Utility Workers of Canada v. The Public Utilities Commission of the Borough of Scarborough, 1982 CanLII 888

Utility Workers of Canada v. The Public Utilities Commission of the Borough of Scarborough

[1982] OLRB Rep. June 929

2291-81-R Utility Workers of Canada, Applicant, v. The Public Utilities Commission of the Borough of Scarborough, Respondent, v. International Brotherhood of Electrical Workers, Local 636, Intervener, v. Group of Employees, Objectors

BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and B. L. Armstrong.

APPEARANCES: Alick Ryder Q. C. and Gary Rainthorpe for the applicant; William Hutchison for the respondent; B. Fishbein, S. Tatrallway, W. Moore and L. Barr for the intervener; Brian P. Bellmore, Douglas J. Simpson and Cyril DaSilva for the objectors.

DECISION OF THE BOARD; June 25, 1982

Decision

1By decision dated February 22, 1982 in this application for certification, the Board, differently constituted, directed that a pre-hearing representation vote be taken of the employees of the respondent in the voting constituency described in that decision, that the ballot box be sealed pending further instructions from the Board, and that the matter be listed for hearing on the earliest possible date following the pre-hearing representation vote, for the purpose of allowing the applicant an opportunity to prove its status as a trade union within the meaning of section 1(1)(p) of the Labour Relations Act. Following that hearing, another panel of the Board chaired by the present Vice-Chairman found the applicant to be a trade union within the meaning of section 1(1)(p) of the Act, in a decision dated April 21, 1982. Since allegations of misrepresentation and conditional payment had been filed with the Board by the intervener, the Registrar was directed to list the matter for continuation of hearing. However, counsel for the intervener subsequently withdrew all of those allegations and requested that the ballot box be unsealed and that the ballots be counted. Accordingly, the ballots cast in the pre-hearing representation vote were counted on May 21, 1982.

2Following the counting of the ballots, the following statement of desire, addressed to the Minister of Labour, was filed with the Board within the time fixed under subsection 3 of section 70 of the Board's Rules of Procedure:

“In accordance with paragraphs 2 and 3 of the report of the returning officer concerning the counting of the ballots at the Public Utilities Commission of the Borough of Scarborough, File No. 2291-81 -R, we the skilled tradespeople wish to make the following statement:

The official and final counting of the ballots in no way truly represents the position of the workers at Scarborough Public Utilities Commission. The skilled tradespeople and affiliated workers (The Journeymen in Line Maintenance, Construction and Substations, Apprentices, Groundsmen and Truck Driver-Helpers) are fully in support of the International Brotherhood of Electrical Workers, and being in the minority have found ourselves carried along by the general vote of other unaffiliated workers and find untenable the present position of being represented by the Utility Workers of Canada.

Taking note of the deadline of May31, 1982 and while still represented by the International Brotherhood of Electrical Workers, we wish to make the following request:

We find from Section 6, subsection 3, page 6 of the Labour Relations Act, that the possibility exists of carving out the skilled tradespeople and affiliated workers as a separate bargaining unit to be represented by the International Brotherhood of Electrical Workers, and accordingly, we request that another vote be taken with a list of the employees concerned, that could be supplied from the Personnel Office. We feel that such a vote would more truly, and democratically reflect the situation at Scarborough Public Utilities Commission. Attached is a petition from the members concerned.

We feel for the betterment and morale of all employees of the Commission that your intervention in this matter is very much needed, and will be greatly appreciated.

Respectfully

(signed) Cyril DaSilva

Unit Chairman”

The petition which accompanied that statement of desire bears the signatures of 54 employees in the classifications referred to in the second paragraph of that statement of desire.

