[1997] OLRB REP. JULY/AUGUST 574
1994-96-R Lynda Ann Falvo, Applicant v. United Food & Commercial Workers International Union, Locals 175/633, Responding Parties v. Birssa Holdings Inc. co.b. East Side Mario's, Intervenor
BEFORE: S. Liang, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
DECISION OF THE BOARD; August 22, 1997
This is an application for termination of bargaining rights. By decision dated June 11, 1997, the Board requested the parties' submissions on why this application should not be dismissed, having regard to the provisions of section 43(23) of the Labour Relations Act, 1995, which states:
(23) Despite subsection (2), where an application under subsection (1) has been filed with the Board and a final decision on the application has not been issued by it and there has also been filed with the Board, either or both,
(a) an application for a declaration that the trade union no longer represents the employees in the bargaining unit; and
(b) an application for certification by another trade union as bargaining agent for employees in the bargaining unit,
the Board shall consider the applications in the order that it considers appropriate and if it grants one of the applications, it shall dismiss any other application described in this section that remains unconsidered.
Section 43(1) allows a union or employer to apply for a direction that a first collective agreement be settled by arbitration.
For ease of reference, the parties to this application will be referred to as the "petitioner", the "employer" and the "union". The Board is in receipt of letters from counsel for the applicant and counsel for the employer in response to its decision of June 11. In both, the Board is urged to allow the termination application to proceed despite an order of the Board also dated June 11 directing the settlement of a first collective agreement by arbitration. For the following reasons this application is dismissed.
To briefly summarize the factual background, on May 14, 1994, as part of a settlement of an application for certification, the employer agreed to voluntarily recognize the union as the bargaining agent for a unit of its employees. A conciliation officer was appointed at the request of the union on June 13, 1994. On August 23, 1995, a no-Board report was issued by the Ministry of Labour. On September 28, 1995, the union applied for first contract arbitration pursuant to the provisions of the Labour Relations Act, R.S.O.1990, c.L-2. Upon the repeal of that Act, the first contract arbitration proceedings were terminated, and the parties resumed collective bargaining. On September 26, 1996, a second application for first contract arbitration was made (Board File No.1910-96-FC), this time under the provisions of the Labour Relations Act, 1995.
Upon receipt of the application for first contract arbitration, the Board scheduled the matter for hearing commencing October 21, 1996, by Notice of Hearing dated October 8. On October 9, the Board received this application for termination of bargaining rights. In its response to the termination application, the union, among other things, submitted that the Board ought to postpone any representation vote in connection with that application until it had considered the application for first contract arbitration. The union also indicated that it intended to rely on section 63(16) of the Act, which provides:
(16) Despite subsections (5) and (14), the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.
By decision dated October 16, 1996, the Board determined that it would not hold a representation vote at that stage. The Board stated:
This is an application for termination of the union's bargaining rights.
The union responds by making serious allegations under section 63(16) of the Labour Relations Act, 1995 of employer initiation of the termination application.
There is pending before the Board, due for hearing on October 21, 1996, an application by the union for first contract arbitration under section 43 of the Act in Board file No. 1910-96-FC.
The Board has resolved that a representation vote in respect of the termination application will not be held at this stage, given the matters referred to in paragraphs 2 and 3 above. This application will be listed for hearing on October 21, 1996, with Board file No. 1910-96-FC. The panel hearing the applications may determine the matters referred in subsection 43(23) of the Act and whether and when, or not, to order the representation vote sought by the applicant.
On October 21, the date set for hearing in both matters, all parties to both applications agreed to adjourn the hearing to January 13, 1997. By letter dated October 30, counsel for the petitioner wrote to the Board requesting that the Board hold a representation vote, and requesting a change of venue.
After receiving the submissions of the parties in response to this request, the Board (by a majority) issued a decision dated December 20, stating:
Having received and reviewed the submissions of counsel on these issues, the majority of this panel, with Board Member J. Rundle dissenting, declines the request to have the representation vote held prior to the start of the hearing. The majority finds no reason to depart from the decision made by the Board on October 16. It appears that the preliminary issue which the Board must determine at the start of the hearings is how exercise its discretion under section 43(23) of the Act, which relates to the order in which it should consider these applications. It may be that the Board will decide to hear the first contract application first. It may be that the Board will decide to hear the termination application first. Or, the Board may join the two matters for hearing. Its determination on this issue will also bear on the question of whether to order a representation vote at the present time. The majority of this panel therefore finds it appropriate to defer the question of the holding of a representation vote to be dealt with at the hearing, as part of its decision under section 43(23).
With respect to the request for a change of venue, the Board recognizes the hardship that it causes parties of lesser means to have to travel to Toronto to attend hearings. If it were possible, the Board would conduct its hearings wherever it is most convenient to the parties appearing before it. However, it is not within this panel's ability to grant the request. Budgetary constraints have required administrative decisions to be made on the issue of hearing venue. It is the understanding of this panel that at the moment, the Board is not scheduling any new matters to be heard outside of Toronto.
Accordingly, the hearing will proceed in Toronto as previously scheduled.
In response to that decision, counsel for the petitioner made a request dated January 7, 1997 for a teleconference between the parties to the two applications and a panel of the Board, in order to renew its request for a change of venue.
Upon a further review of the circumstances, the Board issued the following endorsement, on January 9:
In view of the burden tha[t] it places on the individual applicant in the termination application to appear in Toronto for this hearing; and of the possibility that under section 43(23) the Board may decide to hear and dispose of the application for a first contract direction before considering the termination application; and the possibility in that event that the applicant in the termination application may not feel the need to attend the hearings into the first contract case, the Board finds it appropriate to direct a teleconference for the purpose of hearing the parties' arguments with respect to this issue.
