Ontario Labour Relations Board
File No.: 1330-91-R Date: September 18, 1991
Between: Timothy McCarthy, Applicant v. United Food and Commercial Workers International Union, Local 175/633, Respondent v. David Chapman's Ice Cream Limited, Intervener
Before: Al. G. Mitchnick, Chair, and Board Members R. M. Sloan and E. G. Theobald.
Appearances: Tim McCarthy, Vein Scott and Tod McAdam for the applicant; Michael A. Church, Richard Woodruff Kevin Ward and David Patton for the respondent; William R. Watson and M. Lisa Kirby for the intervener.
Decision of the Board
- This is an application for termination pursuant to the provisions of section 57(1) of the Labour Relations Act. That section provides:
57.-(1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
In the circumstances that will be outlined below, the respondent trade union submits that the parties were able to reach a collective agreement prior to the time that the termination application was filed, and that the termination application is accordingly untimely.
There is a long and not particularly happy history to this matter, the details of which it would serve the parties little to go into. After lengthy proceedings over the latter part of 1989 and early 1990, by decision dated June 26, 1990 the Board found the employer's intervention in the union's attempts to organize the work force to be unlawful and on such a scale as to warrant "outright" certification under the provisions of section 8 of the Act. That decision of course required a finding only that the union had "support adequate for collective bargaining", and a final resolution of the composition of the bargaining unit was referred at that point to the parties, together with a Labour Relations Officer of the Board. That, of course, raises an issue as to when the "year" for the union to obtain a collective agreement begins to run (see, e.g., Comstock Funeral Home Ltd., [1982] OLRB Rep. Oct. 1436), but in light of the view we take of this matter generally, such issue need not be decided.
Subsequent to that decision certifying the union in June of 1990, bargaining for a collective agreement continued through 1990 into 1991, as did, from the union's point of view, the employer's unfair labour practices. By the end of May, 1991, the parties had before them an application for first-contract application brought by the union under section 40a, numerous unfair labour practice complaints brought by the union, and an unfair labour practice brought by the employer against the union. The employer also had retained (some months earlier) new counsel, Mr. William Watson of the law firm Baker and Mackenzie. Meetings had been set up to attempt further negotiations, but Mr. Watson had to request an adjournment until the latter part of June because of a commitment to represent Canadian employers at the ILO Conference in Geneva. Mr. Church, acting as counsel to the Union, raised with Mr. Watson the issue of further delay and the prospect of a termination application, but was comfortable with assurances from Mr. Watson that there appeared to be nothing of that nature in the offing. Mr. Church accordingly agreed to await the return of Mr. Watson.
Negotiations did in fact resume on Mr. Watson's first day back in the office, June 26th, and for the first time progress began to be made between the parties. The parties met again on July 11th, and with the assistance of Mr. Bowman, a Labour Relations Officer assigned to the case by the Board, came to an agreement with respect to all of the terms of a first collective agreement. In return the Union of course gave its undertaking to withdraw the section 40a application that was before the Board. The parties also tried to address the section 89 complaints outstanding between them, and all of that was reflected in a Memorandum of Settlement being drafted between them around midnight of July 11th, and signed shortly thereafter in the early hours of the 12th. The Memorandum begins with the following recitation:
The terms of the Collective Agreement between David Chapman's Ice Cream Limited and UFCW, Local 175 shall be as follows:
All items, except those specific amendments noted below, shall be as set forth in the Employer's Schedule H to its Reply to the application under section 40a OLRA.
The following amendments shall apply:
There then follows 18 pages of the parties' final agreed-upon changes to the positions they had arrived at previously, in typical format, beginning:
2.02(a) after the word 'regular" add the words “... initiation fees and
Article 10 - delete article 10.01 (all other provisions will therefore be renumbered as appropriate)
[etc.]
At the end of those collective-agreement terms is then a section entitled "Other Commitments", which reads:
Other Commitments:
The Union Committee agrees to unanimously recommend the ratification of this Collective Agreement;
The union agrees to hold a ratification vote on this Collective Agreement;
The Union agrees to withdraw the section 40a application filed in this matter;
The Union agrees to meet with the Company and resolve all outstanding section 89 complaints filed as at the date hereof;
The Company agrees to provide a letter to the Union outside the Collective Agreement confirming the fact that the Parties will meet to discuss the issues of drivers run sheets and production shift hours during winter months; and,
The Company Committee will unanimously recommend the ratification of this Collective Agreement.
While this Memorandum setting out the agreed-upon terms was being pulled together, Kevin Ward, the leading employee member of the union's bargaining committee, was authorized to return to the plant (still on the 11th), and post a notice announcing the achievement of a tentative collective agreement. That collective agreement was in fact taken to a meeting of employees on July 13th, and ratified (as confirmed to the employer).