3A hearing was held by the Board on June 18, 1982 for the purpose of hearing the evidence and representations of the parties with respect to the bargaining unit (and with respect to all other matters arising out of and incidental to this application). Although counsel for the applicant questioned the status of the objectors to make submissions to the Board with respect to the description of the bargaining unit, the Board ruled that it would permit the objectors to present evidence and argument with respect to that matter. (A similar opportunity was extended to each of the other parties.) In a certification application in which the applicant does not request a pre-hearing vote, the Form 6 Notice to Employees of Application for Certification and of Hearing (posted by the employer in conspicuous locations of the work place) notifies employees of the application and also notifies them of the steps which must be taken if they wish to make representations to the Board. By way of contrast, the Form 7 Notice to Employees of Application and Request for Pre-Hearing Vote contains no similar instructions (although it does indicate that "[a]ny communication with respect to [the] application must be addressed to: The Registrar, Ontario Labour Relations Board 400 University Avenue, Toronto, Ontario M7A 1V4). This is not surprising in view of the purpose of the pre-hearing representation vote procedure, which was described by the Board as follows in Emery Industries Limited, [1980] OLRB Rep. March 316, at paragraph 5:

“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.”

(emphasis added)

(See also Groves Park Lodge, [1981] OLRB Rep. Nov. 1581.) In the context of a certification application in which the Board directs that a pre-hearing vote be taken, it is only when the Notice of Report of Returning Officer (in Form 71, 72 or 73, as the case may be) has been posted on the employer's premises that the employees are informed of the procedure for sending to the Board a statement of desire to make representations "in connection with the application", "as to any matter relating to the representation vote", "as to the accuracy of the report", or "as to the conclusions the Board should reach in view of the report". Thus, the pre-hearing vote procedure does not preclude a bargaining unit employee, or a group of bargaining unit employees, from making submissions to the Board with respect to such matters as description of the bargaining unit; it merely defers the appropriate time for making such submissions, thereby permitting the representation vote to be taken as expeditiously as possible.

4The intervener was certified as bargaining agent for the respondent's Hydro Division employees in the later 1940's and entered into its first collective agreement in respect of that bargaining unit about 1952. In the late 1950's or early 1960's, the intervener obtained a certificate for the respondent's Water Works Division and subsequently entered into a separate collective agreement in respect of that unit. However, after the expiry of the initial Water Works Division collective agreement, the intervener and the respondent agreed to enter into a single collective agreement which covered both the Hydro Division and the Water Works Division. In the early 1960's, the employees in the respondent's Garage Division also came to be covered by the "amalgamated" collective agreement between the intervener and the respondent. Thus, although the intervener originally held separate bargaining rights for the respondent's Hydro Division employees, the employees in that division have been included in a common "outside" bargaining unit along with the employees in the respondent's Water Works Division and Garage Division for approximately twenty years, through a series of collective agreements. Despite that substantial history of successful collective bargaining, the objectors now seek to have the Board split the existing bargaining unit by certifying the applicant for a bargaining unit which excludes journeymen in line maintenance, construction and substations, apprentices, groundsmen and truck driver-helpers. The effect of such exclusions would be to permit the Hydro Division employees in those classifications to retain the intervener as their bargaining agent. (For ease of reference, the employees in those classifications will be referred to in this decision as the employees in the "residual unit".)

5In support of his clients' request, counsel for the objectors noted that the Board is not required by the Act to detemine the unit of employees that is most appropriate for collective bargaining; it is only required by section 6(1) to "determine the unit of employees that is appropriate for collective bargaining". He also submitted that if the Board has any doubt concerning the true wishes of the employees in question, it should conduct a vote of the employees in those classifications for the purpose of ascertaining their wishes as to the appropriateness of the unit (as permitted by section 6(1) of the Act).

6In support of their position, the objectors adduced evidence which indicates that linemen in the residual unit undergo an extensive apprenticeship training progamme before attaining journeyman status, which has no equivalent in the Water Works Division. In addition to their more rigorous training requirements, the residual unit employees have separate supervisors, perform different work which requires unique safety precautions, and are to some extent functionally independent of the other employees in the bargaining unit. However, employees from the Hydro Division sometimes work in the Water Works Division during periods of temporary manpower shortages, and vice versa. Also, a few permanent transfers have occurred from the Water Works Division to apprenticeship positions in the Hydro Division pursuant to the job posting procedures contained in the collective agreement.

