Ontario Labour Relations Board
[1980] OLRB Rep. March 316
1860-79-R Teamsters, Chemical, Energy and Allied Workers, Local Union No. 1552, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Emery Industries Limited, Respondent v. United Rubber, Cork, Linoleum and Plastic Workers of America and its Local 446, Intervener.
BEFORE: R. O. MacDowell, Vice-Chairman and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Harold F. Caley and James Phelan for the applicant; H. P. Rolph, L. Collins and S. Krashinsky for the intervener; no one appearing for the respondent.
DECISION OF THE BOARD; March 19, 1980
This is an application for certification. The applicant, Local 1552 of the Teamsters Union, seeks to displace the intervener, Local 442 of the Rubber Workers Union, as the bargaining agent for some seventy-six employees of Emery Industries Limited, employed at the respondent company's Etobicoke location. For ease of reference we shall refer to the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the "International Teamsters"; and the International Chemical Workers Union (not a party herein) as the "ICWU."
On January 2nd, 1980 Local 1552 of the Teamsters union applied for certification, and requested the taking of a "pre-hearing" representation vote. The respondent employer takes no position with respect to any of the matters raised in this certification application. The application for certification is opposed, therefore, only by the intervener. The intervener acknowledges that the certification application is timely, but contends that the applicant is not a "trade union" within the meaning of section 1(1)(n) of The Labour Relations Act; and that the Board had no jurisdiction to order a "pre-hearing representation vote" prior to an affirmative finding of trade union status. The intervener argues that, even if the Board is satisfied that the applicant was a trade union on the application date, there must still be another representation vote to test the wishes of the employees. The applicant argues that it is a trade union within the meaning of the Act, and that the intervener's alternative contention would nullify the whole purpose of the pre-hearing vote procedure, and would require the taking of a wholly unnecessary second representation vote. The applicant seeks a decision from the Board that the ballots be counted so that the employees' wishes can be ascertained.
The pre-hearing vote procedure is prescribed by section 8 of The Labour Relations Act as follows:
"(1) Upon an application for certification. the trade union may request that a pre-hearing representation vote be taken.
(2) Upon such a request being made, the Board may determine a voting constituency and, if it appears to the Board on an examination of the records of the trade union and the records of the employer that not less than 35 per cent of the employees in the voting constituency were members of the trade union at the time the application was made, the Board may direct that a representation vote be taken among the employees in the voting constituency.
(3) The Board may direct that the ballot box containing the ballots cast in a representation vote taken under subsection 2 shall be sealed and that the ballots shall not be counted until the parties have been given full opportunity to present their evidence and make their submissions.
(4) After a representation vote has been taken under subsection 2, the Board shall determine the unit of employees that is appropriate for collective bargaining and, if it is satisfied that not less than 35 per cent of the employees in such bargaining unit were members of the trade union at the time the application was made, the representation vote taken under subsection 2 has the same effect as a representation vote taken under subsection 2 of section 7."
It is axiomatic that in labour relations matters "time is of the essence"; but this is especially the case in respect of representation votes. If the trade union's certification application, and its status as bargaining agent, are not resolved expeditiously (i.e., if it cannot engage in collective bargaining, or perform the other representational functions for which it was selected) there may be discontent among its supporters and a possible erosion of that support. This might not only make the union's certification more difficult, but could also complicate its collective bargaining task. The purpose of the pre-hearing, or "quick vote" procedure is to facilitate a prompt resolution of representation questions, by permitting the Board to test employee wishes as soon as possible following the application date. This avoids the potential prejudice which might arise if a representation vote had to await a decision following a formal certification hearing. Some delay is inevitable, but the pre-hearing vote procedure is a legislative attempt to remove some of the problems, and prejudice, associated with delay while, at the same time, ensuring that all of the parties will be given a full opportunity to make their submissions with respect to any matters in dispute.
The procedure prescribed by section 8 differs in some significant ways from the "ordinary" certification process. Upon an application for certification in which the trade union requests a pre-hearing representation vote, the Board need only determine a "voting constituency" — not a "unit of employees appropriate for collective bargaining" as it would under section 6(1) of the Act. Often the voting constituency and the bargaining unit ultimately determined will be the same; but this is not always the case, and it is for this reason that the Board is empowered to seal the ballot box pending a formal hearing. If the parties differ on the "shape" or description of the unit, the Board will direct that the ballots of some, or all, of the voters be segregated, and not counted, pending a resolution of this issue. Similarly, if it is contended that certain individuals are not entitled to vote, their ballots are segregated until their entitlement can be determined. Here, of course, there is no dispute with respect to the bargaining unit. If successful, the applicant union will obtain bargaining rights for the bargaining unit formerly represented by the intervener.
