Ontario Labour Relations Board
[1981] OLRB Rep. April 422
1653-80-R Peter Muscat and a Group of Employees, Applicant, v. United Food and Commercial Workers International Union, Local P287, Respondent, v. Beef Terminal (1979) Limited, Intervener
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members C. G. Bourne and B. Armstrong.
APPEARANCES: E. Rovet and M. Powell for the applicant; Harold F. Daley. David McKee and Stan Henderson for the respondent; James H. Wilson and G. B. Fox for the intervener.
DECISION OF THE BOARD; April 24, 1981
The matters herein arise from the Board's decision which issued March 6, 1981. That decision dealt with a procedural issue raised by the respondent trade union ("the union"). That issue was whether the Board could determine this application under section 49(2) of The Labour Relations Act before an arbitrator had decided a grievance of the union that Beef Terminal (1979) Limited ("the employer") had recalled to work a substantial number of persons contrary to the collective agreement binding upon the employer and the union, which recall followed on a six months interruption in the operations. The union had contended that the Board could not determine who were employees for purposes of the application until the arbitrator had decided the status of the recalled employees. In between the filing of that grievance in December 1979 and the filing of this application, the employer had been found by the Board, differently constituted, to be the successor employer in a sale of a business within the meaning of section 55 of the Act.
In its March 6 decision, the Board decided to proceed without awaiting the outcome of the arbitration. In doing so, the Board acknowledged that it might have to step into the shoes of the arbitrator and interpret the collective agreement to determine whether the employees at work when the application was made were employees for all purposes of the application but stated that it would decide that need only when it proceeded to hear the application fully on its merits.
When the application came on for hearing again on April 3rd, counsel for the applicant raised the procedural issue of whether the Board had jurisdiction to limit the meaning of employees as used in section 49 to mean only those persons who were properly at work when the application was made. The Board heard and considered the submissions of the parties on this issue and gave the following decision orally at the hearing.
"The Board finds that the question of whether employees have been recalled to work or hired contrary to the collective agreement is a relevant factor to be considered by the Board in determining whether, in the words of section 49(3) of The Labour Relations Act, it is initially satisfied that "...not less than 45% of the employees in the bargaining unit have voluntarily signified in writing.., that they no longer wish to be represented by the trade union.. .", and if the Board is so satisfied, it is also relevant for the Board in determining whether, in further words of section 49, "...a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.".
Similar matters were considered by the Board in its decisions in Custom Aggregates, [1978] OLRB Rep. March 215 and April Waterproofing Limited, [1980] OLRB Rep. Nov. 1577.
Therefore the Board will proceed in this case to decide those issues as it becomes necessary in order to determine ultimately this application."
The Board then advised the parties that it would proceed to determine, pursuant to section 49(3) whether"... not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing.., that they no longer wish to be represented by the trade union... .". The parties were advised that there were 43 names on the list filed by the employer, 36 of which were matched by names on the petition which had been filed in support of the application. Counsel for the union, having had the opportunity by agreement of the parties to view the lists, advised the Board that the union did not challenge 17 of the names thereon. On the appearance that not less than 45 per cent of the employees on the list had signed the petition, the Board conducted its usual inquiry into the origin, preparation, circulation and filing with the Board of the petition, all subject to the union's right to challenge whether those persons who were properly at work at the time and who signed the petition constituted not less than 45 per cent of the employees in the bargaining unit.
The manner in which the petition came into being, the signatures obtained and the document filed with the Board, satisfies the Board's criteria for accepting such documents as being the voluntary expression of the wishes of those persons who signed it. The only question remaining as to whether the petition was, in fact, a voluntary expression of those wishes, arises from paragraph 29 in an agreement between the shareholders of the employer which states as follows:
As shareholders and as employees each person in Schedule "A" agrees that he will at all times do his utmost, to further the common sharehold interests and the company, and will not take part in any conspiracy or agreement for the purpose of discriminating against any other person or persons in Schedule "A" nor will he act in any way detrimental to the interests of the company, or shareholders or employees in in [sic] general, will conduct no business which shall in any way contravene the terms and provisions of this agreement.
