International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 880 v. Windsor Concrete Delivery Ltd.

[1999] OLRB REP. MAY/JUNE 564

4089-98-U, 4090-98-U International Brotherhood of Teamsters, Chauffeurs, Ware­housemen and Helpers, Local Union 880, Applicant V. Windsor Concrete Delivery Ltd., Responding Party

Collective Agreement - Lock-Out - Ratification and Strike Vote - Unfair Labour Practice - Board finding that employer's representative in bargaining had authority to conclude collective agreement on employer's behalf, that the document signed by the parties on February 17, 1999 did not constitute a collective agreement, and that the employer bargained in bad faith contrary to section 17 of the Act when it tabled new proposals after February 17, 1999 -Application alleging unlawful lock-out dismissed

BEFORE: Gail Misra, Vice-Chair.

APPEARANCES: Tim Bartkiw, Cynthia Watson, Tom Baldwin and Frank Biekx for the applicant; David Cowling, Mike Dunn, Tom Robson and Bob Bezaire for the responding party.

DECISION OF THE BOARD; May 6, 1999

1. Board File No. 4089-98-U is an application made pursuant to section 101 of the Labour Relations Act, 1995 claiming that the responding party is engaging in an illegal lock-out. Board File No. 4090-98-U is an unfair labour practice complaint filed pursuant to section 96 of the Act, alleging breaches of sections 17, 46, 56, 70, 72, 76, 79, 82, 83, and 101. The allegations and remedies sought are the same in both applications.

2. The applicant (the "union" or the "Teamsters") claims that on February 17, 1999 the parties reached a memorandum of agreement which settled all matters outstanding between the parties, and the union therefore is of the view that a collective agreement had been reached. When the responding party (the "employer" or "Windsor Concrete") then attempted to make changes to that memorandum of agreement, the union contends the employer was seeking to resile from its agreement. The Teamsters put to their membership what they purport to be the memorandum of agreement, and the members ratified that agreement. However, the employer takes the position that collective bargaining had not concluded, and that there is no collective agreement. In any event, the employer claims that the agreement put to the membership is not the same as the purported memorandum of agreement. It has not therefore accepted the ratification. The employees of Windsor Concrete had not been at work as a result of a labour dispute since May 1998. After the ratification meeting on February 19, 1999 the Teamsters believe the bargaining unit should have been able to return to work. Since the employer position is that there is no collective agreement, the employees have not returned to work, and the Teamsters claim there is an illegal lock-out in progress.

3. The Board heard the evidence of Tom Baldwin for the union and Mike Dunn and Bruce Smith for the employer. Over the course of three days of hearing, 13 exhibits were filed. The facts as I have found them follow.

4. The Teamsters represent the employees of Windsor Concrete. A collective agreement be­tween these parties expired on March 31, 1998. Since January or February 1998 the parties have been in negotiations with Tom Robson and Bob Bezaire representing the employer and Tom Baldwin and Frank Biekx representing the union. As will become evident, others joined these negotiating teams at various points during the bargaining. On May 28, 1998 Windsor Concrete locked out its employees. In September the employer requested that its offer be voted on, but that offer was rejected by the bargaining unit. On September 9, 1998 the employer informed the employees that the lock-out was over, and that they could return to work on certain terms and conditions of employment. The employees did not return to work and the union is of the view that they continued to be locked out. Windsor Concrete is of the view that the Teamsters bargaining unit went on strike as of that time. The bargaining unit has still not returned to work.

5. Tom Baldwin is the President of Local 880 of the Teamsters. He has been an executive member of the union since 1984 when he was hired as a full-time employee of the union. Prior to that, and since the 1970's, Mr. Baldwin has been involved in negotiations for the union as a steward. Since 1984 he has chaired the negotiation teams wherever he has been involved in negotiating collective agreements. He chaired the union's negotiating team for the Windsor Concrete collective bargaining.

6. Many unfair labour practice complaints have been filed by these parties against each other. None appear to have been resolved. However, there have been some negotiations during the past year, and according to Mr. Baldwin, some issues had been resolved and agreed to by the parties on May 11, 1998. There is no evidence to the contrary before me.

7. On February 16, 1999 a Labour Relations Officer of the Board convened a bargaining session between the parties in order to assist them in reaching a new collective agreement. Mike Dunn, the President of Windsor Concrete, attended the session along with Bob Bezaire, the General Manager, and Tom Robson, the accountant. Mr. Dunn had never been to the negotiations before. The bargaining were unsuccessful, and Mr. Dunn formed the opinion that no progress was being made because there were personality clashes at the table. He resolved to bring a new face to the table on the employer side.

8. At some time before February Mr. Dunn says he had a discussion with Bruce Smith, of Northshore Consulting. Mr. Smith was providing some sales and marketing consulting services to other companies owned by Mr. Dunn, and knowing about the prolonged labour dispute, had offered his services to Windsor Concrete for bargaining if the company decided it could use a new face at the bargaining table. After Mr. Dunn had attended at the February 16 negotiation session and had formed the view that little progress was being made, he spoke to Mr. Smith. He and Mr. Smith met briefly and Mr. Dunn gave him a list of the five major areas which the company wanted to resolve. It appears that Mr. Smith did not get a thorough overview of what had been discussed in the bargaining up to that point. He told Mr. Dunn that he would need a letter authorizing him to bargain with the union or the union would not talk to him. He was therefore given a letter of authorization by Mr. Dunn to negotiate on behalf of Windsor Concrete. Mr. Dunn claims to have told Mr. Smith he had the authority to discuss the issues at length, but not to finalize an agreement. Mr. Smith's understanding of his authority was that he was to facilitate and find common ground with the Teamsters on the points raised by Mr. Dunn. Mr. Dunn never called Mr. Baldwin or anyone else at the union about the change in the employer's bargaining team or to advise the union of the extent of Mr. Smith's authority.