On a pre-hearing vote application the Board does not make an initial determination of membership support as it would under section 7 of the Act. Under section 7, a representation vote cannot be ordered unless the Board is satisfied that not less than forty-five per cent of the employees in the bargaining unit, are "members" of the trade union. Under section 8, however, the Board may order a representation vote if it appears, on an examination of the records of the trade union and the employer, that not less than thirty-five per cent of the employees in the voting constituency were members of the trade union at the time the application was made. The "pre-hearing" vote procedure involves a lower threshold percentage, and an initial onus on the union to establish only an "appearance" of support. Section 8(4) of the Act provides that a final determination, with respect to the bargaining unit and the trade union's actual membership support, can take place after the representation vote has been taken. If the Board is satisfied that the trade union has the requisite employee support (not just the appearance of support) then the representation vote has the same effect as if it had been taken under section 7(2) of the Act. Again, it must be emphasized that if any contentious issue arises, section 8(3) empowers the Board to seal the ballot box until an objecting party has had a full opportunity to present evidence and make submissions at a formal hearing.
The application in the present case was filed on January 2nd, 1980 and, in support of the application, the applicant union filed membership evidence on behalf of some fifty-nine (i.e., approximately 75%) of the seventy-six employees in the bargaining unit. This documentary evidence was correct in all respects. It satisfies section 1(1)(j) and 92(2)(j) of the Act (as well as Rule 48 of the Rules) and was supported by a properly completed Form 8 Statutory Declaration. If this were an "ordinary" certification application, it would demonstrate a level of membership support well in excess of that required for certification without recourse to a representation vote. However, the practice of the Board in certification applications in which one union is seeking to displace another, is to exercise its discretion, under section 7(2) of the Act, to order a representation vote, notwithstanding an apparent level of support of more than fifty-five per cent. No doubt it was the applicant's awareness of this practice which prompted it to opt for the pre-hearing vote procedure. It was likely that a vote would be ordered in any event and the applicant knew that a pre-hearing vote procedure would be faster.
On January 17th, 1980 the Board issued a decision ordering the taking of a representation vote, having found the requisite "appearance" of support among thirty-five per cent of the employees in the voting constituency. With respect to the question of the applicant's trade union status, the Board (differently constituted) made the following observation:
"7. The status of the applicant as a trade union within the meaning of section 1(1)(n) of the Act has not been established in any prior proceeding before the Board. The intervener objects to the status of the applicant and submits that the Board is without jurisdiction to hold a representation vote until the status of the applicant is established. The Registrar is therefore instructed not to count the ballots and to seal the ballot boxes upon the taking of the representation vote pending further instruction from the Board.
Having regard to the objections raised by the intervener the Registrar is instructed to list this matter for hearing at the earliest possible date following the vote. The purpose of the hearing will be to allow the applicant the opportunity to establish its status as a trade union, and to hear the evidence and submissions of the parties on that issue and any other matter that may then be outstanding."
On February 26th, 1980 the Board scheduled a hearing so that the parties could address these matters. As has already been noted, the intervener took the position that the Board had no jurisdiction to order a representation vote in advance of a finding of trade union status. Counsel for the union also raised (but did not press) the submission that since this panel of the Board is differently constituted from the previous panel it could not deal with the matter on its merits. In our view the earlier Board decision was an administrative one which did not finally determine the rights of any of the parties but, rather, expressly reserved their right to lead evidence and make submissions before any final determination could be made. This decision was in accordance with section 8(3) of The Labour Relations Act. The earlier panel heard neither evidence nor argument, and we do not think it was irrevocably seized with the application. In any event, having regard to the broad power of reconsideration vested in the Board by section 95 of The Labour Relations Act, this panel of the Board is satisfied that it can hear, and resolve, all of the outstanding issues between the parties herein. There may well be cases where, as a matter of law, one panel of the Board becomes irrevocably seized of an issue and, as a matter of sound practice, any reconsideration under section 95 of the Act should be exercised by that panel; however, this is not such case.