Union counsel contends that this provision creates a legal duty of fidelity for all employees (as shareholders) of the employer, whether they are included in or excluded from the bargaining unit. In other words, all employees have committed themselves by virtue of paragraph 29 to protect the common interests of all shareholders, including those shareholders who exercise managerial functions. Since the employees have committed themselves to a collective venture in this manner, counsel contends that it is not possible for the Board to ascertain whether the petition represents the exercise of the employees' legal obligation pursuant to paragraph 29 or a voluntary expression of their wishes. Counsel reasons that, when the Board found the employer to be the successor employer and that it must continue to recognize the union's bargaining rights and to apply the terms of the collective agreement between the union and the predecessor employer, these obligations were cast into immediate conflict with the interests of the shareholders as expressed in the shareholder agreement. In such circumstances, counsel contends, the petition cannot be seen to be a voluntary expression of the wishes of those persons who signed it.
- The facts relevant to that issue are contained in the following sequence of events:
(a) The predecessor employer ceased its operations in mid June 1979.
(b) The employer herein was incorporated as Beef Terminal (1979) Limited on October 17th, 1979.
(c) Some of the persons who had been employees of the predecessor employer entered into the shareholders' agreement referred to above effective October 20th, 1979 thereby constituting themselves as a common venture in which they were equal shareholders.
(d) Subsequently each shareholder was taken into employment by the employer pursuant to the terms of the shareholder's agreement.
(e) In mid December 1979, the employer resumed operation of part of the predecessor employer's prior operations.
(f) At or about the same time as operations were resumed, the union filed its application with the Board under section 55 of the Act and its grievance under the collective agreement between it and the predecessor employer.
(g) The Board's decision in respect of the section 55 application issued August 8th, 1980.
(h) The applicant Mr. Peter Muscat and other employees discussed the consequences to them of the Board's decision that the employer must continue to recognize the union s bargaining rights and continue to be bound by the union's collective agreement with the predecessor employer. They decided to get rid of the union.
(i) As a result of those discussions, Muscat obtained advice on how to proceed in an application for termination of bargaining rights, took up the petition amongst other like-minded employees and made the application which is before this Board.
In the Board's view, these facts reveal that the employees saw their financial interests as shareholders threatened by the continuation of the union's bargaining rights and were motivated by their concern to try and rid themselves of the union. That is what gave rise to the petition and this application. There is no evidence that the employees were motivated to act by the covenant in paragraph 29 of the shareholder's agreement, or that they put their minds at all to that covenant for the purpose of this application or for any other purpose. The facts point overwhelmingly to the conclusion that the employees were motivated by a common wish to terminate the bargaining rights of the union and not by paragraph 29 of the shareholder's agreement. In these circumstances, the Board finds that the petition expresses the voluntary wishes of those persons who signed it.
It is necessary, therefore, for the Board to determine whether not less than 45 per cent of those persons who signed the petition were employees in the bargaining unit when they signed it and at all times material to this application. Therefore this application is to be continued for hearing and the Registrar is directed to list it for the earliest available date. The purpose of a hearing will be to consider the evidence and the argument of the parties in respect of whether not less than 45 per cent of the persons who signed the petition were employees in the bargaining unit at the material times and to resolve any other matters which, at the time of the hearing, are outstanding, including which persons would be eligible to vote should the Board direct that a representation vote be held.
DECISION OF BOARD MEMBER B. L. ARMSTRONG;
I am satisfied on the basis of the evidence presented that the petition submitted by the applicant is a voluntary expression of the persons who signed it. However, I wish to make it clear that this decision does not deal with the issue as to whether the applicant or the other shareholders of the company are employees who are entitled to make an application under section 49. As the majority decision notes in paragraph 8, that issue remains outstanding.