[1999] OLRB REP. MARCH/APRIL 274
1017-98-U; 1018-98-M Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America and Local 1688, The Ontario Taxi Union, Applicants v. Metro Cab Company Limited, Metro Cab Associates' Committee Representing Associates of Metro Cab Company Limited, Dan Hisson, Bohdan Dowzanskij, David Anisman, Responding Parties; Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America and Local 1688 The Ontario Taxi Union, Applicants v. Metro Cab Company Limited and Metro Cab Company Limited Associates' Committee Representing Associates of Metro Cab Company Limited, Responding Parties
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Jeffrey M. Andrew, Nabil Charbel and Kuldip Singh for the applicants; Mark Stone and Brian Cavanagh for Metro Cab Company Limited; Robert A. Stewart and Daniel Hisson for Metro Cab Associates Committee.
DECISION OF THE BOARD; April 22, 1999
1Board File No. 1017-98-U is an application under section 96 of the Labour Relations Act, 1995 alleging that the responding parties have bargained in bad faith and also that they committed unfair labour practices by laying off/terminating two employees. Board File No. 1018-98-M is a request for an interim order. The parties agreed to proceed first with the applicant's (referred to as the "union") assertion that the responding parties have bargained in bad faith and that there has been a collective agreement in place since January, 1998. A related complaint is that the alleged collective agreement required the responding party companies to remit union dues for January and February 1998 (subsequent dues have been remitted on a "without prejudice" basis). This is the Board's decision with respect to those issues.
Facts
2The union, Metro Cab Company Limited (referred to as "Metro Cab") and the Metro Cab Company Limited Associates Committee (referred to as the "Associates Committee") are involved in an unusual collective bargaining process. Pursuant to directions of the Board (differently constituted) the Associates Committee participated as a separate employer party to the most recent round of collective agreement negotiations. Therefore the negotiations were tripartite and it was necessary for all three parties to agree to a single collective agreement. The union had to reach an agreement with both employers and the employers with each other as to what the terms of the collective agreement would be.
3The parties filed an Agreed Statement of Facts with the Board as follows:
Agreed Statement of Facts
The Applicant (the "Union") is the bargaining agent for approximately 310 dependant contractors who drive taxicabs for taxi broker the Respondent Metro Cab Company Limited ("Metro Cab") and its Associates throughout Metropolitan Toronto.
The Associates of Metro are fleets, garages, lessees, custodians and agents which control two or more taxi plates or cabs. By decision of the Board dated June 30, 1995 pursuant to ss. 1(4) of the Act, the Respondent Committee was designated as the exclusive bargaining representative of Metro Associates (Exhibit 1). [Exhibits not attached]
The parties were hound to a first collective agreement which expired December 8, 1996 (Exhibit 2). It was the product of collective bargaining and an award of interest arbitrator RO. MacDowell in 1994 after a strike. The Board, in its decision of June 30, 1995, declared that it applied to Associates effective May 1, 1995.
The Union gave notice to bargain to Metro and the Associates on or about September 10, 1996.
The Collective Agreement between the parties to this Application had an effective date of December 9, 1994, expiring on December 8, 1996. The parties to the Collective Agreement engaged in extensive negotiations for the renewal of the Collective Agreement, including meeting with a Conciliation Officer of the Office of Mediation, Labour Management Services, Ministry of Labour. At the request of the Union, a "No Board" report was issued by the Director of the Office of Mediation on behalf of the Minister on November 4, 1997. Given the date of the "No Board" report, the parties were in a legal strike/lockout position on November 21, 1997. As part of the ongoing negotiations, Metro Cab agreed that it would not change any terms and conditions of employment of its dependent contractor cab drivers until December 31, 1997.
Effective January 1, 1998, Metro Cab announced that the terms and provisions of the Collective Agreement were no longer in effect and it unilaterally imposed its own terms and conditions (Exhibit 3). However, the drivers continued to drive after January 1, 1998 and still do.
Metro Cab and the Associates each tabled proposals for consideration by the Union on November 27, 1997 (Exhibits 4 and 5). The proposal of each of Metro Cab and the Associates Committee regarding duration was that the Agreement would continue for one year from date of its signing. At no time were these proposals withdrawn.