9. Mr. Smith's recollection of how he was retained is quite different from Mr. Dunn's. Mr. Smith says he cannot recall any discussion with Mr. Dunn before February 1999 about being of assistance to Windsor Concrete. Mr. Smith claims that on February 17 he called Mr. Robson and asked him if there was an opportunity for him to do any negotiating on Windsor Concrete's behalf. According to him, this was the first time he had offered his services. Mr. Robson was not called to testify so the Board does not have the benefit of his recollection. I prefer Mr. Dunn's evidence as it seems unlikely that Mr. Smith, after a labour dispute had been in progress for nine months, would suddenly call and offer to negotiate on the very day after Mr. Dunn had been frustrated by how negotiations were going and had got the feeling that a new face at the bargaining table would be helpful.

10. On February 17, 1999 Messrs. Baldwin and Biekx were at the Windsor Hilton attending a seminar when Mr. Baldwin was given a message that Bruce Smith was at the front desk and wanted to meet him. Mr. Baldwin had heard of Mr. Smith, so he went out and met Mr. Smith. Mr. Smith told Mr. Baldwin that he was there to represent Mr. Dunn in negotiations for Windsor Concrete and handed over a letter which was addressed to Mr. Baldwin, from Michael R. Dunn, President of Windsor Concrete. The letter was on Windsor Concrete letterhead, and was signed by Mr. Dunn. It states as follows:

Dear Sir:

RE: APPOINTMENT OF BARGAINING AGENT

Please accept this letter as formal notification that we have appointed Mr. Bruce Smith of North-shore Consulting as our sole bargaining agent with regard to negotiation of the current collective agreement. This appointment will remain in force until it is rescinded in writing.

I trust that you will find the above sufficient, however, should you have any questions, please do not hesitate to contact me.

11. Mr. Baldwin asked Mr. Smith about his status, and was told he was there on behalf of Windsor Concrete and Mike Dunn to reach a collective agreement. When asked if he had the authority to do that, Mr. Smith pointed to the letter and said the union should just read the letter, as confirmation of his authorization. I am satisfied having heard the evidence of both Messrs. Baldwin and Smith that Mr. Smith did not indicate to Mr. Baldwin that there were any qualifications on his authority to bargain. Mr. Dunn conceded that the authorization letter does not say that Mr. Smith could not conclude a collective agreement. It appears that the union told Mr. Smith it would see him at the next day of negotiations, which had been set for March 1, 1999. However, Mr. Smith told them his contract with Windsor Concrete was only for a few days, and he had to get the negotiating done in that time. Since the Teamsters negotiating team was in a seminar for the day, Mr. Baldwin told Mr. Smith to return to the Hilton at 5:30 p.m. to begin to negotiate.

12. The parties met a little after 5:30 p.m. that day at the Hilton. It appears that Mr. Smith communicated some urgency to the Teamsters' negotiators about his interest in trying to get an agreement. This is not surprising as it appears he had to show Mr. Dunn some results and he only had two days available. As noted earlier, Mr. Smith had been advised there were five issues which Mr. Dunn wanted him to address with the union. According to Mr. Baldwin, those were the only five issues remaining unresolved after May 11, 1998, 50 he was not surprised that those were the issues Mr. Smith wished to negotiate over.

13. The first two items relate to a loader operator position and a mechanic position. The third was the wage rate, a signing bonus, hours of work for a week, and overtime issues. The fifth item also referred to the hours of work per day and per week. The fourth item addressed the employer wish for the union to give up two statutory holidays to reduce the total of the statutory holidays in the collective agreement to ten.

14. The parties negotiated about these matters until 10 p.m. and reached agreements on each of the issues. The agreements were put in writing and signed by Messrs. Baldwin, Biekx and Smith. Mr. Baldwin testified that he had written the document, and that Mr. Smith had filled in some long hand words here and there. Mr. Smith testified that he had written the document using some of Mr. Baldwin's words. My review of the document leads me to believe Mr. Baldwin rather than Mr. Smith. It appears to me that the bulk of the document is written in the same handwriting as the writing next to Tom Baldwin's name at the bottom. Further, Bruce Smith wrote his name next to his signature, and his writing is like the long hand writing on the document.

15. The document indicates "Expire date Mar - 31 - 2002" at the top of the page and the document bears the date February 17, 1999. In a bubble near the fourth item on the written document it states "NOTE SUBJECT TO MIKE DUNN APPROVAL OF LANGUAGE". A sentence near the bottom of the document, after the five points had been dealt with but before the signatures states "This offer includes all previous articles agreed to". Mr. Smith wrote next to his name "Dunn Rep". The document referred to a letter of understanding for part-time employees, but none was drafted as part of this document. The union believed that the language agreed to in para. 2 of the document would form the basis of the letter of understanding which remained to be drafted.

16. In the course of the negotiations the union made concessions on the hours of work per day and week, and with respect to the statutory holidays. It made these concessions in part because its members had been out of work for a long time, and because the employer was making a generous wage offer. Mr. Smith told the union his negotiating positions were subject to Mr. Dunn's approval, he then made a number of phone calls to Mr. Dunn that night as the bargaining was progressing and would come back to the bargaining table and agree or disagree to the matter under discussion. This led the union to believe that he had agreement from Mr. Dunn on the subject matter put to paper, and the document was thus drafted gradually through the evening. Mr. Dunn testified that during the phone calls from Mr. Smith he would give Mr. Smith the employer's view of why it was putting forward a particular proposal and any necessary background. He would indicate if the employer wanted more changes. As an example of the discussions, on his authority and after discussions on the phone, the wage rate and the hours of work were set. To Mr. Dunn's mind the caveat about being "subject of Mike Dunn's approval of language" was put in because Mr. Dunn wanted Mr. Smith to bring back the document and he wanted to check it out with his General Manager, accountant and lawyer. Mr. Smith believed the document itself was made up because he knew there was not much trust between the union and employer, he wanted reduced to writing what he had accomplished, and he wanted something to take back to Mr. Dunn.

