Pamela Blais v. Retail Wholesale Canada, 1994 CanLII 10010

[1994] OLRB REP. OCTOBER 1419

1356-94-R Pamela Blais, Applicant v. Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Locals 414, 422, 440, 448, 461, 483, 488, 1000 and 1688, Responding Party v. Katalin Lanczi Pharmacy Ltd. c.o.b. as Shoppers Drug Mart, Intervenor

BEFORE: Gail Misra, Vice-Chair, and Board Members R. W. Pirrie and K. Davies.

APPEARANCES: Pamela Blais, Cynthia Whiston, Heather May, Dorthey Smith and Gena Graziotto for Pamela Blais; David W. T. Matheson, Jeffrey Andrew, Ab Player, Rob Low and Thomas Col­lins for Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Locals 414, 422, 440, 448, 461, 483, 488, 1000 and 1688; A.D.G. Purdy, Katalin Lanczi and Susan Nicholas for Katalin Lanczi Pharmacy Ltd. c.o.b. as Shoppers Drug Mart.

DECISION OF THE BOARD; October 6, 1994

1. This is an application for termination of bargaining rights. By a decision dated August

17, 1994, the Board dismissed this application as we had determined that since a collective agree­ment was in effect on the date of application, the application for termination of bargaining rights

was untimely. These are the reasons for that decision.

2. On July 12, 1994, Pamela Blais applied, pursuant to section 58 of the Act, to the Board for termination of the bargaining rights of the Retail Wholesale Canada, Canadian Service Sector, Division of the United Steel Workers of America et al (hereinafter referred to as the "union"). The union had been certified on June 1, 1993, as the bargaining agent for a group of employees employed at Katalin Lanczi Pharmacy Ltd. c.o.b. as Shoppers Drug Mart (hereinafter referred to as the "employer") in Guelph, Ontario. Ms. Blais believed the union and the intervenor had not reached a collective agreement and that one year had elapsed since certification.

3. In its response to the termination application, the union alleged that the application was untimely, as the employer and the union were bound by their first collective agreement, signed on July 5, 1994, for a term of two years. Since the presence of a collective agreement would render the termination application untimely, the Board decided to deal with this preliminary matter.

4. The union called three witnesses in support of its position. The employer and Ms. Blais called no evidence. In coming to its findings of fact the Board has carefully considered all of the oral and documentary evidence before it, the submissions of counsel, and the usual factors ger­mane to assessing evidentiary credibility and reliability. The Board has also assessed what is most probable in the circumstances of the case, and has considered the inferences which may reasonably be drawn from the totality of the evidence. It is noteworthy at the outset that there was little dis­pute on the facts, although the union and the employer differed on the conclusions the Board should draw from the factual circumstances of this case.

5. The relevant sections of the Act for the purposes of the termination application are as follows:

1.- (1) In this Act,

"collective 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;

15. The parties shall meet within fifteen days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.

58.- (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 62, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.

62.- (1) Subject to subsection (3), where a trade union has not made a collective agreement within one year after its certification and the Minister has appointed a conciliation officer or a mediator under this Act, no application for certification of a bargaining agent of, or for a decla­ration that a trade union no longer represents, the employees in the bargaining unit determined in the certificate shall be made until,

(a) thirty days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator;

(b) thirty days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board; or

(c) six months have elapsed after the Minister has released to the parties a notice of a report of the conciliation officer that the differences between the parties concerning the terms of a collective agreement have been settled,

as the case may be.

Facts

6. It is common ground between the parties that Ms. Blais has made two previous applica­tions for termination of the bargaining rights of this union. Her first application was made on May 11, 1994, (Board File No. 0273-94-R) and was withdrawn by leave of the Board on June 9, 1994. The second application (Board File No. 1200-94-R) was filed on July 6, 1994, and was withdrawn on July 19, 1994. The present application was filed on July 12, 1994.