We have carefully considered the submissions of the intervener with respect to the jurisdiction of the Board to order a representation vote. Essentially, the intervener argues that until a trade union establishes its status, it is not entitled to make use of the pre-hearing vote procedure. We cannot accept this contention. There is no reason for according the "status issue" a special significance which removes it from the ambit of a legislative scheme which specifically provides for a resolution of disputed issues after a vote is taken. Of course, if one adopts a strict "sentence-parsing" approach, one encounters the word "trade union" before mention is made of such matters as employee status, the appropriate bargaining unit, and membership in the trade union; but, while it may appear that one determination is a condition precedent separate from the next, in our view it is clear, having regard to the purpose and structure of section 8, that the Legislature intended that all of these matters be resolved at a hearing following the vote. The Board cannot certify the applicant union until its trade union status is determined; but we can see no reason for singling out the trade union status issue for special treatment; nor can we discern any labour relations objective which would be served by denying new unions access to the pre-hearing vote procedure. There is no reason why these new unions should be put at a competitive disadvantage vis-a-vis established organizations, and it would require the clearest possible language before the Board would be driven to this conclusion. There may well be cases where the issues raised are of such nature, or complexity, that a pre-hearing vote is inappropriate. Section 8 is framed so that the Board has a discretion to order a pre-hearing representation vote, and Rule 5 of the Rules of Practice regulates the procedure which must be followed when the Board has refused this request. However, there is nothing in the issue of trade union status, per se, which prevents the taking of a vote, nor is there any evidence, in this case, of any other special circumstances which make such vote inappropriate or which justify any interference with the previous Board decision. In our view the Board was entitled to direct the taking of a vote and defer resolution of the trade union status issue.
We turn now to the question of the applicant's status as a trade union. Section
1(1)(n) of The Labour Relations Act provides as follows:
"'trade union' means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency."
Apart from section 1(1)(n) there are no legislative prescriptions concerning the form or structure of trade unions, and the Board has no authority to regulate the internal constitutional arrangements of an employee organization which otherwise meets the statutory definition. (See CSA 0 National (Inc.) v. Oakville Trafalgar Memorial Hospital Association, et al, (1972), 1972 CanLII 563 (ON CA), 26 D.L.R. (3d) 63 (Ont. C.A.) The Board has generally been satisfied that an organization is a "trade union" if there is viva voce evidence concerning the circumstances surrounding the formation of the entity; and if it is clear from the evidence that the entity is an organization of employees, formed for purposes that include collective bargaining, which is able to exercise the rights and undertake the obligations conferred upon it by the Act. (See generally: Associated Hebrew Schools of Toronto, [1978] OLRB Rep. Sept. 793 and cases cited therein.)
Mr. William Stack has been an employee of Emery Industries for sixteen years and, together with some nine other employees, works at the company's London, Ontario location. It is these ten employees who purported to form themselves into Local 1552 of the Teamsters union, through a series of meetings which took place on February 14, March 15 and May 9, 1979. It should be noted that at the time when these events took place, and for some years previously, Mr. Stack was the president of Local 552 of the International Chemical Workers Union, which was the bargaining agent for the employees at Emery Industries' London location. The employees who formed themselves into Local 1552 of the Teamsters union may also have been members of the ICWU at the time. This is unusual, but in our view nothing in The Labour Relations Act prevents a group of employees, who are members of, and represented by, one trade union from forming themselves into another. Dual membership is not uncommon in some industries, and section 38(2)(c) of the Act recognizes this possibility by providing an employee with certain protections if he is expelled from one union for becoming a member of another. Of course, the employees may have only one "exclusive" bargaining agent to represent them in their dealings with their employer; but neither the bargaining rights of Teamsters Local 1552, at the London location, nor that union's right to represent the London-based employees, are at issue in the present case. The sole question before us is whether the London-based employees have successfully formed themselves into Local 1552 of the Teamsters so as to establish that organization as a "trade union" within the meaning of section 1(1)(n) of The Labour Relations Act. If they did, the union is entitled to make the present application to represent the employees of Emery Industries Limited who are located in Toronto.
On February 14th, 1979 the ten employees held a meeting which was attended by Al Laforte, an organizer for the International Teamsters union, and Bud Mutimer, the former business representative of the International Chemical Workers Union. At that meeting the employees decided to form themselves into a local of the Teamsters union. The International Teamsters' constitution was circulated and approved; and it was decided to establish a "local union" with an initial membership initiation fee of $1.00 per person; and to apply to the International Teamsters for a local charter. The application for the charter was duly completed by seven of the individuals present, and the required $25.00 charter fee was paid to Mr. Laforte. The original applicants (whose names appear on the local union charter) subsequently became officers of the new local union.