17. Mr. Baldwin claims he thought at the end of the night that the parties had a "done deal" and had reached a collective agreement, even though he was fully aware of the caveat in the bubble on the document. He states that he would not have signed the document if he had believed it was simply a framework for further negotiations, which is what the employer now claims it was. In his extensive negotiating experience it is not the normal procedure for an employer and union to sign off on items when they are still subject to further negotiations. Mr. Baldwin believes that Mr. Smith never told him that the document was just a framework for future negotiations and that Mr. Smith needed Mr. Dunn's approval of the entire document. Mr. Smith testified that he told the Mr. Baldwin he was there to "find common ground" on the five issues. The Teamsters and Mr. Smith agreed to meet again the next day at about 3 p.m.

18. After the conclusion of negotiations that Wednesday night, Messrs. Baldwin and Biekx agreed that they should call the steward for the bargaining unit, and should call a meeting of the membership on Friday February 19, 1999, to ratify the agreement. Mr. Baldwin sent the document with the union's Secretary Treasurer, John Monroe, back to his office, and had requested that his assistant type it up. He claims he had no discussions with his assistant about what was to be typed. He believed that he and Mr. Smith would sign the document when they met the next day.

19. Mr. Smith took the document to the Windsor Concrete office the next morning and talked to Mr. Robson for a half hour about it. He told Mr. Robson that the Teamsters would be sending Windsor Concrete a facsimile of the typed version later that day. Messrs. Dunn, Robson and Bezaire met and discussed the document and then someone discussed the document with Mr. Cowling. The employer was of the view it was "going down the right path" but it wanted more changes and clarification. It therefore typed up a new version and signed it back to the union.

20. There is some dispute about two items in the signed February 17 document. When a comparison is made between the handwritten document executed on February 17 and the typed version prepared by the union on February 18, one item from the handwritten version is missing, and one phrase, about which there is a dispute as it may not be in the handwritten version, is added to the typed document. In particular, the typed document does not contain the note about being "subject to Mike Dunn approval of language". It does however contain a phrase "in order of seniority" with respect to Saturday work. The union claims the latter phrase is written into the document and that because there was a line drawn underlining something above it, it has been somewhat obliterated from view. Mr. Baldwin testified that this phrase was key to the union and had been discussed at great length on Wednesday night. He would not have agreed to language which excluded this phrase as the union was committed to the concept of Saturday work being offered on a voluntary basis and in order of seniority. He and Mr. Smith had agreed on the language "in order of seniority". The employer claims it is just not there. However, Mr. Smith was not asked about this matter, so the Board only has Mr. Baldwin's version before it.

21. The Board's review of the document, with the aid of a magnifying glass, suggests that at one point the phrase "order of sen" was present. However, that phrase then appears to have had an undulating line drawn through it, and to later again have had a solid straight line drawn through it as part of the underlining of the sentence above. The Board therefore cannot find that the final document signed by Messrs. Baldwin and Smith included a reference to "in order of seniority".

22. With respect to the "Mike Dunn" phrase, Mr. Baldwin says that was not put in because the union was of the view that Mr. Dunn had already been approving the negotiations as Mr. Smith went along the night before, so there was no call to put it in. In any event, Mr. Smith had taken the document to Windsor Concrete to show to Mr. Dunn.

23. On Thursday February 18, 1999 Mr. Smith met with Mr. Baldwin again at the Hilton hotel, but could not come to a meeting until 5 p.m. As he came into the hotel he was given an envelope which had been left for him by Windsor Concrete. When he opened it and showed the union the contents it was a document containing more new positions being taken by Windsor Concrete. After the union negotiation committee reviewed the document, according to Mr. Baldwin, he told Mr. Smith this was what this employer did, it constantly changed its mind. He pointed to a number of items which were different from the February 17 document. Mr. Baldwin said they had a deal yesterday, that they were finished, and these were now completely new proposals.

24. Mr. Smith noted that Mr. Baldwin was very displeased and so he told the union he would meet with Mr. Robson to see if the document could be written more simply. According to Mr. Baldwin, Mr. Smith told the union the parties needed to do something in the new areas, but Mr. Baldwin told him the bargaining was finished and that they had a deal. Mr. Smith's recollection is that the union said they would welcome simplification of the document, and he understood that their biggest concern was a reference to the Employment Standards Act. He further claims that the parties negotiated about the Windsor Concrete document and that it was decided that Mr. Smith would go back to the company and bring back another document by noon on Friday. After about 45 minutes Mr. Baldwin left. Mr. Smith went back to Windsor Concrete and told Mr. Robson the union wanted changes to the letters of understanding the employer had drafted and that it did not like some wording. Mr. Robson prepared another employer offer based upon what Mr. Smith had said.

25. I do not believe Mr. Smith's version of the meeting of February 18, 1999 and I prefer Mr. Baldwin's version. It is more consistent with the union's overall actions during the three days in question, and with the position the union has taken all along. Mr. Smith concedes that Mr. Baldwin was displeased at the new proposals the employer was tendering. It makes no sense that an offer to "simplify" the language would have mollified the union. It is also highly unlikely that the union would have appeared to "welcome" this "simplification". As will be obvious from the Board's review below of the types of changes the employer had made to the February 17 document, simplification would hardly have seemed like what the union wanted. That being the case, it makes Mr. Smith's version of the discussion incredible. It is difficult to know what Mr. Smith told Mr. Robson back at Windsor Concrete because Mr. Robson did not testify. It therefore appears to the Board that Mr. Smith told Mr. Robson a version of events which was at odds with what had taken place, and it appears that he was not fully forthcoming with the employer about how upset the union was about the new proposals being put on the table. He certainly does not appear to have indicated that as far as the union was concerned, bargaining was at an end because of the February 17 document.

26. The Board's review of the February 17 written document and the February 18 employer document indicates that the employer document is radically different. Mr. Dunn's claim that the employer was simply "filling in the blanks" is disingenuous and incredible. The employer had added dramatically to what was to go into the letter of understanding regarding the use of a part-time loader operator or mechanic. It had created a letter of understanding regarding Saturday work and it added its own terms to that letter as well. With respect to the statutory holidays, the employer had added a clause about how entitlement to holiday pay would be calculated in accordance with the Employment Stan­dards Act. Finally, it added a clause indicating that the Labour Board matters would all be withdrawn and that the facts relied upon in those complaints could not be relied upon in any other proceedings. Only after vigorous cross- examination of Mr. Dunn did the employer finally concede that there were "substantive, interpretive and clarification [sic] differences" between the written agreement and what the employer drafted subsequently.

