Reasons for decision
Randall Friesen et al.,
applicant,
and
Viterra Inc.,
employer,
and
Grain Services Union (ILWU - Canada),
Bargaining Agent.
CITED AS: Randall Friesen
Board File: 26908-C
Neutral Citation: 2009 CIRB 436
January 20, 2009
Application for revocation filed pursuant to section 38 of the Canada Labour Code, Part I.
Revocation of certification–Timeliness–Existence of a collective agreement–The applicant filed an application seeking an order revoking the certification of the union as bargaining agent–The union raised a preliminary objection that the application is untimely because a new collective agreement had been concluded prior to this application being filed–The preliminary issue raised by the union in this case required the Board to determine whether or not a new collective agreement had been concluded at the time the revocation application was filed–If a new agreement had been concluded at that time, the application is untimely–If the new agreement had not been concluded, the revocation application is timely–The union argued that the collective agreement was in effect as soon as the union’s membership ratified the company’s final offer–While the Board would agree that in many cases, the issuing of a final offer from an employer presupposes that the employer has already approved the contents of that offer, and it therefore would be subject only to ratification by the employees, that clearly was not the case here–For the Board to agree with the union’s position, it would have to ignore the emails sent to the union by employer representatives, which made it clear that its offer was subject to ratification by the Board of Directors–The fact that the employer’s spokesperson was making a point of telling the union that the contract was subject to ratification by the company’s Board of Directors is not consistent with the position that this ratification process was of no significance–The evidence suggested that the new agreement was not in operation, for the purposes of the Code, until it was ratified by both parties–The evidence indicated that while the union membership ratified the agreement, the agreement was not ratified by the company’s Board of Directors until after the date of the application for revocation–It follows from this that the new agreement was not in operation when the revocation application was filed and, therefore, the application is timely.
The Board, composed of Mr. Graham J. Clarke, Vice-Chairperson, and Messrs. Patrick Heinke and John Bowman, Members, considered the above-noted application.
Counsel of Record
Ms. Joyce A. Mitchell, for Mr. Randall Friesen et al.;
Ms. Ronni A. Nordal, for Grain Services Union (ILWU - Canada);
Mr. Craig W. Neuman, for Viterra Inc.
These reasons for decision were written by Mr. John Bowman, Member.
[1] Because the respondent union requested an oral hearing, it is necessary to point out that section 16.1 of the Canada Labour Code (Part I–Industrial Relations) (the Code) provides that the Board may decide any matter before it without holding an oral hearing. Furthermore, the Board is not required to notify the parties of its intention not to hold a hearing (see NAV CANADA, 2000 CIRB 468, affirmed in Nav Canada v. International Brotherhood of Electrical Workers, 2001 FCA 30). Having reviewed the materials provided by the parties, the Board is satisfied that the documentation before it is sufficient for it to decide this matter without an oral hearing.
I–Nature of the Application
[2] On June 13, 2008, Mr. Randall Friesen filed an application with the Board on behalf of certain employees under section 38 of the Code to revoke the certification of the Grain Services Union (ILWU-Canada) (the union) for a unit of employees described as:
All employees of the Agpro Grain Management Services Ltd. employed at or in connection with its Inland terminal grain elevators and farm supply facilities located at Killam, Lavoy, Trochu, Crossfield, Lethbridge, and Vulcan, Alberta, and Boissevain and Brandon, Manitoba, excluding Regional Managers, Administrative Assistant to Regional Managers, Terminal Operations Managers, and those above.
[3] The respondent union has raised a preliminary objection that the application is untimely. The union submits that the application is untimely because a new collective agreement had been concluded prior to this application being filed. The union has also raised other issues regarding the application; however, this decision will be confined to the timeliness issue only.
II–Facts
[4] The union has been certified to represent the above-noted bargaining unit since November 2000. The most recent round of collective bargaining between the parties commenced when the union provided the employer with notice to bargain on June 25, 2007. The collective agreement in operation at that time ran from of October 1, 2004, to September 30, 2007. Bargaining for a new collective agreement did not start until November 2007. The employer submitted that, at the time it tabled its proposals, it indicated that the collective agreement would be subject to ratification by its Board of Directors. The union denied this particular allegation. It is not necessary for the Board to resolve this evidentiary issue in order to reach a decision in this matter.
[5] After some further bargaining sessions, the employer presented the union with a final offer on May 27, 2008. The final offer included a new duration clause running from October 1, 2007, through to September 30, 2012. Article 27 of the proposed agreement contained the following paragraph:
The amendments to the Collective Agreement, subject to ratification, are effective on the first of the month following ratification unless otherwise set out in the Letter of Settlement.
