been made to an entity known as the United Food and Commercial Workers International Union, Local 175.

18. FACT:

18.1 July 26, 1988 - The United Food and Commercial Workers International Union, Local 175 files a section 89 complaint with the Board against the Employer and Donna Baydak. Messrs. Ahee and Associates are identified as being counsel to the complainant in the complaint.

18.2 July 28, 1988 - the written decision of the Knopf panel issues.

18.3 August 8, 1988 - Ron Springall on behalf of UFCW, Local 206 files a reply in the section 107(2) application and takes the position that the "United Food and Commercial Workers International Union, Local 175 has acquired the rights, privileges, and duties of its predecessor United Food and Commercial Workers, Local 206 by reason of a merger, amalgamation or transfer of jurisdiction", and identifies that Messrs. Ahee and Associates constitute one of two addresses for ser­vice on UFCW, Local 206.

18.4 August 9, 1988 - the Employer files its reply in the s.107(2) case and takes the position, among others, that no proper notice has been given to the employees of the merger and that the materials filed are otherwise defective.

18.5 August 10, 1988 - Michael Horan, counsel for the 156 objecting employees, files an intervention in the s.107(2) proceedings.

18.6 August 17, 1988 - the s.107(2) application is heard by the Board (the first Gray panel) and on August 18, 1988 the first Gray panel renders a decision that UFCW, Local 175 cannot be declared to be the suc­cessor to UFCW, Local 206 and that the Minister of Labour cannot appoint a conciliation officer. UFCW, Local 206 does not attend at the hearing nor does anyone on its behalf.

18.7 August 19, 1988 - the Employer enters an appearance in court in the contempt application launched by UFCW, Local 206.

19. COMMENT:

At this stage in the proceedings it would appear that the employees are in a quandary concerning who is their bargaining agent. UFCW, Local 206 has advised the Board that it no longer acts as the bargaining agent, but the Board has held that UFCW, Local 175 does not hold bargaining rights for them. Eight months have gone by without any bargaining because of this problem.

20. FACT:

20.1 August 25, 1988 - UFCW, Local 206 retains new solicitors who make application for the appointment of a conciliation officer and seek reconsideration of the original certification decision so that the certi­fication will be amended by substituting UFCW, Local 175 in the place and stead of Local 206.

20.2 August 25, 1988 - Messrs. Ahee and Associates write to the Board indicating that they now act for UFCW, Local 175 and ask to be added as a party to any proceedings arising out of the request for reconsideration.

21. COMMENT:

The employees know a little more by now. UFCW, Local 206, by its request for the appointment of a conciliation officer seems willing to bargain on their behalf. However, by reason of its recon­sideration application, UFCW Local 206 would seem to be saying that it is UFCW, Local 175 that should have been bargaining for the employees right from the start.

22. FACT:

22.1 August 31, 1988 - the Employer, by its counsel opposes the request of UFCW, Local 206 for the appointment of a conciliation officer.

22.2 September 12, 1988 - a further letter is written by counsel for the Employer opposing both the request for reconsideration of the origi­nal certification decision and the appointment of a conciliation offi­cer.

22.3 September 15, 1988 - the Minister of Labour advises counsel for UFCW, Local 175 that he has no authority to appoint a conciliation officer at the request of that union.

22.4 September 16, 1988 - counsel for the Employer writes to the Registrar of the Board setting forth reasons for the Employer's opposition to the reconsideration of the original certification decision.

22.5 September 20, 1988 - counsel for UFCW, Local 206 (Messrs. Sack, Charney) reply to the submissions of the Employer and ask the Min­ister of Labour to appoint a conciliation officer.

22.6 September 23, 1988 - counsel for the Employer writes to the Deputy Minister of Labour correcting certain assertions of fact made in the letter by Messrs. Sack, Charney on September 20, 1988.

22.7 October 5, 1988 - the Registrar of the Board sends notice that the question of the appointment of a conciliation officer at the request of UFCW, Local 206 has been referred to the Board by the Minister and that hearings are scheduled to begin on October 17, 1988.

22.8 October 5, 1988 - the Employer is advised by telegram from the Reg­istrar of the Board that the hearing scheduled for the reconsideration of the original certification decision has been adjourned.