At the request of the Union, Metro Cab announced to members of the bargaining unit over the dispatch system that vote on the company's offer was to be held on January 25, 1998 (Exhibit 6).
Metro Cab and the Associates Committee were advised by the Union of the ratification of the two proposals on or about January 29, 1998 and were asked to submit an agreement for signing to the Union (Exhibit 7).
On or about February 26, 1998, as a result of inquiries from Nabil Charbel, representative of the Union, Robert Stewart, spokesman for the Associates Committee advised the Union that the Collective Agreement would be provided for signing shortly. Specifically, at the conclusion at an unrelated arbitration on Feb 26, 1998, Mr. Charbel asked Mr. Stewart when the Union would get a copy of the collective agreement. Mr. Stewart replied that he would provide a copy to the Metro Cab brokerage and then send it to the Union after Metro Cab had reviewed it.
By means of a letter dated March 24, 1998, Ms. Sandra Brown, General Manager of Metro Cab, advised Mr. Charbel that it was taking time to put together the respective proposals of Metro Cab and the Associates Committee but that a copy would be provided in the near future (Exhibit 8).
Metro Cab and the Associates Committee submitted a Collective Agreement to the Union on June 16, 1998 (Exhibit 9) which they state they are prepared to sign. This June 16th document contains some language which differs from that found in the proposals submitted to the Union by Metro Cab and the Associates Committee on November 27, 1997. These June 16th alterations have not been agreed to by the Union, nor ratified by the members of the bargaining unit.
If a collective agreement in is [sic] effect, Article 6 of the Collective Agreement requires the Respondent Metro and the Associates represented by the Committee to remit Union dues for each member of the bargaining unit on a monthly basis. At all material times, those Union dues were $30.00 per month per member of the bargaining unit.
The Responding Parties, including the Associates represented by the Committee did not remit dues to the Union for the months of January and February of 1998.
In response to inquiries by the Union, Metro Cab advised by letter dated March 24, 1998 that it had no legal obligation to collect dues until the new collective agreement was signed (Exhibit 8). However, it advised that it would collect dues for the month of March, 1998, but would not guarantee collection for future months. Dues were collected and remitted for the month of March and subsequently.
4Other facts that are relevant to this matter include the following. The applicant's representative at the bargaining table, Harry Ghadban, asked Metro and the Associates Committee for their "best offer" in a negotiation session with the conciliator in November, 1997. A separate proposal from each of the responding parties was forwarded to Mr. Ghadban on November 27, 1997. On November 28, 1997 he indicated to the responding parties that he wanted to take the proposals to the membership. The Associates Committee responded that there were still a number of items that it wanted to discuss.
5Three further negotiation dates were scheduled to take place after Mr. Ghadban received the proposals. Two sessions were held and on December 3, 1997 one significant change was made and agreed upon. The union's evidence was that the parties agreed to the "status quo" with respect to the scope clause at that meeting. However the Board was not provided with any written documentation related to that change and it is unclear what the extent of the agreement was. Mr. Ghadban acknowledged that the Associates Committee representative made it clear at that meeting that it still wanted to continue negotiating. The third meeting was cancelled.
6On January 25, 1998 the union held a strike/ratification meeting with the membership. It provided copies of the two proposals it had received in November, 1997 to the membership beforehand. A representative of the union described the proposals and explained the subsequent agreement reached with respect to the scope clause but no document provided. The union representatives recommended that the membership reject the proposals and support a strike mandate. However the membership voted to accept the proposals by a small margin. The ballot used by the union is one which asks employees to choose either to "accept the company offer" or to "instruct the Negotiating Committee to call a strike if necessary in order to attain a proper agreement".
7There was disagreement between the parties as to whether the two proposals are consistent and complete so that it is possible to construct them together as a collective agreement capable of being ratified. The Board finds that there are a number of inconsistent or unfinished articles in the two proposals, for example:
4.03 The Associates Committee proposed: "There shall be Rules and Regulations attached to this agreement as a new schedule to this agreement regarding the relationship between the Associates and the dependant contractors which shall not be changed without the written acknowledgement of the union." However, no such Schedule was attached to the proposal. Metro Cab's proposal said "see Associates proposal".