The Board will therefore convene a teleconference to take place Friday, January 10, 1997, at 1:00 p.m. for the purpose of receiving the parties' arguments as to the order in which it should consider these applications, having regard to section 43(23) of the Act.
The teleconference was held, and the parties made submissions on the issue of the order in which the Board ought to consider these two applications. The petitioner and the employer submitted that the Board ought to consider the termination application first, and the union submitted that the Board ought to consider the first contract application first. After hearing the submissions of the parties, on January 13, the Board issued the following endorsement:
The majority of the panel has determined to consider the application for a first contract direction before turning to a consideration of the termination application. Board Member J. A. Rundle dissents and would have heard both matters together.
In arriving at its determination, the majority considered the competing considerations in these matters, both procedural and substantive. The Board has indicated in prior decisions that the Act does not demonstrate a legislative intent to give primacy to either petitioners in a termination application, or a union bringing a first contract application (see, for instance, Venture Industries Canada Ltd., [1990] OLRB Rep. May 625 and Forth William Clinic, [1996] OLRB Rep. Nov/Dec. 942. Both types of applications involve substantive rights. The Act reflects an intent that both be dealt with expeditiously, by providing for speedy votes in a termination application, unless the Board orders otherwise, and by providing for speedy hearings and determinations in a first contract application. On our review of the materials in both applications and the submissions of the parties, the Board likewise saw no reason on the facts of this case, to prefer the substantive rights of the petitioners over those of the union. The petitioner raises by her application a question about the continuing support for this union amongst the members of the bargaining unit. The application was made during a time period within which the Act allows employees to test the continuing support for their bargaining agent, and indeed, some time had lapsed since the union had first become entitled to represent these employees. On the other hand, the application made by the union raises a question about whether the conduct of the employer has caused the failure to arrive at a first collective agreement. Its application raises implicitly and explicitly the issue of whether the employer's conduct contributed to the filing of the termination application. All of these issues are important ones, and the majority of the panel was unable to find that the issues raised by the petitioners were more important, or should trump the ability of the union to litigate the issues raised in its application.
Where a termination application was filed during the course of the hearing on the first contract application, the Board has generally decided to give primacy to the first contract application, in recognition of the parties' legitimate expectation of resolution. The parties' expectations in this regard were of minimal assistance on the facts of this case, since the first contract application had not proceeded in any meaningful fashion by the time the termination application was filed.
Ultimately, the majority of this panel of the Board saw no compelling reason on the facts of this case to prefer one application over the other. Ultimately, it determined that it should simply proceed with the application which came before the Board first, the first contract application.
Because of this determination, the majority saw no useful reason to order that the two applications be heard together. Where the Board has heard a first contract application and termination application together, it has deferred to the end of the hearing its decision as to which should be resolved first.
Finally, also because of this determination, the Board saw no reason to order a representation vote in the termination application at this stage. Section 43(23) contemplates that a termination application may be deferred pending the resolution of a first contract application. The presumption of speedy votes is one element of the statutory policy that representation matters be dealt with quickly by the Board; where the representation issue has been deferred because of another statutory policy, the presumption of a speedy vote loses its force. The Board does not need to decide whether it is precluded from ordering a vote even while a termination application has been deferred under section 43(23) of the Act; we saw no compelling reasons in this case to proceed with one.
The hearings into the first contract application commenced on January 14, 1997. After about six days of hearing, the Board was advised by counsel for the employer that the employer and the union had resolved the issues in the application for first contract direction and accordingly were agreeing to adjourn hearing dates before the Board. By letter dated May 30, 1997, counsel for the employer forwarded to the Board the parties’ consent to a Board order directing the settlement of a first collective agreement by arbitration, as well as a Memorandum of Agreement between the parties to that litigation. Pursuant to the consent of the parties, the Board issued a decision dated June 11, 1997 directing the settlement of a first collective agreement between the parties by arbitration.
It was in the above context that the Board issued its decision in the termination application on June 11, leading to the submissions currently before it.
We have considered the submissions in that correspondence, and despite the vigorous assertions to the contrary, we can find no basis to depart from the clear and unambiguous language of section 43(23). Section 43(23) means exactly what it says: on the facts of this case, where the Board has determined to consider the application for a first contract direction prior to a consideration of the termination application, and the application for a first contract direction is granted, the termination application shall be dismissed.
There is nothing in the language of section 43(23) which suggests that the Board can deviate from its clear meaning when the application is granted on the consent of the parties, instead of after a hearing on the merits.
Counsel for the petitioner submits that if the Board decides not to proceed with her termination application, the Board will be disregarding the freedom of choice of the employees provided for in the Labour Relations Act, 1995 as well as violating the employees' fundamental democratic rights as provided for under the Charter of Rights and Freedoms.
There is nothing insidious about the fact that to the extent employees have the freedom to choose to belong or not to belong to a trade union, there is a statutory and procedural framework which governs how and when that choice is to be exercised. There are time limits, formal procedures, evidentiary prerequisites and other conditions governing the exercise of that choice, all of which reflect a balance of various substantive and procedural rights advanced by the Act. There is nothing insidious about the fact that the Act gives the Board the power to decide which of two matters that come before it should be determined first, that the Board has exercised this power taking into account relevant principles, or about the fact that the statute provides that a disposition of one matter will result in the other being terminated. The Board is unable to discern any basis for the assertion that in exercising its powers under the statute in this case, it has denied democratic rights under the Charter of Rights and Freedoms.
Accordingly, and pursuant to section 43(23) of the Act, this matter is hereby dismissed.