[1995] OLRB Rep. February 178
1573-94-U Donna Glover et al, Applicants v. United Food & Commercial Workers International Union, Locals 175 and 633, Responding Party v. The Great Atlantic & Pacific Company of Canada Limited, Intervenor
BEFORE: Kathleen O'Neil, Vice-Chair.
APPEARANCES: James Deep (as agent for W. N. Brooks), Donna Glover and Charlie Lyon for the applicants; Kelvin Kucey and Bud Ada for the responding party; Charles R. Robertson and Paul Rucurean for the intervenor.
DECISION OF THE BOARD; February 22, 1995
This is an application under section 91 of the Labour Relations Act with reference to sections 69, 74.5 and 74.6. It became clear at the hearing that the focus of the complaint was section 74, which concerns itself with the proper conduct of votes by unions.
At the outset of the hearing, the applicant also clarified that, although the employer, A & P Grocery Stores, is listed as a responding party, none of the allegations were against the employer. On the parties' agreement, the three person panel was dispensed with, and this matter was heard by a Vice-Chair sitting alone.
The thrust of the complaint is that there was not enough notice given for a meeting at which a ratification vote was held. Further it is said that there was misleading information concerning the details of the contract, and that undue pressure was applied to accept the contract offered.
A motion was made to the Board for dismissal on a prima facie basis which was dealt with by the Board, differently constituted, by decision dated September 14, 1994. Declining to dismiss at that stage of the proceedings, the Board instead ordered particulars to be provided, and drew the applicant's attention to the Board's rules to the effect that one must plead and particularize what one wishes to prove.
The applicant did deliver further particulars, and the union renewed its motion to dismiss without a further hearing when the matter came on for hearing on November 30, 1994. Having heard the parties' submissions, in which the employer supported the union's motion, I orally granted the motion making the following comments:
I am faced with a motion to dismiss under Rule 24, or for delay, or because the remedy requested would be hollow or prejudicial in view of the labour relations realities affecting the parties.
It has become clear that section 74(5) and (6) are the focus of this complaint. They require that (inter alia):
all employees in the bargaining unit be entitled to participate in a ratification vote, and
the vote be conducted in such manner that those entitled to vote have ample opportunity to cast their ballots.
I am prepared to assume that this requires adequate notice of the vote, even though the statute is not explicit on that point
I have looked at the pleadings filed and I have assumed the facts set out therein to be true and probable. I will provide further reasons at a later date, but I am persuaded that the pleadings filed do not set out a case for the remedy sought - being an overturning of the vote.
In light of my view of the case on a prima facie basis, it is unnecessary to comment on delay or other matters raised. The application is dismissed for want of a prima facie case.
These are the further reasons for that decision.
A collective agreement between UFCW and A & P expired on June 13, 1994. Ongoing negotiations had failed to produce a renewal collective agreement. Notice of a July 1, 1994 meeting was posted on the evening of June 28, 1994 in the store where the applicant Donna Glover worked. Ms. Glover saw it, but had already made plans for July 1, which she did not wish to interfere with, and she did not attend the meeting.
The notice said the following in relation to the agenda:
AGENDA TO BE DETERMINED
INFORMATION MEETING - In the event we are on strike
OR
RATIFICATION VOTE – In the event we are able to reach a settlement or the Committee decides to have a vote.
A draft Memorandum of Agreement was signed on June 29, 1994, and the meeting became a ratification meeting. The contract was rejected in the Hamilton area, but ratified province-wide.
The relevant provisions in the Act and the Rules of Procedure are as follows:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
74.- (4) A strike vote or a vote to ratify a proposed collective agreement taken by a trade union shall be by ballots cast in such a manner that persons expressing their choice cannot be identified with the choice expressed.
(5) All employees in a bargaining unit, whether or not the employees are members of the trade union or of any constituent union of a council of trade unions, shall be entitled to participate in a strike vote or a vote to ratify a proposed collective agreement.
(6) Any vote mentioned in subsection (4) shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots.
Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing. In its decision, the Board will set out its reasons. The applicant may within twelve (12) days after being sent that decision request that the Board review its decision.
The relief sought in this matter is a provincial re-vote on the contract offer which the membership accepted by a vote on Friday, July 1, 1994. It is clear that underlying this is the feeling on the complainant's part that the settlement accepted was unfair. Indeed, in the region from which Ms. Glover comes, Hamilton, the deal was soundly rejected. But the contract is a provincial one, covering approximately 10,000 workers, and the majority of those voting across the province voted in favour of the contract. Attached to Ms. Glover's application was a petition indicating dissatisfaction with the contract from about 600 people, which we are informed are from various parts of the province. Although it is not explicitly requested in the application, it is clear that what the applicants want is for the deal to be undone.
The basis for this relief is said to be found in the fact that some people either did not see the notice, or had plans for the holiday weekend which meant that they were not able to vote. Further, it is said that some part-time employees did not have scheduled work hours in the period between the notice and the meeting, and thus, it would have been impossible for them to have had notice. It is pleaded that slightly less than a third of the 10,000 members eligible to vote actually voted, which is said to constitute an egregious violation of the rights of the membership.
Further, it is pleaded that a union staffer said that if the membership did not accept the offer they would be out of a job, and that without the buy out provisions in the offered collective agreement, many of the stores would go out of business. As well, it is complained that insufficient documentation was given to the membership, since they were only given a list of the changes to the former collective agreement, and were not also given a copy of the former collective agreement at the meeting. It is also alleged that this sequence of events constituted bad faith bargaining, although it was clarified at the hearing that no relief was requested under section 15 of the Act, which is the section providing for the duty to bargain in good faith.
