L. Krish Sankar v. Industrial Wood and Allied Workers Union of Canada (IWA-Canada)

2983-99-R L. Krish Sankar, Applicant v. Industrial Wood and Allied Workers Union of Canada (IWA-Canada), Responding Party v. Triac Industries Inc., Intervenor.

3168-99-U Industrial Wood & Allied Workers of Canada (IWA-Canada); Industrial Wood & Allied Workers of Canada, Local 700 (IWA-Canada Local 700), Applicants v. Triac Industries Inc., Responding Party.

BEFORE: Christopher J. Albertyn, Vice-Chair.

APPEARANCES: Krish. Sankar on his own behalf; S.B.D. Wahl and R. Diotte for IWA- Canada and I.W.A. – Canada Local 700; Lorenzo Lisi and Bob Coghill for Triac Industries Inc.

DECISION OF THE BOARD; July 12, 2000

1. Board File No. 2983-99-R is a termination application filed pursuant to the Labour Relations Act, 1995, S.O. 1995, c.1 ('the Act'). Board File No. 3168-99-U is an unfair labour practice application brought by the responding party (‘the union’) against the intervenor (‘the employer’) in the termination application.

2. A previous decision in this matter was issued on March 17, 2000. Subsequent to that decision, on June 16, 2000 and June 29, 2000, the union filed additional particulars to its response to the termination application and to its unfair labour practice complaint. Those particulars concern events subsequent to the filing of the termination application. The union wishes to bring to the Board’s attention the pattern of negotiation between the union and the employer in recent months.

3. The employer’s counsel argues that the union should be prohibited from relying upon the additional particulars because, in the employer’s counsel’s submission, they are irrelevant to the termination application and the unfair labour practice complaint because they occurred after the bringing of the termination application.

4. The union’s counsel argues that the recent particulars are relevant and that their effect, inter alia, is to render moot the termination application.

5. A brief background to these applications is helpful. The collective agreement between the union and the employer expired on February 13, 2000. The termination application was made in a timely manner on January 7, 2000. The union alleges that the application should be dismissed under subsection 63(16) of the Act because, in the union’s submission, the application is employer initiated. The union’s unfair labour practice relies upon similar allegations.

6. On January 17, 2000 the Board ordered that a representation vote be taken among employees in the bargaining unit represented by the union. The vote occurred on January 19, 2000 and, by order of the Board, the ballot box was sealed. The ballots have not been counted. The parties have been engaged in pursuit of the termination and unfair labour practice applications since then.

7. In order to assess these arguments it is necessary to provide some greater detail of the particulars. The union describes the bargaining process that occurred in consequence of the expiry of the most recently expired collective agreement. The union gave notice to bargain on November 18, 1999. The union alleges it was unable to secure the participation of the employer in collective bargaining for a new collective agreement in the period prior to the launching of the termination application on January 7, 2000.

8. The union’s particulars continue: the union filed an application for conciliation on January 18, 2000. The employer objected to the appointment of a conciliation officer on January 21, 2000 on the basis that the termination application was before the Board for consideration. The Labour Management Services branch of the Ministry of Labour responded to the employer on January 24, 2000 explaining that the normal process of collective bargaining had to continue, despite the pending termination application before the Board and that a conciliation officer would be appointed. A conciliation officer was appointed on January 26, 2000.

9. The union and the employer met in conciliation on February 29, 2000 and March 16, 2000. On the latter date the union and the employer concluded a Memorandum of Settlement for the renewal of the collective agreement. The employer incorporated the terms of the Memorandum of Settlement into a Memorandum of Agreement, which it sent to the union on March 27, 2000. The employer qualified its acceptance of the Memorandum of Agreement on the basis that if the representation vote in the termination vote resulted in the union no longer representing its employees, then the employer would no longer be bound by the collective agreement.

10. On March 28, 2000 the union held a ratification meeting. Those bargaining unit members who attended voted against ratification of the Memorandum of Settlement.

11. A further conciliation meeting between the union and the employer occurred on May 18, 2000. A Memorandum of Agreement was achieved. The employer did not expressly make (or repeat) its previous qualification that the collective agreement was conditional upon the union maintaining its bargaining rights after the determination of the termination application.

12. On May 29, 2000 the union held a ratification meeting at which those present and voting adopted the collective agreement by a majority. In argument, though not in the union’s pleadings, counsel suggested that the ratification vote concerned a choice between whether workers wanted to continue to be represented by the union and ratify the collective agreement negotiated with the employer or whether they wanted to strike.

13. On May 31, 2000 the employer posted a notice on employee notice boards in the employer’s workplace, bearing the heading, ‘New Contract’. The notice confirmed that employees had accepted the employer’s offer for a new contract to run until February 2002. The notice continued, ‘as part of this contract, there were changes made to the wage rate effective February 2000. These increases are retroactive and will be adjusted for all employees who have union dues deducted from their pay. No further action on your part is required.’ The notice continued in somewhat bolder letters: ‘You will receive the retroactive pay even if you do not sign the application for union membership which has been recently circulated.’