8.01 Metro Cab and the Associates Committee proposed different disciplinary processes. The union's witnesses claimed that they understood this to mean that there would be a different process depending on whether Metro Cab or the Associates Committee was imposing the discipline.
8.03 & 8.05 Metro Cab's proposal says "see Associates Committee proposal". The Associates Committee proposal expresses a "concern" that certain types of offences should not be removed from a driver's file and gives examples.
15.01 The Associates Committee proposal states "be amended to include Associates and Sub Associates members in numbers to be discussed." Metro Cab's proposal states "see Associates proposal"
19.01 The Associates Committee proposal states "The Associates require that Schedule A be amended in accordance with respect to discussions regarding the status of the taxicab during voluntary time off." Metro Cab's proposal is "see Associates' proposal".
20.01 Deals with the requirement that a dependant contractor be supplied with a roadworthy sedan etc. The Associates proposal is "that this section be discussed in the context of the different kind of packages provided, and in the context of taxicabs owned and or operated by Associates, Sub-Associates, Floaters and Dependant Contractor Lessees particularly taking into account "union member owned vehicles".
24.03(c)2 to 7 The Associates Committee proposal indicates that the subsections "cannot properly be addressed at this time" Subsection 6 and 7 said the subsection is rejected and "in any event cannot properly be addressed at this time." This may be referring to a union proposal as it does not appear to be consistent with the expired collective agreement.
24.04 The Associates Committee proposal states "Section 24.04 cannot be addressed until the Union, the Associates and Company resolve the issues of the relationship between the Associates, Sub- Associates, Agents, Designated Custodians, Floaters and Dependant Contractor Lessees and owners." [This may have been resolved at the December 3, 1997 negotiating session]
Schedule C Metro Cab's proposal states "see Associates Committee proposal" At the bottom of the Associates' Committee proposal it says "The Associates reject the Unions proposal as set out under the herein heading". But there is no Associates' proposal for plate rental rates. The union's witness said it understood that this meant that there would be no plate rental provision in the Agreement.
8Mr. Ghadban testified that he understood that Articles like 4.03 or other "to be discussed" articles in the Associates Committee proposal to mean that there would be further negotiation after ratification of the collective agreement and that it was "an ongoing thing".
9As noted in the Statement of Facts, the consolidated document was not provided to the union until June 16, 1998. It appears that the delay is at least partially attributable to the difficulty of consolidating the two proposals as well as the difficulty in obtaining documents from the Associates Committee. The proposal submitted to the union on June 16, 1998 fills in the language of some of the unfinished articles and changes the language of others somewhat, for example:
Article 6.02 was combined with section 6.03. The proposal does add an obligation on Metro Cab to collect dues from single car owners/lessees who pay dispatch fees directly to it and their drivers.
8.01 This was the provision where there were contradictory grievance processes. The June 16 document includes Metro Cab's proposal which includes tape recording the meeting but does not include an interim suspension proposed by the Associates Committee.
14.02 (C) Metro Cab and the Associates Committee appeared to agree that this article should provide "Seniority shall be determined by the Union for the benefit of members in accordance with the information obtained from lists and information received from the Associates, Sub-Associates, floaters and dependant contractor lessees and Union members." But that article was not included in the June 16 proposal.
15.01 The Associates Committee had proposed that there should be "Associates and Sub-Associates on the Union! Management Committee in numbers to be discussed." The June 16 proposal includes equal representation from Metro Cab, the union and the Associates Committee.
16.02 The Associates Committee proposed that the safety committee should include members of the Associates and/or Sub-Associates. The June 16 proposal specifies two members of the Associates on the committee.
19.01 The Associates Committee proposal said "The Associates require that Schedule A be amended in accordance with respect to discussions regarding the status of the taxicab during voluntary time off'. The June 16 document deleted a provision that had been included in the Schedule A of the collective agreement which provided that a shift driver would be entitled to have use of the vehicle without shift fees for one mutually agreed to week per year if they had operated the vehicle continuously for the previous twelve months.
