United Food and Commercial Workers International Union, Local 1000A v. Consumers Distributing Company Limited, 1981 CanLII 849

[1981] OLRB Rep. May 509

2763-80-R; 2762-80-R United Food and Commercial Workers Inter­national Union, Local 1000A, Applicant, v. Consumers Distributing Company Limited, Respondent; and United Food and Commercial Workers International Union, Local 1000A, Applicant v. Jack Colden Ltd., Respondent, v. Group of Employees, Objectors

BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.

APPEARANCES: Martin Levinson and Daniel Gilbert for the applicant; E. L. Stringer, Q. C. and Robert Weaver for the respondent.

DECISION OF THE BOARD; May 20, 1981

1. This application for certification has been filed by the "United Food and Commercial Workers International Union, Local 1000A, Region 18 Canada". The Registrar advised the applicant that on reviewing the application, it appears from a check of the Board's files that the Board had not found in any previous proceeding that the applicant has been found to be a trade union within the meaning of section 1(1 )(n) of the Act. The applicant was further advised that if this information was correct, it must be prepared at the hearing scheduled for this matter to satisfy the Board in accordance with its usual practice that its organization is a trade union within the meaning of section l(l)(n) of the Act.

2. At the hearing, the applicant called evidence with respect to the issue of whether the applicant is a trade union within the meaning of section 1(l)(n) of the Act. The Board then entertained argument from the parties with respect to this issue.

3. During the hearing the applicant informed the Board that its correct name was the "United Food and Commercial Workers International Union, Local 1000A" and requested that the Board make this amendment. Having regard to the representations before it, the name "United Food and Commercial Workers International Union, Local l000A, Region 18 Canada" appearing in the style of cause as the name of the applicant is amended to read:

"United Food and Commercial Workers International Union, Local 1000A".

4. Daniel Gilbert gave evidence that he is the president of the United Food and Commercial Workers International Union, Local 1000A and that he had previously been the president of the Union of Canadian Retail Employees, Local 1000. He testified that the new Local 1000A is the same local as before and that the purpose of amendments before the Board was to redraft and update the constitution. Mr. Gilbert informed the Board that this involved a change in name. In cross-examination, Mr. Gilbert testified that the constitution of the Union of Canadian Retail Employees Union, Local 1000, chartered by the Amalgamated Meat Cutters and Butcher Workmen of North America was the constitution for the applicant. Various documents were filed in evidence. The minutes of a Board of Directors' meeting on September 16, 1980, indicate that there was a review of the constitution and by-laws and that the following changes were approved:

PROPOSED AMENDMENTS TO THE CONSTITUTION

Amend "Union of Canadian Retail Employees, Local No. 1000, Chartered by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO-C'LC" to "United Food and Commercial Workers International Union, Local No. 1000A, Region 18, Canada".

Page 1, #1 — Name - "This organization shall be known as "Local Union No. 000, a Local Union of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO-CLC" (hereinafter called the Local Union)."

Amend to head: "This organization shall be known as "Local Union No. 1000A, a Local Union of the United Food and Commercial Workers International Union, AFL-CIO-CLC" (hereinafter called the Local Union)."

5. The minutes of the Fall Convention of the Union of Canadian Retail Employees, Local 1000A, held in Toronto on October 20, 21 and 22, 1980, indicate that the constitutional amendments proposed by the Board of Directors were reviewed in detail and that the following amendment was adopted:

Amend "Union of Canadian Retail Employees, Local No. 1000, chartered by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO-CLC" to "United Food and Commercial Workers International Union, Local No. 1000A, Region 18 Canada".

Page 1, #1 — Name — This organization shall be known as "Local Union No. 1000, a Local Union of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO-CLC", (hereinafter called the "Local Union"). Amend to read: This organization shall be known as "Local Union No. 1000 ~ a Local Union of the United Food and Commercial Workers International Union, AFL-CIO-CLC" (hereinafter called the "Local Union").

