[1991] OLRB Rep. June 761
3321-90-U Ivan Gudelj, Complainant v. Glass, Molders, Pottery, Plastics & Allied Workers International Union, AFL-CIO, CLC, Local Union 64, Respondent v. Canron Inc., Intervener
BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members R. M. Sloan and C. McDonald.
APPEARANCES: Ivan Gudelj appearing on his own behalf; Joanne L. McMahon, Mohammedali Inshanalli, Carl Hamilton and Brian Scott for the respondent; Karen Weinstein and Alex Mestres for the intervener.
DECISION OF THE BOARD; May 27, 1991
I
- This is a complaint under section 89 of the Labour Relations Act alleging that the respondent trade union has contravened sections 52, 53, and 85 of the Act. Those sections read as follows:
52.-(1) If a collective agreement does not provide for its term of operations or provides for its operation for an unspecified term or for a term of less than one year, it shall be deemed to provide for its operation for a term of one year from the date that it commenced to operate.
(2) Notwithstanding subsection (1), the parties may, in a collective agreement or otherwise and before or after the collective agreement has ceased to operate, agree to continue the operation of the collective agreement or any of its provisions for a period of less than one year while they are bargaining for its renewal with or without modifications or for a new agreement, but such continued operation does not bar an application for certification or for a declaration that the trade union no longer represents the employees in the bargaining unit and the continuation of the collective agreement may be terminated by either party upon thirty days notice to the other party.
(3) A collective agreement shall not be terminated by the parties before it ceases to operate in accordance with its provisions or this Act without the consent of the Board on the joint application of the parties.
(4) Notwithstanding anything in this section, where an employer joins an employers' organization that is a party to a collective agreement with a trade union or council of trade unions and he agrees with the trade union or council of trade unions to be bound by the collective agreement between the trade union or council of trade unions and the employers' organization, the agreement ceases to be binding upon the employer and the trade union or council of trade unions at the same time as the agreement between the employers' organization and the trade union or council of trade unions ceases to be binding.
(5) Nothing in this section prevents the revision by mutual consent of the parties at any time of any provision of a collective agreement other than a provision relating to its term of operation.
53.-(1) Either party to a collective agreement may, within the period of ninety days before the agreement ceases to operate, give notice in writing to the other party of its desire to bargain with a view to the renewal, with or without modifications, of the agreement then in operation or to the making of a new agreement.
(2) A notice given by a party to a collective agreement in accordance with provisions in the agreement relating to its termination or renewal shall be deemed to comply with subsection (1).
(3) Where notice is given by or to an employers' organization that has a collective agreement with a trade union or council of trade unions, it shall be deemed to be a notice given by or to each member of the employers' organization who is bound by the agreement or who has ceased to be a member of the employers' organization but has not notified the trade union or council of trade unions in writing that he has ceased to be a member.
(4) Where notice is given by or to a council of trade unions, other than a certified council of trade unions, that has a collective agreement with an employer or employers' organization, it shall be deemed to be a notice given by or to each member or affiliate of the council of trade unions that is bound by the agreement or that has ceased to be a member or affiliate of the council of trade unions but has not notified the employer or employers' organization in writing that it has ceased to be a member or affiliate.
85.-(1) Every trade union shall upon the request of any member furnish him, without charge, with a copy of the audited financial statement of its affairs to the end of its last fiscal year certified by its treasurer or other officer responsible for the handling and administration of its funds to be a true copy, and, upon the complaint of any member that the trade union has failed to furnish such a statement to him, the Board may direct the trade union to file with the Registrar of the Board, within such time as the Board may determine, a copy of the audited financial statement of its affairs to the end of its last fiscal year verified by the affidavit of its treasurer or other officer responsible for the handling and administration of its funds and to furnish a copy of such statement to such members of the trade union as the Board in its discretion may direct, and the trade union shall comply with such direction according to its terms.
(2) Where a member of a trade union complains that an audited financial statement is inadequate, the Board may inquire into the complaint and the Board may order the trade union to prepare another audited financial statement in a form and containing such particulars as the Board considers appropriate and the Board may further order that the audited financial statement, as rectified, be certified by a person licensed under the Public Accountancy Act or a firm whose partners are licensed under that Act.