- There then remained the matter of the outstanding unfair labour practice complaints, and a meeting to further attempt to resolve them was scheduled for and took place on July 17th. On July 12th, however, the present application for a declaration terminating bargaining rights, without any "petitions" or statements of employee wishes, had been sent to the Board by registered mail. The Board received that application on July 16th, and the Board's Officer, in response to a standing request from Mr. Watson to let him know if and when any termination application was filed in this matter, advised Mr. Watson of that fact. That meeting with the parties did not succeed in resolving all of the unfair labour practice complaints, and it was agreed that Mr. Bowman would meet further with the parties on July 23rd and 24th in Owen Sound, the days that had been set aside by the Board to commence hearing the matters. At those meetings Mr. Bowman made it clear to both counsel present that the Board was in receipt of the present application. Once again negotiations for the resolution of the many outstanding unfair labour practice complaints were protracted, but at the end of the two days all of them had been resolved, subject on one of them to a clarification being sought from the Unemployment Insurance Commission with respect to the position of that grievor. That overall Agreement drawn up and signed on July 24th was headed:
WHEREAS, the Union filed various unfair labour practice complaints against the Employer - Board File Nos. 2648-90-U, 2785-90-U, 2873-90-U, 3364-90-U, 0442-91-U, 0721-91-U, 0722-91-U, 0720-91-U and 0723-91-U;
AND WHEREAS the Union filed an application or a direction for first contract arbitration -Board File No. 0606-91-FC;
AND WHEREAS the Employer filed an unfair labour practice complaint against the Union -Board File No. 0364-91-U;
AND WHEREAS the parties have settled their collective agreement and wish to resolve those various other matters without prejudice to their respective positions and on a without precedent basis;
NOW THEREFORE the Union and the Employer have agreed as follows:
[emphasis added]
One of the items insisted upon by Mr. Watson to be specifically evidenced in the document was, as with the section 89 complaints, the express withdrawal of the first-contract application, and that was contained in Item #7 of the Agreement, stating:
The Union withdraws its complaint in Board File Nos. 2648-90-U and 0723-91-U and withdraws its application in Board File No. 0606-91-FC.
The aforesaid clarification from the Unemployment Insurance Commission was in fact obtained subsequently, and that remaining section 89 complaint signed off on the morning of the hearing of the present application, prior to the Board convening.
The applicant's submissions in response to the Union's preliminary objection were brief. Mr. McCarthy was accompanied at the hearing only by two other employees, and stated simply that the previous vote taken by the employees was to decide only whether they wanted the proposed collective agreement or wanted a strike; now what the employees were asking for was the chance to vote on whether or not they wanted the Union at all.
The employer's submissions, to the stated consternation of the Union, were considerably more comprehensive, essentially asserting the position that no collective agreement had ever been reached by the parties, since two of the elements integral to it, the actual withdrawal of the first-contract application, and the resolution of the outstanding section 89 complaints between the parties, did not occur until July 24th at the earliest. The Board does not agree. Obviously, the resolution of unfair labour practice complaints or any other piece of litigation does not form part of the actual text of a collective agreement, which is a document setting out the terms and conditions which will govern the employment relationship at the workplace. That is not to say, as we know, that settlement of other such forms of litigation outstanding between two collective-bargaining parties cannot, if the parties so choose, be made conditions prior to which any collective agreement between the parties will be entered into. But it has to be determined by the parties' express language whether it is in fact such "linkage" that has been agreed to. And we do not find that to be the case here. Rather, it is quite realistic on all of the present facts to suggest, as Mr. Church does, that the parties:
(a) reached agreement on all of the terms necessary to allow them to conclude their first collective agreement; and
(b) wishing to continue in the same spirit, evidenced a good-faith commitment to meet further to deal with the matter of the various pieces of potential litigation still outstanding before them.
Were the two not seen to be separate, there would have been little point authorizing Mr. Ward to post the announcement to the employees that he did on July 11th, nor place the terms of the "collective agreement" before the employees for their ratification on July 13th. All of that would have been manifestly premature, had the parties really been of the view that in fact no "collective agreement" had been arrived at until the employer had made an offer to the Union that was acceptable on each and every one of the section 89 complaints that still remained to be dealt with by the parties. Rather, as far as the collective agreement itself was concerned, we find it more consistent with both the language and the conduct of the parties that they were of the belief that a "deal" had been reached on July 11th, and that that deal opened the way to resolution of the various other pieces of litigation standing before the parties. The withdrawal of the section 40a application was, obviously, nothing more than a formality, since the Union's acceptance of all of the terms of a first collective agreement, as witnessed by the July 11th Memorandum (together with the Union's express agreement therein that, in return, the application under section 40a before the Board would be withdrawn), obviously would have rendered moot any section 40a application that the Union, without more, might for some reason have attempted to proceed with.
It is the conclusion of the Board, therefore, that the parties did arrive on July 11th at a final resolution of the collective-agreement portion of the matters in dispute between them, and the present termination application, filed within hours of news of the "settlement" having come to the plant, we accordingly find to be untimely. Compare Sears Canada Inc., [1986] OLRB Rep. Aug. 1159, and the cases cited therein.
The application is accordingly dismissed.