27. On Friday February 19, 1999 Mr. Smith met with Windsor Concrete again. He then went to the union office at about 1 p.m. and brought with him another document with a further amended employer proposal prepared by Mr. Robson. Mr. Baldwin reiterated his comments of the night before, that the bargaining had been completed, and told Mr. Smith he was taking the settlement negotiated on February 17 to the membership for ratification that afternoon. A ratification meeting was held at 2 p.m. that day. The terms of the document, as the union had prepared it, were read out to the members present, and the bargaining unit subsequently ratified the union's version of the February 17, 1999 document.

28. Following the ratification meeting that day the union paged Mr. Smith and asked for his facsimile number. Either Mr. Smith was told on the telephone by the union that the February 17 deal had been ratified, or he received notification to that effect by facsimile. Right after that Mr. Smith called Windsor Concrete and asked if they had got a facsimile. He was told by Mr. Robson that the employer had got the facsimile, was reviewing it, and that his services would no longer be needed. It appears that Mr. Smith's contract was not actually supposed to expire until midnight on February 19. However, on February 19, 1999, Bob Bezaire, the General Manager of Windsor Concrete, sent Mr. Baldwin a letter indicating that effective 5:30 p.m. that day the employer was rescinding its proxy given to Mr. Smith allowing him to act as the employer's bargaining agent. The letter indicated that if the union wanted to continue talks to end the strike, it should contact Mr. Bezaire. Mr. Dunn says Windsor Concrete tenminated Mr. Smith's contract because although Mr. Smith had got the union to agree to "move things forward", when the document which the employer apparently saw doing that was "formalized into proper language, it all fell apart". The Board has already indicated it finds this view of Mr. Dunn's incredible, and it is at odds with the reality of the situation. The document the employer prepared did not simply formalize language already agreed upon, but rather changed what Messrs. Baldwin and Smith had agreed to.

29. The employer suggests that because Mr. Smith's letter of appointment on February 17 said he had been authorized to negotiate the current collective agreement, it did not give him the authority to conclude a collective agreement. However it is Mr. Baldwin's evidence that he specifically asked Mr. Smith this question before embarking on the negotiation session of February 17, and he was assured by Mr. Smith that he had the authority to negotiate and conclude a collective agreement. In Mr. Baldwin's experience this authority is fundamental to the bargaining process, and he would simply not have bargained with someone who did not have the authority to conclude an agreement. To do otherwise is to waste time.

WINDSOR CONCRETE ALLEGATION REGARDING THE TILBURY AGREEMENT

30. It appears that for some time Windsor Concrete has been asking the Teamsters for a copy of the union's collective agreement with Tilbury Concrete Transport Inc. ("Tilbury"), a competitor of the employer. As has been noted earlier, there are a number of outstanding unfair labour practice complaints between these parties before the Board. Those files are not before this panel of the Board. The issue of the Tilbury agreement arose initially in one of those files.

31. On June 9, 1998 a different panel of the Board issued a decision in Board File Nos. 0850-98- U, 0851-98-U, and 0878-98-U in accordance with an agreement which had been reached between the parties on June 8, 1998. The consent order of the Board is as follows:

2. Having regard to the parties' agreement, the Board hereby directs the trade union to provide the most recent collective agreement between itself and Tilbury Concrete Transport Inc. to the Board and to the employer in this matter forthwith.

3. The Board notes that prior to the issuance of the direction, the trade union provided a document to the Board and to the employer which it warrants is in compliance with the Board's order.

(Emphasis added)

32. There is no dispute that the Teamsters did give to Windsor Concrete the collective agreement in place at Tilbury at the time. However, since then and again at the negotiations held on February 16, 1999, the employer asked the union for a copy of the Tilbury agreement. It seems that since June 8, 1998, the Teamsters have reached another collective agreement with that employer. Windsor Concrete believes it is entitled to get a copy of any new collective agreement which the union reaches with Tilbury, it suggests that the union is in breach of the Board's order by not so producing the latest collective agreement, and it argues that the union has bargained in bad faith by not producing the agreement.

33. Mr. Baldwin stated that the union has already complied with the Board order because it gave to Windsor Concrete the collective agreement it had with Tilbury at the time of the Board's consent direction. Further, that was the only agreement which the parties agreed the Teamsters would produce. In any event, the new Tilbury agreement has not been finalized and signed off by the parties to it. Tilbury has prepared a version of the agreement, and the union is proofreading it in preparation for signature. Out of an abundance of caution the union has a long-standing practice of not filing its collective agreements with the Ministry of Labour collective agreement library until both parties have signed off on the final version of the document. The Teamsters are therefore not in any position to give Windsor Concrete a copy of the document. Furthermore, Mr. Baldwin states that the union is not in the habit of giving collective agreements to competitor companies with which it holds bargaining rights, and so does not wish to give Windsor Concrete the agreement even when it is signed off.

34. There is no evidence that Windsor Concrete asked for the Tilbury agreement again after Mr. Smith became its negotiator.

35. According to Mr. Dunn, he wants the Tilbury agreement because Tilbury is a main competi­tor of some of his other companies. The employer led evidence that the ready mix concrete industry is a very competitive one and that employers are therefore concerned that the union may enter into a collective agreement with one company which may offer lesser terms than another company may negotiate.

36. Mr. Baldwin conceded that the Tilbury agreement is a substandard collective agreement. It came about because that employer asked for and got a final offer vote pursuant to which its employees ratified an employer offer even though the union did not support the proposal. It is the union practice to make employers aware of the industry standard, and it is therefore reluctant to give anyone the Tilbury agreement, even when it is signed off. However, consistent with the union's practice, once the agreement has been signed, copies will be sent to the collective agreement library of the Ministry of Labour.