7. The union's main witness was Ab Player, a national representative and area director for the union in the London vicinity. Mr. Player was involved in bargaining with this employer from early 1994 on. In the course of bargaining Mr. Player dealt with Mr. Purdy, counsel for the employer, and Katalin Lanczi, the owner of the business. By early April 1994 the parties had resolved most of the collective agreement language issues and had begun to discuss monetary items. The union applied for the appointment of a conciliation officer following the parties' April 8, 1994, meeting. Mr. Player thereafter reduced all of the agreed matters into a draft collective agreement format and sent a copy to Mr. Purdy for review. Mr. Purdy found a correction he wanted made and Mr. Player made the correction.

8. When the union and employer met with the conciliation officer on May 20, 1994, they worked from the draft collective agreement prepared by Mr. Player. At that meeting the parties agreed on a letter of understanding with respect to the removal of disciplinary letters from employee files. On the issue of wages, the employer tabled a written document outlining wage rates for all classifications for a two-year period. From the evidence it was not clear whether the document was given to Mr. Player directly by Mr. Purdy or by the conciliation officer, but it was uncontested that the document had Mr. Purdy's handwritten notes which included a notation which said "Amended wage rates given to Concil. Off. at 1.00 May 20/94". The text of the docu­ment, as outlined below, indicates the wage offer was for two years:

All employees who are presently receiving wages greater than the 24 month or 4000 hours rate, as the case may be, will receive an increase of two per cent (2%) per hour on the date of ratifi­cation and an additional two per cent (2%) per hour one (1) year from the date of ratification.

The parties agreed at that juncture that the collective agreement would have a two-year term. There were no other issues outstanding between the parties and Mr. Player informed the employer he would take the offer to the bargaining unit, without a recommendation to ratify, and he would inform the employer of the result.

9. A ratification meeting was held on May 29, 1994, at which time the offer was rejected. Mr. Player informed Mr. Purdy of the result and suggested the parties should seek mediation.

10. On June 28, 1994 the parties met with a mediator. During the discussions one of Ms. Blais' earlier termination applications was mentioned. Mr. Purdy suggested that a one-year collec­tive agreement, back-dated, may be considered but the union showed no interest. No formal pro­posal for a one-year agreement was tabled. By the end of the session the union had been told that the May 20th. offer was the only one on the table and would not be altered.

11. The union called another ratification meeting for July 3, 1994, and put the same employer offer to a vote again. The offer was again rejected. Since the union had been in a legal strike position since June 25, 1994, the union informed the membership that a strike would com­mence at 9:00 a.m. on July 4. Mr. Player did not communicate the outcome of this vote to the employer, nor did he inform the employer that a strike would begin the next day.

12. On July 4, 1994, Robert Low, a staff representative from the London office of the union who was responsible for this bargaining unit, set up a picket line at 8:55 a.m. outside the employ­er's Shoppers Drug Mart location. Three employees from the bargaining unit, Mr. Low, and another staff representative of the union picketed with placards indicating there was a strike on. Mr. Purdy, Mr. and Mrs. Lanczi were at the store that morning. All bargaining unit staff scheduled to work that day were either at work already before the picket line was set up, or attended at work later. The picket was removed at around noon. On the following day, July 5, the picket line was set up from 8:00 am. to noon, with the same composition of people. Again, all bargaining unit mem­bers scheduled to work that day crossed the picket line and went to work.

13. Tom Collins, the Canadian Director for the union, wrote a letter to Mr. Purdy on July 5, 1994, which letter was sent by facsimile and courier. In the letter he indicated that in view of the circumstances at Shoppers Drug Mart, the union was accepting and ratifying the employer's last offer. Mr. Collins outlined that he had the constitutional authority to take this action. The letter sent by courier also included six copies of the collective agreement, each signed by the union.

