[1980] OLRB January 56
1480-79-R United Electrical, Radio and Machine Workers of America (UE), Applicant, v. Milltronics Limited, Respondent, v. The Employees' Association of Milltronics Limited, Intervener.
BEFORE: R. 0. MacDowell, Vice-Chairman and Board Members F.W. Murray and B.K. Lee
DECISION OF THE BOARD; January 10, 1980
[1]. This is an application for certification.
[2]. The applicant, United Electrical, Radio and Machine Workers of America ("UE") seeks to displace The Employees' Association of Milltronics Limited ("the Association") as the bargaining agent for certain employees of Milltronics Limited. By a decision dated November 26th, 1979 the Board determined that the applicant was a trade union and had made a timely application for certification. The Board further determined the unit appropriate for collective bargaining and also that the applicant represented more than fifty-five per cent of the employees in that unit. In accordance with its usual practice, and pursuant to section 7(2) of The Labour Relations Act, the Board ordered a representation vote so that the employees in the unit could choose whether they wished to be represented by the UE or the Association in their collective bargaining relationship with the respondent. Because time is of the essence in certification applications — especially where, as here, one union was seeking to displace another — the Board considered it appropriate to issue its conclusions of fact and law and to set out our reasons therefore more fully at a later date. These reasons are set out hereunder.
[3]. On June 23rd, 1977 the Association applied for certification as the bargaining agent for all employees of the respondent company at its location in Peterborough. The "all employee" unit which the applicant sought included both plant and office employees. By a decision dated July 28th, 1977 the Board rejected the proposed bargaining unit and determined that the appropriate bargaining structure should consist of two separate bargaining units: one for office and clerical employees; and one for plant employees. A separate certificate was issued for each of these units.
[4]. In June of 1978 the company and the Association entered into a collective agreement. The recognition clause of that agreement provides as follows:
"RECOGNITION
2.1 The Company recognizes the Association as the exclusive representative for the purpose of collective bargaining for all employees of Milltronics at Peterborough, Ontario, save and except supervisors, persons above the rank of supervisors, office and clerical employees, salesmen, professional engineers and product specialists (hereinafter referred to as bargaining unit #1)
2.2 The Company further recognizes the Association as the exclusive representative for the purpose of collective bargaining for all office and clerical employees of Milltronics at Peterborough save and except supervisors, persons above the rank of supervisors, accounting staff, salesmen, professional engineers and product specialists (hereinafter referred to as bargaining unit #2)"
The language of the recognition clause is identical to that used by the Board in paragraphs 3 and 4 of its July 1977 decision. By adopting this language the parties preserved the separate identity of the two bargaining units. The language in the remainder of the collective agreement is consistent with this position.
[5]. In the present application the UB is seeking bargaining rights for the employees in the "plant unit." The UE argues that it is entitled to displace the Association in either bargaining unit especially where, as here, the parties have maintained the separate identity of the two units in their collective agreement. The UE also relies upon the earlier decision of the Board which found that the unit which it now seeks is appropriate. The Association and the employer both contend that the appropriate bargaining unit is a "composite unit" which includes both plant and office employees. It is argued that the UE must seek bargaining rights for (and establish its majority support in) this composite unit. It will be observed that this is the vent unit which the Association previously sought, and which the Board previously found, to be inappropriate.
[6]. On an application for certification the Board is required to determine the unit of employees which is appropriate for collective bargaining. Where one trade union is seeking to displace another, however, the established bargaining structure is prima facie appropriate particularly if it has been established by the parties themselves, through collective bargaining, and continued through the years over several collective agreements. Indeed, what better evidence of "appropriateness" could there be than a pre-existing bargaining structure which the parties have developed themselves and have adapted to their own bargaining circumstances. The Board has been reluctant to fragment an established bargaining structure or to "carve out" groups of employees from such structure. The Board will generally find the appropriate bargaining unit to be that which the incumbent presently represents; although, of course, in appropriate circumstances, a larger unit may also be appropriate and could be granted without raising any concern about fragmentation. Usually, however, a "raiding union" must "take" what the incumbent union has. Here the Board has certified two separate units and the parties have maintained their separate identity in their collective agreement. We are fully satisfied that the "plant unit" standing by itself, is a unit of employees appropriate for collective bargaining. This is not a case in which the Board has made a determination of appropriateness and the parties have afterwards, through a series of negotiations, created a new collective bargaining regime. If such were the case the Board might very well give such subsequent bargaining practice more weight than our original determination of appropriateness made on the initial application for certification. In the circumstances of this case, however, it is clear that the parties have carried forward, into their collective agreement, the two bargaining units which the Board previously found to be appropriate. We are satisfied, therefore, pursuant to section 6 of The Labour Relations Act, that the "plant" unit is a unit of employees appropriate for collective bargaining and that the UE is entitled to seek certification for the employees in that unit.