DECISION

37. The first question to be resolved is whether Mr. Smith had the authority to reach a collective agreement on behalf of Windsor Concrete. The second question is whether the document executed on February 17, 1999 is sufficient for a finding that the parties had concluded a collective agreement on that day. If the Board finds there was a collective agreement reached, the Board must decide the corollary question of whether there is an illegal lock-out in progress. Finally, the Board must decide whether it should order that the Teamsters produce to the employer the latest Tilbury collective agreement. In reaching my decision I have reviewed all of the evidence led, the exhibits filed, the extensive caselaw relied upon by both parties, and the submissions of the parties.

Mr. Smith's Authority

38. The Board has considered questions about the authority of individuals to bind their respec­tive parties to agreements reached. In James Howden and Parsons Company of Canada Limited, [1973] OLRB Rep. Feb. 120, the Board considered the validity of a purported collective agreement between another company and the union. It looked at who had signed the agreement on behalf of the union and determined that the person had been appointed to his position by the General President of the union, with the approval of the General Executive Board of the union. It further considered that the individual had maintained at all times that he had the right and authority to sign the collective agreement on the union's behalf, and his representations had been accepted by the company. The Board found that the company was under no obligation, and had no cause, to inquire further into the individual's authority, and was entitled to rely on the representations he had made.

39. In Maple Leaf Taxi Company Ltd., L1982] OLRB Rep. Nov. 1671, the Board discussed the concepts of real authority and apparent or ostensible authority. In considering whether an individual who had signed an agreement on behalf of the employer had real authority, the Board looked at the fact that the person had signed the document under the heading "For the company"; he was the secretary of the company; he had attended two of the bargaining sessions on his own representing the company; and he had the authority to sign cheques and letters on behalf of the company. The Board found that he had apparent or ostensible authority as the individual had held himself out as having the authority to enter into a collective agreement, he had attended negotiations on behalf of the employer, and the Board was therefore of the view that it was reasonable for the union to accept and act upon the individual's assurances that he had authority on behalf of the company.

40. In Corporation Le Lycee Claudel, [1996] OLRB Rep. May/June 370, the Board found that the employer's negotiating team did not have either an actual mandate to conclude a collective agreement, nor the apparent authority to do so. The board of directors of the school had not given its committee a mandate to conclude a collective agreement, and the union knew from past experience that the employer's team could only recommend acceptance of a negotiated deal to the board of directors. Only after the board had accepted the committee's recommendation could it be said that the employer had concluded the agreement. In explaining the concept of apparent authority, the Board stated:

27. We will discuss the cases in more detail below, but the general concept of apparent authority can be briefly summarized: where an agent is placed in a position by a principal and given the authority to act in a way which indicates that an agent has authority to bind the principal, and a third party relies on that to change its position, the principal will be bound by the actions of the agent. However, a third party cannot rely on a representation of an agent's authority if the third party knew or ought to have known of the limited nature of the agent's authority, or if the third party ought reasonably to have been suspicious of the agent's apparent authority. See, for example, Cameron Harvey's Agency Law Primer at pp. 53 and ff.

41. Based on the letter of February 17, 1999 from Mike Dunn, the President of Windsor Concrete to Mr. Baldwin, the President of the union, which indicated to the union that the employer had appointed Mr. Smith as its "sole bargaining agent with regard to negotiation of the current collective agreement", the Board is satisfied that the employer had made Mr. Smith its bargaining agent. There is nothing in the letter to indicate to the union that there was any limitation or qualification on Mr. Smith's appointment. Indeed, no one for the employer ever told the union that there was. Mr. Dunn admits he never called Mr. Baldwin to inform him of the change in the composition of the employer's negotiating team. Mr. Smith did not tell Mr. Baldwin he was only at the table to negotiate a "framework for future negotiations" which is what the employer now claims it wanted Mr. Smith to do. Mr. Smith told Mr. Baldwin he was there to get an agreement. The parties were only negotiating a collective agreement, so it was reasonable that the type of agreement the union expected Mr. Smith was there to negotiate was a collective agreement.

42. The Board is not persuaded by the employer's argument that the language of the letter states that Mr. Smith was only there to negotiate, and not to "conclude" a collective agreement. The duty to bargain in good faith, as set out in the Act, requires that parties both bargain in good faith and make every reasonable effort to make a collective agreement. It would not be in the interest of good labour relations if parties believed that, without informing the other side, they could send someone to the bargaining table without the authority to reach a collective agreement. That would lead to meaningless bargaining, would be a waste of time for everyone involved, and would be corrosive to ongoing relations between the workplace parties. This is precisely why Mr. Smith indicated to Mr. Dunn that he would need a letter of authorization or else the union would not engage in discussions with him. It is also why Mr. Baldwin, an experienced union negotiator, was not willing to engage in bargaining with Mr. Smith until he had specifically asked him about his authority. Mr. Baldwin was at the outset given the impression by Mr. Smith that the letter of appointment was the employer's authorization. Based on the language of the letter the Board can only assume that the employer was acting in good faith and in accordance with its duty pursuant to section 17 of the Act. Nothing in the letter of appointment says that Mr. Smith was appointed to negotiate a framework for future negotiations.

43. A party cannot purport to give a union a letter of appointment of the sort Windsor Concrete gave in this case, have the individual so appointed rely on that letter when asked about the limits of his authority, and then suggest that the union should not have relied upon what it was being given and told. The Board agrees with the union that it was incumbent on the employer to tell the union if Mr. Smith had a limited mandate. It did not do so, and it is therefore bound by its letter of appointment.

44. The circumstances in which Mr. Smith presented himself to the union must also be consid­ered. Mr. Smith tracked down where the union negotiators were on February 17, and he then approached them at a seminar they were attending. He gave them the letter of appointment, said he was there to get an agreement, and insisted he had to get it done in a few days. He indicated it was so urgent that they get agreement that he did not want to wait until the next scheduled day of negotiations. Sensing an urgency, and clearly happy to be dealing with a new employer representative, the union engaged in a long evening of negotiations with Mr. Smith. None of these facts support a finding or even an inference that Mr. Smith had informed the union that he was simply there to negotiate a framework for future negotiations. Had Mr. Smith told the union that was his mandate, the union would have been quite unlikely to have dropped everything that evening to discuss that topic. It is not to be forgotten that these parties had been negotiating for a year already at that point, and they had set March 1 for the next bargaining session.

