[1996] OLRB REP. FEBRUARY 64
3652-95-R Erin Park Automotive Limited, Applicant v. National Automobile, Aerospace Transportation and General Workers Union of Canada (CAW-Canada), Responding Party
BEFORE: Janice Johnston, Vice-Chair, and Board Members I. A. Ronson and D. A. Patterson.
APPEARANCES: Peter Pickering and Patrick Melady for the applicant; Janice Chung, Joe McCabe and Ian Scott for the responding party.
DECISION OF THE BOARD; February 20, 1996
1The name of the responding party is hereby amended to read: "National Automobile, Aerospace Transportation and General Workers Union of Canada (CAW-Canada)".
2At the hearing scheduled to deal with this matter on February 19, 1996 the Board gave the following oral ruling:
The Board has before it in this case an application by the employer in which it is seeking a vote of its employees pursuant to section 65(2) of the Labour Relations Act, 1995 to determine if the bargaining rights of the union should be terminated.
At the commencement of today's proceedings, the responding party moved that this application be dismissed as it does not disclose a prima facie case for the relief requested.
3In accordance with the submissions of the parties, both written and oral, the factual findings which follow have been agreed to. For the purposes of deciding this motion we are prepared to assume they are true.
4On August 8, 1995, the responding party was certified on an interim basis for a bargaining unit of employees of the applicant. On September 1, 1995 written notice of a desire to bargain was given to the applicant. On November 9, 1995 a meeting was organized by the union with the employer to allow the parties to introduce themselves. At this meeting the union undertook to prepare bargaining proposals.
5The union requested, and the employer agreed, on November 15, 1995 to allow two union bargaining committee members time off to prepare bargaining proposals.
6In December, 1995, the parties had telephone conversations and exchanged correspondence on issues in the workplace.
7In January, 1996 numerous phone calls were attempted by both parties and messages were left. On January 15, 1996 the employer advised the union that it had initiated the application currently before the Board and no further attempts to negotiate have occurred.
8On January 8, 1996 the employer wrote to the union what appears to be a summary of all the complaints it has about the union's representation of its members. It provoked a sharp and pointed response from the union. The employer pointed to this letter as indicative of the union's focus on other matters in the workplace, which has in the employer's view, resulted in a failure to negotiate on the part of the union.
9Based on the facts as set out above and after carefully reviewing all of the submissions of the parties and the jurisprudence provided by the responding party, we are of the view that this application should be dismissed for a failure to make out a prima facie case for the relief requested.
10The Board's jurisprudence is clear that section 65(2) is to be used as a shield not as a sword (see in this regard Dominion Stores Ltd., 56 CLLC 18,047 and Medi-Park Lodges Inc., [1979] OLRB Rep. Oct. 1007).
11While clearly, the negotiations have not been proceeding smoothly there is no indication that the union has not been making every effort to bargain with the employer. In no way has the union "slept on its rights" as that phrase has been used in the Board's jurisprudence. (See Prescott Machine & Welding Inc., [1983] OLRB Rep. Feb. 250 and City Cab, [1987] OLRB Rep. July 955).
12Accordingly, this application is dismissed.