Ontario Labour Relations Board
[1980] OLRB Rep. February 182
1856-79-R J. Wackett and a Group of Employees, Applicant, v. Christian Labour Association of Canada, Respondent.
BEFORE: E. Norris Davis, Vice-Chairman, and Board Members A. Hershkovitz and F. W. Murray.
APPEARANCES: Jean Wackett and Edward Werner for the applicant; Fred Heerema and Hank Beckhuis for the respondent.
DECISION OF THE BOARD; February 8, 1980
1The name: "The Christian Labour Association of Canada" appearing in the style of cause of this application as the name of the respondent is amended to read: "Christian Labour Association of Canada".
2This is an application made under section 52 of The Labour Relations Act seeking a declaration that the respondent trade union was not, at the time of entering into a voluntary recognition agreement with the Tufford Rest Home, entitled to represent the employees in the bargaining unit.
3The respondent union raised a preliminary objection that the description of the applicant in the style of cause as "non-union members of the Tufford Rest Home" did not indicate the application as being brought by "an employee in the bargaining unit". The Board is satisfied, having regard to all the circumstances, that the application is brought by J. Wackett and a group of employees in the bargaining unit, and the style of cause is hereby amended by substituting the name of the applicant to read: "J. Wackett and a Group of Employees".
4The respondent union noted that no one appeared for the employer nor had the employer filed lists of employees for the relevant date, i.e., the date on which the voluntary recognition agreement was executed. The respondent union noted section 52(3) which reads:
"On an application under subsection 1, the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement."
and argued that the employer's failure to file lists of employees was a breach of his obligation under the Act and made it impossible for the respondent union to discharge the onus on it as a party to the agreement. The Board is of the opinion that the onus of establishing that the trade union was entitled to represent the employees at the relevant time falls on either or both of the parties to the voluntary recognition agreement and that such evidence must be adduced at the hearing. As was said in the National Plastering Company Limited case, [1967] OLRB Rep. Dec. 876 at 877:
“... In order to satisfy the onus set forth in section 45a(3) [now section 52(3)], the parties to the agreement must establish that the trade union was entitled to represent a simple majority of the employees in the bargaining unit at the time the agreement was entered into."
5It was testified by Mr. Heerema that at the time of the signing of the collective agreement on April 26, 1979, there were twenty employees in the bargaining unit and that eleven of these employees were persons who had signed applications for membership in the union. These applications, together with countersigned receipts, were filed with the Board. It was also testified on cross-examination that five written resignations from membership were received by the union prior to the date on which the voluntary recognition agreement was executed. Additionally, Mrs. Debbie Smeets testified that she sent, by registered mail on March 14, 1979, a letter to the union (copy of which was filed with the Board) stating that she wished to resign as a member of the union. Mrs. Smeets also testified that she saw similar letters written by four other employees and that all were mailed to the union by registered mail on March 14, 1979.
6Accepting the evidence, which was not rebutted, that on April 26, 1979, at the time of signing the voluntary recognition agreement, there were twenty employees in the bargaining unit, the evidence establishes that at that time the respondent was not entitled to represent more than six of these employees which is less than a simple majority.
7The Board therefore declares that the respondent union was not, at the time the voluntary recognition agreement was entered into, entitled to represent the employees of the Tufford Rest Home in the bargaining unit defined in that agreement, and accordingly, the said voluntary recognition agreement ceases to operate pursuant to the provisions of section 52(4) of the Act.