20.01 relates to the attributes of the cars provided to the members. The Associates Committee had proposed that the section be discussed "in the context of the different types of packages provided, and in the context of taxicabs owned and or operated by Associates, Sub-Associates, Floaters and Dependant Contractor Lessees particularly taking into account "union-member owned vehicles". However the June 16 proposal contains the status quo.
Schedule C The Associates had not included a proposal with respect to plate rental rates but had rejected the union's. The June 16 proposal indicates that plate rental rates would be set by market value from time to time and that they will be subject to GST and other taxes.
10The union filed a number of grievances subsequent to January, 1998. The grievances were denied on the basis that no collective agreement was in effect. However, as noted in the Agreed Statement of Facts, Metro Cab agreed to remit dues from March and subsequently on a "without prejudice" basis. In the letter advising the union of that fact, Sandra Brown, on behalf of Metro Cab, indicates that it is in the process of finalizing the collective agreement proposals for signing. She also asserts that Metro Cab is not obligated to deduct dues until the agreement is signed and that if the parties cannot agree on the final language of the agreement that it may stop the deductions. However, it does not appear that either of the responding parties specifically took the position at that time that the proposals were not capable of ratification or could not form a collective agreement.
11On June 16, 1998 Metro Cab sent a "without prejudice" letter to the union advising that it had the right to charge a brokerage fee of 425.00 plus GST per month pursuant to the collective agreement accepted by the membership in January. However, it advised that it was not going to enforce that right at that time due to the economy.
Issue
12The issue between the parties at this stage in the proceedings is whether the responding parties have violated the Act by failing to recognize that a collective agreement is in effect. Of course in order to make that determination the Board must decide whether the parties have a valid collective agreement as a result of the membership's approval of the November 27, 1997 proposals on January 25, 1998. A related issue is whether the responding parties violated the Act by failing to provide a consolidated proposal for signing until June, 1998 and by then providing one which does not reflect what the union believes was ratified. A further related issue is the significance of the fact that the proposals approved by the membership indicate that the agreement is in effect for one year from the date of signing.
Submissions of the Parties
13The union argues that the responding parties have violated the Act by failing to acknowledge that a collective agreement was ratified and took effect on January 25, 1998. It asserts that it asked the responding parties for proposals that it could put to the membership in November and that they were provided. It relies on the fact that the responding parties knew it was having a ratification meeting on January 25, 1998 as they had to put the notice out on the dispatch system and that at no time did either responding party say that its proposal was not capable of ratification. It also claims that neither party stated that the proposals were incapable of being consolidated when the union asked them to produce a collective agreement for signature. It argues that the responding parties are estopped from subsequently taking the position that there is no collective agreement in effect by their actions.
14The union claims that the proposals were capable of ratification. It asserts that it understood any references in the proposals to "further discussion" to mean that the parties would continue to discuss those issues during the life of the agreement. It claims that it understood the inconsistency in the grievance procedures in the two proposals to mean that there would be a different procedure depending on which of the employer parties was issuing the discipline. It also claims that it understood that where Metro Cab's proposal says "see Associates proposal" it meant that Metro Cab agreed with the Associates Committee proposal. On an article like plate rental rates in Schedule C upon which there was no agreement, the union's position is that it was not included in the agreement.
15The union also argues that the responding parties have violated the Act by reneging on their earlier proposals. It claims that the document provided for signing in June, 1998 contains new and different language than was contained in the proposals to which the membership agreed. It notes that the parties agreed on December 3, 1997 that section 3.01, the scope clause, would remain "status quo" but that language was added to that article. The union's representative indicated that he counted 69 other differences in language between the proposals accepted in January and the agreement presented for signing in June.
16The union claims that section 44 of the Act and the Board's jurisprudence support its claim that a collective agreement takes effect upon ratification. It argues that an employer cannot provide a final proposal to a union for ratification but retain the right to change it later by including an article which says it will only take effect upon signing. It argues, in any case, that the duration proposal means that the the agreement will continue one year from signing but not that it will commence upon signing. The collective agreement is in effect from ratification. As the agreement was ratified on January 25, 1998 dues are owing to the union for January and February.
