Retail, Wholesale and Department Store Union, AFL-CIO-CLC v. Peacock Lumber Ltd., 1993 CanLII 7891

Retail, Wholesale and Department Store Union, AFL-CIO-CLC v. Peacock Lumber Ltd.

[1993] OLRB Rep. July 633

3397-92-U Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Applicant v. Peacock Lumber Ltd., Responding Party

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members R. M. Sloan and D. A. Patterson.

APPEARANCES: Michael Wright, Robert McKay and Jim Pound for the applicant; no one appearing for the responding party.

DECISION OF THE BOARD; July 28, 1993

I

1. This is an application by the Retail, Wholesale and Department Store Union AFL-CIO-CLC under section 91 of the Labour Relations Act alleging a breach of sections 15, 53(1) and 65 of the Act by the responding party Peacock Lumber Ltd. A hearing was held in this matter on May 19, 1993, at the conclusion of which the application was dismissed for reasons to follow. These are the Board's reasons.

2. The most recent collective agreement between the parties expired on July 1, 1992. The union gave notice to bargain in a timely way and, subsequently, proposed a collective agreement with a two year duration clause. In November 1992 the employer rejected this offer and tabled a counter-offer which contained, among other things, a duration clause of June 30, 1992 to July 1, 1993. Significantly for the purposes of this decision, the latter date was less than 12 months from the date the offer was made. The union rejected this offer and, in December 1992, a final offer vote was requested by the employer under section 40 of the Act. Voting took place on December 23, 1992 and resulted in the acceptance of the employer's offer by the employees. Since then, however, the union has refused to execute the offer.

3. The evidence also establishes that an application for decertification was dismissed in the summer of 1992 following a tie in the balloting.

4. On the basis of these facts, and in light of the requirements of section 53(1) of the Act, the union asked the Board to direct an extension of the duration clause contained in the employer's final offer to one year from the date of the final offer vote, i.e. to December 22, 1993, and to require the execution of a collective agreement bearing that term.

5. The employer failed to attend at the hearing, but filed a response which took issue with a number of the allegations set out in the application and raised a number of preliminary objections including the absence of a prima facie case, estoppel and waiver. The response concludes with a request that the application be dismissed and, among other things, that the union be directed to execute the employer's final offer with the existing duration clause.

II

6. The union submits that pursuant to section 53(1) of the Act, collective agreements must operate for a minimum period of one year from the date of execution unless the employer and the union agree to include a period of retroactivity in the operation of the agreement. Without its involvement and explicit agreement, the union submits, collective agreements cannot operate retroactively and use the retroactive period to reach the minimum one year term. In the present case, according to the union, there was no such involvement and agreement because the employer's final offer was accepted by the employees, not by the union. Section 53(1) of the Act states:

53.-(1) If a collective agreement does not provide for its term of operation 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.

7. Underlying the union's submission is the concern that acceptance by employees of a final offer which contains a period of retroactivity in the calculation of a one year duration clause may deprive the union of the opportunity to address the consequences of the retroactive period in bargaining with the employer. This may create difficulties in enforcing any rights that may arise in respect of the period during which no agreement was actually in place. Counsel for the union candidly admitted, however, that no such difficulties would appear to arise in the present case because the employer's final offer provides for a "wage freeze". According to counsel, what the union was really looking for, and what it is properly entitled to under section 53(1), was some "breathing space" during which it could re-establish itself in the eyes of the employees following the application for decertification.

8. The difficulty with the union's case, however, is that it focused solely on section 53(1), to the exclusion of any other provision of the Act. No reference was made in argument to section 15 and to a possible breach of the duty to bargain in good faith. Other than what has been described above, no evidence was called as to the collective agreement negotiations between the parties or the state they were in at the time the vote was requested. It was not submitted, for example, that an employer request for a vote on a final offer which will run for less than one year from the date of its acceptance by employees, or its execution by the union, was itself evidence of a breach of section 15. There was no attempt made, for example, to link an employer request for a duration clause which allegedly fails to meet the minimum requirements of section 53(1) with taking to impasse a demand in bargaining for an amended scope clause. While it may be that a request for a final offer vote is, itself, evidence of impasse, this argument was not made. Further, even assuming that section 53(1) is a provision which is capable of being breached and giving rise to a remedy, a proposition which was not expressly argued, it could not apply at present. As the Board's decision in Canada Cement Lafarge Ltd., [1980] OLRB Rep. Nov. 1583 makes clear, final offer votes are not self-executing; there is no collective agreement to which section 53(1) might apply until the offer is signed by the trade union.

9. For all of these reasons, the application was dismissed. In reaching this result, however, the Board wishes to note that its decision does not affect the rights of any party to raise in any future proceedings before the Board the issue of the operative date, for purposes of section 53(1), of an executed final offer.