Ontario Labour Relations Board
[1992] OLRB Rep. August 942
Muller's Meats Employees Association, Applicant v. Muller's Meats Limited, Respondent v. Retail, Wholesale and Department Store Union AFL:CIO:CLC, Intervener
Before: G. T. Surdykowski, Vice-Chair, and Board Members W. H. Wightman and P. V. Grasso.
Appearances: G. Black, Dan Chamberlain and Chris Smith for the applicant; C. Humphrey and H. Muller for the respondent; Bernard Hanson, Bob Low and Jim Waters for the intervener.
Decision of G. T. Surdykowski, Vice-Chair, and Board Member W. H. Wightman; August 13, 1992
1This is an application for certification in which the applicant seeks to displace the intervener Retail, Wholesale and Department Store Union, AFL:CIO:CLC ("RWDSU") as the bargaining agent of certain employees of the respondent.
2By decision dated April 21, 1992, the Board (differently constituted) found the applicant to be a trade union within the meaning of the Labour Relations Act.
3The RWDSU submits that this application is untimely. Other than that, all other matters in issue herein have been resolved.
4In that respect, and having regard to the material before the Board and the agreement of the parties, the Board finds that "all employees of the respondent in Niagara Falls, save and except forepersons, persons above the rank of foreperson, office, clerical and sales staff, drivers", constitute a unit of employees of the respondent appropriate for collective bargaining. This is the bargaining unit which is the subject of this application.
5Further, the Board is satisfied, having regard to the material before it, that more than fifty-five per cent of the employees in the bargaining unit at the time the application was made, were members of the applicant on March 27, 1992, the terminal date fixed for the application and the date which the Board determines, under section 105(2)(j) of the Labour Relations Act, to be the time at which such membership should be ascertained for purposes of section 7 of the Act.
6Subject to the RWDSU's timeliness objection, the applicant is entitled to a representation vote with respect to its application.
7The basis of the RWDSU's objection is that there was a collective agreement in effect between it and the respondent until December 31, 1991, that notice to bargain was given under that agreement, and that section 62 of the Act operates to bar this application.
8The Labour Relations Act provides, in section 1(1) that a collective agreement is:
"…..an agreement means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees, and includes a provincial agreement";
It is now well settled that it is not necessary that there be a single document signed by both parties in order for there to be a collective agreement between them. However, it must be clear that collective bargaining between the parties ended with an agreement and there must be sufficient documentation of that agreement to permit the precise terms thereof to be determined (Sears Canada Inc., [1986] OLRB Rep. Aug. 1159; Mississauga Hydro Commission, 1984 CanLII 5126 (ON LA), 17 LAC (3d) 299 (Picher), application for judicial review dismissed June 21, 1985, unreported; Canteen of Canada Ltd. (1984) 1984 CanLII 5278 (ON LA), 15 LAC (3d) 305 (Mitchnick); Graphic Centre (Ontario) Inc., [1976] OLRB Rep. May 221).
9The RWDSU called four witnesses and filed numerous exhibits. Neither the applicant nor the respondent called any witnesses.
10The RWDSU has represented the bargaining unit herein since being certified on July 16, 1987. A collective agreement between it and the respondent in that respect expired on December 31, 1989. Negotiations for a new agreement began in November, 1989 and continued in 1990. When an agreement could not be reached, a legal strike began on July 5, 1990. On the same day and at the request of Henry Muller (a principal of the respondent), the parties continued their negotiations at a donut shop. In the course of several hours of discussion, the parties reached further agreements and broke off their meeting. The RWDSU called a meeting of bargaining unit employees, explained what had transpired, and called for a vote. A majority of the assembled employees voted to return to work on the basis of what had been reported to them and they in fact did so.
11Subsequently, the RWDSU prepared a memorandum of settlement which was forwarded to the respondent. The respondent did not sign this. The RWDSU then prepared and send to the respondent a document it titled as being a "Collective Agreement" between them. The respondent did not sign this document either. The Board heard evidence of what transpired between the parties between November, 1989 and March, 1992. We find it neither necessary nor useful to review that evidence in detail. However, we note that what did not happen is as significant as what did.
12Certain significant matters were settled prior to and at the July 5, 1990 meeting. However, it is apparent on the RWDSU's own evidence that not everything was resolved.
13A RWDSU "memo" which accompanied the memorandum of settlement sent to the respondent as aforesaid itself states that there were "... matters of red circles and some new language to be worked out to our mutual satisfaction at a later date before preparing the final agreement". On the evidence, this "new language" referred to the Union Education Fund (article 22) proposed by the RWDSU, the Employee Assistance Program (article 23), and a bonus plan (in Schedule A). The RWDSU's proposals that the fund, program and bonus plan be established had been accepted in principal, but the particulars of none of them had been agreed to. Indeed, the RWDSU conceded that the respondent specifically rejected the employee assistance program language it proposed, for the first time, in the memorandum of settlement it drafted.
