[1980] OLRB Rep. August 1193
0779-80-R Joyce Stinsman, Applicant, v. Canadian Food and Allied Workers Local Union 175, Chartered by The Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO-CLC, representing the part-time employees of Dunnville Supermarkets Limited, Respondent, v. Dunnville Supermarket Limited, Intervener.
BEFORE: E. Norris Davis, Vice-Chairman, and Board Members E.J. Brady and M.A. Ross.
APPEARANCES: Hugh M. Slimon for the applicant; Harold F. Caley and Joe O'Donnell for the respondent; Peter Berti for the intervener.
DECISION OF THE BOARD; August 27, 1980
This is an application under section 49 of the Act for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is bargaining agent.
Counsel for the respondent argues that the instant application, which was filed with the Board on July 11, 1980, follows a similar application orally dismissed by the Board on June 27, 1980 and which dismissal was reduced to writing by Board decision of July 9, 1980, and that the Board should decline to entertain this application following the principle enunciated in Trinidad Leaseholds (Canada) Ltd. 52 CLLC ¶ 17,005 as extended in a number of subsequent Board decisions.
On May 30, 1980 an application was filed under section 49 of the Act by Linda Robinson (Board File No. 0486-80-R) in respect to all employees represented by the respondent union. At the hearing on June 27, 1980, it appeared that the respondent represented two separate bargaining units comprised, in one case of full-time employees, and in the other case of part-time employees. The application was amended to request declarations in respect to each such unit. The Board then proceeded to hear evidence respecting the origination and circulation of a counter-petition affecting the part-time unit. The Board concluded that the counter-petition was established as signifying the voluntary wishes of its signatories and that the overlap of signatories between the counter-petition and petition was such as to reduce the employee support of the applicant below forty-five per cent of the employees in the part-time bargaining unit. The Board thereupon orally dismissed the application insofar as it related to the part-time bargaining unit.
The respondent made an application for conciliation services on June 3Oth'and a Conciliation Officer was appointed July 7th, and a short meeting held on July 29th.
The applicant argues that the previous application which was dismissed on June 27, 1980 was made by Linda Robinson who is not a member of the part-time unit but who was and is a full-time employee, and that therefore it could be concluded that the previous application in respect to the part-time bargaining unit had not been then properly before the Board and consequently, the instant application is the first application affecting the part-time unit. It is not within the authority of this panel of the Board to review a decision of another panel of the Board. We entertain the applicant's argument only to the extent that it seeks to establish that there are here two discrete applications because the applications have been launched by two separate individuals.
Section 49(2) of the Act provides:
"Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 53, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit, . .
The Board, in the past, has gone beyond the designation of the applicant in the style of cause in determining who are the true applicants in a section 49 application. While each case must turn on its own individual facts, the thrust of the Board decisions is that we must look through the form to the substance and conclude that the application is properly brought where the Board is satisfied that it is brought by the employees of the affected bargaining unit. The matter was most recently dealt with by the Board in St. Michael's Shops of Canada Limited, [1979] OLRB Rep. Oct. 1023. In that case, application was made under section 49(2) of the Act in respect to two bargaining units covered by a collective agreement. The individuals named in the style of cause were both members of the same bargaining unit and it was argued that because of the absence in the style of cause of a named employee member of the other bargaining unit, that the application should not be entertained in respect to that unit. The Board in rejecting the argument stated:
"9. The Board has taken a far less technical approach, however, in two other cases: R. Forget and a Group of Employees and Retail Clerks Union, Local 486 and Dominion Stores Limited, Board File No. 18379-70-R, which is referred to in paragraph 6 of Dyker v. Retail Clerks, supra; and Selinger Wood Ltd., [1979] OLRB Rep. May 434. In the former decision (Forget), the application's style of cause showed the applicant as 'R. Forget and a Group of Employees'. Forget was an Employee in the Employer's full-time unit and the unit affected by the application was a unit of the employer's part-time employees. The Board took note of that circumstance and stated 'In our opinion, whatever may be said of Forget's status as an applicant, the employees who identify themselves as such on the statement accompanying the formal application are prima facie entitled to bring the application. . . .' In Selinger the Board was confronted with the situation where the employee named as the applicant in the style of cause of the application advised the Board at the hearing that he was withdrawing the application. The Board proceeded to hear and determine the application when two employees who were signatories to the document and present at the hearing made it known that they wished the Board to proceed with the application. While the facts in both of these decisions are different from the application at hand, the Board in each case was faced with a problem relating to the identification of the applicant in the style of cause of the application. In each case the Board went beyond the form of the application to examine its substance. In so doing it was not ignoring the statutory provisions governing the making of such applications, but rather was determining on the facts before it who were the true applicants and whether they were the proper ones within the statutory provisions.
The Board went on to find,
"10 Thus the application when taken together with the statement, and having regard to the heading note on the petition, establishes that the employees of both bargaining units defined in the collective agreement. . . are applying for a declaration that the respondent no longer represents them..
We, therefore, conclude that in the instant case the true applicants are the part-time employees in the bargaining unit represented by the respondent. We also conclude that the true applicants in the application dismissed on June 27, 1980 were likewise the same part-time employees, and that the representation issue is thus being raised by the same parties for the second time by the current application.
The Board's practice in entertaining successive applications raising the issue of representation in respect to the same bargaining unit is dependent on the total circumstances in which the matter is raised. In situations such as exist in the instant case, of there being an existing collective bargaining relationship the Board is faced with the task of balancing the employees' right to test the respondent union's support and the equally desirable objective of maintaining continuity and stability in the collective bargaining relationship. The Board's jurisprudence in this latter situation starting with the Trinidad Leaseholds case, supra. is well reviewed in the case of Seven-up (Ontario) Limited,[1971]OLRB Rep. Dec. 791 and summed up at paragraph 16 by the following statement.
"The Trinidad Leaseholds case and subsequent decisions based on its principles stand for the proposition that when a second application for certification or termination is made upon the heels of a prior application involving the same parties, in determining whether it should refuse to entertain the second application, the Board must balance the right to test an incumbent trade union's strength among the employees it represents at an appropriate time against the maintaining of continuity and stability in an existing collective bargaining relationship. Stated another way, once a representation issue has been dealt with on its merits and in the absence of special circumstances, then an incumbent trade union ought to be afforded a reasonable opportunity to demonstrate, without undue impediment, its ability to bargain with that employer for a collective agreement on behalf of those employees it represents."
In the instant case, there are no special circumstances to be considered by the Board in its weighing of the right of employees to again raise the representation issue against the desirability of securing stability and continuity in collective bargaining. The employees did raise the representation issue in the earlier application and the matter was dismissed on the merits. The respondent union should now be afforded a reasonable opportunity to pursue its collective bargaining objectives.
The Board is of the opinion that in the exercise of its discretion under section 92(2)(i) of the Act, it should refuse to entertain the instant application.
The application is dismissed.