14. Mr. Collins is ultimately responsible for all bargaining of collective agreements in Canada and had been kept apprised of the situation in this case. He has been on the full-time staff of the present union and its predecessor, the RWDSU, for eighteen years. In that time he has been an International Representative and Vice President of the union. More recently he was the Cana­dian Director of the RWDSU, before assuming his current position. Mr. Collins was concerned that the situation with Shoppers Drug Mart appeared to be developing into one where the union could not get a better contract and could not stage a successful strike. With no strong strike man­date, he believed the union was being put in an impossible bargaining position. The employer had refused to change its offer between the first and second ratification vote, and Mr. Collins knew there had been one untimely termination application filed already. Mr. Collins had advised Mr. Player to have the unit go out on strike to see if the employees would support the strike and thereby to gauge the support for further bargaining. However, after he heard the reports from the picket line on July 4, 1994, and understood the lack of bargaining unit support for a strike, he dis­cussed the situation with the local union and decided to ratify and sign the collective agreement. Mr. Collins had Mr. Player draw up the collective agreement for his signature, signed six copies, and sent them to the employer's counsel.

15. Mr. Player used the document the parties had worked from on May 20, 1994, added the letter of understanding regarding disciplinary letters which the parties had agreed upon, made the employer's final wage offer Schedule "A" of the collective agreement, and inserted the dates for the term of the collective agreement in the "Duration of the Agreement" clause so that the agree­ment would run from July 5, 1994, the date of ratification by the union, to July 4, 1996, two years hence.

16. Since July 5, 1994, neither Mr. Collins nor any one else in the union has heard from Mr. Purdy or the employer. No signed collective agreement was returned to the union. The union's legal counsel wrote to Mr. Purdy, enclosing the part of the union constitution which empowers Mr. Collins to ratify the agreement on behalf of the bargaining unit, but it too has received no response.

17. The relevant sections of the union constitution state as follows:

ARTICLE VI- NATIONAL OFFICERS

CANADIAN DIRECTOR

SECTION 5

(a) The Canadian Director shall be the chief executive officer of the National Union and shall coordinate and administer the affairs of the Union in all of its phases, subject to the approval of the National Executive Board and the Convention. The Canadian Director's decision shall be binding unless reversed by the Executive Board or Convention.

ARTICLE XVIII- COLLECTIVE BARGAINING

SECTION 2

The right to bargain collectively for the whole membership of a local union shall lie with the

Executive Board of the local union or officers designated by it and with the National Union or its Representative when the local union so requests.

SECTION 4

The result of negotiations and the agreement shall be subject to ratification by the local union or by the members affected thereby. If a majority of those voting ratify the results of the negotia­tions, except as provided in Article XIX, the contract shall be drafted and signed by proper offi­cers of the local union and thereupon it shall be binding upon all members. Except that, the Canadian Director in specific instances, may act for the members and officers of the local union, including but not limited to the right to sign a contract without a ratification vote. ... (emphasis added)

Arguments

18. The union made three arguments in support of its position that the Board should find there was a collective agreement in effect by the date of application for termination of bargaining rights. The union's first position was that when Tom Collins, the Canadian Director of the union, executed a copy of the document which the employer and the union had been working with in bar­gaining, and which the union contends embodied the employer's last offer, then a collective agree­ment was in effect. The second position is that the employer, by not executing the collective agree­ment has committed an unfair labour practice and has breached section 15 of the Act, the remedy for which should be that the Board finds a collective agreement was in effect from the date Mr. Collins signed the document referred to above. The union's alternate position is that since the employer refused to negotiate for a first collective agreement while the predecessor union, the Retail, Wholesale and Department Store Union, and the present union determined who held bar­gaining rights for this unit of employees, and since as a result one year elapsed without the parties reaching a collective agreement, therefore the employer should not be allowed to benefit from its refusal to bargain and the time for negotiating a first agreement should be extended by the amount of time lost in determining who legitimately held bargaining rights. The union therefore argues that the open period should be extended.

19. Having found that a collective agreement was in existence between the parties prior to the application for termination (reasons for which are outlined below), we do not intend to address the union's novel argument regarding an extension of the period to bargain.