14. On June 1, 2000 the union informed the employer of the ratification. According to the union the employer refused to meet to sign the collective agreement. On June 6, 2000 the employer posted a notice for employees in which the employer confirmed that, if the union is decertified because of the representation vote in the termination application, employees would continue to receive the wage rates prescribed in the new collective agreement.

15. The employer and the union signed the new collective agreement on June 27, 2000. The union alleges the employer acceded to signing the collective agreement only once it had filed the additional particulars on June 16, 2000 in these applications.

16. The employer has not responded to the union’s particulars. They are therefore not an agreed statement of fact, although, for the purpose of considering the employer’s objection to their admission in these proceedings I will assume that they are undisputed.

17. The union submits that, as a result of the union’s successful ratification vote on May 29, 2000 and the signing of the renewal collective agreement by the employer on June 27, 2000 the termination application has become moot and should be dismissed. In the alternative the union submits that the recent expression of employee wishes in the union’s ratification vote is such as to put in doubt the (still unknown) results of the representation vote in the termination application conducted on January 19, 2000, and that a fresh representation vote should be ordered under the Board’s power to do so under subsection 111(5) of the Act. Further alternatively, the union submits that the particulars are relevant because (assuming the union loses its bargaining rights as a consequence of the representation vote in the termination application) they reveal that the employer has voluntarily recognized the union and that its bargaining rights have been restored.

18. The employer’s counsel argues that the Board does not have jurisdiction to admit the particulars sought to be admitted by the union.

19. What particulars are admitted is a matter of discretion by the Board. The Board may admit whatever particulars and evidence it considers relevant to the determination of the issues in the case. This case is concerned with allegations regarding alleged employer initiation of the termination application. Axiomatically, the determination of initiation of a termination application brought on January 7, 2000 concerns facts and circumstances which occurred on or before that date. Therefore any allegations of employer initiation or conduct after January 7, 2000 are irrelevant to the determination of whether subsection 63(16) applies in this case.

20. The union has founded its case concerning the relevance of the post-January 7, 2000 particulars not on allegations of employer initiation after that date, but on the importance of the ratification vote on May 29, 2000 and the conclusion of the renewal collective agreement on June 27, 2000. Those events, in the union’s submission, have a significant bearing upon the resolution of these applications. The union’s counsel has various arguments in support of this submission. I deal with each in turn.

21. The union’s counsel seeks to rely upon the non-reiteration of the employer’s reservation of rights when the collective agreement was ratified by employees on May 29, 2000. As stated earlier, the employer had qualified its agreement to the first renewal collective agreement put before the union’s members (and rejected by them), by stating that the agreement would be of no effect if the representation vote in the termination application resulted in the loss of the union’s bargaining rights. No such qualification attached to the second (ratified) version. The union’s counsel suggests that the absence of this qualification makes the collective agreement effective, notwithstanding the outcome of the termination application.

22. Subsection 63(18) is a complete answer to this argument. The subsection reads:

63. (18) Upon the Board making a declaration under subsection (14) or (17), any collective agreement in operation between the trade union and the employer that is binding upon the employees in the bargaining unit ceases to operate forthwith.

23. There was no need on the part of the employer to qualify its acceptance of the first (rejected) version of the renewal collective agreement. The provisions of subsection 63(18) of the Act were sufficient to cover the qualification. By operation of law the renewal collective agreement ceases to apply if the union loses its bargaining rights in a termination representation vote.

24. Subsection 63(18) is also a complete answer to the union’s suggestion that the renewal collective agreement constitutes a form of voluntary recognition. There is nothing magical about the renewal collective agreement. It has a contingent existence. It is subject to a resolutive condition which may never eventuate. If and when the sealed ballots in the termination vote are counted and it turns out that employees have voted to maintain the collective bargaining rights of the union, then the conditional nature of the renewal collective agreement will fall away. Its contingent nature will evaporate. It will be a collective agreement like any other, effective for the term of its duration. If, however, the termination vote results in the employees rejecting the bargaining status of the union, then the resolutive condition attaching to the collective agreement will become effective and the agreement will, by operation of law, cease to exist. No notion of voluntary recognition will survive the loss of the union’s bargaining rights.

25. Counsel for the union argues that the recently filed particulars are relevant to the determination of the applications because the particulars describe the ratification vote held by the union on May 29, 2000 and, in his submission, the ratification supercedes the termination vote, rendering it moot. Counsel suggests that the ratification vote is a better (because more recent) expression of employee wishes and he suggests that the Board have regard to it over the representation vote in the termination application which occurred on January 19, 2000. He submits (if I have any doubt as to the reliability of the ratification vote as a measure of employee wishes), in the alternative, that the result of that vote and the successful conclusion of the renewal collective agreement are such as to create a new set of circumstances which warrant the taking of a fresh representation vote. The fact that employees voted to adopt the union’s renewal collective agreement when they ratified it is sufficient, in counsel’s submission, for the conclusion that the wishes of the employees in the January representation vote are at least cast into some doubt, therefore warranting the arrangement of another representation vote.

