Ontario Labour Relations Board
[1995] OLRB Rep. August 1121
0082-95-U United Food and Commercial Workers International Union, Local 175, Applicant v. K & Son Maintenance Co. Inc., Responding Party
BEFORE: Kevin Whitaker, Vice-Chair, and Board Members W. H. Wightman and B. L. Armstrong.
APPEARANCES: John L. Stout, John R. Evans and Fernando Reis for the applicant; Eyon Palmer for the responding party.
DECISION OF THE BOARD; August 9, 1995
1This is an application under section 91 of the Labour Relations Act ("the Act") alleging that the respondent has breached section 15 of the Act. The applicant claims that the respondent has breached its obligation to bargain in good faith by refusing to sign the collective agreement which it had agreed to following a ratification vote.
2The hearing of the application was originally scheduled for June 28 and 29, 1995. On agreement of the parties, the matter was adjourned and rescheduled for August 2 and 3, 1995. At the outset of the hearing an adjournment request made by the respondent was denied.
3The respondent failed to file a reply prior to the commencement of the hearing. On this basis, the applicant made a preliminary motion that the Board issue an order pursuant to Rule 19 deeming the respondent to have accepted all of the facts stated in the application and further to decide the case upon the material before it without the necessity of hearing evidence. The parties confirmed that the applicant had put the respondent on notice of its intention to bring such a motion at a prior meeting in this matter with a Labour Relations Officer and further confirmed the advice to the respondent by letter dated June 15, 1995 to the Registrar, copied to the respondent. The applicant's motion was granted.
4The Board indicated that it was not necessary for the applicant to provide argument and invited the respondent to make its submissions on the evidence before it. Having heard the submissions of the respondent and the applicant's reply, the Board issued the following order orally at the hearing:
The Board orders that the responding party forthwith sign the collective agreement ratified by the bargaining unit on November 7th, 1994; and further
The Board declares that the responding party has violated the Labour Relations Act and orders that the responding cease and desist from violating the Labour Relations Act.
5Following the oral ruling at the hearing the Board agreed to provide the parties with written reasons to follow on the merits of the application. Those reasons comprise the balance of this decision.
6On January 11, 1994 the applicant was certified as the exclusive bargaining agent for all employees of Active Building Maintenance engaged in cleaning and maintenance at 95 Grosvenor Street and 7 Queens Park Crescent in the Municipality of Metropolitan Toronto, save and except supervisors and persons above the rank of supervisors. In February of 1994, the respondent became the successor employer of Active Building Maintenance for the maintenance services at 95 Grosvenor Street and 7 Queens Park Crescent in the Municipality of Metropolitan Toronto.
7On February 24, 1994 the applicant filed an earlier complaint with the Board under section 91 of the Act. The earlier application was settled by way of a Memorandum of Settlement dated April 28, 1994. As part of the Memorandum of Settlement, the respondent accepted that it was the successor employer to Active Building Maintenance in respect of the cleaning and maintenance services at 95 Grosvenor Street and 7 Queens Park Crescent. In May 1995 the applicant filed various applications with the Board alleging amongst other things that the employer had breached the Memorandum of Settlement dated April 28, 1994. In a decision dated November 3, 1994 the Board found that the respondent had failed to comply with the terms of the Memorandum of Settlement.
8Negotiations for a first collective agreement between the parties began on June 27th and continued through to August 19, 1994. Conciliation took place in September and mediation occurred on October 31, 1994.
9During the bargaining session on July 13, 1994 the union presented a wage proposal to the employer containing two classifications, those of day shift co-ordinator and cleaner. Each classification had a wage rate attached to it. The respondent's counter-proposal during the bargaining session on July 13, 1994 was a three per cent across-the-board increase in the first year, a 2.5 per cent increase across-the-board in the second year and a 2.5 per cent increase across-the-board in the third year. The employer at no time objected to there being two classifications, those being the day shift co-ordinator and cleaner. Throughout the balance of bargaining the respondent did not object to there being the two classifications of day shift co-ordinator and cleaner.
10In August 1994 the applicant accepted the respondent's proposal of $9.23 as the base rate from which to begin negotiating wage increases for the day shift co-ordinator.
11The respondent's offer was presented to the applicant's bargaining unit on October 3rd and 4th, 1994 for purposes of ratification. The offer was rejected and a short strike followed. The same offer was put to the bargaining unit during a second ratification vote held on November 7, 1994. At that point the offer was ratified by the bargaining unit. The respondent was immediately advised by facsimile that the bargaining unit had ratified its last offer.
12On November 15,1994 the applicant mailed to the respondent a final version of the collective agreement which was identical in all respects to the employer's last offer at conciliation. On November 24, 1994 the principal negotiator for the applicant met with the president and general manager of the respondent. During this meeting, the respondent advised the applicant that that it would not sign the collective agreement because it did not want to include the day shift co-ordinator as a separate classification.
13Following this meeting and during December of 1994 and January of 1995 the union made a number of proposals in an attempt to deal with the respondent's change of position. Despite these proposals, the respondent was not prepared to sign the collective agreement which it had in effect proposed as its last offer at conciliation. The respondent's change of position was not brought to the attention of the applicant until after the respondent's proposal had been ratified by the applicant.
14The purpose of the obligation to bargain in good faith is to safeguard the integrity of the collective bargaining process. In these circumstances, the respondent placed its position on the table and was content to have that position put to a ratification vote by the applicant. Once the applicant advised the respondent that the respondent's proposal had been ratified, the applicant had changed its bargaining position on the basis of the representation made to it by the respondent. As the Board commented in similar circumstances in Spartan of Canada Limited, [1985] OLRB Rep. Sept. 1420 at 1426:
- ... Having thus led the Union to alter its position in bargaining, albeit with ill intent, it is our view that the respondent cannot now be permitted to renege on the position which it had placed on the table. To hold otherwise, it seems to us, would introduce so fundamental an element of mischief into the collective-bargaining process, from the point of view of either side of the table, as to undermine the integrity of the process itself.
15The analysis in Spartan, supra, stands for the proposition that once a position has been taken during bargaining, the party taking the position cannot renege from that position once the opposing party changes its position based on the representation made by the party taking the position. If this were to be permitted, no party could assume that the other's position was a serious proposal even at the point of deciding on whether to accept or reject it. Accordingly, the Board finds that the respondent has breached the provisions of section 15 of the Act.