William Neilson Ltd. v. Teamsters Local 647
[1997] OLRB REP. NOVEMBER/DECEMBER 1056
1711-97-M; 1925-97-U William Neilson Ltd., Applicant v. The Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union 647 Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Responding Party v. Group of Employees, Objectors; Sean Donovan et al., Applicants v. William Neilson Ltd. and Teamsters Local 647, Responding Parties
BEFORE: R. O. MacDowell, Chair, and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES: Michael G. Sherrard and Robert Kelly for the company; Michael C. P. McCreary, Bill Overy and Pat Powers for the union; Michael W Tesluk and Sean Donovan for the objectors.
DECISION OF THE BOARD; December 17, 1997
I - WHAT THIS CASE IS ABOUT
This is a joint request for early termination of a collective agreement that was scheduled for consideration by the Board on September 18, 1997, along with a related unfair labour practice complaint.
The joint request for early termination, concerns a collective agreement (which we will refer to here as "the old agreement") that runs from January 1, 1996 to December31, 1998. The union and the employer seek the Board's consent to end this agreement early, so that it can be replaced by a newly-negotiated 6-year agreement. The union and the employer assert that the new agreement will provide commercial and labour relations stability for a facility that might otherwise he closed; moreover, they point out that the new agreement has been endorsed by employees in a ratification vote held on August 1, 1997. In their submission, the new agreement is an important part of the plan to save the plant as a going concern.
The objecting employees challenge the way in which that ratification vote was conducted, and assert that the union has acted in a manner that is "arbitrary, discriminatory, or in bad faith".
The Labour Relations Act includes the following provisions:
- (3) A collective agreement shall not be terminated by the parties before it ceases to operate in accordance with its provisions or this Act without the consent of the Board on the joint application of the parties.
(5) Nothing in this section prevents the revision by mutual consent of the parties at any time of any provision of a collective agreement other than a provision relating to its term of operation.
- (1) A proposed collective agreement that is entered into or memorandum of settlement that is concluded on or after the day on which this section comes into force has no effect until it is ratified as described in subsection (3).
(3) A proposed collective agreement or memorandum of settlement is ratified if a vote is taken in accordance with subsections 79(7) to (9) and more than 50 per cent of those voting vote in favour of ratifying the agreement or memorandum.
- (7) A strike vote or a vote to ratify a proposed collective agreement or memorandum of settlement 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.
(8) 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 or memorandum of settlement.
(9) Any vote mentioned in subsection (7) shall be conducted in such a manner that those entitled to vote have ample opportunity to cast their ballots. If the vote taken is otherwise than by mail, the time and place for voting must be reasonably convenient.
- 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.
II - THE ADJOURNMENT REQUEST
The request for early termination of the "old collective agreement" was filed with the Board on August 1, 1997. Notice of that request was posted in the workplace on August 15, 1997. The unfair labour practice complaint was filed by the objectors on August 26, 1997.
By decision dated August 28, 1997, the Board (differently constituted) determined that it was appropriate to hear the two matters together, and ruled as follows:
The applicants to the section 58(3) application and the responding parties to the section 96 application are hereby directed to file any submissions and response they may wish to make to the Notice of Objection and the section 96 application no later than September 5, 1997, 5:00 p.m. Therefore, the filing time for the response to the section 96 application is abridged to September 5, 1997.
By decision dated September 11, 1997, the Board directed that these matters be dealt with expeditiously and directed that the hearing would take place, in Toronto, on Thursday, September 18, 1997. A copy of that decision was transmitted to the parties and posted in the workplace.
Given the context (see below for more detail), the Board determined that these matters should be addressed and resolved quickly; for, as will be seen below, the company had interrupted its plant shutdown plans on the strength of the vote and the new collective agreement that the objectors are now challenging. It was important to deal with the case expeditiously.
At the opening of the hearing on September 18, 1997, Mr. Tesluk, a lawyer, appeared on behalf of the objecting employees, for the purpose of seeking an adjournment. Mr. Tesluk told the Board that he had been retained the night before, and that he had not had an opportunity to prepare for the proceeding. He also told the Board that he was not able to remain, for long, on September 18, 1997, because he had a real estate "closing" to attend to later in the day. Mr. Tesluk requested "a week's adjournment" so that he could consider his clients' position and prepare his submissions.