20. The employer argued that since the company's last offer had been rejected by the mem­bership of the bargaining unit on two occasions, there was no offer outstanding for the union to accept. Further, it was argued that after the last ratification meeting the union struck, without any notification to the employer, so the employer understood there was no acceptance of its last offer. Counsel for the employer acknowledged in his opening statement receipt of Mr. Collins' letter of ratification and of six signed copies of a document purporting to be a collective agreement, but since he had not reviewed it after taking receipt, and since his client had not signed the document, he argued there was no collective agreement in effect on the date of application for termination of bargaining rights. As was noted earlier, the employer called no evidence in support of its position.

21. Ms. Blais argued that the application was timely as she had applied thirty days after the "no board" report had been issued by the Minister of Labour.

Decision

22. The employer in this case argued that as a result of the union striking, the offer it had made was no longer outstanding for the union to accept. We propose to address this issue first.

23. In The Toronto Jewellery Manufacturers' Association, [1979] OLRB Rep. July 719, the employer made an offer for renewal of a collective agreement at a meeting with the union in Janu­ary 1979. At that juncture the union made a counter-offer. Nonetheless, the employer reduced its offer to writing and sent it to the union in February, 1979. The employer thereafter notified the union in March, 1979, that it was making no further proposals. The union took the bargaining unit out on strike between early and the middle of April, and then on May 8, 1979, advised the employer that it was ratifying and accepting the employer's last February offer. When the employer then refused to sign a collective agreement, the union argued that the employer's last offer, its March notification, and the union's acceptance of the employer offer, constituted a collec­tive agreement. The question considered by the Board in that case was whether the offer was still outstanding for the union to accept in May 1979, and the Board stated as follows:

24. Collective bargaining is a dynamic process and it is also one to which the parties apply their relative bargaining strengths in an attempt to gain from each other concessions and compro­mises which eventually produce a collective agreement. There is an implied expectation in the give and take of collective bargaining that concession and compromise will result in agreement without the exercise of economic sanction. In fact, it is not uncommon for either party to make this an explicit condition attached to tentative agreement on any or all items so that, if there is either a lockout or strike, all issues are "back on the table". There is no evidence in our case that such a condition was attached to the Association's last offer and the evidence is that it did not subsequently withdraw its offer. The Board, therefore, must consider what effect, if any, the passage of time and the intervening events have had on the status of the offer.

25. The Board in that case found that since the employees had been on strike for three weeks before the union tried to accept the employer's February offer, the employer's last offer had by then been extinguished by the passage of time and the intervening event of the strike.

26. In Wilson Automotive (Belleville) Ltd., [1980] OLRB Rep. July 1136, the employer made a final offer to the union, which was rejected and the employees went on strike for over six months. More than five months into the strike the employer informed the union that due to its business deteriorating as a result of the strike, it was withdrawing its earlier proposal. Nonetheless, approximately two weeks later, and six months into the strike, the union said it was accepting the employer's pre-strike offer. When the employer refused to endorse such an agreement, the union complained to the Board that the employer was acting in bad faith. The Board found that if the financial condition of a company deteriorates after it has made a monetary offer in collective bar­gaining, but before the union has accepted that offer, then the employer may have cause to recon­sider its offer and it should communicate its revised position to the union at the earliest possible date. In that case as the employer did not inform the union of its changed position until five and a half months into the strike, and the employer altered its bargaining position dramatically, the Board found a section 15 violation. In Radio Shack, [1985] OLRB Rep. June 901, the union struck for almost six months before informing the employer it was accepting the employer's last offer made just prior to the commencement of the strike. The employer immediately indicated to the union that there was no contract reached between them as a result of the union's acceptance. The Board adopted the reasoning in Toronto Jewellery Manufacturers' Association, supra, and found that the employer's offer had been extinguished by the passage of time and the intervening lengthy strike, and found that the employer had not violated section 15.

