[1998] OLRB REP. SEPTEMBER/OCTOBER 799
0721-98-R Harbourfront Centre, Applicant v. International Alliance of Theatrical Stage Employees and Moving Picture Technicians, Artists and Allied Crafts of the United States and Canada, Local 58, Toronto, Responding Party
BEFORE: Russell G. Goodfellow, Vice-Chair.
DECISION OF THE BOARD; October 19, 1998
This is an employer application for termination of bargaining rights.
The application was filed pursuant to section 65(2) of the Labour Relations Act, 1995 (the "Act"), which states:
(2) Where a trade union that has given notice under section 16 or section 59 or that has received notice under section 59 fails to commence to bargain within 60 days from the giving of the notice or, after having commenced to bargain but before the Minister has appointed a conciliation officer or mediator, allows a period of 60 days to elapse during which it has not sought to bargain, the Board may, upon the application of the employer or of any of the employees in the bargaining unit and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.
The union argues that the application is untimely. It points out that it applied for conciliation on January 19, 1998 and that a conciliation officer was appointed on January 28, 1998. It submits that the appointment of the conciliation officer serves to prevent the filing of an application for termination under section 65(2). The employer, on the other hand, argues that the words "...before the Minister has appointed a conciliation officer or mediator..." in section 65(2) refer to the conduct of the union, rather than to the time for filing an application. Otherwise, the employer submits, the effect would be to create a permanent or indefinite bar to the filing of such applications. According to the employer, had the Legislature meant to restrict the time for applying for termination to the period prior to conciliation, it would have used words similar to those found in section 63 i e " subject to section 67...". In the alternative, the employer submits that it is unnecessary for me to decide this issue because the circumstances also support a finding that the union has "abandoned" its bargaining rights. The union, while not disputing my jurisdiction to find abandonment in the context of these proceedings and without deciding the "timelines" issue, submits that there is no factual basis for such a finding, or for the exercise of my discretion under section 65(2).
Neither party placed before me a case which squarely addresses the timeliness issue and, in the circumstances, I find it unnecessary to decide that issue. In my view, the facts clearly support a finding of abandonment.
The union was certified in January 1983 for a bargaining unit described as follows:
"all stage employees of Harbourfront Corporation in Metropolitan Toronto, save and except manager, persons above the rank of manager, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation."
Other aspects of the union's representation rights are dealt with in the Board's decision granting the certificate.
From 1983 to the present, the union has failed to conclude a collective agreement. From 1983 to 1992, the parties met approximately fourteen (14) times in an "effort" to negotiate a collective agreement. Thereafter, such "efforts" as had been made ceased entirely until September 6, 1996 when the union's solicitor wrote to the employer requesting a meeting to re-commence negotiations. Apparently, the union's interest in asserting its bargaining rights had been re-kindled by the general perception that the volume of work had picked up at Harbourfront. The solicitor for the employer replied four days later asking, perhaps not surprisingly, what the meeting was to be about. Nine days later the union's solicitor responded saying that the union had not been called to supply stage hands for "some considerable period of time" (i.e. since 1993 or 1994), wanting to know the reasons why, and seeking to "resume negotiations for a collective agreement". (The parties had, since 1984, been operating under an agreement whereby the employer obtained stagehands from the union). The employer states that it responded to this letter by voice-mail but the union does not recall receiving that message. Thereafter, and once again, nothing further was heard from the union until July 1997 (almost a year later) when it sent another written invitation to negotiate, upon which it followed up in August. Again, the employer said that it replied to both letters by voice-mail but its calls were not returned. Again, the union says that it does not recall receiving such messages but, as before, could not state with any certainty that the calls were not made.
In December, the parties met. The subject matter of the meeting was unclear. The company claimed that the union wanted an "agreement", but not necessarily a collective agreement. The union says that the discussions were about achieving a collective agreement. In any event, and as before, nothing was accomplished and both parties left the meeting believing that any further contact was up to the other side. One month later the union filed its request for conciliation. The employer objected to the appointment of the conciliation officer, claiming that the union had abandoned its bargaining rights. It also filed a termination application. On March 4, the parties met with the Labour Relations Officer assigned to the termination application and with the conciliation officer appointed by the Minister. The employer agreed to withdraw its termination application without prejudice to its right to refile for abandonment; it then immediately asked the conciliation officer for a no-board report. As a result, no bargaining took place and, on March 9, 1998, the no-board report was issued. Approximately two months later, no further meetings having been requested or contact having been made between the parties, the employer filed the present application. Finally, and to round out the relevant facts, there is no evidence of any contact between the union and the employees in the bargaining unit (now approximately 12-15 in number) for several years.
The employer argues that the union has "slept on its bargaining rights" and has never really asserted them. The union says that it has asserted them in some fashion and that there is no prejudice to the employer from its conduct. It also suggests that an application of this kind should have been brought, if at all, by an employee in the bargaining unit rather than by the employer. The employer submits that a finding of abandonment does not require proof of prejudice but that even if prejudice were required it could be found in the simple fact that the employer has had to respond to the union's desultory attempts at contact or bargaining over a period of almost 15 years. The employer submits, further, that an employee application for termination might have looked "suspicious" inasmuch as there is no reason to believe that any employee in the bargaining unit is even aware that he or she is represented by a trade union.
I agree with the employer. The Board has long exercised a power to find that a union has abandoned its bargaining rights in appropriate circumstances. Those circumstances are set out in such cases as O & W Electronics Limited, [1970] OLRB Rep. Jan. 1213 and J. S. Mechanical, [1979] OLRB Rep. Feb. 110. The thrust of the Board's case law is that a union can be found to have abandoned its bargaining rights where, without reasonable excuse, it has failed to assert them over a substantial period of time. None of the cases appear to require any demonstration of prejudice by the employer. Further, as the cases cited in J.S. Mechanical make clear, a finding of abandonment may "obviate the necessity for the Board to determine the merits of a termination application".
I also agree with the employer's submission that "asserting" bargaining rights means asserting them in some meaningful, as opposed to entirely superficial or perfunctory, fashion and that the quality of such efforts must be evaluated against the relevant period of time. In this case, the union has made no real effort to conclude a collective agreement over a period of almost fifteen (15) years; in the last few years, moreover, it lost substantial contact with the employer and the employees in the bargaining unit. The union could offer no reasonable explanation for this conduct. It could not explain its failure to seek to bargain a collective agreement for a decade and one half, or the absence of any real contact in the last several years. The union also did not suggest that the Board should take a different approach to the question in this industry than it would in any other.
In the view of the Board, the union's recent efforts at "bargaining" were a case of "too little - too late": its bargaining rights had already been abandoned by the time of the application for conciliation. While I might have concluded otherwise if this appeared to be a case in which an unscrupulous employer was seeking to take advantage of an informal agreement between the parties or of the union's good-nature, the facts support no such inference.
In the result, the Board finds that the union has abandoned its bargaining rights and, accordingly, declares that it no longer represents the employees in the bargaining unit.
The application is, therefore, terminated.