17The union acknowledges that the proposals may be confusing and that parts of them, particularly in the Associates Committee proposal, are poorly written. However, from its perspective, the proposals contain language which a third party could interpret so they are capable of ratification. The union submitted that the Board should direct Metro Cab and the Associates Committee to provide a consolidated document which exactly reflects their proposals and remain seized with respect to ensuring that the consolidated document complies with that order.
18The union referred to the following decisions: Sparton of Canada Limited, [1985] OLRB Rep. Sept. 1420; Sears Canada Inc., [1986] OLRB Rep. Aug. 1159; Sperry Vickers Division Sperry Inc. Canada, [1983] OLRB Rep. July 1208; Toronto-Dominion Bank v. Gelco Express Ltd., 1992 CanLII 7455 (ON CA), 11 O.R. (3d) 635; Walt-Mart Canada Inc., [1998] OLRB Rep. Nov./Dec. 1037.
19The Board will set out the responding parties submissions together since they were mutually adopted for the most part. The responding parties deny that they have violated the Labour Relations Act, 1995. They argue that the proposals submitted in November, 1997 were not capable of ratification as there was no agreement between themselves. They point to the incomplete and inconsistent articles as evidence that the documents could not together constitute a collective agreement. They claim that the proposals were never intended to be final offers but were only presented as their "best offers" at the time they were submitted. They argue that that was apparent by the incomplete and inconsistent nature of the proposals as well as by the fact that the parties had set three further negotiation dates at the time they were submitted. They also rely on the fact that they made at least one significant change at one of those meetings. They argue that there was never any agreement that the outstanding articles could be negotiated after ratification and that it was unreasonable for the union to assume that was their intention.
20The responding parties argue that the union is attempting to impose agreement between them but that they are entitled to continue negotiating as separate parties to the bargaining process. They are not claiming that it is necessary for the union to hold another ratification vote but that when the completed and consolidated proposal was submitted in June, 1998 they expected that the union would sign it or provide a counter-offer and negotiate any changes. They deny that they ever accepted the union's claim that the parties had a collective agreement and assert that they specifically denied it when the union claimed that they should be deducting dues.
21The responding parties submit that the process used by the applicant was not a ratification in any case as the members could not understand what they were agreeing to when faced with three separate documents and a verbal description of the December 3, 1997 change.
22The responding parties argue further that both of their proposals state that the collective agreement will not take effect until signing. They claim specifically that that clause was not in their earlier proposals and was included in the November 27, 1997 proposals to accommodate the disagreements between them. They argue that as they have not signed the agreement there can be no argument from the union that a collective agreement took effect when its members voted in favour of the proposals on January 25, 1998.
23The responding parties deny that a ratification pursuant to section 44(1) necessarily means that the parties have an agreement. They argue that section 44 means only that any agreement is not in effect until it is ratified pursuant to the section. They also argue that it was not possible to provide a consolidated document which was exactly the same as the two proposals because they conflicted and were incomplete. They point out that the covering letter with the consolidated proposal indicates that the union should review it and advise the responding parties as to whether they have an agreement. According to the responding parties the consolidated document is a proposal, not an agreement. They argue that the union knew and acknowledged that there was still work to be done in turning the two proposals into a consolidated document when it submitted them to the responding parties after the "ratification". They also note that the union itself never tabled a consolidated document and asserts that was because it was impossible to do so using only the two proposals. Metro Cab queried how it could be expected to execute the Associates Committee proposal or the Associates Committee to execute its proposal when there was no agreement between them.
24The responding parties also deny that they are estopped from claiming that there is no agreement. They note that the union did not ratify the two proposals based on any representations they made or on their conduct. They do not control whether the union has a ratification vote and there is no detrimental reliance in this case. They argue that they did not object when they learned that the union was having a ratification meeting because it was none of their business and they would not be entitled to object to such a decision.