The union and the employer ("the institutional parties") opposed the requested adjournment.
Counsel for the union and counsel for the employer both noted that the notice of early termination had been posted in the workplace on August 15, 1997, with a terminal date (for interventions/submissions) of August 25. The objectors' own complaint was filed on August 26, 1997. And the Board abridged time limits so that it could address these matters expeditiously. In counsel's submission, the objectors knew of these proceedings (including their own) in August, and had ample opportunity to seek legal advice. The objectors also knew that the company had interrupted its shutdown plans on the strength of the "new agreement", and that employees had been told, throughout, that the company needed to have the new agreement put in place immediately.
The institutional parties submitted that the objectors could have retained counsel in advance of the hearing (certainly before the evening of September 17), and could have sought out someone who was available to represent them on the days already fixed for hearing. Neilsons reiterated - as it did to the union, and to its employees in August - that there were pressing commercial considerations which had to be finalized if the plant was to remain operational. That is why the vote had been scheduled quickly, that is why the institutional parties pressed for an early hearing date, and that is why the institutional parties were present, with their witnesses, ready to proceed on the scheduled hearing day.
Counsel further submitted that the facts were not substantially in dispute so that, in all likelihood, the case could be completed in the time already set aside for it. Conversely, if the matter were adjourned as the objectors requested, it was by no means clear that the Board actually could return to it in the following week. In this regard, the request for a "one-week adjournment" is a little misleading: given the Board's current resources, if the scheduling hearing day were derailed, it might actually be some time before the Board and the parties could reassemble. Accordingly, the union and the employer urged the Board to reject the adjournment request.
The Board's discretion to grant or refuse an adjournment has been discussed in such cases as: Nick Masney Hotels Ltd. (1970), 1970 CanLII 478 (ON CA), 13 D.L.R. (3d) 289; Journal Publishing Co. of Ottawa Ltd. et al. v. Ottawa Newspaper Guild, Local 205 et al. (unreported, March 31, 1997, Ontario Court of Appeal); and Re Flamboro Downs Holding Ltd. and Teamsters Local 879 (1979), 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400. In the Flamboro Downs case, the Divisional Court put it this way:
Clearly, an administrative tribunal such as the Labour Relations Board is entitled to determine its own practices and procedures. Whether in a given case an adjournment should or should not be granted is a matter to be determined by the Board charged as it is with the responsibility of administering a comprehensive statute regulating labour relations. In the administration of that statute the Board is required to make many determinations of both fact and law and to exercise its discretion in a variety of situations. In the case of a request for adjournment, it is manifestly in the best position to decide whether, having regard to the nature of the substantiative application before it, the adjournment should be granted or whether the interests of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the party seeking it. As a matter of jurisdiction, it is for the Board to decide whether it should adjourn proceedings before it and in what circumstances.
This is not to say that there cannot be situations in which a refusal to grant an adjournment might amount to a denial of natural justice. There are circumstances in which that might be so: see, for example, R. V Ontario Labour Relations Board, Exp. Nick Masney Hotels Ltd. 1970 CanLII 478 (ON CA), [1970], 3 OR. 461, 13 D.L.R. (3d) 289 (CA.); Re Gill Lumber Chapman (1973) Ltd. and United Brotherhood of Carpenters & Joiners of America, Local Union 2142 (1973), 1973 CanLII 1231 (NB CA), 42 D.L.R. (3d) 271, 7 N.B.R. (2d) 41. It is necessary to examine the facts of each case to determine if the tribunal acted, as it must, in a fair and reasonable way. It must, of course, comply with the provisions of The Statutory Powers Procedure Act, 1971, R.S.O. 1990, c. S.22 and afford the parties the opportunity to be present an be represented, if they wish, by counsel. But a party who has adequate notice of the hearing does not have a right to an adjournment and is not entitled to insist on one for his convenience or the convenience of his representative. It is for the Board to determine whether to adjourn on the basis of the obvious desirability of speedy and expeditious proceedings in labour relations matters, the background of the particular case, the issues involved, the reason for the request and other like factors.
