[1993] OLRB Rep. July 707

0730-93-R Randy A. Burke, Applicant v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) and its Local 127 ("the union"), Responding Party v. Venture Industries Canada, Ltd., ("the company" or "the employer"), Intervenor

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. H. Wightman and D. A. Patterson.

APPEARANCES: Randy A. Burke, Rob Caron, Pam Griffore, Cindy Lucier, Louise Dodman, Marlene Delorme and Lino Toscani for the applicant; Michelle McPhee, Dan Flynn, C. Charlton, T. Hart, B. Tremblay and C. Formosa for the responding party; Anna Vannelli, Francine LeBlanc and Patrick M. Melady for the intervenor.

DECISION OF THE BOARD; July 28, 1993

I

1This is an application for a declaration terminating the bargaining rights which the union currently holds for a bargaining unit described as follows:

all regular plant employees [of Venture Industries Canada, Ltd.] at its plant location, Wallaceburg, Ontario, save and except foremen, persons above the rank of foreman, office staff and sales staff, and students employed during the summer vacation period.

The application is made by Randy Burke on his own behalf and on behalf of a number of his fellow employees who have signed a petition signifying their opposition to the union. The application was filed on May 28, 1993.

2A hearing in this matter was held, in Toronto, on June 28, 1993. Mr. Burke appeared on his own behalf. The other parties appeared by counsel. At that hearing the parties addressed what was described as a "preliminary issue", and following argument, the Board reserved its decision. The provisions of the Labour Relations Act to which reference should be made are as follows:

58.-(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 62, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation.

(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at the time that is determined under clause 105(2)(j.l) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

(4) If on the taking of the representation vote more than 50 per cent of the ballots cast are cast in opposition to the trade union, the Board shall declare that the trade union that was certified or that was or is a party to the collective agreement, as the case may be, no longer represents the employees in the bargaining unit.

105.-(1) The Board shall exercise the powers and perform the duties that are conferred or imposed upon it by or under this Act.

(2) Without limiting the generality of subsection (1), the Board has power,

(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing the employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application;

3The "preliminary issue" concerns the exercise of the Board's discretion under section 105(2)(i), and whether, in all the circumstances, this particular application should be entertained.

4The union urged the Board to exercise its discretion under section 105(2)(i) of the Act not to entertain this application, because this is the second termination application that Mr. Burke has filed within a period of a few weeks, and it follows yet another termination application, by other employees, which was dismissed after a representation vote. The union points out that Mr. Burke's present termination application is the third one before the Board in recent months and was filed barely three days after his earlier termination application was dismissed by another panel of the Board. In the union's submission, this panel of the Board should endorse both the reasoning and result reached by the other panel (which released its reasons for decision on June 7, 1993) [now reported at [1993] OLRB Rep. June 572], and should dismiss the new termination application as well. The union described Mr. Burke's multiple applications as an "abuse of process", which has generated costs for the parties and the public, and has interfered with the process of collective bargaining.

5Mr. Burke and the company both urged the Board to entertain this application "on its merits" - that is, to hear such evidence as was necessary to determine whether the document filed in support of the application represented the voluntary wishes of at least forty-five per cent of the employees in the bargaining unit, and, if the Board found that it did, to direct the taking of a representation vote. They argued that another representation vote is necessary to clear the air, and finally resolve whether the company's employees wish to be represented by the CAW. In their submission, previous termination applications have not really settled that issue.

6In order to appreciate the context in which the present termination application arises, it may be useful to sketch in some background.

7It will be convenient to review events in chronological order.

II

8The union was certified to represent the company's employees on March 15, 1989 after protracted hearings before the Board (some 15 days). The certification decision is reported at [1989] OLRB Rep. Oct. 1074.

9Following the union's certification, the union and the company met and attempted to bargain a collective agreement. They were not successful, and, in consequence, the union applied to the Board under section 40a of the Act (now section 41, as amended) for a direction that a first contract be settled by arbitration. As the law then stood, that process involved two phases: an initial hearing to determine whether the applicant union was entitled to have a collective agreement arbitrated, and, if the union was successful in that regard, a separate arbitration proceeding to determine the actual terms of the collective agreement.