26. The flaw in this argument is its failure to acknowledge the central importance in the statutory scheme in the Act of the right of employees to endeavour to terminate the bargaining rights of their union during periodic open periods. The right of employees to apply for the termination of the bargaining rights of their union is not foreclosed by the subsequent ratification of a renewal collective agreement and the existence of such an agreement. The Act contemplates that renewal collective agreements will be concluded, but they do not have the effect of closing the open periods provided in the Act. Subsection 63(18) of the Act makes that clear. The open periods are sacrosanct; the institutional parties, who may have an interest in the continuation of the collective bargaining relationship, are unable to foreclose or prevent the exercise of employee rights to terminate a union’s bargaining rights during an open period. Thus a successful ratification vote and the conclusion of a renewal collective agreement do not have any adverse effect upon the validity and viability of a termination application. In a sense a renewal collective agreement (and its ratification) are subordinate to a timely termination application. The existence of the renewal collective agreement depends upon the outcome of the termination application.

27. Furthermore, other than the passage of time, there are no circumstances which are not entirely within the contemplation of the Act (e.g. the conclusion of a contingent renewal collective agreement in the face of a continuing termination application) and which would warrant the ordering of a fresh representation vote. Nothing has happened to suggest that the representation vote, now locked in a sealed ballot box, is any less valid than it was on January 19, 2000.

28. Union counsel suggests another argument as to why the recent particulars are germane to the application. He seeks to draw an analogy between the relationship of first contract applications to termination applications and the relationship between the ratification vote of June 29, 2000 and the termination application. Counsel relies upon a series of cases in which the relationship between a termination application and a first contract application was explored: Seeburn Division [1996] OLRB Reports May 495; Fort William Clinic [1996] OLRB November/December Reports 942; Native Child and Family Services of Toronto [1997] OLRB Reports November/December 1032; Native Child and Family Services of Toronto [1998] OLRB Reports January/February 80; Ingersoll Plastics Inc. [1997] OLRB Reports November/December 996. This argument misconceives the statutory basis for the relationship between first contract arbitration and termination applications on the one hand, and the relationship between ratification votes for renewal collective agreements and termination applications made in a timely manner in respect of an expiring collective agreement. Under subsection 43(2) of the Act, the Board may direct that a first collective agreement be determined by interest arbitration if certain limited conditions apply. That subsection reads:

43. (2) The Board shall consider and make its decision on an application under subsection (1) within 30 days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 17 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of,

(a) the refusal of the employer to recognize the bargaining authority of the trade union;

(b) the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification;

(c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or

(d) any other reason the Board considers relevant.

29. The Act properly identifies a potential rivalry between first contract applications and termination applications. The Act recognizes that they are likely to occur in similar circumstances: when a certified union and an employer have been unable to conclude an agreement as a consequence of their own fault or default and some level of frustration among the employees in the bargaining unit has resulted. The Act contemplates that a union and an employer will have a fair opportunity to conclude a first collective agreement through arbitration without the threat of an impending termination application if the circumstances described in subsection 43(2) obtain. If they do not, and the first contract application fails, then the Act expressly provides at subsection 43(23) that the termination application will proceed. That subsection reads:

43. (23) Despite subsection (2), where an application under subsection (1) has been filed with the Board and a final decision on the application has not been issued by it and there has also been filed with the Board, either or both,

(a) an application for a declaration that the trade union no longer represents the employees in the bargaining unit; and

(b) an application for certification by another trade union as bargaining agent for employees in the bargaining unit,

the Board shall consider the applications in the order that it considers appropriate and if it grants one of the applications, it shall dismiss any other application described in this section that remains unconsidered.

30. There is no such rivalry as between a termination application and the conclusion of a renewal collective agreement. In contrast, the contemplation of the Act is that they can co-exist. Pending the outcome of a termination application the institutional parties continue to have obligations under section 17 of the Act to bargain in good faith with each other, but the clear understanding and intention of the Act is that a timely termination application will take precedence over the conclusion of a renewal collective agreement. That is quite different from the relationship contemplated in subsection 43(23) of the Act. There a first contract application is treated at least as an equal with a termination application and will usually, if filed first, take priority over a termination application. Accordingly the line of cases referred to by union counsel is not germane to the relationship between a termination application and a ratification vote on a renewal collective agreement.

31. For all of these reasons I am not satisfied that the particulars which the union seeks to file under cover of its letters of June 16 and 29, 2000 have any material relevance to the issues at stake in these applications. Those issues are wholly concerned with events and incidents which occurred prior to or on January 7, 2000.

32. According the union is denied the opportunity of filing the particulars contained in its letters of June 16 and 29, 2000. Those particulars are struck from the pleadings.

The union will commence the presentation of its case on its allegations in its response to the termination application and in its unfair labour practice complaint.

“Christopher J. Albertyn”

for the Board