45. Mr. Smith's actions throughout the evening of February 17 confirm that he was aware of what remained as outstanding issues for negotiation. He came to the meeting with the precise list of five items which the union knew remained unresolved. He did not try to work out a framework for how future negotiations would go. He actually negotiated the substance of the five issues and he made the union aware that he was consulting with Mr. Dunn by telephone on each point. Mr. Baldwin, as would be expected of a seasoned negotiator, wrote down each point as resolution was reached on it. When Mr. Smith felt more had to be added to Mr. Baldwin's text, he added it himself. When the five issues had been discussed, the parties stopped discussions. Mr. Baldwin added to the five matters that all articles previously agreed to were also included. The only caveat which Mr. Smith wanted added to the document, and to which Mr. Baldwin agreed, was the bubble containing the notation "subject to Mike Dunn approval of language". The parties then signed off on the document. Nothing in the document indicates it is a framework for future negotiations, so that even by 10 p.m. that evening the union had no inkling that the employer position was going to be that Mr. Smith had been there negotiating a framework for future negotiations and that Mr. Smith had no authority to conclude a collective agreement.

46. It is interesting to the Board that it was only on February 19, 1999, after the employer had been advised that the union had ratified the agreement reached on February 17, that the employer withdrew its letter of appointment for Mr. Smith. Hence, the union continued from February 17 to the end of the day on February 19, assuming quite legitimately that Mr. Smith was the sole bargaining agent for the employer, and that he was the one authorized to negotiate a collective agreement. When viewed in this light, notwithstanding what the Board may find with respect to the February 17 document, it is not surprising that the union was of the view it had a memorandum of agreement with the employer's sole bargaining agent.

47. In light of the evidence and for the reasons outlined above, the Board finds that Mr. Smith was appointed by Windsor Concrete as its sole bargaining agent and that he therefore had the authority to conclude a collective agreement on the employer's behalf. While it may be that Mr. Smith himself knew that he did not have such authority, both the letter from Mr. Dunn, coupled with Mr. Smith's assurances to the union, would have given a reasonable person experienced in labour negotiations the sense that Mr. Smith had both apparent and actual authority to be the employer's sole bargaining agent with regard to negotiation of the collective agreement.

The Status of the February 17, 1999 Document

48. The second question to be addressed is whether the document signed by Messrs. Baldwin, Biekx and Smith on February 17, 1999 can be said to constitute a collective agreement. Section 1(1) of the Act defines a collective agreement as follows:

1. (1) In this Act,

'collective agreement' means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees, and includes a provincial agreement and does not include a project agreement under section 163.1;

49. In Graphic Centre (Ontario) Inc., [1976] OLRB Rep. May 221, the Board considered the role of a collective agreement in the labour relations system. At para. 11 the Board recited the definition of a "collective agreement" from the Act and went on to say as follows:

The collective agreement is the cornerstone of our labour relations system. It evidences the existence of bargaining rights and other than during a stipulated period serves as a bar to either the termination or transfer of these rights. It evidences a bargain struck between the parties as to terms and conditions of employment for a term specific and requires that any dispute as to its interpreta­tion, application or administration be resolved by binding arbitration. Its existence or lack thereof can be determinative of the legality or illegality of certain activities engaged in by an employer, a trade union or by employees. The Board in lending an interpretation to section l(l)(e) [definition of collective agreement] has been influenced by both the realities of the collective bargaining process and by the practical need for consistent and easily understood criteria. The parties to collective bargaining do not normally execute a formal document until some time after the bar­gaining process has been completed. The process is one wherein the agreement of the parties is reduced to a memorandum of settlement, which may be subject to ratification by the respective principals which is then followed by the drafting and execution of the formal document. It would not be sound industrial relations policy to require as a condition of entering into a collective agreement the execution of the formal document thereby precipitating an often prolonged extension of the open period. The parties, however, must know, with a high degree of certainty and predictabil­ity, precisely when they have entered into a collective agreement so as they may properly assume their respective duties and responsibilities and conduct themselves in a manner consistent with the existence of a subsisting collective agreement. It should be added that certainty in this regard minimizes the amount of "litigation" which might otherwise come before the Board.

50. The Board in that case went on to say that the collective agreement need not be a single formally executed document, but may incorporate by reference other documents. The Board does look for a form of agreement in writing, with signatures which evidence the agreement of the parties and the conclusion of the bargaining process. The Graphic Centre panel relied upon the Board's comments in Marsland Engineering Limited, [1970] OLRB Rep. April 133, wherein the Board found that collective bargaining usually requires tentative agreement on various terms and provisions which will eventually be included in a final collective agreement. The Board recognized that during the course of bargaining the parties may reach agreement on individual terms, and that it is not uncommon for the parties to incorporate these agreements by reference when signing a memorandum of settlement at the end of negotiations. However, the Board reiterated that until the parties resolve all outstanding issues and bring bargaining to an end, it cannot be said that a collective agreement has been reached. If ratification is part of the settlement reached, the Board will look for compelling evidence of ratification. Thus, where a memorandum of settlement is subject to ratification, it is not a collective agreement until there is evidence to establish that ratification has occurred.

51. In Sears Canada Inc., [1986] OLRB Rep. Aug. 1159, the Board considered the existence of a collective agreement between the parties. The Board relied upon a number of cases which had themselves quoted extensively from Graphic Centre, cited above, and wrote as follows:

11. We are inclined to accept this general approach which, in our view, is in accordance with the realities of collective bargaining. The fact is that (as in the instant case) hard bargaining and the possible threat of a strike or lockout frequently lead to a document or series of documents (sometimes handwritten, modified or amended at the eleventh hour) which together constitute a final settlement of the matters in dispute. So long as the terms of the settlement do not themselves contemplate further bargaining and both parties purport to ratify the agreed terms of the settlement, we do not think that we should lightly conclude that there is no collective agreement in effect -even though the parties may wish to "tidy things up" by incorporating all changes, amendments, or final agreements on individual issues into a single more formal document. To hold otherwise would encourage parties to resile from written settlements which, at the time, were regarded as a final resolution of their collective bargaining dispute, but may have lacked the form or formalities usually associated with a collective agreement.