25The Associates Committee reminded the Board that this tripartite bargaining was a new experience for the parties and suggested that it should be looked at in a new way. It stressed that its representative had clearly indicated that there were still a number of areas it wished to discuss when the union requested their "best offer". It argued that it needed such extensive discussions because this was the first set of negotiations in which it had participated. It also stressed its doubts that the ratification could be valid in view of the fact that the membership was faced with the two incomplete and inconsistent proposals and would not even know what it was ratifying. It notes that the union had recommended against the proposals and was really trying to get a strike mandate. The Associates Committee appears to rely upon this to show that the union itself never really believed the proposals were capable of ratification or to negate any assumption that the union must have believed they were capable of ratification or it would never have put them to the membership. It submitted that there was nothing capable of ratification as the parties had not reached agreement.
26The responding parties rely upon the following decisions: Graphic Centre (Ontario) Inc., [1976] OLRB Rep. May 221; Municipality of Casimir, Jennings and Appleby, [1978] OLRB Rep. June 507; DeVilbiss (Canada) Limited, [1976] OLRB Rep. March 49.
Decision
27The Board has carefully considered the evidence and submissions of the parties and finds that the responding parties have not violated the Act. It appears the union wanted to bring the lengthy collective agreement negotiation process to a close. The parties had not been successful in achieving a joint position from both responding parties so the union sought to force the issue by getting separate proposals that it could take to the membership to either ratify or reject in favour of a strike mandate. However, the collective bargaining process was not finished and the responding parties did not contemplate that there would be no further changes from the proposals they submitted. That is apparent from the fact that the proposals the union received were not complete, although a close review of them shows that they are mainly, although not completely, consistent. There were a number of areas which were identified by the Associates Committee which required further discussions. Metro Cab indicated that it was acceding to the Associates Committee proposals in those areas. The Associates Committee representative also made it clear when asked for the proposal and when advised that Mr. Ghadban wanted to take the proposal to the membership at a subsequent negotiation session, that there were a number of areas that still needed to be discussed. The Board finds that in the face of the incomplete sections in the proposals and the repeatedly stated desire to bargain about them, the two proposals were not presented as a collective agreement which could be ratified.
28When a union puts an employer offer to its membership for a vote it is essentially deeming that document to be a collective agreement i.e. something to which the parties have agreed for the purposes of the ratification vote even though it may be recommending rejection. Thus, the proposal has to be capable of being such an agreement. A union cannot transform an incomplete set of proposals into a collective agreement by the act of "ratifying" them gaps and all. If there are to be incomplete areas included in a collective agreement the parties have to specifically agree to them like any other articles. In this case the responding parties did not agree to have incomplete or inconsistent articles in their agreement. The Associates Committee said it wanted further negotiation. Furthermore, the parties did continue to negotiate and apparently changed the proposals which is further evidence that the process was ongoing. It appears that the December 3, 1997 agreement may not even have been reduced to writing which would also demonstrate that the process was not complete. The union therefore did not ratify a collective agreement when its membership voted in favour of the responding parties' November, 1997 proposals.
29The union may well have been frustrated by the Associates Committee's approach to collective bargaining by November, 1997 but it cannot short circuit the process by putting proposals to ratification that were not understood by the parties to be sufficiently complete to form a collective agreement. If the union wanted to put a final offer to put to the membership it should have acquired a complete and consolidated document or at least asked the Associates Committee to provide a proposal which specifically included its preferred language on the incomplete articles. If the Associates Committee then refused to provide the language the union might have had a complaint under this Act. There may well be a point at which not providing a complete proposal for ratification is itself an unfair labour practice but that is not what the union is asserting here.
30It is obvious on reviewing the proposals presented by the responding parties in November 1997 that there are still a number of items to be negotiated. The union's assertion that the references to the necessity for further discussion must have meant discussion during the duration of the agreement is not a reasonable interpretation of the proposals. On the other hand the Board also finds that Metro Cab's claim that "see Associates proposal" means that it wants to see that proposal not that it agrees with it is not a reasonable interpretation of its proposal. There were therefore only a handful of articles without complete language at the point the union put the proposals to the membership but without those articles the proposals could not be said to be complete, especially in the context of an expressed desire to continue negotiations. The difficulty of forming a collective agreement out of the two proposals without further agreement from the parties is highlighted when the Board contemplates the remedy requested by the union. It is apparent that the process of overseeing the consolidation of the two documents, which the union proposes the Board undertake, would ultimately require the Board to interpret those proposals and to make decisions as to what should be included in the agreement and how articles should be worded.