7Although there is some justification for the contention of the employees in the residual unit that they share a community of interest distinct from that of the other "outside employees", there are also a number of countervailing considerations. Foremost among these is the fact that the existing "outside" bargaining unit has proved to be quite appropriate for collective bargaining, as evidenced by a series of collective agreements spanning two decades. That comprehensive bargaining structure, which the objectors seek to fragment, was agreed to by the very bargaining agent which the objectors now seek to retain in the context of a much smaller unit. There is no evidence that the objectors have suffered any prejudice as a result of their longstanding inclusion in the existing comprehensive unit of "outside workers" in the employ of the respondent. Indeed, it was conceded that there was no concern whatever about their inclusion in that unit until the applicant commenced its organizational activities.

8It is clear from the evidence that the objectors' real concern is not the breadth or scope of the existing bargaining unit, but rather the identity of the trade union that has won a displacement vote in respect of bargaining rights for that unit. As stated by counsel for the objectors, although his clients "were content to have a "craft union', the I.B.E.W., representing them, and acquiesced in that for a number of years, it's another matter altogether when [they're] confronted by a 'non-craft' union representing [them] plus others". In his testimony before the Board, Mr. DaSilva expressed several concerns on behalf of the objectors with respect to the potential loss of the intervener as their bargaining agent. One of those concerns was the applicant's "lack of affiliation with an electrical trades union". Mr. DaSilva expressed the view that if the residual unit employees went on strike while represented by the applicant, there would be nothing to prevent linemen and other members of the I.B.E.W. from crossing the picket line and performing the struck work. He also gave evidence concerning the intervener's extensive involvement in various electrical safety programmes and activities. That evidence was confirmed by the testimony of William Moore, an experienced International Representative in the employ of the intervener, as was Mr. DaSilva's evidence concerning the extensive employment opportunities in Canada and the United States that are available to members of the intervener.

9Although the concerns raised by the objectors about the respective resources, expertise and connections of the applicant and the intervener in respect of matters such as affiliation, safety, and employment opportunities, are clearly issues which are quite properly the subject of discussion among employees, "electioneering", and other activities which precede a displacement representation vote, they are not factors which the Board finds to be persuasive in determining the appropriate bargaining unit in the circumstances of this case.

10It was common ground among the parties that the International Brotherhood of Electrical Workers is a "craft" union within the purview of section 6(3) of the Act in some contexts, including the construction industry and various other industries such as paper mills and shipyards. However, the Board is not satisfied on the evidence before it that the requirements of section 6(3) have been met in the present case. In particular, it has not been established on the balance of probabilities that journeymen in line maintenance, construction and substations, apprentices, groundsmen and truck driver-helpers "commonly bargain separately and apart from other employees" in the context of municipal utilities. (Although Mr. Moore testified that "hydro" employees bargain separately from "water" employees in some municipalities, he also stated that they are combined in a single bargaining unit in other municipalities. It also appears from Mr. Moore's evidence that separate bargaining rights for "water" and "hydro" employees in a number of municipalities flow not from any bargaining unit determinations by this Board or bargaining unit agreements between unions and employers, but rather from the fact that many "water" employees are employed by the municipalities themselves, while "hydro" employees are employed by separate corporate entities which provide electrical power services to various municipalities.) Thus, it is unnecessary for the Board to determine whether the other requirements of section 6(3) have been fulfilled in the circumstances of this case.

11It is also important to note that the residual unit in respect of which the objectors seek to retain representation by the intervener, does not include all of the employees in the respondent's Hydro Division. If the Board were to accede to the wishes of the objectors, journeymen in line maintenance, construction and substations, apprentices, groundsmen and truck driver-helpers would form one bargaining unit (represented by the intervener), but a number of the respondent's Hydro readers, general servicemen, inspectors, stockkeepers, labourers and construction clerks, would be included in another bargaining unit (represented by the applicant). The Board was presented with no collective agreements, certificates or other evidence indicating that a residual unit of the type advocated by the objectors has ever been found by this Board, by any other labour relations tribunal, or by any parties to a collective agreement, to be appropriate for collective bargaining in either a "craft" or non-craft context.

