Brenda Millward, Lilian McFarland v. Service Employees Union, Local 204 A.F.L., C.I.O., C.L.C., 1982 CanLII 996

[1982] OLRB Rep. November 1660

1082-82-R Brenda Millward, Lilian McFarland, Applicants, v. Service Employees Union, Local 204 A.F.L., C.I.O., C.L.C., Respondent, v. K Mart Canada Limited, Intervener

BEFORE: Corine F. Murray, Vice-Chairman, and Board Members J.A. Ronson and B. L. Armstrong.

APPEARANCES: Barry Edson, Brenda Millward and Beverly Wilkinson for the applicants; H. Goldblatt and A. Edge for the respondent; Robert A. MacDermid and C. A. Cumiskey for the intervener.

DECISION OF CORINNE F. MURRAY, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; November 8, 1982

1This is an application for a declaration terminating the bargaining rights of the respondent, pursuant to section 57(2)(a) of the Labour Relations Act, in respect to the following bargaining unit:

All employees of the employer employed at its K Mart store at Bayview Village Shopping Centre in the Municipality of Metropolitan Toronto, Onario, save and except department managers, persons above the rank of department managers, management trainees, pharmacists, students employed during the school vacation period and persons who are regularly employed for not more than twenty-four (24) hours per week.

2It was acknowledged by all parties that the application was timely and the Board so finds. No objection per se was made regarding the status of the applicants to bring this application but the respondent made certain submissions regarding the scope of the bargaining unit which could also raise issues of status.

3The respondent claims that the appropriate bargaining unit for the purposes of this application is one that includes persons regularly employed for not more than 24 hours and students employed during the school vacation period. In its Reply it described such unit as follows:

Full-time and part-time retail store employees including clerical employees.

4At the hearing the Board indicated to the parties that the applicants had submitted a petition containing names which represented over 50 per cent of those employees appearing on the Schedules submitted by the intervener listing employees in the bargaining unit as described in the application. There were no lost names. If the appropriate bargaining unit includes part-time employees and students, as the respondent contends, this application cannot succeed in any event. It was agreed, therefore, that the Board should determine this preliminary issue prior to hearing the evidence as to the voluntariness of the applicants' petition.

5The parties filed with the Board a document which the respondent contends is a single collective agreement encompassing one bargaining unit comprised of full-time and part-time employees (along with students employed during the school vacation period). The applicant submits that the document represents two collective agreements, one covering a full-time unit of employees and the other covering a part-time unit. The intervener takes the position whether there are one or two agreements is irrelevant. What is relevant is the definition of the bargaining unit. In the intervener's submission there are two definitions defining two bargaining units.

6An interpretation of the document submitted is central to the determination of the appropriate bargaining unit in this application. While the Board maintains strict control over the description of bargaining units it certifies, even in the face of an agreement of the parties, (see, for example, Kaneff Properties Ltd., [1981] OLRB Rep. July 889), after certification, however, the parties are free to fashion their own bargaining unit in the course of legitimate negotiations. The bargaining unit once fashioned becomes the appropriate one for the purposes of an application for termination of bargaining rights pursuant to section 57(2) (Graphics Centre (Ontario) Inc., [1977] OLRB Rep. June 379). The question therefore is whether the parties have fashioned a single unit from the two units the Board certified on September 10, 1981. In this case this issue is solely determinable with reference to the document referred to above.

7It was undisputed that the respondent was certified on September 10, 1981 as the bargaining agent for two separate units, one for full-time and one part-time and students. The description of the full-time unit as contained in the certificate issued is duplicated in Article 2.01 of the first segment of the document submitted (See para. 8 below) and the description of the part-time unit as contained in Article 1.01 of the second segment of the document (See Para. 8 below).

8The significant portions of the document are set out below. On the top of page 1 the following appears:

This Agreement made this 29th day of August, 1982.