(emphasis added)
After considering the parties' representations in the instant case, the Board ruled (orally) that under the circumstances, it was not prepared to grant the objectors' request for an adjournment.
The Board was satisfied that the objectors had had a reasonable opportunity to retain and instruct counsel in respect of their own application and the companion request for early termination; moreover, there were good commercial and labour relations reasons for dealing with the case expeditiously - as urged by the institutional parties. The Board did not think that the complainant's last-minute selection of counsel warranted an adjournment where, as here: the case was relatively simple and straightforward; there had been sufficient time to prepare, choose and instruct counsel; the hearing date was clearly fixed with expedition in mind; all parties had notice of that hearing date; the union and the employer, at some expense, were in attendance with their counsel and their witnesses ready to proceed on the scheduled date; adjourning might engender several weeks' delay; and labour relations and commercial considerations both supported an early resolution of the parties' dispute.
Following this ruling, Mr. Tesluk withdrew from the hearing, and the parties met with a view to forging an agreement on the facts.
As it turned out, the facts were not really in dispute, and no formal testimony was necessary.
III - BACKGROUND
William Neilson Ltd. ("Neilsons") operates a dairy processing and warehouse distribution facility in Georgetown, Ontario. The employees working at that facility are represented by Teamsters Local 647.
The union and the employer have a "mature" collective bargaining relationship, that has been in place since the mid-1950s. The parties estimate that, over the years, they have successfully negotiated some 15 collective agreements applying to the Georgetown plant.
The most recent collective agreement (what we have called "the old agreement") was negotiated in the spring of 1996, and runs from January 1, 1996 to December 31, 1998. There is no evidence that the bargaining preceding the 1996-98 collective agreement focused on the closure of the Georgetown facility, or that such closure was as clear as it later became.
On or about February 24, 1997, (i.e. one year into the old agreement) Neilsons announced that a decision had been made to close the Georgetown undertaking. The scheduled closure date was March 1998 - that is, about a year later, but still during the currency of the 1996-98 collective agreement.
Following the announcement of the planned closure, the union and the company met and negotiated what they describe as a "closure agreement". That agreement amended the 1996-98 collective agreement to provide for enhanced severance and termination packages for employees affected by the anticipated shutdown. The bargaining committee for the "closure agreement" included Pat Powers, the union official responsible for the bargaining unit(s), and six local union stewards.
At that point, closure seemed inevitable. It was just a matter of time.
Sometime in the late spring or early summer of 1997, Neilsons approached the union and its bargaining committee and suggested that despite its earlier announcement (and existing plans), it might be prepared to continue operations at the Georgetown facility - provided that the union agreed to concessions which would make the operation viable. With that in mind, the parties entered into further negotiations to see whether a deal could be struck that would keep the plant open.
Initially, the negotiating committee refused to take any of the company's proposals to the membership, because it felt that the concessions demanded by the company were too severe. The union informed Neilsons that employees were opposed to the company's proposals, and that there were a number of areas of concern. Nevertheless, during the last week of July 1997, Mr. Powers was presented with what was described as the company's "final offer" (an offer that he did not solicit).
The company warned the bargaining committee that if the "final offer" was not acceptable, the company would proceed with its shutdown plans as had previously been announced. The dismantling and transfer of machinery was scheduled to begin immediately, and once that process began, the closure was a certainty.
Powers concluded that the union should put this "final offer" to the employees for their consideration in a ratification vote, because the company had advised the union that if the company did not obtain concessions by August 1, 1997, it would begin removing certain machinery from the plant, and the facility would certainly close. In other words, by the end of July 1997, the company was prepared to begin implementing the plant closure that it had previously announced, unless its proposed concessions were accepted. On the other hand, if a new deal was ratified, the company indicated that it would reverse the process that was then underway. But it needed a decision - and soon.