22.9 October 17, 1988 - hearings begin before the Board (the second Gray panel) on the section 107 reference arising from the request for a conciliation officer by UFCW, Local 206. The second Gray panel renders a decision on November 8, 1988 that the Minister of Labour does have authority to appoint an officer at the request of UFCW, Local 206.

22.10 November 14, 1988 - the Employer seeks further reconsideration of the original certification decision on the basis, inter alia, that the true state of affairs of UFCW, Local 206 was not put before the Board in the original certification hearing.

22.11 November 17, 1988 - the Minister of Labour appoints D. Nelson as conciliation officer.

22.12 November 28, 1988 - UFCW, Local 206 objects to the Employer request for reconsideration of the original certification decision. The request by the Employer and the reconsideration request by UFCW, Local 175 are subsequently scheduled by the Board to be heard together, and after a number of adjournments are scheduled for hearing before the original panel of the Board on August 29, 1989 and October 10, 1989.

22.13 December 21, 1988 - the parties meet in negotiations with concilia­tion officer D. Nelson and UFCW, Local 206 table its proposals for a first collective agreement.

23. COMMENT:

The employees at the Oshawa store know now that UFCW, Local 206 appears willing to get on with bargaining with the Employer and has delivered the proposals mentioned in its letter some 11 months before (January 15, 1988). However UFCW, Local 175 is still asserting that it is entitled to the bargaining rights for the employees.

24. FACT:

24.1 January 6, 1989 - the Registrar of the Board sends to the Employer copies of a document filed in the reconsideration proceedings and purporting to contain the signatures of 121 employees of the Employer who are objecting to the certification of the union.

25. FACT:

Following the sequence of events in 1988 involving UFCW, Locals 206 and 175, a reasonable employee at the Oshawa store might wonder what in the world was going on? At this stage it is worthwhile examining some of the evidence of Ron Springall given for UFCW, Local 206 during cross-examination. Mr. Springall testified:

(a) that his position as President of UFCW, Local 206 expired in 1988, but a letter from the International President appointed him to con­tinue and he still considers himself to be President and the only offi­cer of Local 206;

(b) that all the members of UFCW, Local 206 (save for the employees at the Oshawa store who signed application cards) have been transfer­red to UFCW, Local 175;

(c) that all cash assets of UFCW, Local 206 have been transferred to UFCW, Local 175;

(d) that James Hastings left UFCW, Local 206 and went to UFCW, Local 175 in November, 1986 (during the organizing campaign at the Oshawa store);

(e) that he didn't know if UFCW, Local 206 had ever been in touch with the employees at the Oshawa store to approve bargaining proposals. Usually there is such a meeting, but he did not know if it was called by UFCW Local 175;

(f) that he had no contact with the employees at the Oshawa store during bargaining and "...(knew) that other union reps did by letter using 175's letterhead";

(g) that he may not have been aware of the "merger" before May, 1988 and the Employer would not have known in April, 1988 that UFCW, Local 175 was acting for UFCW, Local 206;

(h) that he personally felt the "merger" was incomplete and so advised the International President in the summer of 1988;

(i) that he learned of the conciliation request by UFCW, Local 175 after it was made;

(j) that although he considered the merger incomplete, he did not direct such instruction to Messrs. Ahee and Associates. He did not ask "WHY?" when asked to sign the intervention by UFCW, Local 206 in the merger application by UFCW, Local 175, and went ahead and signed it even though the information it contained was misleading and did not give the true story of what was happening between UFCW, Locals 206 and 175;

(k) that he had not been aware that no lawyer represented UFCW, Local 206 before the first Gray panel of the Board;

(1) that he did not give instructions to Messrs. Sack, Charney in the hearing before the second Gray panel of the Board and presumed that persons assigned by the International Union gave such instruc­tions;

(in) that the employer should have known what was going on and contin­ued to bargain with UFCW, Local 206 "because the lawyers would have told it".

26. COMMENT:

It is clear that the employees at the Oshawa store never did learn what was going on from their Local President, Mr. Springall. They know now that UFCW, Local 206 has no elected officers and no assets. It has had an appointed President since 1988. And it has no members save for those employees who signed application cards 5 years ago and who remain only "conditional members" until a collective agreement is in place and they begin paying dues.

27. COMMENT:

Before continuing on with the chronological recital of the bargaining it may be an appropriate time to note that Mr. Springall was quite frank in his assessment of the Employer's motives going into bargaining. He felt that the employer had no intention of ever signing a collective agreement vol­untarily, and was working in collusion with the employees at the store to get UFCW, Local 206 decertified.