After recital of the parties to the agreement the following articles are set out:

ARTICLE I - PURPOSE

1.01. The purpose of this agreement is to establish mutually satisfactory relations between the Employer, the Union representing the employees and the employees concerned. In addition, it is the purpose of this agreement to provide machinery for the prompt and equitable disposition of grievances and to establish and maintain satisfactory working conditions, hours of work, wages and benefits for all employees within the bargaining unit.

ARTICLE II- SCOPE AND RECOGNITION

2.01 The Union is hereby established as the sole and exclusive bargaining agent for all employees of the Employer employed at its K Mart store at Bayview Village Shopping Centre in the Municipality of Metropolitan Toronto, Ontario, save and except department managers, persons above the rank of department managers, management trainees, pharmacists, students employed during the school vacation period and persons who are regularly employed for not more than twenty-four (24) hours per week.

2.02 The Employer and the Union agree that there will be no discrimination, interference, restraint or coercion exercised or practiced by the Employer or the Union, or any of their representatives, with respect to the membership or non-membership in the Union.

Other Articles follow dealing with the usual subjects contained in the collective agreement up to and including Article XX — Duration which states:

20.01 This agreement shall become effective on the 10th day of September, 1981 and shall expire on the 9th day of September, 1982.

This portion or segment of the document comprising 15 pages concludes with the following language:

IN WITNESS WHEREOF each of the parties hereto has caused this agreement to be signed by its duly authorized representative as of

the day of _________________ , 1982

After which signatures of the representatives of the intervener and respondent appear. Following p. 15 there is a Schedule "A" (dealing with base rates for designated classifications) and an Appendix "B" setting out the benefits for which the intervener agrees to pay, together with Bereavement and Jury Leave provisions. The next following page (unnumbered) has the heading:

In the Matter of Negotiations

after which the intervener's and respondent's names are set out in a format identical to the first page of the document noted above. In between this and the subsequent Articles are the words "Addendum Agreement". Article 1 — Scope and Recognition provides;

1.01 The Union is hereby established as the sole and exclusive bargaining agent for the employees of the Employer employed at its K Mart store at Bayview Village Shopping Centre in the Municipality of Metropolitan Toronto who are regularly employed for not more than 24 hours per week or who are employed as students during the school vacation period.

Article II provides:

2.01 Only the following provisions of the collective agreement dated 29th day of August, 1982, between the Employer and the Union related to the full time unit at the Employer's K Mart store at Bayview Village Shopping Centre (hereinafter called the "Full Time Collective Agreement') shall be applicable to employees covered by this Addendum agreement:

Article I

2.02 of Article II

Article III

Article IV

Article V

Article VI

Article VII

Article IX

Article X

(emphasis added)

Thereafter Articles III through IX deal with terms and conditions applicable to the group of employees identified in Article 1 above. Article X — Duration states:

10.01 This agreement shall become effective on the 10th day of September, 1981 and shall expire on the 9th day of September, 1982.

Following this Article is a clause at page 5 witnessing that each of the parties have signed the Addendum Agreement under which the parties' authorized representatives have signed their names. It is important also to note those Articles of the document realting to seniority. Article XI — Seniority, in the segment of the document dealing with full-time employees, after indicating how seniority is acquired, provides as follows:

11.02 The seniority rights shall only be exercisable as expressly provided in this Article.

11.08 Seniority rights as provided in this agreement shall only be exercisable within the full time bargaining unit and shall not be applicable to any job or position performed by any person who is not within the scope of this agreement as set out in Article 2.01.

(emphasis added)

Article IV — Seniority in the Addendum Agreement contains the following comparable clauses:

4.02 Seniority rights of an employee to whom this Addendum agreement applies shall only be exercisable as expressly provided in this Addendum agreement.

4.03 Seniority rights as provided in the Addendum agreement shall only be exercisable within the bargaining unit and shall not be applicable to any job or position performed by any person who is not within the scope of this Addendum agreement as set out in Article 1.01 herein.

(emphasis added)

Finally Article III — Stewards in the Addendum Agreement provides:

3.01 The Employer acknowledges the right of the Union to appoint or otherwise select two (2)) seniority employees employed in the bargaining unit described in Article 1.01 in this Addendum agreement to serve as stewards, each of whom, shall have at least two (2) years of seniority.

