[1994] OLRB Rep. March 197
2873-92-G International Union of Operating Engineers, Local 793, Applicant v. Associated Contracting Inc., Responding Party
BEFORE: D. L. Gee, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.
APPEARANCES: S.B.D. Wahl and M. Gallagher for the applicant; W. Thornton and T. Capobianco for the responding party.
DECISION OF THE BOARD; March 3, 1994
1This is a referral of a grievance to the Board pursuant to section 126 of the Labour Relations Act (the "Act"). The grievance alleges a number of violations of a collective agreement between the responding party (also referred to in this decision as the "Employer") and the applicant (also referred to in this decision as the "Union" or "Local 793").
2The grievance was referred to the Board on December 23, 1992. At that time the applicant waived the time limits imposed under section 126 of the Act and requested that the grievance be scheduled to be heard in conjunction with Board Files 2282-92-R and 2283-92-R. Files 2282-92-R and 2283-92-R are applications for certification in which a Labour Relations Officer is conducting examinations. Those examinations have yet to be completed.
3In September of 1993, the Employer filed an application under section 137 of the Act (Board File No. 1700-93-U) and a related request for interim relief under section 92.1 (Board File No. 1701-93-M) in which the Employer asserted, among other things, that officials of Local 793 threatened to encourage an unlawful strike and or picket at sites of the Employer pursuant to an invalid "No Board Report". Amongst the relief sought by the Employer was a declaration that Local 793 had abandoned its bargaining rights/collective agreement with the Employer.
4Hearings into these two applications commenced on September 3, 1993. The Board's decision is reported: Associated Contracting Inc., [1993] OLRB Rep. Nov. 1117.
5By letter to the Board dated December 15, 1993 counsel for the Employer requested that the instant application be scheduled for hearing "in order to place the issue of abandonment before the Board." By letter to the Board dated December 22, 1993 counsel for the Union raised a preliminary issue as to whether the Employer should be permitted to lead evidence in support of its allegation that Local 793 had abandoned its bargaining rights in relation to the Employer. At the suggestion of both counsel, the Board scheduled one day of hearing, followed by three later days of hearing.
6On February 17, 1994 the Board heard argument with respect to the preliminary issue.
7Counsel for Local 793 argued that the Employer should not be permitted to lead evidence going to the issue of abandonment as the issue had already been determined by the Board in the section 137 application. Counsel asserted that the principles of res judicata and issue estoppel apply. In our view, the Board's written reasons in Board File No. 1700-93-U indicate that the issue of abandonment was not dealt with in that proceeding. At paragraph 16 of the decision the Board stated that "the Board was not inclined to inquire into [our emphasis] the continued existence of bargaining rights in this case." Accordingly, this issue has not yet been dealt with by the Board.
8Counsel for the applicant further argued that the Employer could not establish a prima facie case of abandonment as abandonment cannot occur during the initial term of a collective agreement. In support of this argument counsel relied on the decision of Pasinato Haulage Inc., [1981] OLRB Rep. April 486 in which the Board stated, at paragraph 6:
The Board is of the view that no allegation of "abandonment" can be raised during the initial term of an otherwise applicable collective agreement, and the applicant has been able to cite no previous case in which the Board has indicated the appropriateness of such an inquiry.
9In our view, the passage relied upon by the applicant stands for the proposition that, as a practical matter, it would be very difficult (if not impossible) to establish an abandonment of bargaining rights within the initial term of a collective agreement, absent extraordinary circumstances. The determination as to whether abandonment has occurred is, as has been stated by the Board on numerous occasions (see: R. Reusse Co. Ltd., [1988] OLRB Rep. May 523 and cases referred to herein at paragraph 13), a matter of fact to be resolved by the Board in the circumstances of each case. As indicated by the Board in Marineland of Canada Inc., [1990] OLRB Rep. Dec. 1298, the possibility does exist that circumstances may arise during the initial term of a collective agreement which may lead the Board to conclude that an abandonment of bargaining rights has occurred. In this regard, the Board stated at paragraph 18 as follows:
There is no minimum dormant period that must pass before abandonment can be found to have occurred. For example, if weeks after a certificate issued a union unequivocally stated it had abandoned its bargaining rights, the Board might well conclude that bargaining rights had been abandoned at that time.
10Likewise, if a union unequivocally stated, during the initial term of a collective agreement, that it had abandoned its bargaining rights the Board might conclude that bargaining rights had been abandoned. The fact that such occurred "during the initial term of a collective agreement" would not, ipso facto, mean that an abandonment could not be found. This argument too must fail therefore.
11For the reasons set out above, the applicant's preliminary objections are hereby denied.
12The hearing of this grievance will proceed as scheduled on March 9, 10, 11, 1994. The parties are to be prepared to adduce all evidence upon which they intend to rely with respect to the issue of whether there has been an abandonment of bargaining rights and argue the merits of the abandonment issue.