A hearing in this matter was held, in Toronto, on March 27, 1991.
At the opening of the hearing, counsel for the union advised the Board that the union has no objection to providing a financial statement to the complainant or any other union member who wants one, however, the complainant did not request a financial statement before filing this complaint. The union gave the complainant its unaudited financial statement for the year ending October 30, 1990, and advised that this statement is currently being considered for approval by its head office. Once it is approved and returned, the union will provide a copy of this statement to any interested member including the complainant, as soon as it is available. The union is content that the Board make a direction to this effect. It is so ordered.
The facts concerning the complainant's section 52 and 53 allegations are not really in dispute.
The union and Canron are currently bound by a collective agreement which will expire on September 30, 1991. Article 29 of that Agreement and section 53 of the Act both contemplate that the parties can give notice to bargain for a renewal agreement anytime after June 30, 1991. The giving of notice is the first step in the bargaining process.
On January 25, 1991, the company wrote to the union to request an early commencement of negotiations. The union took that request to a membership meeting and the majority of those present voted in favour. By letter dated March 15, 1991 the union confirmed its willingness to begin bargaining early, and requested the company's suggestions for suitable meeting dates. A copy of the union's bargaining proposals was attached to the March 15, 1991 letter.
The parties met, bargained, and ultimately reached agreement on the terms of a new collective agreement which would come into effect when the old one expires on September 30, 1991. That settlement was put before a membership meeting, and a majority of the employees in attendance voted in favour of it.
The terms of the settlement include a new seven-day work schedule which has not, as yet, been put into effect. The terms also include a four thousand dollar "signing bonus" payable upon ratification of the new terms. Since the employees did, in fact, ratify the proposed agreement, the four thousand dollar payment was made to all eligible employees.
The complainant contends that it was a breach of sections 52 and 53 of the Act to begin bargaining early and to settle the terms of a new collective agreement before the expiry of the old one. The complainant wants the Board to:
(1) direct that the settlement be set aside or declared void;
(2) direct that new notice to bargain be sent after June 30, 1991 when, the complainant submits, it "should" have been sent;
(3) direct that collective negotiations take place with a newly-constituted bargaining committee;
(4) direct that any agreement reached be put to the membership for another ratification vote.
The complainant submits that since the above-mentioned settlement should not have been put to his fellow workers for ratification in the first place, he is content that the four thousand dollar "signing bonus" should be returned to the company.
II
Section 53 of the Act gives the parties to a collective agreement the right to give notice to bargaining for its renewal ninety days before the designated expiry date. Section 53 does not prohibit or prevent them from beginning to bargain earlier; nor does section 53 require the union to seek the members' approval before doing so. In any event, the union here received membership approval for an early start to bargaining. There is no breach of section 53 of the Act.
Section 52 of the Act requires a collective agreement to have a specific term and prevents the parties from terminating the agreement early without consent of the Labour Relations Board. Section 52 guarantees that employees will always be able to accurately determine when the collective agreement expires; and that is important because it is only during the last two months of the agreement that employees can apply to terminate the union's bargaining rights, or seek representation by another union. If the bargaining parties could end the agreement early they could unilaterally move the "open period" during which representation questions must be raised. Section 52 prevents them from doing so without Board consent.
On the other hand, section 52(5) makes it clear that the parties, by mutual consent, are entitled to change any of the provisions of the collective agreement other than its term of operation. The expiry date of the collective agreement must be certain, but the actual terms and conditions of employment contained in the agreement can be revised from time to time if the parties consider it advisable to do so. Indeed, it is not at all unusual for parties to renegotiate portions of a collective agreement to take into account problems that arise in its administration or changes in the market place. Such amendments are permitted, so long as there is no change in the expiry date of the agreement; that is, so long as there remains a clear and certain "open period".
Section 52 has no application to the facts of this case. The union and employer are not seeking an early termination of the 1989-1991 collective agreement. That agreement will still expire on September 30, 1991 in accordance with its terms. All the parties have done is to negotiate a replacement agreement in advance of the expiry of the existing one. There is nothing improper in that, nor is the Board's consent required.
The Board is satisfied that there has been no violation of either section 52 or section 53 of the Act. The complaint is therefore dismissed.