The details of the proposed "concessions" need not be set out here. It suffices to say that they included: increased severance packages for affected employees and some protections for employees who feared discriminatory treatment - all of which were to be rolled into a new 6-year collective agreement. The new agreement would replace the one then in place, and would guarantee a period of stability while the company got its affairs in order.
The parties also reached an agreement which would allow employees who had already accepted severance packages, to revoke their acceptance and return to employment. This proviso was agreed to because, at the time of the employees' original decision to accept or reject Neilsons' severance proposal, the employees' understanding was that the facility would inevitably be closing. That is what had been communicated to them. Now, however, there was a reasonable prospect that the plant would stay open. So, as a matter of fairness, the bargaining parties thought that departing employees should be given an opportunity to reconsider their options. In effect, the union and the employer agreed to treat the workers who had accepted severance packages like other employees in the bargaining unit, and all such employees were invited to consider the company's proposals for a new 6-year agreement.
The proposed new collective agreement was finalized on or about Wednesday, July 30, ] 997. The union agreed to conduct an immediate ratification vote - bearing in mind, as we have already noted, that the company had already arranged for the transfer of certain equipment which was essential to the plant's continuing operation.
A representative of Neilsons provided the union stewards with an updated list of bargaining unit members, together with their home telephone numbers, so that the stewards could notify the membership, by telephone, during the afternoon of Wednesday, July 30, 1997. Mr. Powers instructed the stewards at the Georgetown facility to call all bargaining unit employees by telephone, and all of those employees were either spoken to personally, or a message was left on their answering machines. The vote was to take place on Friday, August 1, 1997, between 10:00 a.m. and 4:00 p.m.
There is a dispute about whether the vote should have been called so quickly and whether the company was "bluffing" when it warned that it would begin dismantling the machinery if there was not a positive vote on August 1, 1997. However, there is no real dispute that the employees in the bargaining unit had notice of the ratification vote; or that copies of the proposed changes to the collective agreement were distributed to employees on Tuesday, July 31, 1997, the day before the vote was taken.
The evidence before this Board is that the company's plan to move its machinery was neither a "threat" nor a "bluff'. It was a settled plan that the company was prepared to abort if it was commercially feasible to keep the plant open. But that required the union's agreement to the new collective agreement.
The ratification vote was conducted by secret ballot and was overseen by David Balfour, the most senior bargaining-unit employee in the plant. There is no challenge to the regularity or sufficiency of the balloting.
On August 1, 1997, approximately 87 individuals attended the union meeting, and 77 of them cast ballots. The vote was in favour of accepting the proposed new collective agreement. The results of the vote were: 51 ballots cast for the new agreement, 23 ballots cast against the proposed agreement and 3 spoiled ballots.
No information meeting was held prior to the day of the vote - although the issues were discussed and fully canvassed with the bargaining-unit members on the day of the vote. However, it is not the practice of Teamsters Local 647 to have a formal information meeting the day prior to voting on a proposed new collective agreement.
Teamsters Local 647 did not recommend the new collective agreement to the membership. In fact, when asked by employees, Mr. Powers advised them to vote against the company's proposal. However, despite his own opinion, Mr. Powers felt that a vote was necessary, given that the employer's operations were scheduled to be closed. Mr. Powers concluded that, in the circumstances, the employees should be given an opportunity to vote on a proposal which, the company said, would forestall the plant closure. And, despite Mr. Powers' own reservations, there may have been other local union officials or stewards, who urged their co-workers to vote in favour of the company's proposals.
All employees actively at work in the bargaining unit were permitted to vote. In addition, the union accepted ballots from those who had already accepted severance or termination packages (i.e. the less generous amounts under the old agreement that were offered and accepted on the understanding that the facility would certainly close). These individuals were allowed to vote both because they were given the option of returning their severance and termination packages and returning to work if the membership voted in favour of the collective agreement and the employer's operation continued, and because the employer's proposal included an enhanced severance package for employees wishing to sever their employment relationship with the employer.
In the circumstances, the union concluded that all of its members would be affected by the proposals, and that all of its members should therefore be given an opportunity to vote. Nevertheless, because there is a complaint about the participation of individuals who had already accepted (reduced) severance packages, it might be noted that even if their ballots had been segregated or discarded, the vote results would have been strongly in favour of the company's proposed new collective agreement.
