[1999] OLRB REP. SEPTEMBER/OCTOBER 894
1689-99-M Serca Food Service Inc. Ontario Division, Kitchener Branch Applicant v. Northern Ontario Joint Council of the Retail, Wholesale and Department Store Union, District Council of the United Food and Commercial Workers International Union, Responding Party
BEFORE: Brian McLean, Vice-Chair and Board Members J. A. Rundle and R. R. Montague.
DECISION OF THE BOARD; October 27, 1999
This is a joint application by the employer and union under section 58(3) of the Labour Relations Act, 1995 for the early termination of the collective agreement currently in operation between the parties.
As directed by the Board, the employer posted a Notice to Employees of Application under Section 58(3) of the Act. No affected employee filed any objection to the early termination within the time stipulated in the Notice to Employees. Normally, there being no objection, the Board would then consent to the early termination of the collective agreement.
In this case, however, Teamsters Local Union No. 419 (the "Teamsters"), the Association of Employees of Serca Food Services (the "Hamilton Association") and the Association of Hourly Paid Employees of Burgess Wholesale (the "Newmarket Association") object to the early termination of the collective agreement. They do so on the basis that, in their view, the collective agreement which the parties have apparently entered as a replacement for the current collective agreement, is unlawful and adversely affects their interests. The Teamsters, the Hamilton Association and the Newmarket Association all seek intervenor status in this application. All of the parties have filed written submissions with the Board with respect to the claims for intervenor status, and as to whether the Board should consent to the early termination of the current collective agreement.
The union and employer take the position that the Teamsters, the Hamilton Association and the Newmarket Association ought not to be permitted to intervene as they have no interest in this application.
It appears that the Northern Ontario Joint Council of the Retail Wholesale and Department Store Union District Council of the United Food and commercial Workers International Union (the 'joint council") holds bargaining rights for all employees of Serca in Kitchener-Waterloo, save and except office and sales staff, supervisors and employees above the rank of supervisor. Teamsters hold bargaining rights for Metropolitan Toronto, while the employee associations represent employees in, as their names suggests, in Hamilton and Newmarket.
The issue arises in this case, because, Serca and the joint council have apparently agreed in the replacement collective agreement, that the Joint Council shall have bargaining rights over Mississauga, as Serca apparently will close down its Kitchener-Waterloo operations and move them to Mississauga. The objecting organizations object because in their view this deprives them of the opportunity to organize Serca's employees in Mississauga, particularly since, they allege, that Serca may well transfer employees from Hamilton, Newmarket and Toronto to Mississauga.
DECISION
The relevant sections of the Act are as follows:
(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.
The purpose of section 58(3) of the Act is to protect employees' rights to terminate or replace a trade union's bargaining rights. As the Board stated in Ledcor Industries Limited, [1993] OLRB Rep. August 758 at para. 17:
The thrust of the jurisprudence is that the legislative intention was to preserve an open period at readily identifiable intervals during which the employees could exercise their right to choose (i.e., change) their bargaining agent. That right overrides the ability of the parties to amend the expiry date of their collective agreement except on Board consent which, as noted, is only granted if no objections are filed with the Board in the period specified in the notices of the early termination application which are required to be posted. Where there are such objections, from employees themselves or from another trade union asserting it represents one or more of the employees, the Board acts to preserve the open period: See generally, Firestone Tire & Rubber, supra; National Cash Register, supra; Canada Building Materials, supra; Standard Products, supra; Ridgewood Industries, supra.
The objecting organizations' purpose for attempting to intervene does not go to the purpose of section 58(3) of the Act. The objecting organizations real dispute is not with the early termination but with the terms of the new collective agreement. Similar facts were before the Board in Stelco Fastener & Forging Co. [1990] OLRB Rep. Mar. 339 at paras. 21-22:
21 .The jurisprudence, however, has also recognized that not all objections to early termination of a collective agreement go to the principle of the "open period" in which to test representational wishes as enshrined in the statute. In Brantford General Hospital, supra, a number of employees objected to the "adequacy of the notices given by the union with respect to a meeting of employees called by the union to consider the proposals of the employer and to the nature of the proceedings at that meeting". The Board found that "the objections raised in the instant case do not go to those matters which the Board deems its advisable to consider in determining whether to exercise its discretion under [then] section 39(3) [now 52(3)] of the Act". Subsequently, the The Continental Group of Canada, supra, the Board commented:
The employer has filed a declaration indicating that the proper notices were posted. Presumably in response to the postings, the Board has received an objection to the application in File No. 1254-80-M from Mr. Robert Hall, who would appear to be an employee in the relevant bargaining unit. The basis of Mr. Hall's objection is dissatisfaction with the new terms and conditions of employment which the employer intends to implement, with the agreement of the union, following the termination of the existing agreement. There is nothing before the Board to suggest that Mr. Hall or any other employee seeks to challenge the union's position as bargaining agent, and as we have already noted, the purpose of the restriction in section 44(3) [now 52(30)] is to prevent the parties from undermining the right to make representation application during the open period. This is "the mischief' to which section 44 [now 52] is directed, and there is nothing before the Board to suggest that this "mischief' exists in the present case. Accordingly, we are satisfied that the Board should grant its content to early termination of the parties' agreements".
In the Board's view, the reasoning in The Continental Group case is particularly apposite. In the instant case, the applicant objects to the format of the ballot as a "package" proposal and objects to the voting procedure in which the results were counted at each location but then were combined into an overall tally for or against acceptance of the company's proposal. It appears that the complainant, to some extent at least, objects to the substantive provisions in the proposal as well, given his view that the "deal" would prove of greater benefit to the Swansea workers. None of those sorts of concerns, in the Board's opinion, should be taken into consideration to the early termination of the union collective agreements. Nor is the complainant's request that consent be deferred until his section 68 complaint is determined an appropriate factor in the Board's assessment. There is no suggestion that the complainant wishes to test his representational rights or is challenging the union's role as exclusive bargaining agent. The Board concludes, then, that this is an appropriate case in which to grant its consent to the joint application of the union and the company for early termination of their collective agreements. In so finding, the Board is not suggesting that the complainant acted for any motives other than his belief that the union's manner of proceeding was improper.
We agree with and adopt the reasons in Stelco Fastener and & Forging Co., supra.
Our view is strengthened by section 58(5) of the Act. That section permits the parties to a collective agreement to change any provision of a collective agreement other than its term. This means that there is no restriction, at least under section 58 of the Act, on the parties right to modify the recognition clause or scope of the collective agreement. We, of course, do not comment on whether the modification in the collective agreement before us is otherwise contrary to the Act. That is a matter for the panel hearing any other application brought by the objecting organization.
Finally, in coming to its decision the Board did not feel it was appropriate to take into consideration additional submissions which the objecting organizations have indicated they would file. The Board's decision of October 1, 1999 set up a process in which submissions would be received and there is no good reason to deviate from that process. The objecting organizations have had ample opportunity to make their arguments before the Board.
Accordingly, we are satisfied that consent to the early termination of the parties' collective agreement should be granted.