The union submits that the application should be dismissed for want of a prima facie case because it is insufficiently particularized. For instance, there are no particulars of anyone who did not get notice of the meeting. The applicant clearly did get notice. The union also bases its motion on delay, saying that any remedy awarded at this point would be hollow. The contract was ratified on July 1, 1994, and was implemented by the employer. It had been in place for almost six months at the time of the hearing, and almost a month when the application was first filed. It was October, when the particulars were filed, before the union knew anything about what the complaint was really about, says counsel. By then, hundreds of employees had taken early retirement under the provisions of the ratified collective agreement. The collective agreement provided for a series of buy-outs which are said to be irreversible. Union counsel notes that an application for interim relief could have been brought, but was not.
Further, the union observes that the percentage of people who voted is about the same as in the average municipal election. Union counsel also referred to a number of facts that he would prove, but except as accepted by the applicant, it is not appropriate to consider those facts as a basis for my decision, and I have not done so. As I said orally, I have assumed the facts recited by the applicant to be true and provable.
For the applicant, Mr. Deep argued that the appropriate remedy in the circumstances was further particulars, not dismissal. He submitted that it was fair to assume that people had plans for the holiday weekend, and that he had affidavit evidence from people who could not attend the meeting. He also clarified that certain of the allegations in the pleadings, such as that the union intentionally put the vote on a holiday so that members would not vote, were a matter of Ms. Glover's belief, and that there was no further evidence about that point he wished to call. He offered no particulars of anyone who did not get notice of the meeting.
On the issue of delay, counsel says that Ms. Glover needed a few weeks to gather information and support, that in the circumstances she acted quite promptly. Any steps the parties took to implement the collective agreement, after July 29, 1994 when they were on notice of Ms. Glover's claim, were strictly at their own peril, in counsel's submission.
As to the application of Rule 24, applicant's counsel says that the allegations are simple: insufficient notice, and inadequate disclosure. Counsel urged the Board to give section 74(5) some meaning: one must at least be in a position to get notice. The notice period should have been longer, and it is suggested that the message that there might be a ratification vote was insufficiently clear. Further, it is said it was too difficult to follow the discussion because the only hand-outs at the meeting were about the changes to the previous collective agreement, and no copies of the previous contract were given out. It is submitted that the union could have at least told people to bring a copy of their collective agreement if it was considered too onerous to pass out copies to 10,000 people.
The Board's decisions interpreting section 74 have made it clear that, although a union is not required to hold ratification votes, if it does, it must comply with the sections. The purpose of the provisions has been set out most extensively in R. C.A. Limited, [1981] OLRB Rep. August 1159. As the Board there pointed out, the sections provide a minimum of protection, in a procedural way, but the wording is deliberately general. This is to be understood against the background of the statute's otherwise general approach - which is not to regulate closely the internal affairs of trade unions, except to the extent that they breach the duty of fair representation or referral set out in sections 69 and 70.
On the facts of this case as pleaded by the complainant, a case for the remedy of overturning the provincial ratification vote was simply not made out. The length of time between the posting of the notice and the meeting was not unduly short in the context of collective bargaining, which often runs on very tight timelines. A similar length of time of notice was found not to be a basis for interference in Inter-Bake Foods Ltd., [1981] OLRB Rep. August 1145, even where there was a substantial amount of confusion as to the date of the meeting. No similar factor was pleaded here. There as well, people had plans which they did not wish to change, and thus did not attend the ratification meeting. The Board there held that the fact that many employees were inconvenienced by the timing of the meeting did not disclose a violation, and it is my view that the same is true of the facts pleaded before me. A requirement that the union hold out for the convenience of all 10,000 employees before scheduling a ratification vote is simply too impractical to impose. Nor is it illegal to hold the vote on a holiday, unless there were additional facts pleaded from which one could infer illegality. There are no such additional facts before me.
The applicants assert that it was impossible for people who did not have hours in the store during the two days the notice was up to have notice of the meeting. This is simply not a conclusion that is warranted on the facts as pleaded. To conclude it was impossible would require a host of assumptions such as that employees were not following the negotiations, did not come into the store for other reasons, did not speak to other employees or union representatives, none of which are warranted on the facts pleaded. There is not a single instance of any person who did not have actual notice of the meeting pleaded. It is clear that Ms. Glover herself did have notice. As to employees in other areas, there are simply no facts pleaded from which I can conclude that a prima facie case was made out of lack of notice.
As to the manner of presenting the collective agreement, I am not persuaded that fail-
ure to provide collective agreements or engage in more detailed discussion amounts to a breach of section 74. The remarks allegedly made by union representatives at the meeting for the Hamilton area, are alleged to be a basis on which I can conclude that people did not have an ample opportunity to vote and thus order the vote re-done. I cannot come to that conclusion on the facts before me either. There is no allegation that either the linking of rejection of the contract to store closures was untrue, or that there was any procedural irregularity at the meeting. Moreover, the people voting at that meeting soundly rejected the contract. There is no suggestion that re-running the vote in the Hamilton area, presumably to gain a wider margin against the contract, could have the result of turning the tide of the province-wide results. Thus, to re-run that meeting so that there could be a more definitive rejection of the contract would be pointless on the facts before me.
- There are no particulars of other meetings than the one held in the Hamilton area. Further, there is simply nothing pleaded other than the length of time between the settlement and the ratification meeting that is obviously applicable to other areas of the province. I have dealt with the length of time above. The fact that some 600 people expressed their dissatisfaction with the settlement obtained is not a fact which discloses a breach of the Act. Nor are there any other facts pleaded which make out a case for re-running the ratification vote. Thus, I found no basis in the pleadings to re-run the provincial ratification vote as requested, and accordingly I dismissed the application for want of a prima facie case.