28. FACT:

28.1 January 11, 1989 - the Employer and UFCW, Local 206 meet to bargain and the Employer tables its proposals for a first collective agree­ment.

28.2 January 18, 1989 - the Employer provides Mr. Springall with a list of employees of the Oshawa store together with their respective dates of hire. The employer advises that in view of the correspondence received from the Registrar of the Board relating to the petitioning employees that it believes it is "...incumbent upon us to continue with the non-monetary issues and await the Minister's response".

28.3 January 18, 1989 - the Board adjourns the reconsideration applica­tions on its own volition.

28.4 January 27, 1989 - the Board schedules further hearing dates for the reconsideration applications.

28.5 February 1, 1989 - the Union tables further proposals in response to those of the Employer.

28.6 February 3, 1989 - Union counsel writes to the Board adjourning the reconsideration hearings.

28.7 February 9, 1989 - the second Gray panel of the Board provides its written reasons for its decision on the section 107 application by UFCW, Local 175.

28.8 February 9, 1989 - the Employer responds to the proposals of the Union filed in negotiations.

28.9 February 14, 1989 - Messrs. Ahee and Associates write to the Board on behalf of UFCW, Local 206 with respect to the statement of desire forwarded by the Board to the parties.

28.10 February 15, 1989 - the Employer writes to the Board regarding the statement of desire and in connection with the adjournment of the reconsideration applications.

29. FACT:

29.1 February 16, 1989 - the Employer tables a response to the Union proposals and the Union files further proposals on the same day.

29.2 February 23, 1989 - the Employer provides a further response to the Union proposals.

29.3 March 2, 1989 - the Board advises the parties that the reconsidera­tion applications have been adjourned further.

29.4 May 1, 1989 - on consent of the parties the Board issues an order and direction terminating the section 89 proceedings brought by the United Food and Commercial Workers International Union and UFCW, Local 206. (see paragraph 18.1)

29.5 May 16, 1989 - further Employer response to Union proposals. The Employer also provides the Union with the wage rates payable to the employees as at week ending December 18, 1988, pursuant to the consent order of the Board.

29.6 May 31, 1989 - the Union changes its position with respect to the wage rates that it wants and the Employer provides the Union with a revised wage schedule as at May 20, 1989.

29.7 June 9, 1989 - the Divisional Court of the Supreme Court dismisses the application for judicial review brought by Donna Baydak on behalf of 156 objecting employees and dismisses the application of the Employer for judicial review.

29.8 June 13, 1989 - the United Food and Commercial Workers International Union, Local 206 files a section 89 complaint on behalf of an employee who had been disciplined by the Employer.

29.9 June 13, 1989 - the Union tables a proposal to resolve all matters in dispute. Without prior notice to the Employer the Union requests a "No Board Report" from the conciliation officer and terminates negotiations.

30. FACT:

30.1 June 21, 1989 - the Board writes to the parties confirming hearing dates for the reconsideration applications.

30.2 June 22, 1989 - the Employer writes to the Chief Conciliation Officer for the Province of Ontario opposing the issuance of a no board report for the reasons found in the submission.

30.3 June 23, 1989 - notice of motion for leave to appeal the decision of the Divisional Court is filed by counsel for Donna Baydak on behalf of 156 objecting employees.

30.4 July 14, 1989 - Messrs. Ahee and Associates, writing on behalf of the United Food and Commercial Workers International Union, Local 206 write a letter opposing the Employer's objections to the issuance of a no board report.

30.5 July 28, 1989 - The Minister of Labour advises the parties that he has decided not to appoint a Board of Conciliation.

30.6 August 4, 1989 - the Union files an application to the Board for an order directing that the first contract with the Employer be settled by arbitration (the first contract application).

31. FACT:

31.1 August 21, 1989 - the Board stays the first contract application until such time as a panel of the Board (the Petryshen panel) has disposed of the various reconsideration applications of the original section 8 certification decision.

31.2 August 29, 1989 - the Petryshen panel directs the Employer, UFCW, Local 206 and UFCW, Local 175 to make written submissions on the issues which have been raised by the various reconsideration requests.