10The first hearing phase consumed six days, and on March 27, 1990 the Board directed the arbitration of a first contract. The Board found that collective bargaining had been unsuccessful because the company's bargaining position was unreasonable, provocative, uncompromising, and without reasonable justification. The Board's reasons are reported at [1990] OLRB Rep. Aug. 904.

11In a related decision dated May 31, 1990 [now reported at [1990] OLRB Rep. May 625], the Board dismissed an application by Mr. Burke to terminate the union's bargaining rights. Mr. Burke's application for a stay of that decision was dismissed by the Ontario Court General Division on June 21, 1990 [now reported at [1990] OLRB Rep. June 748]. The application for judicial review of the Board's decision was later abandoned.

12On June 19 and June 20, 1990 a differently-constituted panel of the Board considered the second phase of the "first contract arbitration" procedure: the actual arbitration of the terms of the collective agreement. What transpired at that arbitration hearing is set out in the Board's decision of July 23, 1990 [now reported at [1990] OLRB Rep. July 809]. For present purposes, we need only note that this arbitration process yielded a two-year collective agreement, which expired on June 22, 1992. Accordingly, in the Summer of 1992 the union and the employer were obliged, once again, to return to the bargaining table, bargain in good faith, and make every reasonable effort to reach a (second) collective agreement (see sections 54, 55 and 15 of the Act).

13Notice to bargain was given by the union on June 16, 1992, and three bargaining meetings were scheduled: July 9, 1992, August 14, 1992, and August 19, 1992. But on August 13, 1992 certain employees made application to terminate the union's bargaining rights (Board File 1446-92-R hereinafter referred to as the "Griffore-Lucier" termination application). In view of the termination application, the union and the company decided to suspend bargaining, pending resolution of this challenge to the union's status as bargaining agent. Unfortunately, that resolution took some time.

14The initial processing of the termination application moved relatively expeditiously, and on September 3, 1992, the Board directed that a representation vote be taken. Voters were asked to indicate, by secret ballot, whether or not they wished to continue to be represented by the union. Section 58(4) of the Act reads as follows:

58.-(4) If on the taking of the representation vote more than 50 per cent of the ballots cast are cast in opposition to the trade union, the Board shall declare that the trade union that was certified or that was or is a party to the collective agreement, as the case may be, no longer represents the employees in the bargaining unit.

Accordingly, in order for the termination application to succeed, more than fifty per cent of the ballots cast had to be cast in opposition to the union.

15There followed a dispute about the eligibility of certain individuals to cast ballots. That dispute, in turn, prompted hearings in Windsor, as well as an exchange of written representations. Following those hearings and representations, the Board made two determinations: a decision dated March 5, 1993 ruling on voter eligibility; and a further decision dated April 21, 1993 declining to reconsider those rulings, and dismissing the Griffore-Lucier termination application.

16Again, the Board's reasons for its various rulings speak for themselves and need not be repeated here. It suffices to say that on the basis of the ballots cast and counted, the Griffore-Lucier termination application was dismissed. As it turned out, the result of the representation vote was a "tie": the objecting employees were not able to establish sufficient employee opposition to require termination of the union's bargaining rights. But the result was as close as it could possibly be. The union's status as bargaining agent was confirmed, but there was obviously a significant component of the employees who were dissatisfied with that situation.

17On April 15, 1993 the company and the union met to bargain for a new collective agreement. This was their first meeting in about eight months; however, at the time it was held, the company's request for reconsideration of the voter eligibility rulings was still pending before the Board, and, as we have already noted, it was not until 6 days later, on April 21, 1993, that the reconsideration application was dealt with, and the Griffore-Lucier application was formally dismissed. Furthermore, on May 6, 1993 the company made a further request for reconsideration which was not ultimately disposed of until June 21, 1993. In other words, the spectre of the Griffore-Lucier termination application, although dismissed on April 21, 1993, was still in the background of any bargaining undertaken during this period.

18But the Griffore-Lucier termination application was not the only one in the background. On April 15, 1993 Mr. Burke filed his own application for termination of the union's bargaining rights (Board File 0182-93-R - "the April application"). This application, therefore, was filed on the same day that the union and employer returned to the bargaining table after an eight-month hiatus, and before the Griffore-Lucier termination application had been finally disposed of.