At a meeting held on March 15, 1979 a charter, sealed and executed by the general president and general secretary-treasurer of the International Teamsters, was presented to the employees, together with a copy of the by-laws for the new local union. It was moved, seconded, and unanimously decided, that these documents be accepted. Subsequently a membership fee of one dollar was paid by all ten individuals present, and each one signed a membership card. These membership cards are regular, in all respects, and are in the form commonly used by trade unions to demonstrate evidence of "membership", as defined by section 1(1)(j) of The LabourRelationsAct. Copies of by-laws were sent to the International for final approval, and temporary officers were selected. In subsequent meetings there was a re-affirmation of membership in Local 1552, nominations for executive positions were made and elections to these positions were held, and confirmed. The term of office for the officers begins on November 8th, 1979. Ceteris paribus, this series of meetings would normally be enough to establish trade union status within the meaning of section 1(1)(n) of the Act.
It was common ground between the parties that Mr. Stack and the other "prime movers" behind the creation of Local 1552 of the Teamsters union, were officers, or members, of Local 552 of the ICWU, who favoured a merger between the two parent international unions. It would appear that this purported merger occurred in the fall of 1978 or early in 1979. This merger, and its alleged effect, formed a principal part of the intervener's argument.
The intervener contends that Local 1552 is a direct product of the merger, and that the employees formed themselves into Local 1552 at the direction of Mr. Mutimer, a former international officer of the ICWU, who was seeking to implement the merger agreement. The intervener argues that Local 1552 "traces its existence" to the merger arrangement so that any "taint" or impropriety involving the merger "flows through" and taints the status of Local 1552. The intervener submits that such impropriety exists, and that the merger arrangement was invalid, and unauthorized, by the ICWU constitution. Since the merger is invalid, the intervener reasons, Local 1552 of the Teamsters cannot be a trade union within the meaning of section 1(1 )(n) of the Act.
The intervener requested the opportunity to call evidence and make argument in support of its contention that the merger was not authorized by the ICWU constitution. The intervener admitted, however, that it was attacking a contractual arrangement (see Astgen v. Smith, (1970), 1969 CanLII 488 (ON CA), 7 D.L.R. (3d) 657 (Ont.C.A.) to which it was not a party. No members of the Teamsters, or the ICWU, (i.e., the individuals directly affected by the merger) have raised any question concerning the merger's validity, nor is there any suggestion that the intervener represents any such individuals. The intervener is a stranger to the merger agreement. In addition, there is no suggestion, allegation, or evidence, that any of the individuals who formed themselves into Teamsters Local 1552 did sounder duress, or any form of coercion, arising from the merger arrangement. Even if the merger provided the motive for employees to form themselves in Teamsters Local 1552, it was not clear to the Board why the employees' motive, or views respecting the merger were relevant, so long as they had, in fact, taken the proper steps to form themselves into a new union. None of these employees have suggested that they were under any misapprehension as to the nature and quality of their acts, nor is there any evidence that this was the case. If the employees have formed themselves into a trade union within the meaning of section 1(1)(n) of the Act, how can the validity, or invalidity, of a merger between two other unions affect this result?
In view of the concern which the applicant expressed as to the relevance of the evidence which the intervener sought to adduce, the Board asked counsel to outline, in a summary way, the facts which he intended to establish. The Board was mindful of the need for expedition (the other parties and the employees have already been waiting for some time for a determination of the applicant's right to certification) and the Board was reluctant to adopt a mode of procedure which could result in a protracted series of hearings, if the evidence secured through that process was not directly relevant to the issues before us. Accordingly, counsel for the intervener set out the following outline of the facts which he intended to prove:
"In or about September, 1977 an affiliation agreement was entered into between the Canadian Conference of Teamsters and the Canadian Region of the International Chemical Workers Union. Between October, 1978 and January 20th, 1979, a further agreement was entered into between the ICWU and the International Teamsters, which provided for a merger between those two organizations. In that agreement, inter alia, the ICWU undertook to merge, amalgamate or transfer the bargaining unit jurisdiction of several locals, including Local 1552, to the Teamsters. The ICWU also undertook to have these locals do and perform all things required in order to permit applications under section 54 of The Labour Relations Act. The Teamsters union agreed that it would accept into membership persons who were previously members of locals of the ICWU, that it would accept outstanding collective agreement responsibilities; and that it would allow locals of the ICWU to apply for separate local charters, in accordance with the Teamsters' constitution. The Teamsters undertook, in addition, to establish a Chemical Worker division within the Canadian Conference, which would encompass these ICWU locals. The selection of a 'director' of the Chemical division was to be made by former ICWU members who had become members of the Teamsters union.