6. In a letter to the applicant dated January 27, 1981, the International President of the United Food & Commercial Workers International Union, AFL-CIO-CLC wrote to its Local 1000A and app roved of certain proposed amendments to the by-laws of Local No. 1000A. The letter states, in part:

Cover

The cover is approved as follows: "United Food and Commercial Workers Union, Local No. 1000A, Region 18, Canada."

Name

I. This Section is approved as follows: "This organization shall be known as "United Food and Commercial Workers Union, Local No.1000A", chartered by the United Food and Commercial Workers Inter­national Union, AFL-CIO, CLC."

7. There was also produced in evidence a document which bears the description of "Constitution and By-Laws of Union of Canadian Retail Employees Local No. 1000 chartered by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, CLC".

8. In More Groceteria Limited, [1980] OLRB Rep. April 486, the Board found that by virtue of a merger between the Retail Clerks International Union and the Amalgamated Meat Cutters and Butcher Workmen of North America, the Union of Canadian Retail Employees, Local IOOOA was the successor of the Union of Canadian Retail Employees, Local 1000 chartered by the Amalgamated Meat Cutters and Butcher Workmen of North America. It is the position of the applicant that its present description is merely the result of a change in name and that it is the same entity as the Union of Canadian Retail Employees, Local No. 1000. As such, it appears to the Board that the applicant is relying upon a presumption of status under section 94 of the Act. In order for the applicant to be entitled to such a presumption of status under section 94, it is necessary for the applicant to show that it is the same entity (and not a new entity) as the entity which has previously been found to be a trade union.

9. The evidence before the Board establishes that the applicant continued the constitu­tion of the Union of Canadian Retail Employees Local No. 1000 chartered by the Amalgamated Meat Cutters and Butcher Workmen of North America AFL-CIO, CLC subject only to very minor amendments. The Board is satisfied that the applicant has continued the constitutional continuity of its predecessor and has thereby not lost the essential characteristics which were possessed by the predecessor. See The Spectator, [1974] OLRB Rep. April 235 and Coca- Cola Ltd., [1975] OLRB Rep. Nov. 862. In Board File No. 0993-79-R. the Board has previously found the United Food and Commercial Workers International Union, AFL-CIO-CLC, to be a trade union within the meaning of section l(1)(n) of the Act and in the instant application the present description of the applicant is merely the result of a change in name of an entity which has previously been found to be a trade union by the Board. The Board finds that the applicant's name is as set forth in the style of cause and that the words "Region 18 Canada" are not part of the applicant's name. The Board finds that the applicant is a trade union within the meaning of section l(l)(n) of the Act.

10. In this application for certification the applicant and the respondent are in dispute as to the status of persons who are classified by the respondent as assistant managers and management trainees. The respondent maintains that assistant managers and management trainees exercise managerial functions within the meaning of section 1(3)(b) of The Labour Relations Act. The Board accordingly appoints a Labour Relations Officer to inquire into and report to the Board on the duties and responsibilities of the persons who are classified by the respondent as assistant managers and management trainees.

11. The applicant and the respondent are otherwise in agreement with respect to appropriate bargaining units.

12. The Board is satisfied that the ultimate determination with respect to the status of the persons in dispute does not affect the applicant's entitlement to certification. The Board is satisfied that regardless of its determination with respect to the persons in dispute more than fifty-five per cent of the employees of the respondent in the bargaining units at the time the application was made, were members of the applicant on March 30, 1981, the terminal date fixed for this application and the date which the Board determines, under section 92(2)0) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act. Accordingly, the Board certifies the applicant under the provisions of section 6(la) of the Act as the bargaining agent for all employees of the respondent in its stores in Mississauga, save and except store managers, assistant manager, management trainees and persons above the rank of store manager, assistant manager and management trainee, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period pending the final resolution of the composition of the bargaining unit. The Board further certifies the applicant under the provisions of section 6(Ia) of the Act as the bargaining agent for all employees of the respondent at is stores in Mississauga who are regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except store managers, assistant managers, management trainees, and persons above the rank of store manager, assistant manager and management trainee pending the final resolution of the composition of the bargaining unit.

13. The issuance of certificates must await an agreement of the parties or a determina­tion by the Board with respect to the status of the assistant managers and the management trainees.