19Pursuant to section 105(2)(c) of the Act, the Board might have simply refused to entertain Mr. Burke's April application. It did not. Instead, it postponed consideration of his application until the earlier one had been disposed of, and set the new matter down for hearing.

20Mr. Burke's April termination application came on for hearing before the Board on May 25, 1993. After receiving the parties' representations, the Board ruled, orally, that it would exercise its discretion under section 105(2)(i) of the Act not to entertain the matter. The Board's reasons for its determination were reduced to writing and released on June 7, 1993.

21On May 26, 1993 the union applied to the Minister of Labour for the appointment of a Conciliation Officer to assist the bargaining parties to negotiate a collective agreement. By that point, there had already been two recent termination applications, both of which had been dismissed: the Griffore-Lucier application which was dismissed on April 21, 1993, and Mr. Burke's April 15 application which was dismissed, orally, on May 25, 1993.

22On May 28, 1993 Mr. Burke mailed a new termination application to the Board (Board File 0730-93-R). That application is similar to the one that had been dismissed three days before, and was received by the Board on June 1, 1993. It is that "new" application which is currently before us.

23By letter dated June 1, 1993 Patrick Melady, a representative of the company, wrote to the Minister of Labour to object to the union's request for the appointment of a Conciliation Officer:

Please be advised that Venture Industries (Canada) Limited objects to the appointment of a Conciliation Officer in the matter of the renewal of a collective agreement between Venture (Canada) Limited and CAW-Canada and it's [sic] Local 127.

There are outstanding one or more applications to terminate the bargaining rights of the trade union. Those applications have been made by employees and have had sufficient support to warrant at least one representation vote. The result of that vote indicated that the Union does not have a majority support in the bargaining unit.

Finally I did not receive this notice until May 31, 1993.

24It is not clear what termination application(s) the company is referring to because, by that time, the Griffore-Lucier application and Mr. Burke's first (April) application had both been dismissed (although a second request for reconsideration of the former decision was still outstanding), and notice of Mr. Burke's latest application (received by the Board on June 1, 1993) had not yet been sent to the employer. But, whatever Mr. Melady was referring to, it is evident that, in the company's view, an outstanding termination application was sufficiently significant for the negotiating process, that it was inappropriate for the Minister to appoint a Conciliation Officer to assist the bargaining parties in their efforts to negotiate a collective agreement. The union's response to the Ministry reads as follows:

I am writing in response to your letter dated June 8, 1993, and Mr. Patrick Melady's letter dated June 1, 1993.

Since July of 1992, the Union has attempted to get this Company to enter into serious collective bargaining in order to achieve a collective agreement. We have only met on four occasions; however, the Company has never entered into serious bargaining and it is my opinion that the Company feels they do not have to as long as there is an application filed to terminate bargaining rights.

There have been two applications filed to terminate bargaining rights and both have been heard by the Ontario Labour Relations Board. I have enclosed a copy of both decisions for your review.

The Union wants to enter into serious, uninterrupted bargaining with this Company and I feel that only with the appointment and the assistance of a Conciliation Officer this can be achieved. Failure of an appointment, I feel, will only cause further delay of the bargaining process.

25On June 21, 1993 the Board issued another decision denying the company's second request for reconsideration of the Griffore-Lucier termination application. That decision should have been received by the bargaining parties, a few days later, in the ordinary course of the mails.

26On June 21 the Minister advised the bargaining parties that he would soon be appointing a Conciliation Officer to confer with them and endeavour to effect a collective agreement. The appointment of a conciliation officer triggers a statutory bar to any new certification or termination application (see section 62 of the Act). The Act recognizes that assisted bargaining would be impeded by a challenge to the union's status as bargaining agent - a judgement which the bargaining parties also made when they decided to suspend bargaining pending disposition of the Griffore-Lucier termination application.

27On June 22, 1993 the union and the company met for the purpose of collective bargaining. Their efforts in that regard were not successful. According to Mr. Melady, the company tabled its "final" proposal which the union rejected, and the company was not prepared to accept the union's counter-proposal. At that point, of course, the bargaining parties would not have received the Board's decision of June 21 respecting the second request for reconsideration of the Griffore-Lucier termination application, and the hearing in Mr. Burke's second termination application (the one now before us) was scheduled for June 28, about a week later.