In other words, the company's proposal would have been accepted even if all of the ballots challenged by the objectors had been segregated and not counted. And, of course, as union counsel observed, if the departing employees had not been allowed to vote, and the results had gone the other way, the individuals excluded from casting a ballot might be mounting the same challenge as the objecting employees do.
There is no "representation question" raised either on the facts or by the objecting employees. No one seeks to challenge the union's status as bargaining agent. The complaint is about the way in which the vote was conducted; and, in particular, the union's decision to include the new severance arrangements in the package to be voted on, and to accept ballots from the broader voting constituency described above.
The objectors want the Board to direct a new ratification vote in which their departed (or potentially departing) fellow workers will not be permitted to cast ballots.
The objectors want the severance package severed from the proposed new collective agreement before any voting is permitted, because, they say, it is an unfair inducement to "accept the deal".
The objectors submit that those entitled to vote should be confined to individuals who have to "live under" the proposed new 6-year agreement.
IV - DECISION
There is no foundation for the objectors' claim that the union has contravened section 74 of the Act. The union has not acted in a manner that is "arbitrary, discriminatory, or in bad faith". On the contrary. The union has made substantial and good faith efforts to balance the competing interests of its members - including those who have been given a further opportunity to respond to the company's shifting commercial demands, and those who may be departing from the bargaining unit as a result of reorganization or restructuring.
The union's position is eminently sensible; and whether or not an outsider would have come to the same conclusion, it cannot be said that the union has acted improperly.
Insofar as section 74 is concerned, the unfair labour practice complaint is dismissed.
The objectors' challenge to the ratification vote is two-fold: that the severance arrangements were included in the package put to the voters for ratification; and that persons who had departed or were departing from the unit were permitted to cast ballots. As the objectors' representative put it: departing employees had an unfair inducement to support the proposal, and persons were permitted to vote who would not have to "live" under the concession-laden 6-year agreement.
There is no basis for the first objection. Indeed, since the severance arrangements were to be included in the new collective agreement, the union was obliged to put it to the voters.
The second objection is more difficult because it might be said that the union permitted participation by individuals who, strictly speaking, were not "employees in the bargaining unit" at the time that they cast their ballots. However, that characterization is flawed for two reasons.
In the first place, in a collective-bargaining context, the notion of "employment" (let alone employment in a bargaining unit) does not necessarily follow common law rules. In a collective-bargaining environment, individuals may well be considered "employees" (for various purposes) who would not be so considered to be employees in other contexts or for other purposes (see, for example, the decision of the Ontario Court of Appeal in Blouin Drywall Contractors Ltd. (1975), 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103, and the decision of the Supreme Court of Canada in Maritime Employers Association 1978 CanLII 158 (SCC), [1979], 1 S.C.R. 120). In a collective-bargaining environment, it is not at all unusual for individuals to be considered "employees in a bargaining unit", even though they are not actively at work, and might not have been considered "employees" at common law.
In addition, in this particular case, the collective bargaining parties have agreed (as they are entitled to do) that persons who might have nominally severed their employment at an earlier time, were to be restored to their former status for the purposes of reconsidering their options. The individuals in question are not strangers, nor, given the parties' agreement, have they irrevocably severed their connection to, or interest in, the bargaining unit. In view of the parties' agreement, they are more like "laid-off' employees than "former" employees, and the parties have agreed - not unreasonably - to treat them that way.
Finally, as we have already indicated, even if the ballots of the challenged voters had been segregated and not counted, the agreement would still have been ratified by the majority of employees casting ballots. And the fact that some voters may have later had second thoughts about their choice is now irrelevant.
For all of these reasons, the Board is satisfied that the unfair labour practice complaint should be dismissed.
The Board is also satisfied that it should give its consent to the institutional parties' joint request for the early termination of their old agreement, so that the "new agreement" can be put in place in accordance with its terms.
In accordance with the agreement of the parties, on the day following the hearing, the Board issued a "bottom line decision" with reasons to follow. These are the reasons for the Board's decision.