3619-99-M United Food and Commercial Workers International Union, Locals 175 and 633, Applicant v. The Great Atlantic & Pacific Company of Canada Limited, Responding Party.
BEFORE: Brian McLean, Vice-Chair.
DECISION OF THE BOARD; July 18, 2000
1This is a joint application by the United Food and Commercial Workers International Union, Locals 175 and 633 (the “union”) and The Great Atlantic & Pacific Company of Canada Limited (the “employer” or “A&P”) for the Board’s consent to the early termination of the collective agreement between the parties.
2The facts which led to this application are undisputed. The employer is
a food retailer which carries on operations in Ontario under various banners at a number of separate locations. The employer also operates other retail stores, “Super Fresh” and “Miracle Food Mart”. The union represents approximately 6000 employees in three separate bargaining units: full-time meat department employees, full-time grocery department employees and part-time employees. The current collective agreement between the parties is in effect until June 17, 2001.
3The “Super Fresh” and “Miracle Mart” employees each have different
collective agreements with the employer. On August 29, 1999 the “Super Fresh” employees ratified a memorandum of agreement which provided for the merging of the “Super Fresh” bargaining unit with the A&P bargaining unit. This merger would occur when a similar merger agreement was negotiated as part of the A & P collective agreements. In the fall of 1999 a similar provision was negotiated into the collective agreement between the union and “Miracle Mart”.
4On January 20, 2000 the parties agreed to merge the A&P, “Miracle Mart”
and “Super Fresh” collective agreements into a single collective agreement. On January 30, 2000, after posting notice in all of the affected retail stores, the union conducted thirty-four separate meetings at sites across Ontario. Twenty-two of the meetings were directed to A&P employees (who were the only employees who had not yet ratified a collective agreement which contained a merger provision). The employees of the three A&P bargaining units separately ratified the merger agreement by majority vote.
5In order to merge the collective agreements into one collective agreement at this time, the A&P collective agreement must be terminated prior to the date at which it was originally supposed to terminate. Under section 58(3) of the Labour Relations Act, 1995 (“the Act”) the Board’s consent is required for such an early termination. Accordingly, the employer and the union made this application.
6In accordance with the Board’s Rules and normal practice, notice of
this application was posted in the workplace. In response to the posting, 97 employees have written to the Board in opposition to the early termination of the collective agreement. Their letter states as follows:
“As employees of The Great Atlantic & Pacific Tea Company, also known as A & P Stores Limited, we wish to object to the manner in which the termination of the present collective agreement was handled. All members of Local 175 UFCW were not allowed to exercise their right to vote on this matter. The voting times and locations were such that it appeared that only a minimum amount of the membership would be allowed to participate. In our location those of us who were scheduled to work were told that if you wanted to vote you had to give up your time and income to do so. This measure ensured limited participation in the process. The union and management, in their haste to foist this upon the membership, used deceptive measures and tactics to assure the desired results. The early termination of this contract jeopardizes many of the members positions in this location. We wish also to apply, as a group, to prevent individual retaliation by management and the union.
We, the signatories of the attached petition, request a Labour board sanctioned and supervised vote on the question of early contract termination”.
7The purpose of the prohibition contained in section 58(3) against
changing the term of a collective agreement without Board consent is to permit employees the opportunity to change their bargaining agent if they so desire.
8The Board’s practice on such applications is to post a notice in the
workplace to permit the employees to object to the early termination. However, not every objection will cause the Board to refuse its consent to the early termination of the collective agreement. The Board has consistently and often held that, having regard to the purpose of section 58(3) as set out above, where an early termination application is objected to for reasons other than those relating to the open period and representation rights, the Board has declined to take such objections into account when making a decision under section 58(3) of the Act. The Board put it this way in Stelco Fastener & Forging Co., [1990] OLRB Rep. March 339 at pages 346-347:
- The jurisprudence, however, has also recognized that not all objections to the early termination of a collective agreement go to the principle of the “open period” in which to test representational wishes as enshrined in the statute. In Brantford General Hospital, supra, a number of employees objected to the “adequacy of the notices given by the union with respect to a meeting of employees called by the union to consider the proposals of the employer and to the nature of the proceedings at that meeting”. The Board found that “the objections raised in the instant case do not go to those matters which the Board deems its [sic] advisable to consider in determining whether to exercise
its discretion under [then] section 39(3) [now 52(3)] of the Act”. Subsequently, in The Continental Group of Canada, supra, the Board commented:
- The employer has filed a declaration indicating that the proper notices were posted. Presumably in response to the postings, the Board has received an objection to the application in File No. 1254-80-M from Mr. Robert Hall, who would appear to be an employee in the relevant bargaining unit. The basis of Mr. Hall’s objection is dissatisfaction with the new terms and conditions of employment which the employer intends to implement, with the agreement of the union, following the termination of the existing agreement. There is nothing before the Board to suggest that Mr. Hall or any other employee seeks to challenge the union’s position as bargaining agent, and as we have already noted, the purpose of the restriction in section 44(3) [now 52(3)] is to prevent the parties from undermining the right to make a representation application during the open period. This is “the mischief” to which
section 44 [now 52] is directed, and there is nothing before the Board to suggest that this “mischief” exists in the present case. Accordingly, we are satisfied that the Board should grant its consent to early termination of the parties’ agreements.
- In the Board’s view, the reasoning in The Continental Group case is particularly apposite. In the instant case, the applicant objects to the format of the ballot as a “package” proposal and objects to the voting procedure in which the results were counted at each location but then were combined into an overall tally for or against acceptance of
the company’s proposal. It appears that the complainant, to some extent at least, objects to the substantive provisions in the proposal as well, given his view that the “deal” would prove of greater benefit to the Swansea workers. None of those sorts of concerns, in the Board’s opinion, should be taken into consideration by the Board in determining
whether or not to grant its consent to the early termination of the union collective agreements. Nor is the complainant’s request that consent be deferred until his section 68 complaint is determined an appropriate factor in the Board’s assessment. There is no suggestion that the complainant wishes to test his representational rights or is
challenging the union’s role as exclusive bargaining agent. The Board concludes, then, that this is an appropriate case in which to grant its consent to the joint application of the union and the company for early termination of their collective agreements. In so finding, the Board is not suggesting that the complainant acted for any motives other than his belief that the union’s manner of proceeding was improper.
9In this case, it is clear that a number of employees have serious concerns about the process which was undertaken in this case. However, it appears that the objections relate only to the new collective agreement which the parties intend to enter into if the Board grants early termination of the current collective agreement. The employees may or may not have legitimate complaints about whether they had adequate opportunity to vote, but these concerns are not representative in nature. In other words, there is no suggestion that the employees are objecting because they wish to seek a new bargaining agent. The objections raised by the employees are virtually identical to the
objections raised, and rejected, in the Brantford General Hospital decision.
10In the event that the employees are raising issues of representation
and their right to select a new bargaining agent, more than two months have passed since this application was made, which is the length of time which normally comprises the open period of a collective agreement. There has been no suggestion that the objecting employees in this case have sought representation by another trade union. In addition, it is worth noting that it is not the Board’s practice to hold a Board-supervised vote in connection with applications under section 58(3) of the Act, nor does the Board generally supervise the conduct of votes held by unions to ratify collective agreements. Moreover, while the Board does consider complaints about the adequacy of ratification votes, there are no specific facts in the material filed by the objecting employees which would suggest that the ratification process engaged in by the union in this case was so seriously flawed so as to attract Board intervention.
11Accordingly, for all of the foregoing reasons, the Board hereby
consents to the early termination of the collective agreement between the parties.
“Brian McLean”
for the Board