28At the hearing on June 28, 1993 Mr. Burke reiterated the concerns that he had raised at the hearing before the other panel of the Board. In Mr. Burke's submission, the Griffore-Lucier termination application had not settled anything, the first vote was inconclusive, and there should be another one.

29Mr. Burke indicated that he was satisfied with the wages and working conditions offered by the company, and was worried about the possibility of a strike. He said that he was displeased about the amount of bargaining information he had received from the union, since there had been only two bargaining sessions and both had taken place in the shadow of various termination applications. It is not entirely clear what Mr. Burke was referring to, but, in any event, he was unhappy about the quality of the union's communications and concerned that: "it's been all this time and there has been no negotiations" - a concern which, ironically, was also echoed by the union. Mr. Burke told the Board that it was obvious to him that the company was not going to sit down and negotiate a collective agreement with the union: it did not do so for the first collective agreement, and he doubted that it would do so this time.

30Mr. Burke indicated that he was prepared to call evidence to support the voluntariness of the petition opposing continued representation, and urged the Board to receive that evidence and direct another representation vote. Mr. Burke told the Board that he felt compelled to keep filing new termination applications until the Board ordered a new vote.

31Mr. Burke and the company both pointed out that with the recall of certain employees from lay-off, the composition of the workforce was somewhat different than it had been in September 1992 when the last representation vote was taken.

III

32As we have already mentioned, the application for termination now before us was filed barely three days after the dismissal of an earlier application filed by Mr. Burke; and if the present application is not identical to the earlier one, it is, at least, substantially similar. In the circumstances, we do not think it is necessary to review the various cases or principles that the Board has considered to be applicable to the application of section 105(2)(i). These matters have already been canvassed at paragraph 13 of the earlier Board decision of June 7, 1993. After reviewing a number of Board decisions interpreting section 105(2)(i), the Board went on to say:

14. As the Board pointed out in Cara Operations Limited, supra, the legislative scheme of the Labour Relations Act attempts to balance employee wishes with respect to representation and collective bargaining stability. In this case, collective bargaining between the CAW and the intervenor began in a timely manner. There was no suggestion that anything unusual had occurred in that respect before it was interrupted, relatively early in the collective bargaining process, by the first termination application, or that there was anything wrong with suspending that collective bargaining pending the disposition of the first application. It was apparent that all concerned expected that the first application would be dismissed before the Board decision in that respect actually issued. The CAW and the intervenor resumed bargaining on April 15, 1992 and this application was filed on the same day, six days before the Board dismissed the first application. The ability of the CAW and the intervenor to engage in collective bargaining was again impaired, even before the first application had been formally disposed of. It was readily apparent that the CAW and intervenor have not had a reasonable opportunity to bargain a new collective agreement.

15. On the other hand, the employee wishes with respect to representation were tested in the first application. That application was dismissed because the applicants for termination lost the vote. Although the vote result in the first application suggests that the CAW enjoys something less than their enthusiastic support, the bargaining unit employees have had a full opportunity to express their wishes. Further, the fact that there has been a change in the actual composition of the bargaining unit does not constitute a special or exceptional circumstance which justifies retesting the employee wishes so soon after the first application was dismissed. Employees who have just entered or re-entered a bargaining unit must take the situation as they find it. It would be unrealistic and unduly disruptive to collective bargaining to require a trade union to establish that it enjoys the support of the bargaining unit it represents every time there is a change in the employees who make up that bargaining unit.

16. In the result, the Board was satisfied that the CAW should have an opportunity to pursue collective bargaining and that it was appropriate for the Board to exercise its discretion not to entertain this application (which discretion we were satisfied the Board has for the reasons given in Browning-Ferris Industries Ltd., supra). The application was therefore dismissed as aforesaid.

17. However, the Board was not satisfied that it could or should bar either this or other bargaining unit employees from making a further termination application. For the reasons given in the Blue Cross case (supra, at paragraph 28), the applicant herein is not an "unsuccessful applicant" for the purposes and within the meaning of section 105(2)(i) of the Act. Nor are bargaining unit employees other than the actual applicants in the first application. Further, and in the alternative, we were not satisfied that it would be appropriate to impose a bar where, as in this case, the employees have been without a collective agreement for nearly a year. While the CAW is entitled to an opportunity to bargain, it and the intervenor may not be entitled to the same luxury of time which they may have enjoyed in July and August, 1992.

