Ontario Labour Relations Board
[1998] OLRB REP. SEPTEMBER/OCTOBER 878
3825-97-R R.P. Scherer Canada Inc., Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 195, Responding Party
BEFORE: Sharon C. Laing, Vice-Chair, and Board Members J.A. Ronson and R.R. Montague.
DECISION OF THE BOARD; September 17, 1998
- This is an application to terminate bargaining rights. The applicant employer has applied pursuant to the provisions of section 65(1) of the Labour Relations Act, 1995 (the "Act") for a declaration that the respondent trade union no longer represents the employees of the applicant in the bargaining unit for which it is the bargaining agent. The applicant employer seeks the Board's disposition of this matter without the need for an oral hearing and on the basis of written submissions.
I
The employer and the trade union were parties to a collective agreement which had a specified term of operation from May 30, 1994 to December 31, 1996. In January 1996, the employer announced the discontinuance of its operation at its Windsor, Ontario facility. Following the announcement of the cessation of its operation, the employer and the trade union negotiated, and in February 1996 executed a memorandum of agreement dealing with various issues as a result of the closure of the facility.
Pursuant to the Memorandum of Agreement, the employment of all employees within the bargaining unit described in the collective agreement between the employer and the trade union was terminated. The recall rights of all such employees was waived and compensation was paid.
The trade union did not give notice to bargain either under section 59 of the Act nor under the collective agreement which expired in December, 1996.
II
The relevant sections of the Act provide as follows:
(1) Either party to a collective agreement may, within the period of 90 days before the agreement ceases to operate, give notice in writing to the other party of its desire to bargain with a view to the renewal, with or without modifications, of the agreement then in operation or to the making of a new agreement.
(2) A notice given by a party to a collective agreement in accordance with provisions in the agreement relating to its termination or renewal shall be deemed to comply with subsection (1).
(1) If a trade union fails to give the employer notice under section 16 within 60 days following certification or if it fails to give notice under section 59 and no such notice is given by the employer, 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 applicant employer looks to section 65 of the Act to provide an end to a bargaining relationship where the trade union has not asserted its bargaining rights following the expiration of the collective agreement, and in particular has failed to give notice as contemplated by section 59 of the Act.
The trade union in response to the application indicates it has no intention of abandoning its bargaining rights and would assert such rights should the employer re-open in the City of Windsor.
The issue then is whether the union, in the absence of the existence of a group of employees for whom they were to bargain on behalf, nonetheless was required to give notice to bargain.
We are of the view that the general comments of the Board in the Sole Case (1949) D.L.S. 7-2 105, and relied on thereafter are applicable under the present legislation and to the present situation.
"a [termination] proceeding is a type of representation proceeding, that is, it has as its objective the determination of a question of representation. An application for [a declaration terminating bargaining rights] is, in effect, a request that the Board examine into and determine the question whether the employees affected by the application desire to continue to be represented by their bargaining agent. The basis upon which [a declaration terminating bargaining rights] may be granted is that "a bargaining agent no longer represents ... the employee in [the bargaining unit]". That criterion, we suggest, presumes the existence of the unit, or to state it in another way, presumes the presence in the unit of employees who may signify whether or not they wish the bargaining agent concerned to continue to represent them. In the present instance that condition does not obtain".
- The later comments of the Board in William Baziuk [1984] OLRB Rep. July 905 are also instructive.
……Section 59 [now section 65] is meant to ensure that a trade union that represents a unit of employees actively seeks to forward the interests of those employees and does not "sleep on its rights". In the instant case, so long as there were employees in the bargaining unit the union actively sought to bargain on their behalf. Once all of the employees were laid off it was not unreasonable for the union to cease its activities in this regard since they might prove to be of no useful purpose. The lack of employees in a bargaining unit, however, does not necessarily mean that the bargaining rights themselves are meaningless. For example, it is not unknown for a company that has halted operations and laid off its employees to later call back the employees and resume operations. In such a situation it is quite appropriate for the union that represents the employees to recommence negotiating on their behalf. We would note that in the instant case there is no guarantee that if the union's bargaining rights were to be terminated the business of Great Lakes Rail Limited might not later be revived.
In these particular circumstances, we are not persuaded that the union's failure to give notice to bargain when in fact there existed no employees for them to bargain on behalf of is of sufficient consequence so as to cause the Board to find that the trade union has somehow abandoned its bargaining rights. It cannot be surprising that, given the cessation of the employer's operation, the trade union did not feel it necessary to pursue its representation rights on behalf of a unit which did not exist.
Further, we observe that in the event, as the employer contends, that its operation remains closed, there will be no practical significance to the existence of a bargaining relationship with the trade union. However, in the event that the employer does re-open, the trade union may very well wish to revive the pre-existing bargaining relationship, should the circumstances surrounding the re-opening permit the renewal of such a relationship.
In the circumstances, for the foregoing reasons, this application is hereby dismissed.