31.3 September 6, 1989 - the Board sets further dates for the hearing of the reconsideration applications.

31.4 September 7, 1989 - Susan Caterina, on behalf of a group of employ­ees applies for a declaration terminating the bargaining rights of the United Food and Commercial Workers Union, Local 206.

31.5 October 3, 1989 - the Employer and the Union complete their filing of submissions on the reconsideration applications.

31.6 October 24, 1989 - the Petryshen panel decides to allow the Employer to call evidence relating to its submissions in the reconsid­eration proceedings.

31.7 November 2, 1989 - the Board orders that the first contract applica­tion and the termination application should be scheduled to be heard together so that the Board could hear "...all of the evidence relating to both these applications before deciding which, it any, of the appli­cations it will grant. The manner of proceeding in order to hear that evidence will be left to be determined by the panel hearing those applications".

31.8 January 31, 1990 - the Petryshen panel issues its decision denying the Employer's request for reconsideration and granting leave to UFCW, Local 175 and UFCW, Local 206 to withdraw their applica­tions for reconsideration.

32. EXERCISE OF DISCRETION:

Over 5 years have passed since the Union began its organizing drive at the Oshawa store. It has been over 3 years since the Board certified the Union; - not by reason of the wishes of a majority of employees, but according to the Board's own assessment of the situation under section 8 of the Act. A lot has happened in this world during this period of time. We have watched events unfold in Nicaragua and the Baltic States. We have seen secret votes conducted under the shadow of an iron fist. Some may have been surprised, but the results of such votes raise doubts about the explicit premise found in section 8 of the Act. We have learned that, in the privacy of the voting booth, people have the nasty habit of telling even those whom they may fear what they really want.

33. I am mindful that the Board has always been concerned with people rather than organizations. The preamble to our Act makes this very clear. People, by their own free choice, are enti­tled to organize into trade unions which, according to civil law, have no legal persona apart from the people who belong to them.

34. Examining the choice before the Board: - if we choose to deal with the first contract application before the termination application, then we are embarking on a road that could lead to an organization acting as bargaining agent for and receiving dues from the employees for a further 2 years. And what is the nature of this organization, UFCW, Local 206? It is a union with no elected officers and a president appointed by the International Union. It has no cash assets and no members other than those employees who signed application cards and who were in the majority at the time of certification. It has held no meetings of the employees since at least January, 1988. It has appeared to voluntarily surrender its bargaining rights to another union and then grab them back. It has never explained the tortuous, often farcical state of its merger affairs to its members and has been less than frank, and even misleading, with the information it presented to the Board. Over a year of good bargaining time was lost because it could not put its house in order. And, in its cynical approach to the system, it conducted bargaining with only one object - to manoeuvre mat­ters to the stage where it could apply for an arbitrated first contract. Even its draft contract, filed with the Board, contains no wage proposals but reads "to be negotiated" under that head. Recall, that on June 13, 1989 the Union filed a proposal to resolve all matters in dispute (see paragraph

28.9).

35. With these facts before us, the discretionary choice really boils down to this. Do we choose to hear the application of an organization whose viability is seriously in doubt, or do we hear the application of the people who are its only reason for still being in existence? If we are interested in people then we will listen to these employees, who are the sole supporting group for the Union, when they petition us for the opportunity to tell us how they wish to organize their working lives. If we are interested in people we will cease trying to tell them what we think is best for them.

36. I believe that the people who are caught up in this sad, sorry series of events deserve the opportunity to be heard. In the exercise of my discretion, in fairness and in equity, I would determine the termination application first.

37. THE DECISION:

We heard the testimony of Susan Caterina as to the voluntariness of the termination petition. Her testimony was not seriously challenged during cross-examination, nor was there any evidence of Employer involvement in the petition. (The Board has never heard any evidence of Employer involvement in any of the petitions brought before it by the employees at the Oshawa store). The signatures of the employees were obtained off the premises of the store during the non-working time of the employees. To her knowledge, the Employer was unaware that Susan Caterina was taking up the petition, and we heard nothing contrary from the Union. The petition was in her pos­session at all times. The petition contains the signatures of more than 50% of the employees at the store.

38. I would order a vote of the employees at the store as of this date and who do not volun­tarily terminate their employment before the date of the vote. They should be asked if they still wish to have the United Food & Commercial Workers Union, Local 206 represent them as their bargaining agent. Having so decided, I would further order that the Union's first contract applica­tion be dismissed.