52. I have considered the facts of this case against this general approach adopted by the Board. By a letter dated May 14, 1998, Mr. Bezaire for Windsor Concrete wrote to the union and enclosed a four page schedule of proposals for amendments to the collective agreement. In that package he included a notation as follows:

(d) SETTLED ISSUES

The Employer agrees to all settled issues as outlined in memorandum entitled "Settled Issues As Of May 11, 1998" appended here.

The issues in question were settled as of May 11, 1998, and next to each item agreed to there is a time indicated as to when agreement had occurred. The Board therefore finds that the matters agreed upon on May 11, 1998 were no longer outstanding matters.

53. On February 17, 1998 Mr. Dunn gave Mr. Smith five issues to negotiate with the union. The union knew those five issues to be the remaining unresolved issues between the parties, and there is no evidence before the Board that there were any other outstanding issues. Mr. Smith presented himself to the union on the written authority of the president of Windsor Concrete as the "sole bargaining agent with regard to negotiation of the current collective agreement", and the union therefore engaged in bargaining with Mr. Smith. It is immaterial that Mr. Smith may not have been present for earlier negotiating sessions and may not have been aware of all that had already transpired as the decision to insert him into the process at this late stage was that of the employer. In any event, Mr. Smith consulted with Mr. Dunn by telephone on a number of occasions throughout the evening of negotiations, and indicated to the union the employer's positions on each of the five issues. When Mr. Smith and Mr. Baldwin would reach an understanding on each issue, Mr. Baldwin reduced it to writing. If Mr. Smith felt more had to be added to a clause, he added it in his writing. There was clearly a give and take in the course of the negotiating, and based on the position the employer took regarding the wage rate, the union changed its position on such items as the hours of work for each day and for the work week. The union also acceded to the employer's wish to have two statutory holidays removed from the collective agreement. With respect to the big issue of Saturday work, it appears that the parties negotiated at some length until the union agreed that while Saturday work would be done on a voluntary basis, if there were insufficient drivers obtained, the employer would have the right to call in drivers in order of inverse seniority. As the Board has found earlier, while the union may have believed it had also negotiated that the Saturday work would be voluntary "in order of seniority", that phrase appears to have ultimately been removed from the text of the document.

54. All of the above indicates that the union gave ground on a number of matters in the course of the bargaining. The parties agreed on the expiry date for the new collective agreement. They also agreed to incorporate the previously agreed-upon articles. The bottom of the document was then signed by Tom Baldwin and Frank Biekx for the union, and by Bruce Smith as Mr. Dunn's representative.

55. If this was all there was in the document, the Board would not have a moment of hesitation in finding that the parties had concluded bargaining on February 17, 1999. The parties had met, had bargained, had reduced to writing their agreements, had agreed upon all issues in dispute between them, and persons with authority for each side had signed the document. The matter of concern to the Board is the notation "Note Subject to Mike Dunn approval of language". Does this mean that the document was subject to ratification by Mike Dunn?

56. The cases relied upon by the employer for the proposition that the document could not be a final document because it was subject to Mike Dunn's approval all contain more precise language than what is before the Board. In Re National Union of Public Employees, Local 786 and St. Joseph's Hospital, Hamilton, 1965 CanLII 994 (ON LA), 16 L.A.C. 181, July 30, 1965, the memorandum of agreement stated "The under­signed representatives of both parties approve of the above settlement and agree to recommend its acceptance to their respective principals". The board of arbitration found that there had been no express acceptance by the employer of the memorandum, even though the employer's representative had himself had the authority to bind the employer.

57. In The Board of Education for the City of Hamilton, [1993] OLRB Rep. April 308 the Board also considered the impact of the statement "The undersigned representatives agree to recommend acceptance of this Memorandum of Agreement to their respective principals" where the employer board of trustees ultimately refused to ratify the agreement reached. The union claimed that the employer was resiling from the agreement. The Board found that the deal had been provisional on its face, and that either the union members or the board of trustees had the right to reject the deal. All that the board of education negotiating team had undertaken to do in that instance was to recommend ratification, which in fact it did.

58. Windsor Concrete has argued that the union has not properly ratified the February 17 document in any event because the union included in its version taken to the membership the phrase "in order of seniority". At the hearing the union indicated that while it believed in good faith that the phrase is in the February 17 document, if the Board found that it was not, the union is prepared to accept that the document does not contain it, and is still prepared to live with the agreement as such. In Sears Canada Inc., [1986] OLRB Rep. Aug. 1159, the Board addressed the question of errors in a memorandum of agreement which had been ratified by members of a union. In that case there had been a mistake in the commission rate schedule which formed part of the memorandum of agreement which employees had ratified. The Board held that the discovery of the mistake did not vitiate the earlier ratification of the agreement. It found that although the mistake may result in ambiguity, that would be a matter for an arbitrator to resolve in the course of interpreting the collective agreement.

59. The Board is not concerned about the union's ratification of the document in dispute. While there was a mistake in the text of the agreement which the union put to its members, that is not fatal to a finding of ratification. 60. Having considered all of the evidence the Board finds that the note regarding Mike Dunn in the signed document means simply what it says - that Mr. Dunn had the right to approve the language of the document. This makes sense when it is recalled that it was Mr. Baldwin who drafted the document, with Mr. Smith's assistance. Mr. Smith and Mr. Baldwin agreed that the language of the document was subject to Mr. Dunn' approval. That does not mean that the content of the document was subject to Mr. Dunn's approval. The language of the document regarding approval is quite unlike the language in the cases relied upon by Windsor Concrete and outlined above. Language regarding ratification of a memorandum of agreement suggests that the party having the right to ratify also has the right to reject. What the parties agreed upon here is something less than ratification by Mr. Dunn.