(emphasis added)

8. Section 57(2) only permits application for termination of bargaining rights to be made by an employee in the "bargaining unit defined in the collective agreement". Section 57(3) requires the Board to ascertain the number of employees in "the bargaining unit" at the time the application was made and whether not less than forty-five per cent of them have voluntarily signified in writing that they no longer wish to be represented by the union. The term "bargaining unit" is not defined in the Act, and the definition of collective agreement contained in section l(l)(e) does not mention the concept of bargaining unit. Section l(l)(e) states:

l.—(l) In this Act,

(e) "collective agreement" means an agreement in writing between an employer or an employers' organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers' organization, on the other hand contained provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers' organization, the trade union or the employees, and includes a provincial agreement.

Section 49 however states:

There shall be only one collective agreement at a time between a trade union or council of trade unions and an employer or employers, organization with respect to the employees in the bargaining unit defined in the collective agreement.

(emphasis added)

This provision, read together with section 52, indicates that with respect to the same group of employees as defined in a bargaining unit there can only be one set of terms or conditions of employment for a minimum period of 1 year. Nothing requires that the collective agreement be contained in one document or that one document could only encompass one collective agreement. The key to determining whether there is one or two collective agreements is whether there are one or two bargaining units.

9It is apparent to the Board that the respondent and intervener have maintained the two bargaining units as originally described in the Board's certificates. There is a description of each under separate "Scope and Recognition" clauses and there is a maintenance of the distinction between the two units in key articles, i.e., seniority and stewards where any intention to treat the two units as one would have to be manifested. The way in which Articles applicable to the full time employees are made applicable to the part-time employees and students is also significant. Article II of the Addendum imports those provisions "related to the full time unit".

10The respondent argued that an intention to fashion one unit was disclosed by the following:

(1) the designation of the portion relating to part time employees as an "Addendum Agreement";

(2) the fact that there was no repetition in the Addendum of the date the agreement was made;

(3) the fact that there was no re-statement of the "purpose" clause in the Addendum.

The respondent also argued that the two separate scope and recognition clauses are merely an identification of the group to whom the different terms and conditions apply and that there is no separate part-time collective agreement, because one must, by reason of Article II, refer to Articles in the portion relating to full-time employees.

11The Board finds none of these arguments persuasive. It is our conclusion upon looking at the whole of the document submitted that it encompasses two collective agreements, one dealing with the full-time unit and the other with the part-time unit. Articles which would usually require no distinctions along bargaining unit lines are the same in each, i.e.:

Article I — Purpose

Article III — Union Dues

Article IV — Interpretation

Article V — No Strikes No Lockouts

Article VI — Bulletin Boards

Article VII — Management Rights

Article IX — Policy Grievance

Article X — Grievance Procedure

The Bulk of the Articles which differ are merely reflective of the differences in wages and benefits which are attributable to the difference in terms of employment which commonly exist between persons employed on a full-time basis and those employed on a part-time basis. Of significance to the determination of whether more than one bargaining unit exists are the Articles dealing with seniority and stewards. As noted in paragraph 8 above, both the seniority Articles XI and IV have language indicating that the seniority rights would only be exercisable within each "bargaining unit". Also Article III in the Addendum Agreement, read together with Article VIII of the portion dealing with full-time employees, shows an intention to have two stewards per bargaining unit. These Articles are the most likely to reveal an intention to maintain two units or amalgamate them into one because the acquisition and exercise of seniority is an important component of the exercise of the union's representation rights and is not necessarily dictated by inherent differences between employees employed on a full-time basis and those employed part-time. The same thing can be said of the designation of stewards. The adoption of language framed in terms of two separate bargaining units, as opposed to merely two groups of employees, together with the maintenance of separate scope and recognition clauses has led the Board to conclude there are two collective agreements. The fact that each was executed separately reinforces this conclusion. The use of the words "Addendum Agreement", while prima facie indicating an intention to add to the first portion of the agreement, does not of itself overcome the substantive differences between the agreements noted above. The fact that numerous Articles from the full-time agreement are imported into the part-time agreement does not reveal an intention to amalgamate the bargaining units but rather an intention to make certain Articles applicable to both units. The Board has found in the context of "displacement" applications that two bargaining units may be described in one document which serves separately as a collective agreement for each of the units (see C. G. T Industries, [1979] OLRB Rep. Apr. 285 and cases cited therein).