31The unions claim that it "ratified" the proposals did however constitute notice to the responding parties that it accepted those articles which are capable of being accepted. It is relevant therefore, if the responding parties subsequently renege on those proposals. However, a review of the document provided to the union in June, 1998 for signing or further negotiation reveals that, for the most part, it does reflect the two proposals although the Associates Committee's proposals have been reorganized or reworded in some cases. The proposal also fills in language for some of the incomplete areas, leaves out some of those articles and leaves some status quo. The Board finds that the June 16, 1998 proposal represents a good faith effort to provide a document which reflects what the union claims to have ratified. It was not unreasonable in these circumstances for the responding parties not to include the incomplete articles but to provide proposed language or to leave those articles out altogether.
32The Board also does not find that the responding parties are estopped from claiming that there is no collective agreement in effect. The responding parties are correct that they ought not to interfere with the union's decision as to whether it should hold a "ratification" meeting. In any case the responding parties could allow the ratification process to proceed even with contradictory and incomplete proposals because they believed that the collective agreement was not in effect until signing.
33The Board also does not find that the responding parties are estopped from claiming that there is no collective agreement in effect because of the parties' actions after being notified of the "ratification." The responding parties' made it clear that they were collecting dues on a "without prejudice" basis because they did not believe that there was a collective agreement in effect. This is admittedly inconsistent with Metro Cab's position in the letter dated June 16, 1998. However that letter was dated the same day as the proposed agreement which the responding parties may have expected would be signed. In any case the letter covering the June 16 proposal indicated that it could be signed or subject to further negotiation. The responding parties' approach, over all, demonstrates that they did not think that there was a collective agreement in effect but that they were prepared to use the turn of events to draft a document which could be a collective agreement and bring the lengthy negotiations to a close.
34The responding parties' conduct does, however, deserve some comment from the Board. Although the Associates Committee indicated in November and December, 1997 that it wanted to negotiate further and Metro Cab did assert that there was no collective agreement in effect in March 1998, they must bear some responsibility for the situation the parties now find themselves in. All of the parties agree that the union asked for the responding parties' "best" offer not "final" offer. The responding parties say they provided their "best" offer at the time. The union chooses to understand "best" offer to be synonymous with "final" offer. That would be a reasonable interpretation in most circumstances. The responding parties however, interpret the term differently and the Board has found that in this case the responding parties "best offers" were not final offers. Nevertheless, the responding parties should have clearly stated that the documents together did not form a complete collective agreement proposal. That would have left no room for any misunderstanding. The responding parties could also have put the union on notice that further work had to be done on the proposals even if the membership accepted them (without actually interfering with the union's ratification vote). Furthermore, the responding parties could have stated clearly, immediately upon being advised of the ratification vote, not only that no collective agreement was in effect but that the proposals the union purported to have ratified could not be consolidated into a collective agreement. The responding parties' motivation may also have been to use the process the union had embarked upon to bring the lengthy bargaining to a close. Having the proposals that were submitted in November, 1997 accepted in January, 1998 could well have moved matters along. The union's action did get the parties to the point where Metro Cab and the Associates Committee agreed to a complete proposal in June, 1998 which might have resolved the matter. However, in the end the responding parties' somewhat ambiguous approach contributed to this situation reaching the point that litigation was perceived to be necessary by the union. The Board is also concerned by the fact that it took four months for the responding parties to provide the union with a consolidated document. However, given the task faced by the responding parties in consolidating the two documents the Board does not find that the four month delay constituted an unfair labour practice.
35For all of the above reasons the union's claim that the responding party has bargained in bad faith is dismissed. The application for interim relief, in Board File No. 1018-98-M is also dismissed. Given the Board's determination it is unnecessary for the Board to deal with the other arguments raised. The Board remains seized with respect to the other outstanding issues between the parties.