[6] The union agreed to take the final offer to its membership for ratification. As the members of the unit work in a variety of different locations in two different provinces, the vote took place between June 2 and 13, 2008. On June 11, the employer’s chief spokesperson during collective bargaining, Mr. Dwayne Chomyn, sent an email to Mr. Hugh Wagner, the General Secretary of the union, asking about the union’s ratification process, and describing the ratification process of the employer. He described the latter process as follows:
Viterra’s ratification procedure is straight forward. Once approved by your membership, we will take [sic] agreement to our principals for ratification ASAP, notify you we have an agreement and sign off the collective agreement. I gather in the past it has taken a while to sign off. That is not my practice. I like to sign off while everything is fresh in everyone’s minds. I trust that won’t pose a problem for you and you will want to put the agreement to bed quickly as well.
[7] On June 13, 2008, Mr. Chomyn sent an email to the union’s chief spokesperson during AgPro bargaining, Mr. Dale Markling, which included the following paragraphs:
Dale, I look forward to hearing the results of the AB MB AgPro vote at your convenience. As you know, there are a couple of house keeping [sic] items that I forwarded to you. I did not hear back from you but suspect they are not a concern.
If the vote is successful I would like you to confirm that the corrections of the E’s and O’s are acceptable. If you have identified any other E’s or O’s please let me know.
As you know, this agreement is subject to ratification by Viterra’s Board. I would like to have consent before the document is placed before the Board for ratification. An agreement is not in place until fully ratified by both parties so I do not want to see any delays in implementation.
[8] On the afternoon of June 13, 2008, the union advised the employer that its members had ratified the final offer. The revocation application was filed with the Board on that same afternoon. Both parties issued press releases regarding the settlement of the collective agreement. The employer’s news release, dated June 16, 2008, indicated that the agreement was subject to ratification by its Board of Directors.
[9] Further to the email of Mr. Chomyn dated June 13, 2008, there were exchanges of emails between the parties to deal with errors and omissions (referred to as E’s and O’s in the email). Since the errors and omissions were not resolved prior to the employer’s June 17 Board of Directors meeting, the agreement did not go to them for ratification. The agreement was ratified at the July 4, 2008, meeting of Viterra’s Board. The Board authorized the employer to implement the terms of the new agreement as of July 1, 2008. During the exchange of emails between the parties following ratification by the union membership, the union raised the issue of why the ratification from the Board was required given that the document voted on by the employees was a final offer from the employer. The employer noted that past practice between the parties when the employer was Saskatchewan Wheat Pool was that the agreements required employer ratification, and that it had advised the union of this earlier in negotiations and via its emails of June 11, 2008, and subsequent.
III–Positions of the Parties
A–The Applicant
[10] The applicant submits that the application is timely, as the new collective agreement had not been ratified by the employer at the time the revocation application was filed on June 13, 2008. It further submits that the employer had clearly advised the union that the agreement was subject to ratification by its Board of Directors, and that this ratification did not occur until July 4, 2008. The applicant suggests that the Board should determine that the new agreement came into effect either on July 4, 2008, when the company’s Board ratified it, July 1, 2008, when the Board of Directors authorized the company to retroactively implement the agreement, or August 1, 2008, which is when the agreement came into effect according to article 27 of the contract. The applicant submits that the revocation is timely regardless of which one of the three dates is selected.
B–The Union
[11] The union submits that the application is untimely because the new collective agreement was in effect when the revocation application was filed with the Board. It takes this position on the basis that the agreement was in effect as soon as the union’s membership ratified the company’s final offer. The union further submits that there was no basis for the employer to ratify the agreement as this was the employer’s final offer rather than a negotiated memorandum of agreement. The union also submits that the employer’s ratification vote was a “mere formality” and that the contract had effectively been operative once the union membership ratified it.
C–The Employer
[12] While the employer took no formal position on the issue of the timeliness of the application, it did provide documentation of what occurred during collective bargaining between the parties.
IV–Analysis and Decision
[13] Under section 38 of the Code, a revocation application is timely if it corresponds to the periods set out for an application for certification in section 24. In the case of a collective agreement that had a three-year duration, which was the case here, the period when an application for revocation could be made started during the last three months of the agreement (namely, three months prior to September 30, 2007). In this case, the application was filed well after the last three months of the collective agreement, which is permitted under the Code as long as a new collective agreement has not been concluded by the parties. The “window” for purposes of filing a revocation application remains open following the expiry of the collective agreement as long as that agreement remains in effect through the operation of a continuation clause while the parties bargain a renewal agreement unless the parties acquire the right to strike or lockout. The “window” closes as soon as the parties conclude a new collective agreement, as this creates a new period for filing a revocation application under section 38(2) of the Code. Section 38(2) reads:
Time for application
38.(2) An application for an order pursuant to subsection (1) may be made in respect of a bargaining agent for a bargaining unit,
(a) where a collective agreement applicable to the bargaining unit is in force, only during a period in which an application for certification of a trade union is authorized to be made pursuant to section 24 unless the Board consents to the making of the application for the order at some other time; and
(b) where no collective agreement applicable to the bargaining unit is in force, at any time after a period of one year from the date of certification of the trade union.