[7]. Having regard to the foregoing, the Board confirms its finding that the unit of employees appropriate for collective bargaining is as follows: all employees of the respondent at Peterborough, save and except supervisors, persons above the rank of supervisor, office and clerical employees, salesmen, professional engineers and product specialists.
[8]. For the purpose of clarity the Board notes the agreement of the parties that field service staff and accounting staff are excluded from this unit.
[9]. Thc. respondent and the intervener both contended that the application was untimely and that, despite the applicant's support among the employees in the bargaining unit, no representation vote could be ordered. The facts in support of this contention are not in dispute. The current collective agreement between the parties provides as follows:
"DURATION
3.1 This agreement shall become effective on the 1st day of June 1978 and remain in full force and effect until the 31st day of Dec. 1979 and thereafter from year to year, unless within (60) sixty days prior to the date of expiration in any year, either party gives notice in writing of desired changes in, or termination of, this Agreement. Every effort will be made to meet within (30) thirty days of the date on which this notice is received, for the purpose of commencing negotiations."
On or about October 2nd, 1979 the respondent purported to send to the Association a notice to bargain with a view to concluding a new collective agreement. On October 25th, 1979 the employer requested the appointment of a Conciliation Officer, pursuant to section 15 of The Labour Relations Act. On 1st November, 1979 (i.e., during the last two months of the nominal term of the collective agreement, commonly called the "open period") the UE made its application for certification. It will be observed that the purported notice to bargain was not given within the time limit specified in Article 3.1, although it would appear that both parties treated it as a valid notice to bargain and engaged in negotiations. In any event, the notice to bargain was given within the time specified by section 45 of the Act, and both parties treated December 31, 1979 as the expiry date of the collective agreement. The respondent and the intervener contend that the application for certification is untimely by reason of section 53(2) of the Act. The statutory provisions relative to our determination are as follows:
"5(4) Where a collective agreement is for a term of not more than three years, a trade union may, subject to section 53, apply to the Board for certification as bargaining agent of any of the employees in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.
53(2) Where notice has been given under section 45 and the Minister has appointed a conciliation officer or a mediator, no application for certification of a bargaining agent of any of the employees in the bargaining units as defined in the collective agreement and no application for a declaration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit as defined in the agreement shall be made after the date when the agreement ceased to operate or the date when the Minister appointed a conciliation officer or a mediator, whichever is later, unless following the appointment of a conciliation officer or a mediator, if no collective agreement has been made,
(a) at least twelve months have elapsed from the date of the appointment of the conciliation officer or a mediator; or
(b) a conciliation board or a mediator has been appointed and thirty days have elapsed after the report of the conciliation board or the mediator has been released by the Minister to the parties; or
(c) thirty days have elapsed after the Minister has informed the parties that he does not consider it desirable to appoint a conciliation board,
whichever is later.
44(1;~ If a collective agreement does not provide for its term of operation or provides for its operation for an unspecified term or for a term of less than one year, it shall be deemed to provide for its operation for a term of one year from the date that it commenced to operate.
(2) Notwithstanding subsection 1, the parties may, in a collective agreement or otherwise and before or after the collective agreement has ceased to operate, agree to continue the operation of the collective agreement or any of its provisions for a period of less than one year while they are bargaining for its renewal with or without modifications or for a new agreement, but such continued operation does not bar an application for certification or for a declaration that the trade union no longer represents the employees in the bargaining unit and the continuation of the collective agreement may be terminated by either party upon thirty days notice to the other party.
(3) A collective agreement shall not be terminated by the parties before it ceases to operate in accordance with its provisions or this Act without the consent of the Board on the joint application of the parties.
(4) Notwithstanding anything in this section, where an employer joins an employer's organization that is a party to a collective agreement with a trade union or council of trade unions and he agrees with the trade union or council of trade unions to be bound by the collective agreement: between the trade union or council of trade unions and the employers' organization, the agreement ceases to be binding upon the employer and the trade union or council of trade unions at the same time as the agreement between the employers' organization and the trade union or council of trade unions ceases to be binding."