12Even if we are wrong in concluding that there are two collective agreements contained in one document, our conclusion that there are two bargaining units can nevertheless stand. It has been stated in numerous decisions of the Board that one collective agreement can contain two or more bargaining units one of which could form the basis of an application under section 57(2) or a displacement application (see: Kilgoran Hotels Limited, [1974] OLRB Rep. Nov. 804; The Sumner Printing & Publishing Company Limited, [1967] OLRB Rep. Dec. 895, application for judicial review dismissed June 10, 1968, unreported; Miltronics, [1980] OLRB Rep. Jan. 10).

13For all of these reasons the Board has determined that the bargaining unit described in the instant application is the bargaining unit with respect to which an application under section 57(2) may be made.

14A second issue in this application was raised by the applicants regarding the evidence they proposed to call. Counsel for the applicants sought the Board's "consent" to call all of the individuals who had signed the petition instead of the normal practice of only those persons who originated and circulated it. Counsel indicated that he felt this was necessary to show the petition to have been voluntary, but he indicated his concern that section 111(1) of the Act would interfere with his calling the evidence he wished. Counsel for the respondent argued that it was the applicants' case to present, making the necessary judgment calls to do that, and "consent" shouldn't properly be sought. Very little more than this was said by counsel for the parties. The Board indicated that it was in agreement with the respondent's position but attached the caveat that should the Board determine otherwise in the interim between the first and subsequent hearing dates it would advise the parties.

15Normally the Board only will hear evidence regarding the origination and circulation of a petition, in either a certification or termination application context, in order to determine whether it is voluntary. Section 102(13) of the Act provides:

The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Board may, subject to the approval of the Lieutenant Governor in Council, make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.

Pursuant to this the Board has formulated Rules 15 to 18, R.R.O., 1980 Reg. 546, concerning applications for the termination of bargaining rights:

15. An application for a declaration of termination of bargaining rights shall be made in quadruplicate in Form 17.

16.—(l) The registrar shall serve the applicant with a notice of the fixing of the terminal date and of hearing in Form 2.

(2) The registrar shall serve the respondent with,

(a) a copy of the application; and

(b) a notice of application and of hearing in Form 18.

(3) The registrar shall serve the employer with an appropriate number of notices of application in Form 19 for posting.

17. A respondent shall file a reply in quadruplicate in Form 20 not later than the terminal date for the application.

18. —(1) Where the application is made by a person other than the employer, the registrar shall serve the employer with a copy of the application and a notice of application and of hearing in Form 21.

(2) An employer upon whom a copy of an application and a notice of application and of hearing are served shall file his intervention, if any, in quadruplicate in Form 12 not later than the terminal date for the application.

Form 19 — Notice to Employees Application for Declaration Terminating Bargaining Rights and of Hearing before the Ontario Labour Relations Board — paragraph 7 states:

Any employee or group of employees, who has informed the Board in writing of his or their desire in accordance with paragraphs 4 and 5 may attend and be heard at the hearing in person or by a representative. Any employee or representative who appears at the hearing will be required to testify from his or their personal knowledge and observation, as to (a) the circumstances concerning the origination of the material filed, and (b) the manner in which each of the signatures was obtained.

(emphasis added)

and paragraph 9 states:

THE PURPOSE OF THE HEARING is to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to, the application referred to in paragraph 1.

Finally, Rule 73 provides in part:

73.—(l) Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for ... declaration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by

(i) the return mailing address of the person who files the evidence, objection or signification, and

(ii) the name of the employer; and

(b) is filed not later than the terminal date for the application.