60. In considering the parties' duty under section 17 of the Act to bargain in good faith, the Board in Graphic Centre, cited above, stated:

21. The decision making capability of the parties depends upon not only a full and open discussion of the items which are in dispute but also upon an awareness that the scope of the dispute is limited to those items which have been put into dispute in the early stages of the bargaining process. Decision making does not take place in a vacuum. The parties set the parameters with their early exchange of proposals thereby establishing the framework within which they negotiate. A party which holds back on an item or number of items and then attempts to introduce these matters into the negotiations as the process nears completion, effectually destroys the decision making framework. A party cannot rationally or properly consider its bargaining position in the absence of absolute certainty that the full extent of the dispute has been revealed. The tabling of additional demands after a dispute has been defined must, in the absence of compelling evidence which would justify such a course, be construed as a violation of the duty to bargain in good faith.

62. In a similar vein, in Sparton of Canada Limited, [1985] OLRB Rep. Sept. 1420, the Board found that an employer had breached the duty to bargain in good faith when it purported to modify its offer for a collective agreement after permitting a union to accept the offer. Writing about the issue of a party changing its position at the conclusion of bargaining, Board stated:

17. ... Having thus led the Union to alter its position in bargaining, albeit without ill intent, it is our view that the respondent cannot now be permitted to renege on the position which it had placed on the table. To hold otherwise, it seems to us, would introduce so fundamental an element of mischief into the collective-bargaining process, from the point of view of either side of the table, as to undermine the integrity of the process itself. This is true notwithstanding the relative bargaining strengths of the parties in any particular set of negotiations.

63. In K & Son Maintenance Co. Inc., [1995] OLRB Rep. Aug. 1121, the Board relied on Sparton of Canada and said:

15. The analysis in Sparton, supra, stands for the proposition that once a position has been taken during bargaining, the party taking the position cannot renege from that position once the opposing party changes its position based on the representation made by the party taking the position. If this were to be permitted, no party could assume that the other's position was a serious proposal even at the point of deciding on whether to accept or reject it. Accordingly, the board finds that the respondent has breached the provisions of section [17] of the Act.

64. As can be seen from the jurisprudence outlined above, the Board is loath to allow a party to put new propositions on the bargaining table when there has been negotiations, changes of position, negotiations appear to be at an end, and where one party has acted upon what it took to be agreement. In the case before me the parties had negotiated for a long time, both parties changed their positions in an effort to reach agreement, some items were agreed upon and only five items remained outstanding by the middle of February 1999. Once those five items had been successfully negotiated by Messrs. Smith and Baldwin, that was the end of what needed to be negotiated. While it appears that the parties did not draft a final letter of understanding with respect to one of the issues, they had agreed on the basic content of the letter of understanding. In the Board's view negotiation was then at an end. It was therefore improper for the employer to change its position after that juncture, or to seek to add more issues for bargaining at that late stage. The Board has consistently accepted that it is unrealistic to expect the parties to have written their memoranda of settlement or agreement with such clarity that no changes can be anticipated, and has accepted that the parties may wish to "tidy up" the language they ultimately use in a new collective agreement.

65. As the Board found earlier, Mr. Smith was the sole bargaining agent for Windsor Concrete at the time the agreement was reached. To the extent that Mr. Dunn had authority to change the document executed by the representative of Windsor Concrete and the union, it is to approve or "tidy up" the language. The Board is satisfied that, although Mr. Smith was the sole bargaining agent, Mr. Dunn had been consulted throughout the evening of negotiations between Messrs. Smith and Baldwin about the substance of the matters on the bargaining table. The Board is further satisfied that Mr. Smith only agreed to put to paper what Mr. Dunn had agreed to over the telephone. Thus at the end of the evening on February 17, 1999, the employer's sole bargaining agent signed off on a document which resolved all outstanding issues between the parties, subject only to the approval of language by one person.

66. On the evidence before it the Board finds that Windsor Concrete breached section 17 of the Act and bargained in bad faith when it tabled new proposals after February 17, 1999. However, the Board cannot find that there is a collective agreement between the parties because there is no evidence to suggest that Mr. Dunn has approved the language of the February 17 agreement. As has been noted above, it is not open to the employer to change the substance and terms of the agreement reached on February 17. However, since that agreement is subject to Mr. Dunn's approval of language, and that step has not been completed, it cannot yet be said that the parties have reached a collective agreement. Finally, the Board reiterates that it cannot find on the document before it that in paragraph 3 of the agreement there is any agreed reference to Saturday work being voluntary "in order of seniority".

67. There is no evidence before the Board to substantiate breaches of the other sections of the Act as alleged in Board File No. 4090-98-U. Given the Board's finding regarding the lack of finality of the February 17, 1999 document, the Board cannot find that there is an illegal lock-out in progress at Windsor Concrete, as alleged in Board File No. 4089-98-U.

68. The final issue to be addressed is the question of the Tilbury agreement. Having reviewed the Board's decision of June 9, 1998, and the evidence, the Board finds that the union had complied with the Board's consent order of that date. The parties had not agreed, and the Board did not direct, that the union had any ongoing responsibility to provide Windsor Concrete with every collective agreement it reaches with Tilbury.

69. In any event, there is no official and executed collective agreement between the union and Tilbury. The Board will not order that a trade union provide to some third party what may be purported to be the final collective agreement by one side. It is the official and signed collective agreement which must be filed with the Ministry of Labour, not what one party purports to be the final version. As can be seen from this very case, even when there is seemingly an agreement reached, it is sometimes difficult to translate the agreement into language which is acceptable to both parties to the negotiated settlement. It is therefore foolhardy for a party to provide anyone, including the Ministry of Labour, with anything other than the final document, as executed by the parties. The Board therefore finds no breach of a Board order in this case, and denies the responding party's request that the Board order the union to produce to it the latest Tilbury agreement.