27. The short passage of time between the employer's last offer and the union's acceptance, and the very short duration of the strike in the case before us distinguishes this case from the cases cited above. The facts in the case before us are that the responding party met with the union and reiterated its offer on June 28, 1994; the union held a ratification vote on July 3, 1994, at which time the bargaining unit rejected the offer; a strike commenced on July 4; and on July 5 the union, pursuant to its own constitutional powers, accepted and ratified the employer's last offer. The union accepted the employer offer within one week of its being made. The employer had not with­drawn its offer in the interim, and subsequently never indicated to the union that it had changed its position, and the employer did not argue that its financial circumstances had changed substantially in the intervening time. We note that none of the employees scheduled to work on either of the two days of the strike withheld their services, and the picket line was only present for a maximum of four hours on each of the two days. We therefore find that the employer's last offer was out­standing at the time that Mr. Collins wrote his letter ratifying that offer.

28. The employer also argued that since the bargaining unit had failed to vote in favour of acceptance of the employer offer, that the offer therefore lapsed and that there was consequently no collective agreement. The Board indicated in Nortec Air Conditioning Industries Ltd., [1988] 88 CLLC 14,178, that this is not a viable argument for an employer to make, as stated in the following excerpt from that decision:

29. The Board has noted previously that the insistence on ratification by employees on the part of an employer reflects a failure to recognize the union as the body with the exclusive authority to make a collective agreement. As the Board observed in Wilson Automotive (Belleville) Ltd., [1980] OLRB Rep. Sept. 1337, a union is not merely an agent of employees:

30. Under The Labour Relations Act an employer makes his contract with the union and not with the employees. It is common to refer to a union as a "bargaining agent". A union is, however, much more than a mere agent when it comes to negotiating and administering a collective agreement. A union has an independent legal existence which the employer is bound to respect....

31. By refusing to accept the union's execution of the collective agreement and insist­ing on a ratification vote among all of the employees the respondent has in fact refused to recognize the union as the body with the exclusive authority to make a col­lective agreement. By this failure to recognize the union the employer has violated the most fundamental aspect of its duty to bargain in good faith set out in section 14 [now 15] of the Act. (De Vilbiss (Canada) Ltd., [1976] OLRB Rep. Mar. 49)

32. We respectfully agree with the analysis and conclusion of the Board in Nortec Air Conditioning, supra. The union is the exclusive bargaining agent for the employees of Katalin Lanczi Pharmacy Ltd. c.o.b. as Shoppers Drug Mart. Had the employer wished to withdraw its offer it would have had to explicitly do so by communicating with the union. On the evidence before us we find there was no explicit, or indeed implicit, withdrawal of the employer's last offer, and therefore find that the offer was extant for the union to ratify. There is no requirement in the Act for ratification of a collective agreement by employees and the employer cannot insist upon such ratification before it will sign an agreement.

33. On the evidence before us, we find that Mr. Collins properly ratified the collective agreement on behalf of the union on July 5, 1994.

34. In deciding whether there is a collective agreement between the parties the Board and arbitrators have considered the central question to be whether the parties had completed their negotiations and settled all matters in dispute between them. While a memorandum of agreement bearing the signatures of both parties is the best evidence of agreement having been reached, the labour relations reality is that such a signed document may not always exist. The Board and arbi­

trators have found collective agreements to exist even in the absence of a signed memorandum of agreement. In deciding whether a collective agreement has been reached consideration is given to whether negotiations have ended, the parties have decided all matters, and have reached agree­ment, and considering the particular circumstances of each case.

31. The definition of a "collective agreement" in the Labour Relations Act requires that it be a document in writing between the employer and the trade union, and that it contain provisions respecting terms and conditions of employment and the rights and privileges of those affected by the document. There is no statutory requirement that the collective agreement be signed by both the union and the employer.

32. In Sears Canada Inc., [1986] OLRB Rep. Aug. 1159, the Board considered whether there was a collective agreement in effect when an application for termination of bargaining rights was filed. The trade union and employer had reached a memorandum of agreement but had not executed a collective agreement by the termination application date because there were some mis­takes in the draft agreement. The employer had not indicated any concerns about the existence of the collective agreement until after it received notice of the application for termination of bargain­ing rights. The Board, in reaching its decision finding that there was a collective agreement between the parties in that case, adopted the analysis in Re Canteen of Canada Ltd. and Retail, Wholesale and Department Store Union, Local 414 (1984), 1984 CanLII 5278 (ON LA), 15 L.A.C. (3d) 305 and stated as fol­lows:

33. The question then, is whether the circumstances here establish the existence of a collective agreement which both binds the bargaining parties and precludes the present application. This is not a novel problem. Although the Labour Relations Act requires that a collective agreement be in writing, so that oral undertakings may not be enforceable, this Board and boards of arbitra­tion have frequently been required to determine whether or when a collective agreement has come into effect. One of the most recent cases is Re Canteen of Canada Ltd. and Retail, Whole­sale and Department Store Union, Local 414 (1984), 1984 CanLII 5278 (ON LA), 15 LAC. (3d) 305, where Arbitrator M. G. Mitchnick reviewed the practical and policy considerations which, in his view, should bear upon the issue. His analysis is based, in large measure, on an earlier decision of this Board, and is set out in a long passage to which we might usefully refer:

Labour and arbitration boards have long held that the existence of a collective agree­ment is not dependent upon the execution of a formal document, which traditionally occurs a good deal later than the successful conclusion of negotiations. Because of what rides on it in terms of the tabling of new positions or resort to economic sanc­tions, what tribunals have always required is a certainty that the bargaining has been brought to an end, as well as sufficient documentation of the settlement that its pre­cise terms can be identified and interpreted by a third party, if necessary. As the Ontario Labour Relations Board stated in U. E. W. v. Marsland Engineering Ltd., [1970] O.L.R.B. Rep. 133 (O'Shea) at p. 138, para. 13 for example:

…….until such time as the parties complete their negotiations by resolving all outstanding issues and bring their bargaining to an end, it cannot be said that a collective agreement has been consummated.

The important thing is that the parties know when their negotiations are complete, and the simplest indication for an adjudicator that that has occurred is a clear state­ment to that effect signed by each of the parties. Experience has shown, however, that negotiations are not always concluded in quite such a model form, and labour tri­bunals have had to take care to respond to the realities of how collective bargaining takes place. This is the thrust of the remarks of the Ontario Labour Relations Board once again, for example, in Graphic Arts Int'l Union, Local 12-L v. Graphic Centre (Ontario) Inc., 76 C.L.L.C. para. 16,041, [1976] O.L.R.B. Rep. 221 (Burkett).

The collective agreement is the cornerstone of our labour relations system. It evidences the existence of bargaining rights and other than during a sti­pulated period serves as a bar to either the termination or transfer of these rights. It evidences a bargain struck between the parties as to term and con­ditions of employment for a term specific and requires that any dispute as to its interpretation, application or administration be resolved by binding arbitration. Its existence or lack thereof can be determinative of the legality or illegality of certain activities engaged in by an employer, a trade union or by employees. The Board in lending an interpretation to section 1(t)(e) has been influenced by both the realities of the collective bargaining process and by the practical need for consistent and easily understood criteria. The parties to collective bargaining do not normally execute a formal document until some time after the bargaining process has been completed. The pro­cess is one wherein the agreement of the parties is reduced to a memoran­dum of settlement subject to ratification by the respective principals which is then followed by the drafting and execution of the formal document. It would not be sound industrial relations policy to require as a condition of entering into a collective agreement the execution of the formal document thereby precipitating an often prolonged extension of the open period. The parties, however, must know, with a high degree of certainty and predicta­bility, precisely when they have entered into a collective agreement so as they may properly assume their respective duties and responsibilities and conduct themselves in a manner consistent with the existence of a subsisting collective agreement.