(2) No oral evidence ... of signification by employees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection (1).

(5) The Board may dispose of the application without considering the statement of desire of any employee who fails to appear in person or by a representative and adduce evidence that includes testimony in the personal knowledge and observation of the witness as to,

(a) the circumstances concerning the origination of the statement of desire; and

(b) the manner in which each signature on the statement of desire was obtained.

(emphasis added)

16It is the Board's practice to hear only such evidence as is necessary to establish that the origination and circulation of the petition was voluntary without doing unnecessary violence to the spirit of confidentiality contained in section 111(1) of the Act. This section ensures the secrecy of union membership by providing that:

The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union.

Obviously those employees instrumental in the origination and circulation of a petition or petitions must disclose, if they wish to succeed in their application, the fact that they do not desire to be represented by a trade union. But the identity of other employees who were mere signatories to the statement of desire is guarded by the Board. At the hearing, for example, the Board requires that reference to a signature be made by number, not name. It is quite clear that in normal circumstances section 111(1) would not allow a party to the proceedings to subpoena and enforce the attendance of a signatory to a petition to give evidence which would identify him/her as a signatory.

17The question which the applicants raise is whether the signatories to the petition can choose to testify as to how and why they signed the petition. If they cannot do so without the consent of the Board pursuant to section 111(1), the applicants request such consent.

18In this case one document was submitted containing 28 signatures of employees witnessed by three persons. Pursuant to Rule 73(5), the Board requires the applicants to adduce evidence as to the circumstances concerning the origination of the petition and the manner in which each signature on the statement of desire was obtained. This appears to be evidence which would not in the circumstances require all of the 28 signatories giving evidence. If the evidence is meant to show the voluntary nature of their signatures, the Board would consider this to add no probative value to the evidence of the originators and circulators. The Board in assessing the voluntariness of a statement of desire must evaluate the circumstances surrounding the origination and circulation of the statement of desire and does not rely on the subjective testimony of any individual signatories as to their state of mind. The reason for this is the belief that the latter is not reliable evidence to determine whether an employer has inspired influenced, encouraged or pressured signing of the statement of desire. It is not reliable because the same influences and pressures which prompted the individual to sign the statement of desire could be motivating him/her to testify that his/her signature was voluntary. Alternatively, if this type of evidence has any probative value, this is outweighed by the high risk that through 28 employees individually identifying themselves to be opposed to the union, the remaining employees' (approximately 26) desire that they wish to be represented by a trade union will thereby be revealed. Hearing the evidence of all 28 signatories would be tantamount to a disclosure of a record (i.e. the petition) which could disclose that 26 employees wished to continue membership in the union. In the alternative, it would constitute an indirect disclosure of the remaining 26 employees' wish to continue to be represented by the respondent. Therefore, on the basis of the facts known at this time, the Board, in the exercise of its overriding discretion pursuant to section 111(1), withholds its consent to such disclosure.

19The matter is referred to the Registrar to be listed for continuation of hearing.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. I agree with the majority decision on the first issue as set out in paragraph 13.

2. At our hearing the trade union advised that it would be challenging the statement of desire on the basis, inter alia, that when the employees signed the document there was no preamble indicating that the document would be used in an effort to have this Board de-certify the union. Following this, counsel for the originators and circulators of the statement of desire requested the consent of the Board as set out in the majority decision.

3. I agree with the majority that it would be premature to grant such consent at this stage of the proceedings. But, given the position of the trade union as stated above, I do not agree with the elaboration by the majority upon the issue as set out in paragraphs 14 to 18 inclusive.

4. Given the limited information available to lay employees concerning statements of desire and the nature of the Board's jurisprudence on the subject, it would also be premature for the Board to hold that in no case should it allow the signatories to the statement of desire to give evidence. For example, if the trade union leads evidence through an employee witness who refused to sign the statement, the circumstances (as divulged by the evidence) may well give the applicants the right to call such evidence as they deem sufficient in reply (Fullers Restaurant, 80 CLLC ¶14,021).