Upsala Forest Products Limited v. Industrial Wood & Allied Workers of Canada, Local 2693, 2000 CanLII 6939

Ontario Labour Relations Board

File No.: 0503-00-M Applicant: Upsala Forest Products Limited Responding Party: Industrial Wood & Allied Workers of Canada, Local 2693

Before: Patrick Kelly, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.

Decision of the Board: June 30, 2000

Decision

1. This is a reference from the Minister of Labour under section 115(1) of the Labour Relations Act, 1995, S.O. 1995, c.1 ('the Act') Section 115(1) provides as follows:

115. (1) The Minister may refer to the Board any question which in his or her opinion relates to the exercise of his or her powers under this Act and the Board shall report its decision on the question.

2. On March 15, 2000, Labour Management Services (“LMS”) of the Ministry of Labour received from the employer, Upsala Forest Products Limited, (“the employer”) a request for the appointment of a conciliation officer pursuant to section 18 of the Act. By letters dated March 30 and April 3, 2000, the trade union, Industrial Wood & Allied Workers of Canada, Local 2693 (“the union”) objected to the appointment of a conciliation officer.

3. Following the receipt by LMS of submissions from the employer dated April 19, 2000, and from the union dated May 4, 2000 concerning the appointment of a conciliation officer, the matter was referred by the Minister of Labour to the Board on May 15, 2000. The issue to be decided is whether the Minister of Labour has the authority to make the requested appointment of a conciliation officer in the circumstances of this case.

4. A number of the underlying facts in this case are disputed. The parties disagree, for example, concerning the circumstances that gave rise to their decision to enter into a collective bargaining relationship. It is not entirely clear, but it appears that such relationship began in 1996, and continued to manifest itself, albeit sporadically, in 1997 and 1998. The parties never ratified a collective agreement, which is why this matter is before the Board.

5. In its submissions of April 3, 2000 to LMS, the union took the position that there no longer was any reason to reach a collective agreement with the employer because, according to the union, the premise upon which the collective bargaining relationship arose – i.e. that the employer would engage in sawmill operations - was no longer the case. According to the union, the employer was simply carrying on a wood handling and chipper operation as a contractor on the timber limits and work sites of an entity called Bowater Limited (“Bowater”), with whom the union already had a collective agreement (“the Bowater agreement”). The union claimed that the provisions of the Bowater agreement were such as to bind contractors, like the employer, to its terms. For those reasons, the union opposed the appointment of a conciliation officer.

6. In its second set of submissions of May 4, 2000 to LMS, the union further amplified its reasons for its resistance to the appointment of a conciliation officer. The union outlined in greater detail its version of the relationship with the employer, as well as its interpretation of the Bowater agreement. Then, towards the end of those submissions the union raised a new issue, stating at page 5:

If necessary, and in any event, IWA Local 2693 hereby serves notice of abandonment of bargaining rights with respect to employees of Upsala Forest Products Limited.

7. In anticipation of the hearing in this matter, scheduled for July 4, 2000, the union repeated its claim to have abandoned its bargaining rights, in correspondence dated June 20, 2000. It requested that the Board dismiss the submissions of the employer without a hearing, pursuant to its authority to do so under Rule 46 of the Board’s Rules of Procedure, which states:

46. Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.

In support of its position, the union relies upon the decision of the Board in Aloia Bros. Concrete Contractors Inc. [1999] O.L.R.B. Rep. Mar/Apr 127.

8. The employer, not surprisingly, took an entirely different view of the facts alleged, and the interpretation of the Bowater agreement advanced by the union. As we make no findings of fact concerning allegations in respect of the relationship between the parties or the operation of the Bowater agreement, it is unnecessary to outline the specifics of the employer’s submissions, other than to observe that they paint a picture of a trade union seemingly reluctant to complete a collective agreement, and largely absent from the employer’s work site. More importantly for the purposes of this decision, nowhere in the employer’s submissions is there any response to the union’s claim that it has abandoned its bargaining rights, or any comment as to what effect on this matter an abandonment of bargaining rights might have.

9. It appears pointless to conduct a hearing as to whether the Minister of Labour has authority to appoint a conciliation officer in order to attempt to effect a collective agreement between the parties, if, in fact the trade union has abandoned its bargaining rights. As the Board in the Aloia Bros. case indicated, abandonment is a question of fact The employer, therefore, is directed to file submissions with respect to the union’s position regarding abandonment of its bargaining rights. Those submissions are to be provided to the Board and the other parties within 14 calendar days of this decision.

10. The remaining problem is that the employer’s employees do not have notice of this proceeding, and presumably do not have notice that their bargaining agent no longer wishes to represent them. Accordingly, the employer is directed to post this decision in the workplace at a location or locations where it is likely to come to the attention of the employer’s employees represented by the union.

11. Any of the employer’s employees represented by the union who wish to make representations to the Board with respect to the issue of the union’s claim to have abandoned its representation rights in this matter must file a detailed statement of representations with the Board and deliver it to the other parties, so that it is received by the Board within 14 calendar days of the date of this decision.

12. Upon receipt of any employee representations and employer submissions, the Board shall determine whether further submissions of the parties should be filed, or, in the alternative, whether a hearing in this matter is required or, in the absence of a hearing, whether the matter can be decided on the materials filed before it.

13. The hearing scheduled for July 4, 2000 is hereby cancelled.

14. I am seized to deal with the employer’s submissions and any employee representations filed with the Board.

“Patrick Kelly”

for the Board