18. It may be that a further termination application will be filed. Certainly, the CAW is on clear notice that there is dissatisfaction in this bargaining unit. Whether the Board will entertain any subsequent termination application will depend on the circumstances, including when it is made and what has transpired in the interim. It would be inappropriate for us to make any further comment in that respect.

33We agree with these comments. We also note that the observation in paragraph 18 was prescient: a new application (this one) was on its way to the Board immediately after Mr. Burke's first application was dismissed.

34In our view, the opportunity to pursue collective bargaining mentioned in paragraph 16 of the earlier panel's decision has never occurred; and as Mr. Melady's objection to conciliation clearly indicates, the prospect of one or more termination applications was a continuing factor in the bargaining. The inconclusive bargaining meeting on June 22, 1993 took place under the shadow of the present application scheduled to come on for hearing a week later, and perhaps the company's second request for reconsideration of the April 21 decision which, from the company's perspective, remained outstanding. Accordingly, it is hardly surprising that bargaining has not been very successful. It has been delayed and impeded, from the outset, by layers of litigation. Indeed, the spectre of one or more termination applications has haunted the bargaining process since August 1992, when the parties were scheduled to bargain what, for them, would be their first freely-negotiated collective agreement.

35One of the purposes of the Act is to encourage the process of collective bargaining, so as to enhance the employees' ability to negotiate their terms of employment, and introduce a modicum of democratic participation into the workplace. With that statutory objective in mind, it is difficult to be sanguine about the collective bargaining relationship here. Despite the statutory duty to bargain in good faith, the first round of collective bargaining was frustrated by company conduct so corrosive to the negotiating process that the Board directed the arbitration of a first collective agreement - conduct which, in Mr. Burke's mind at least, was indicative of how the company would approach the second round of bargaining. The second round of bargaining was derailed, almost immediately, by successive and overlapping termination applications, which left the union uncertain, and the employees in limbo, while these matters played themselves out before the Board. That process took some months.

36That is hardly an atmosphere likely to be conducive to bargaining, and one can readily understand Mr. Burke's frustration, as well as his zeal to discard an organization which the company (in his opinion) is determined to resist and which, in consequence, is of little benefit to the employees. The fact remains, however, that there has not been a reasonable opportunity to pursue collective bargaining, free from the distractions of these challenges to the union's bargaining agency. And, if we take Mr. Burke at his word, there will be no such opportunity because he or others of like mind will continue to file new termination applications.

37In our opinion, the union should be entitled to a reasonable opportunity, free from challenge, to pursue negotiations for a new collective agreement. It has not had that opportunity to date, and it is unlikely to have one in the future unless the Board uses its powers under section 105(2)(i) to postpone, for a time, further applications to terminate the union's bargaining rights. To put the matter another way: the employees represented by the union should have the opportunity to have the union bargain on their behalf free from continuous challenges by those who continue to oppose the union, but who were unable to muster sufficient opposition in a representation vote to terminate the union's bargaining rights.

38Without some limitation or bar under section 105(2)(i), repetitive termination applications will continue to undermine collective bargaining, and cause bargaining rights to wither, by attrition, as employees lose appetite and patience for a process which yields no tangible results -not because the union is making no efforts, but because the Board's processes are being invoked repeatedly and without cost to impede the bargaining activity. In our opinion, section 105(2)(i) is designed to prevent that result, and is intentionally framed broadly, and in the alternative, so that the Board can deal with the particular mix of facts before it.

39In the instant case, and for the same reasons as the earlier panel of the Board, this panel exercises its discretion under section 105(2)(i) to refuse to entertain Mr. Burke's application. The application is therefore dismissed. In addition, the Board hereby bars Mr. Burke from filing any new termination application for a period of six months from the date hereof. Having twice made application to the Board and twice had those applications rejected, we find Mr. Burke to be an "unsuccessful applicant" within the plain meaning of section 105(2)(i), from whom no further application should be received for a period of six months.

40In our opinion, it is unnecessary, at this stage, to consider any further direction in respect of any of the employees in the bargaining unit affected by these three unsuccessful applications. Should any such further application be made within the next six months, it may be considered, at that time, in light of the circumstances then prevailing, as well as the three decisions of the Board disposing of the earlier termination applications.