Normally, the last step in the collective bargaining process is employee ratification, and tribunals have initially held that this pre-condition of a settlement must be evi­denced in writing before a collective agreement can be said to have been unequivo­cally achieved. But that requirement quickly led to results that were unrealistic and unwarranted, and room had to be made for a more flexible approach, although care­fully reserved for appropriate cases. The Graphic Centre case, once again, expanded on this point as follows [pp. 616-7 C.L.L.C.]:

13. In a number of cases the Board has been faced with situations where the parties have signed a memorandum of settlement subsequent to which confusion has arisen as to whether ratification has occurred. In certain of these situations the Board has responded to the extrinsic evidence and drawn the inference that ratification has occurred without their being signed evidence of this fact. (See Versa Services Limited case [1972] OLRB Rep. Apr. 306, Service Employees Union Local 210 case supra, Field-Price Limited case [1973] OLRB Rep. Oct. 543). In other similar situations how­ever the Board has stated that the parties must signify their ratification of the memorandum in writing (see Marstand Engineering Limited case supra, Civil Service Association of Ontario case [1971] OLRB Rep. Sept. 596) in order for there to be a collective agreement within the meaning of the Act. Although each case must be considered within its own circumstances a signed memorandum of settlement coupled with compelling evidence of rat­ification must be considered by the Board as evidence of a collective agree­ment within the meaning of the Act. Whereas a Memorandum of Under­standing subject to ratification is not a collective agreement (see John Inglis Co. Ltd. case [1974] 1 Can. LRBR 481 (B.C.)), evidence which clearly establishes that ratification has occurred elevates the memorandum to the status of a collective agreement within the meaning of the Act. Ratification satisfies the condition precedent thereby giving rise to what is then an unconditional agreement in writing (i.e. signed by the parties) on all out­standing matters. Although signed evidence of ratification is perhaps the most satisfactory evidence in this regard, the Board cannot ignore other evidence which supports the singular inference that ratification has occurred. It should be added that if the Board were to require signed evi­dence of ratification in all cases it would be denying the parties use of the equitable doctrine of estoppel in those situations where there is evidence of ratification, other than signed notification which has been retied upon by one or the other of the parties). (See Garden City Laundry Limited case [1970] OLRB Rep. May 240).

I can see no logical reason for rejecting this kind of commonsense approach when what is at issue is not employee ratification but, for example, whether the company, for its part, has unequivocally signified its acceptance of the written terms of settle­ment. It seems to me that so-called expert labour tribunals inexcusably fail to serve their constituency if they cannot have regard to that kind of reality. This seems partic­ularly so when one considers that the courts, in dealing with the Statute of Frauds, which, as union counsel points out, was passed for the sole purpose of requiring cer­tain types of agreements to be in writing, soon developed a principle of finding the contract to exist where "signed writing was lacking but other convincing proof was present": Cheshire and Fifoot's Law of Contract 8th ed. (1972) p. 142.

It seems to me that that is precisely what was being done in the labour board's Versaservices Ltd. v. Canadian Union of General Employees [1972] O.L.R.B. Rep. 306, (Shime), cited to me by the union. There the company considered that negotia­tions had been concluded, and sent the union in the usual way unsigned collective agreements in draft for the union's perusal. The signature of the company's industrial relations officer was on the letter accompanying the documents, but no company sig­nature was on the documents themselves, and the case was dealt with as one with an absence of company signature formally accepting the terms of settlement. The board wrote [p. 311]:

We are also of the opinion that the preparation of the collective agreement by Versaservices Limited in accordance with the terms of the Memorandum of Settlement and the forwarding of that collective agreement to the union for signature is sufficient indication in the circumstances of this case that the employer had accepted the terms of the collective agreement pursuant to paragraph 2 of the Memorandum of Settlement.

In Canteen, the arbitrator was prepared to find, on the evidence, that there was a col­lective agreement even though the written document put before him lacked the signa­ture of a company representative. He concluded that signatures (or their absence) were an evidentiary issue not a matter required by section t(1)(e), and he went on to observe:

In the present case, the proposed terms of settlement now relied upon by the union were the terms proposed by the company itself. They were handed across the bargaining table and were clearly stated to represent the basis on which the company was prepared to settle the contract. The only question left open for the parties at that point was whether the employees would accept it. The employees did in fact accept and the company received from the union unequivocal confirmation in writing that that was the case. All of the terms of settlement had been set out in the document which the company had tabled on February 17th, and nothing remained to be done except formal execution of the so-called 'long form" of collective agreement.