Following the merger of the two organizations, all rights of the ICWU locals were to be vested in the Teamsters union, although the assets of the ICWU locals were to be transferred to the new locals chartered by the Teamsters. The eight international representatives, formerly employed by the ICWU, were to become employees of the Teamsters. Any local of the ICWU which failed to do such things as were necessary to give effect to the merger would lose control of its local assets (which, it would appear, were actually 'owned' by the parent ICWU and would remain subject to the control of the parent organization for this purpose.)"
Counsel further indicated that he would be relying on the terms of the ICWU constitution which, he intended to argue, did not permit a merger along the lines outlined above.
Counsel for the applicant argued that the intervener is a total stranger to the merger agreement. It was neither a party thereto nor did it represent any members of the ICWU or the Teamsters who could be affected by the merger arrangement. In the circumstances, counsel contended, the intervener should not be permitted to attack the agreement. In any event, counsel contended that the existence, or validity, of the merger agreement was irrelevant to the narrow determination which the Board is required to make in this case. The London-based employees of Emery Industries wished to form themselves into a local of the Teamsters union. All of their conduct was directed to this end. Their precise reason for so doing is not relevant where, as here, there is no evidence that any one acted under any misapprehension as to the significance of this course of conduct. The bargaining rights of the new union, at the London location, are not in question. The sole issue before the Board is whether the steps taken by a group of employees (who, admittedly, may have been members or officers of another union at the time) were sufficient to create a new trade union organization within the meaning of section 1(1)(n) of The Labour Relations Act.
We have carefully considered the submissions of both parties and the cases which were cited to us. Astgen v. Smith, et al, supra was a dispute concerning the interpretation of the constitution of the of the International Union of Mine, Mill and Smelter Workers, and whether that constitution authorized a merger with the United Steelworkers of America. The issue in Coca-Cola Ltd., [1975] OLRB Rep. Nov. 862 is summarized in paragraph 2 of the Board's decision as follows:
"The applicant claims status as a trade union by reason of this Board's previous recognition of the International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America (the International union) as a trade union within the meaning of section 1(1)(n) of The Labour Relations Act. The applicant submitted that, since the applicant was merely the International union being carried on under a different name, status as a trade union followed from the Board's earlier recognition of the International union. In essence, the applicant was arguing that it was the same organization as the International union but had simply undergone a change of name.'
Neither case involves a fact situation or legal issue similar to the one presently before us. This is not a case pursuant to section 54 of The Labour Relations Act. The applicant union does not base its legal existence upon a purported merger between the Teamsters and the ICWU, or upon the trade union status of the merged organization. That agreement is not relevant to the narrow issue before us. Here, the question is whether the steps taken by ten individual employees have resulted in the creation of a trade union (known as Local 1552 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America) within the meaning of section 1(1)(n) of The Labour Relations Act. Having regard to the totality of the evidence we are satisfied that the answer to that question is "yes." Even if the intervener were to prove all of the facts which it contends support its argument, we are satisfied that we would not reach a different conclusion.
- Having regard to the foregoing the Board makes the following findings of fact and law:
(1) As at January 2nd, 1980, the date of the present application, the applicant was a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.
(2) All of the employees in the business establishment of Emery Industries Limited located in Etobicoke, Ontario, save and except foremen, supervisors, persons above the rank of foreman or supervisor, office staff, sales staff, research and development staff, engineering staff and students employed in the Analytical and Control Laboratory during school vacation periods, constitute a unit of employees of the respondent appropriate for collective bargaining.
(3) The Board is satisfied that not less than thirty-five per cent (35%) of the employees of the respondent in the bargaining unit described above were members of the applicant on 11th January, 1980, the terminal date fixed for this application.
Accordingly, the Board directs the Registrar to unseal the ballot box and count the ballots so that the wishes of the employees can be ascertained.