Sysco Foodservice of Ontario and Christian Labour Association of Canada v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada)
Parties
3846-00-M Sysco Foodservice of Ontario and Christian Labour Association of Canada, Applicants v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Intervenor.
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: S.C. Bernardo, Pan Beard and Linda Gordon for Sysco Foodservice of Ontario; Elizabeth Forster and Ed Pypker for Christian Labour Association of Canada; Tim Gleason, Doug Hamond and John Aman for the intervenor.
DECISION OF THE BOARD; June 11, 2001
Decision
1This is a joint application for an early termination of a collective agreement filed pursuant to section 58(3) of the Labour Relations Act, 1995 (the "Act"). The application was made pursuant to a provision in the collective agreement between the Christian Labour Association of Canada (referred to as "CLAC") and Strano Sysco Foodservice Limited (now the applicant and referred to as the "company"). That provision stated that if the parties were unable to agree to a wage rate for the period from March 15, 2001 to March 15, 2002 they would apply for early termination of the collective agreement in order to access the conciliation and mediation facilities of the Ministry of Labour. The term of the collective agreement was from December 22, 1999 to March 15, 2002.
2There was no dispute between the parties as to whether the request for early termination should be granted. There was a dispute as to whether the National Automobile, Aerospace, Transportation and General Workers of Canada (CAW-Canada) (referred to as the "CAW") should be permitted to intervene. If it was not permitted to intervene there would be no objection to the application before the Board. The applicants took the position that in those circumstances the Board should grant the early termination without an open period. Thus, what was ultimately at stake was whether there would be an open period prior to the early termination of the agreement during which the CAW could potentially apply to represent the employees of the company.
3The application was filed with the Board on March 28, 2001. The Board set a terminal date of April 12 and the company posted the Board's Notice to Employees. The CAW sent a letter to the Board on April 5, 2001 indicating that it wished to intervene in the proceeding; that it wished to represent the company's employees and that there should be a three month open period prior to the termination of the agreement. It asked the Board to provide it with a copy of the application. The CAW did not serve a copy of this document on the applicants. The Board (differently constituted) did not provide the CAW with a copy of the application but it did issue a decision in which it outlined the CAW's objection and directed the applicants to make submissions on its request to intervene. All of the parties responded. The CAW filed its response with the Board on April 9 and served it on the other parties on April 11. In those submissions it indicated that it had not yet received a copy of the application. It also advised that it had members who were employees of the company and were affected by the application. It indicated that it sought to intervene on their behalf.
4The applicants argued that the CAW should not be permitted to intervene in this application because its intervention was not properly served. CLAC claimed that the result of not permitting the intervention should be to grant the early termination without an open period. The Board considered the submissions of the parties and issued an oral decision. In that decision it noted that the CAW had not strictly complied with the Rules. However, the applicants did have the necessary information by the terminal date i.e. that the CAW objected to the granting of an early termination of the collective agreement without an open period and that it claimed to represent employees of the company. The Board held that given the fundamental importance of the open period under the Act and the potential that there may not be an open period for a further three years if the parties were to so agree in the new collective agreement, the CAW would be permitted to intervene.
5There was also a dispute between the parties as to whether the CAW had to actually prove that it represented employees of the company. The CAW called evidence that it had been involved in an organizing campaign since February 2001. Its organizer testified that, prior to the application date, the CAW had obtained representational authority from employees of the company. It did not provide the Board with actual cards. CLAC took no position with respect to this issue. The company argued that the evidence provided was insufficient to demonstrate that the CAW actually represented employees, or sufficient employees, in the bargaining unit. The CAW argued that it need not demonstrate that it represented any employees but that, in any case, it had done so.
6The Board issued an oral ruling with respect to this issue as well. The CAW had presented evidence satisfactory to the Board with respect to its representation of affected employees so it was unnecessary to decide whether that has been necessary. The Board held further that if it was necessary for the CAW to show it actually represented employees, it need only show that it represented one employee. The Board therefore ruled that it was unnecessary for the CAW to disclose how many cards had been collected. The Board held that the testimony of the CAW's organizer was enough to demonstrate that the CAW had a sufficient interest in this matter to object to the granting of an early termination without an open period.
7In making the oral rulings described above the Board was informed by the scheme of the Act which requires that an open period occur on a regular basis so that employees have a fixed and knowable opportunity to exercise their right to change their bargaining agent or to choose not to be represented by a trade union. Section 58(3) is actually a prohibition against parties terminating their collective agreement prior to the date upon which it ceases to operate. The section permits an exception to that prohibition if the Board grants consent. The prohibition is underlined in section 58(5) which permits parties to change any provision in a collective agreement except for its term. The Board understands that consenting to a request under section 58(3) can defeat the rights of employees to change their bargaining agent or to dispense with a bargaining agent altogether. The Board therefore requires that notice of such applications be posted so that any interested person or party may object. If such an objection is received, the Board will require that there be, at minimum, an open period to preserve those rights. Granting permission for the early termination of a collective agreement without an open period is a discretion that the Board only exercises when there is no evidence that anyone's statutory rights will be affected. The Board does not require a strong case that a rival trade union or a decertification campaign will be successful. In this case the Board was satisfied that the CAW had a real interest in this matter and that its right to apply to represent the employees of the company, and the employees' right to change their bargaining representative, could be defeated if no open period was imposed.
8The Board therefore held that there will be open period of three months. The collective agreement between CLAC and the company will cease to operate on September 5, 2001.
9The company is directed to post copies of this decision in places where it is likely to come to the attention of affected employees. The copies of the decision are to remain posted for 30 days.
"Laura Trachuk"
for the Board