[14] In the case of an agreement longer than three years in duration, which was the case with the new agreement here, a revocation application could not be filed until the commencement of the thirty-fourth month of the new agreement, further to section 24(2)(d) of the Code. Section 24(2)(d) reads:
24.(2)(d) where a collective agreement applicable to the unit is in force and is for a term of more than three years, only after the commencement of the thirty-fourth month of its operation and before the commencement of the thirty-seventh month of its operation and, thereafter, only
(i) during the three month period immediately preceding the end of each year that the collective agreement continues to operate after the third year of its operation, and
(ii) after the commencement of the last three months of its operation.
[15] The preliminary issue raised by the union in this case requires the Board to determine whether or not a new collective agreement had been concluded at the time the revocation application was filed on June 13, 2008. If a new agreement had been concluded at that time, the application is untimely. If the new agreement had not been concluded, the revocation application is timely.
[16] The union has raised issues regarding the appropriateness of the employer having its Board of Directors ratify its own final offer. It is noteworthy that a vote on an employer’s final offer ordered by the Minister of Labour under the terms of section 108.1 of the Code, is subject only to a successful ratification vote by the members of the bargaining unit, with no provision for employer ratification. The vote in question here, however, is not a vote under section 108.1.
[17] While we would agree that, in many cases, the issuing of a final offer from an employer presupposes that the employer has already approved the contents of that offer, and it therefore would be subject only to ratification by the employees, that clearly was not the case here. Although there is a dispute between the parties as to whether the employer advised the union in November 2007, that any agreement was subject to ratification by its Board of Directors, there can be no dispute that the employer advised the union of this in its email of June 11, 2008. That email was sent to the union during the period the union was conducting its ratification vote, and prior to the revocation application being filed with the Board.
[18] The Board has considered the issue raised in this case in the context of both certification and revocation applications. In Shaw Cablesystems G.P., 2003 CIRB 211, the Board was required to determine when a collective agreement came into operation in order to decide whether a revocation application was timely. The Board noted the difficulties that arise when making this determination in the following passage from that decision:
[19] It should again be emphasized here that the relevant dates upon which a determination of the open period for an application for revocation should be based are not necessarily the effective date of the collective agreement, the date on which it was signed, nor the date on which the agreement was stated to be made and entered into, as indicated on its face. ...
[19] The Board then made the following comment regarding the issue of ratification:
[21] This agreement contemplates that the newly concluded collective agreement terms are not to be immediately operative, but will be recommended for ratification to the employees in the bargaining unit and to the company itself. While the word “operative” is not used, in general the terms of the agreement are to become effective upon ratification by both parties unless otherwise stated. The date of ratification, therefore, assumes importance for the operation of the agreement. ...
[20] Both parties agree that the final offer put forward by the employer required some type of ratification before it would take effect. Article 27 of the proposed agreement, supra, clearly indicates that ratification is required before the agreement will take effect; however, the article does not spell out the details of any ratification process. The union submits that only its members were required to ratify the agreement before it took effect. For the Board to agree with this position, we would have to ignore the emails sent to the union by employer representatives, which made it clear that its offer was subject to ratification by the Board of Directors. We are unable to do so. These emails also do not support the union’s submission that the ratification by the Board of Directors was a “mere formality” and therefore something less than a genuine ratification. The fact that the employer’s spokesperson was making a point of telling the union on June 11, 2008, that the contract was subject to ratification by the company’s Board of Directors is not consistent with the position that this ratification process was of no significance.
[21] The evidence suggests that the new agreement was not in operation, for the purposes of the Code, until it was ratified by both parties. The evidence indicates that, while the union membership ratified the agreement on June 13, 2008, the agreement was not ratified by the company’s Board of Directors until July 4, 2008. It follows from this that the new agreement was not in operation on June 13, 2008, when the revocation application was filed and, therefore, the application is timely.
[22] In its submissions regarding the revocation application, the union has raised other issues besides timeliness. The union has asserted, without providing particulars to date, that the application has been tainted by employer interference. The union asked the Board to deal with the timeliness issue as a preliminary matter, and address the other issue only if required. In light of our decision that the application is timely, the union should determine whether or not it wishes to proceed with its other objection to the application. If the union wishes to proceed with its allegation of employer interference, we will ask the union to provide a submission setting out the particulars of the allegation. The other parties will have the opportunity to respond to the union’s submission. After the submission process is concluded, the Board will determine how best to proceed with this application.
[23] This is a unanimous decision of the Board and it is signed on its behalf by