14The subsequent "collective agreement" document prepared by the RWDSU deleted any reference to "red circling" and picked up the Education Fund provisions set out in the memorandum of settlement. There is no evidence that these matters had been agreed to by or even discussed further with the respondent. This document also included the retroactivity provisions which appeared in the memorandum of settlement. Although one union witness (Fuller), who was the RWDSU chief negotiator up to and including July 5 and who prepared the memorandum of settlement and "collective agreement" documents, testified that he believed retroactivity had been agreed to, his evidence was less than unequivocal, lacked detail, and was not corroborated by any other evidence including his own very extensive notes. Similarly, the "collective agreement" document contained a duration clause different from that contained in the memorandum of settlement and which had not been specifically agreed to by or discussed with the respondent. We are not satisfied that retroactivity had been agreed to as suggested by the RWDSU. The "collective agreement" document also included the Employee Assistance Program provision which had been specifically rejected by the respondent. Finally, it included a bonus plan provision which though agreed to in principle on July 5, 1990 the RWDSU's own memorandum of settlement document states that the parties had yet to agree specific language therefor.
15In the result, while the parties had settled significant number of collective bargaining issues between them, several matters remained to be bargained and settled; namely, retroactivity, red-circling, the Education Fund language, the particulars and language of the Employee Assistance Program and the language of the bonus plan.
16In that respect, we find Fuller's testimony with respect to the July 5 meeting, the bargaining unit employees called by the RWDSU telling. He testified that the issues had been "narrowed" and that in light of the issues resolved a verbal explanation, with a blackboard in aid, was given to the employees with respect to what the RWDSU itself said was the crucial issue - money. There is no evidence that the employees were presented with the total package which the RWDSU asserts was the collective agreement reached, or that the vote with respect to a collective agreement rather than merely a return to work. It is not unheard of for striking employees to return to work even though a collective agreement has not been reached, and, in all of the circumstances of this case, we are satisfied that is a return to work which the bargaining unit employees voted on here.
17Evidence of subsequent events indicates that many, if not all, of the matters which had been agreed to on or before July 5, 1990 were subsequently implemented by the respondent. However, the evidence also indicates that the Employee Assistance Program was never implemented. Further, the evidence is not sufficient to establish that any retroactive payments were made, that there was no more red-circling, or that the bonus plan was implemented. Further, the RWDSU did very little, if anything, to get the respondent's signature on a collective agreement document, even though it knew or ought to have known that the respondent was not implementing all of what the RWDSU asserts was the collective agreement. Consequently, while the RWDSU argues that the evidence of such subsequent conduct indicates that the parties acted as though there was a collective agreement between them, we find it equally suggestive of the employer implementing those agreed to items which had caused the bargaining unit employees to end their strike and return to work so that it could continue its operations, and that the respondent was continuing to deal with the RWDSU as its employees' bargaining agent.
18The evidence with respect to negotiations which took place in 1992, prior to this application is similarly equivocal. It suggests that the respondent was picking up negotiations where they had left off and treating the "collective agreement" document prepared by the RWDSU in 1990 as a basis for those discussions as much as it does that the respondent had accepted that document as being a collective agreement between it and the RWDSU.
19By July 5, 1990, the RWDSU and the respondent had agreed to the basis for a collective agreement. However, upon considering all of the evidence before the Board, we are not satisfied either that bargaining had come to a complete end, or that all of the precise terms of the collective agreement which the RWDSU asserts existed can be ascertained, either on the documentary evidence before the Board or otherwise. Accordingly, we are not satisfied that there is any bar to this application, and the RWDSU's objection in that respect is dismissed.
20The Board therefore directs that a representation vote be taken. All employees employed in the bargaining unit described in paragraph 4 above, on the date hereof, who are so employed on the date the vote is taken will be eligible to vote. Voters will be asked whether they wish to be represented by the applicant or the intervener (there will be no "no-union" option) in their employment relations with the respondent.
21The matter is referred to the Registrar.
Decision of Board Member Pat V. Grasso; August 13, 1992
Having reviewed the evidence and submissions of the parties I would rule that there is a bar to the application for certification by the association.
I am satisfied that both the company and union walked away from the meeting of July 5, 1990 with the understanding that they had reached an agreement on all items in dispute.
The evidence is that the union called a meeting of its members, explained the terms of agreement and recommended that it be accepted. A majority of the members voted to accept the agreement and return to work. After the vote the union notified the company by phone that the new agreement had been ratified.
The behaviour of the company and the way it dealt with matters pertaining to the union after July 5, 1990, left no doubt in any one's mind that the company operated as if there was a collective agreement in force.
Between 1990 and early 1992 the union processed grievances on behalf of its members. Some of them were solved and some referred to arbitration. At no time did the company object in dealing with the grievances.
Mr. Dan Chamberlain was a member of the RWDSU negotiating committee during the 1990 negotiations. He attended the hearing on behalf of the applicant but did not take the stand to contradict any of the Union's evidence. I take it that Mr. Chamberlain agreed with the union's characterization of what had taken place between July 5, 1990 and early 1992 and decided nothing.
Mr. Henry Muller who did the negotiations for the company was also present at the hearings. He also chose not to testify. I can only conclude that Mr. Muller fully agreed with the union's evidence including its assertions of negotiations, having reached an agreement on all items, ratification of the agreement, having been notified of ratification, implementing the term of the agreement, accepting and dealing with grievance, accepting proposals for renewal of the collective agreement and replying to the union proposals with counter proposals of its own.
It appears to me that every one conducted their day-to-day business as if there was an agreement in effect. I would dismiss the application for certification as being untimely.