12Counsel for the intervener made submissions before the Board in support of the objectors' position notwithstanding the fact that the intervener had not questioned the appropriateness of the existing bargaining unit in its reply to this application, in any statement of desire filed with the Board, in its submissions to the Board Officer at the pre-hearing vote meeting, or at any time during the course of collective bargaining with the respondent. The respondent's representative provided the Board with a brief historical outline of the intervener's bargaining rights, but elected to maintain a position of neutrality by making no submissions to the Board with respect to the merits of the dispute among the other parties concerning the description of the bargaining unit.

13This is not the first time that the Board has been met with a request that employees in certain classifications be excluded from a certificate issued by the Board in a displacement application. In The Wellesley Hospital, [1976] OLRB Rep. Feb. 45, the Canadian Union of Public Employees sought to displace a local of the International Union of Operating Engineers as bargaining agent for a unit consisting of stationary engineers, hospital equipment maintenance men and helpers. After the applicant had won a pre-hearing representation vote by a majority of one vote (nine of the seventeen ballots cast were cast in favour of the applicant), the employer and the Service Employees Union submitted that the hospital equipment maintenance men and helpers did not share a community of interest with the remaining employees in the incumbent's bargaining unit; it was suggested that they shared a community of interest with the employees encompassed in the "service" bargaining unit for which the Service Employees Union held bargaining rights. Thus, that union and the respondept sought to have the applicant's bargaining unit confined to "stationary engineers". In rejecting that request, the Board wrote:

“5. The general principle to be applied in 'displacement situations' was stated by the Board in the Electrohome Limited case OLRB M.R. December, 1967, p. 854, at page 857, as follows:

‘On an application for certification where the applicant union seeks to displace an incumbent union, the very least such applicant union is entitled to, if it wins the representation vote, is the same unit as was normally represented by the incumbent trade union.’

6. Although the resultant bargaining unit descriptions as ultimately determined by the Board, may differ from the wording as set out in the initial voting constituency (see the Harding Carpets Limited case (1975) OLRB Rep. 566), we would not, in any event, be prepared in the circumstances to 'carve-out' the unit in the manner as proposed to us by the Respondent and Intervener #, especially where, as in the instant case, it would appear that the parties to the relevant collective agreement have been content to 'live' with such a unit description for some thirty years...”

See also Ontario Hydro, [1980] OLRB Rep. June 882, at paragraph 22 in which the Board observed:

“…Where parties have established the viability of a bargaining unit through actual bargaining and where the history of such bargaining has been relatively satisfactory, this Board ought not to encourage fragmentation. Moreover, in these cases, the Board is not dealing with employees who are unrepresented by a trade union. Thus, more concern can be given to the most viable unit from a collective bargaining viewpoint without the risk of impeding the initial organization of employees attempting to engage in bargaining...”

In that case, the applicant sought to carve a group of employees out of an existing province-wide unit represented by the incumbent. In response to that application, the incumbent contended that the existing province-wide unit was the only appropriate unit. Although the Board confirmed that there is "a strong presumption in favour of the incumbent trade union's bargaining unit", it also expressed a willingness to entertain evidence as to why the status quo ought not to be maintained. In that decision, the Board indicated that a clear failure by the incumbent trade union to adequately represent a distinct and cohesive group which meets the principles of appropriateness generally applied to certification cases, combined with a capacity in the employer to tolerate somewhat greater fragmentation, might prompt the Board to permit such a "carve out". (Similar considerations are also relevant in determining whether it is appropriate to permit a craft unit to be carved out of a broader bargaining unit: see, for example, Villacentres Management Ltd., [1979] OLRB Rep. April 359.)

14As stated by the Board in Ontario Hydro, supra, at paragraph 26, this Board has a legitimate interest "in encouraging broader based collective bargaining structures which maximize opportunities and flexibility for both employers and employees". In situations involving employees who are unrepresented by a trade union, the Board must have due regard to the labour relations reality that requiring a trade union to organize a highly comprehensive unit may effectively impede the access of all of the employees within that unit to any collective bargaining at all. (See K Mart Canada Limited, [1981] OLRB Rep. Sept. 1250, and the review of the Board's jurisprudence contained in that decision.) However, in displacement situations such as the instant case in which the Board is not dealing with employees who are unrepresented by a trade union, greater emphasis can properly be placed upon the desirability of maintaining existing broadly based collective bargaining structure that have evolved over the years and have proven to be viable and sound.