Can it really be said that the parties would be in a different legal position today if the company representative, in handling the final offer across the table on February 17th, either directly or through the mediator, had attached a letter signed by himself saying "attached is our final offer", or had happened to scrawl his signature or initials at the bottom of the final offer document itself? I think not. The parties knew that they had a deal on February 28th, when the union advised that the offer was accepted, and they know that they have a deal today.... I am satisfied that there presently exists between the parties a collective agreement within the meaning of s. 1(1)(e) of the Labour Relations Act. I would only add, to keep the issue in perspective, that I would have come to the same conclusion had the union, subsequent to February 28th, become disenchanted and led the employees out on strike, and had the issue before me then been the lawfulness of that strike.

33. As the Board did in Sears Canada, supra, we too agree with Arbitrator Mitchnick's approach in Re Canteen of Canada Ltd., supra. In the case before us, as in Re Canteen of Canada Ltd., the union is seeking to rely upon terms proposed by the employer and offered to the union as the employer's last offer. It is noteworthy that the package taken to the bargaining unit for ratifica­tion the second time was the very same one taken on the first occasion. The employer could not have argued, had the package been ratified in the first instance, that there was no agreement. It is in no different position following the second ratification vote, and subsequent to the union's letter of ratification. The employer never withdrew its offer. Once the union ratified the employer's last offer, and since there were no other outstanding issues between the parties, the parties had a col­lective agreement. We therefore find that as of July 5,1994, the union and employer had reached a collective agreement.

34. Mr. Player indicated in his evidence that Mr. Purdy had raised the possibility of reach­ing an agreement for one year, but when the union did not show any interest in such a proposition, it appears not to have been pushed any further. There is no evidence of a one-year proposal being put on the table by the employer, and at the end of the mediation session on June 28, 1994, the union was left with the two-year wage proposal as the employer's final offer. We do not therefore find that the duration of the collective agreement was an outstanding issue. The employer's last wage offer, as outlined earlier, indicates the offer was operative from the date of ratification. Since the union ratified the agreement on July 5, 1994, and communicated its ratification to the employer that day, July 5, 1994, is the operative date for commencement of the two-year agreement.

35. One of the arguments advanced by employer counsel was that since Mr. Purdy did not have time to review the executed collective agreement sent to his office, and since the employer had not executed the agreement, therefore there was no collective agreement. Since we have found that the parties had reached a collective agreement on July 5, 1994, the employer's and its coun­sel's inaction following that date is irrelevant except to the extent that it connotes acceptance of the document tendered by the union as representing the agreement of the parties. Their inactivity does not vitiate the collective agreement.

36. The employer had, up to the date of the hearing, August 16, 1994, failed to execute the collective agreement. Having found that the union and the employer had reached a collective agreement on July 5, 1994, we find the employer has violated section 15 of the Act in its failure to sign the collective agreement.

37. Section 58(1) of the Act contemplates an application for the termination of bargaining rights in a situation where the trade union has not reached a collective agreement with the employer within one year after certification, and where the employer and union do not have a col­lective agreement by the date of application. In this case, the employer and the union had not reached a collective agreement within one year after certification. However, they did reach a col­lective agreement on July 5, 1994, and there was therefore a valid collective agreement between these two parties prior to the filing of the present application on July 12, 1994. For all of the rea­sons outlined above, this application was dismissed.

38. Since the Board decided this matter as outlined above, we did not hear evidence or con­sider whether the petition signed in support of Ms. Blais' application met the requirements of sec­tion 58(3) of the Labour Relations Act.

CONCURRING OPINION OF BOARD MEMBER R. W. PIRRIE; October 6, 1994

1. Based on the Board's jurisprudence concerning what constitutes a collective agreement, I concur with the above decision. The consequences of the decision are however to: a) require the employees to work under the terms of a collective agreement which they twice overwhelmingly rejected and b) to thwart their desire to have the Board hear their application to terminate the union's bargaining rights.

2. While one can appreciate the policy reasons which lie behind the Board's jurisprudence, I find it troubling to be a party to a process which disregards the wishes of the individuals most directly involved in this dispute.