[10]. The Labour Relations Act provides for collective bargaining between employers and trade unions as the freely designated representatives of the employees. Ultimately, the trade union's position as bargaining agent rests upon the support of the majority of the employees in the bargaining unit. The most common way in which a trade union can demonstrate that it represents the majority of employees is by an application for certification. Similarly, if a trade union loses the support of a majority of the employees its bargaining rights can be terminated upon application to the Labour Relations Board under section 49 of the Act.
[11]. Where there is no existing collective bargaining relationship a trade union may apply for certification at any time; however, where there is an established bargaining relationship the Legislature has recognized the need to balance the right of employees to be represented by a bargaining agent of their own choice and the right of employers and incumbent trade unions to a reasonable degree of stability. Accordingly, the Act provides certain restrictions upon when employees can terminate their union's bargaining rights, or replace their existing union with another one. The time limit relevant to this case is established by section 5(4) of the Act (see above) and is calculated with reference to the term of the collective agreement. An application to displace the Association can only be made after the commencement of the last two months of the agreements' operation. As we have already mentioned, this period of time is commonly referred to as the "open period" and denotes the time during which certification applications can be made by competing trade unions.
[12]. Because the timeliness of certification and termination applications is calculated with reference to the open period of the collective agreement, that agreement must have a specified term. There must be a fixed, and readily ascertainable, termination date so that dissatisfied employees will know when a certification or termination application can be made, and a "raiding union" will know when to commence its organizing campaign. The requirement for a specified term of operation is provided in section 44(1) of the Act, and the Board has generally held that since the rights of employees and third party unions may be affected, the term of operation must be clear and explicit on the face of the document constituting the collective agreement. Indeed, it is because of these third party interests that section 44(3) of the Act prohibits the primary contracting parties from terminating their agreement before it ceases to operate in accordance with its terms, without the express consent of the Labour Relations Board. This statutory provision preventing the parties from altering the term of their agreement would appear curious if one were unaware that important third party interests and statutory rights are directly related to, or contingent upon, the duration of the agreement.
[13]. Section 53(2) adds another qualification to the right of employees to repudiate, or change, their bargaining agent. The appointment of a Conciliation Officer may, in some circumstances, preclude, or delay, an application for certification or termination. However, the appointment of a Conciliation Officer cannot prevent such application during the "open period." The language used by the Legislature is not a model of clarity, but can easily be expressed metaphorically: the door opens with the beginning of the open period and remains open until either a new collective agreement is concluded or a Conciliation Officer is appointed — but neither a collective agreement nor the appointment of a Conciliation Officer can close the door before the expiry of the open period. The employees are given two clear months in which to reject their existing bargaining agent and neither their employer nor their bargaining agent can abridge that opportunity. The open period may remain "open" longer than two months if no Conciliation Officer is appointed or if no collective agreement is concluded; however, the employees are guaranteed at least two months to make their applications to the Board, should they wish to do so. If the section were interpreted otherwise, it would be possible for the incumbent union and the employer to unilaterally restrict the employees' right to be represented by a bargaining agent of their own choosing. The facts presently before us provide a case in point. Here, the Conciliation Officer was appointed prior to the beginning of the open period and, if the respondent's argument is to be accepted, this appointment postpones the employee's right to change bargaining agents for at least a year and, further, if a collective agreement is concluded, it will be postponed altogether until the open period of that collective agreement. If the argument of the respondent and intervener is accepted it would be possible to postpone indefinitely the employees' right to change bargaining agents. In our view this contention is not only unsupportable on the language of the statute, but also unreasonable, and inconsistent with the scheme of the Act and the evident intention of the Legislature. Accordingly, having regard to 5(4) and section 53(2) of The Labour Relations Act, and the fact that this application was made during the "open period" of the collective agreement between the respondent and the intervener, we are satisfied that the application is timely.
[14]. In accordance with the decision of the Board dated November 26th, 1979, a vote was taken on December 17th, 1979, in which the employees in the bargaining unit were asked to choose whether they wished the UF or the Association to represent them. The representation vote was supervised by an officer of the Labour Relations Board and interested parties were entitled to have scrutineers present. On the basis of the ballots cast, the majority of those employees voting indicated that they wished to be represented by the UE. Notice of the report of the Returning Officer, in Form 43, was served upon the parties; but no objection to the vote has been filed, nor has there been any indication of a desire to make representations. The Board therefore certifies the United Electrical, Radio and Machine Workers of America (UE) to be the bargaining agent for the employees of the respondent in the above described bargaining unit. Pursuant to section 48 of The Labour Relations Act, the bargaining rights of The Employees' Association of Milltronics Limited are terminated in so far as the" affect those employees.
[15]. A certificate in the usual form will issue to the applicant.