[1981] OLRB Rep. March 244
1653-80-R Peter Muscat and a Group of Employees, Applicant, v. United Food and Commercial Workers International Union, Local P287, Respondent, 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. Caley and Stan Henderson for the respondent; James H. Wilson for the intervener.
DECISION OF THE BOARD; March 6, 1981
I. The name: "Amalgamated Meat Cutters and Butcher Workmen of North America A.F.L. - C.I.O. - and its Local P287" appearing in the style of cause of this application as the name of the respondent is amended to read: "United Food and Commercial Workers International Union, P287".
This is an application under section 49(2) of The Labour Relations Act in which the applicant is seeking a declaration from the Board that the respondent United Food and Commercial Workers International Union, Local P287 ("the union") no longer represents the employees of Beef Terminal (1979) Limited ("the employer") in the bargaining unit set out in the agreement to which the employer and the union are bound.
At the hearing into this application, counsel for the union questioned whether the Board could determine the application until a board of arbitration had determined whether, inter alia, persons who had been recalled to work following a hiatus in the operation of the employer's business had been recalled pursuant to the relevant clauses of the collective agreement. The arbitration board was being established at the time of the hearing. Counsel contended that, until it decided that issue, this Board could not determine, as section 49 requires it to do:
(a) whether the application was made by any of the employees in the bargaining unit (subsection 2 of section 49);
(b) the number of employees in the bargaining unit at the time the application was made (subsection 3 of section 49), and
(c) whether not less than 45 percent of the employees in the bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the union (subsection 3 of section 49).
While the applicant and the employer did not agree with the union's contention, they did agree that the Board should decide this issue before proceeding with the application rather than reserving its decision on the issue and proceeding to hear the application on its merits. This decision deals only with that preliminary issue.
The question of who are employees in the bargaining unit when an application is made under section 49 of the Act is determined from lists of employees who were employed at the time the application was made. For the purpose of this list, persons must be at work at some point within the thirty days before the date of application as well as within the thirty days after the date. The reasons underlying that rule are set out in the Board's decision in Sydenham District Hospital, [1967] OLRB Rep. May 135. Once the list has been settled, the answers to the questions posed in items 3(a) and 3(b) above can be readily determined. The answer to the question of whether not less than 45 per cent of the employees on the list have signified voluntarily, in writing, their support for the application is determined as at the terminal date for the application, which in this case was November 14, 1980. That is the date set for this purpose pursuant to the Board's authority under section 92(2)(j) of the Act. If the Board, having applied those rules, determines that not less than 45 per cent of the employees no longer wish to be represented by the union and directs that a representation vote be held, then the employees who are eligible to vote are those who were employed on the date of the Board's decision and who do not voluntarily terminate their employment or who are not discharged for cause by the date of the vote. On this basis, a list of eligible voters is prepared. In deciding whether a person was "employed" on the date of the decision, the Board has regard to the continuation of the employment relationship and the intent of the parties to preserve that relationship. Canac Kitchens Ltd. [1978] OLRB Rep. Aug. 723.
The source of the union's concern is readily apparent. If the Board were to proceed now to make the determinations required of it by section 49 of the Act and the union s grievance is later upheld in arbitration, there is a real possibility that the Board's determinations would be based on persons who were improperly at work on the relevant dates and whose interests, since they might expect to lose their employment, would be adverse to the union.
The Board considers the following additional facts useful in to its decision of whether to await the outcome of the arbitration before proceeding with this application. The employer previously has been found by the Board, differently constituted, to be the successor employer in the sale of a business within the meaning of section 55 of the Act. See: Beef Terminal (1979) Limited, [1980] OLRB Rep. Aug. 1167, a decision which issued Aug. 8, 1980. It contains the Board's declaration that "... Beef Terminal (1979) Limited is the successor of Beef Terminal and must continue to recognize [the union's] bargaining rights in the 'like unit' to that which existed prior to the transfer, and must continue to apply the collective agreement mutaris mutandis to that unit." That decision fits into the following sequence of events. The operations of the predecessor were closed down in mid-June 1979 according to the facts in the aforementioned decision. The representations in the case at hand indicate that partial operations resumed in December 1979 by this employer. That immediately triggered the grievance referred to above in which the union has alleged generally that the collective agreement has been ignored by the employer and in particular, inter alia, the employer did not follow the recall provisions of the collective agreement when staffing the resumed operations. The union filed its application under section 55 of the Act on December 20th, 1979, according to the Board's records. The decision in that application issued Aug. 8, 1980, and was followed by this application on October 31, 1980. There is no dispute that the application is timely pursuant to sections 49 anti 53 of the Act. By the time this application came on for hearing on November 21, 1980, the parties had appointed their nominees to the arbitration board in respect of the union s grievance and they were going through the process of selecting a chairman.
The foregoing circumstances make it obvious that the union has not been sleeping on its bargaining rights. It has sought to protect them in two ways: through the grievance procedure and under section 55 of The Labour Relations Act. The effect of the Board's section 55 decision has been to preserve with the employer, without interruption through to the making of this application, the bargaining rights which the union held for employees of the predecessor employer and its collective agreement with that employer. In pursuing its grievance to arbitration, it is continuing its efforts to protect its bargaining rights. Whether the union is correct in its allegation that the employer has not properly applied the recall provisions of the collective agreement is a matter for the arbitrator to decide. Whether the union's bargaining rights are to be terminated by this application is a matter which only the Board can determine. The Board is of the view that it should not await the decision of the arbitrator before proceeding with that determination. One reason for not doing so is the Board's reluctance to add further delay to that which already has occurred. Another is that, even if the arbitrator rules that some or all of the employees who were at work when the application was made should not have been recalled (or possibly newly hired), that might still leave the Board with the problem of who is eligible to vote if the application succeeds that far.
The Board is aware that by declining to await the results of arbitration, it may find itself having to step into the shoes of the arbitrator, for the purposes of this application, and interpreting the collective agreement in order to decide whether the employees actually at work when the application was made are employees for all purposes of this application. If so, it would not be the first time that the Board has had to interpret terms of a collective agreement in order to discharge its jurisdiction under the Act. That is not to say, however, that the Board has decided that it cannot proceed without resorting to that step; that will be decided only when the Board proceeds to hear the case fully on its merits.
The Board accordingly, will proceed forthwith to process this application and the matter is referred to the Registrar to be listed for hearing on the first date available.