15Having regard to all of the evidence, the submissions of the parties and the Board's jurisprudence with respect to displacement applications, the Board is of the view that the intervener's bargaining unit is the appropriate bargaining unit in the circumstances of this case. The success of the intervener and the respondent in negotiating collective agreements over a period of approximately twenty years vividly demonstrates the appropriateness of that unit for purposes of collective bargaining. Acceding to the objectors' request would result in unnecessary fragmentation and might also give rise to jurisdictional disputes. The applicant has won a pre-hearing representation vote in the incumbent's bargaining unit. While a minority of the employees in that unit are dissatisfied with the result of the vote, such dissatisfaction is inherent in the democratic process and does not provide a rationale for fragmenting an existing bargaining structure that has withstood the test of time. The present case is not a situation in which the applicant seeks to "carve out" from the incumbent's bargaining unit a smaller unit consisting of a distinct and cohesive group which the incumbent has failed to represent adequately. Rather, it is a situation in which some dissentient employees seek to be, in effect, "carved out" into a smaller bargaining unit for which the incumbent will retain bargaining rights. It is apparent that the objectors' request is primarily based upon a concern that the applicant will not be able to adequately represent the employees in the classifications in question. However, that concern is premature; it is based upon sheer speculation that has arisen before the applicant has had any opportunity to demonstrate its ability carry out the statutory duties and obligations that accompany certification by this Board. Should the actual representation of those classifications by the applicant prove to be seriously inadequate, a "carve out" application could be filed for consideration by the Board at an appropriate time in the future. Moreover, the applicant's obligations under section 68 of the Act also provide an element of protection for minority interests. That section provides that a trade union, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the bargaining unit, whether or not members of the trade union.

16The evidence before us indicates that the employees whom the objectors seek to have excluded from the unit do have a community of interest which, at least in some respects, is separate from the other employees in the existing bargaining unit. If this were a fresh situation in which no established patterns of collective bargaining had been established, the Board might be somewhat more disposed to grant a separate bargaining unit to such employees, although even in such fresh situation the Board's aversion to bargaining unit fragmentation might well dissuade it from issuing a certificate which covered only some of the "outside" employees in the respondent's Hydro Division. (See, for example, Tamco Limited, [1974] OLRB Rep. Nov. 764, in which the Board refused to find appropriate an "all employee" (production) bargaining unit from which skilled tradesmen, their apprentices and set up men were to be excluded, despite the fact that the trade union, the employer and the objectors had all agreed to that exclusion.) Be that as it may, in view of all the circumstances, including the lengthy history of successful collective bargaining in relation to the existing unit and the absence of any evidence that would permit the Board to conclude that the employees in question are unlikely to continue to obtain proper representation within the existing bargaining structure, the Board is satisfied that it is in the best interests of sound labour relations to maintain the integrity of that unit in the circumstances of this case. For the foregoing reasons the Board, in the exercise of its discretion under section 6(1) of the Labour Relations Act, hereby determines that all employees of the respondent in its Hydro Division, Water Works Division and Garage Division in the Municipality of Metropolitan Toronto, save and except supervisors and persons above the rank of supervisor, constitute a unit of employees of the respondent appropriate for collective bargaining.

17For the purposes of clarity, the Board notes the agreement of the applicant and the respondent that the following classifications are included in the bargaining unit:

(List of classifications omitted)

18The Board is satisfied that not less than thirty-five per cent of the employees of the respondent in the bargaining unit were members of the applicant at the time the application was made.

19As indicated above, on the taking of the pre-hearing representation vote directed by the Board, more than fifty per cent of the ballots cast were cast in favour of the applicant.

20A certificate will issue to the applicant.

21The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.