United Food and Commercial Workers International Union, Local 175 v. Silverstein's Bakery Limited, 1983 CanLII 792

File No.: 1338-83-R Date: 1983-12-07

Applicant: United Food and Commercial Workers International Union, Local 175 Respondent: Silverstein's Bakery Limited Objectors: Group of Employees

Before: M. G. Mitchnick, Vice-Chairman, and Board Members F.W. Murray and B. L. Armstrong.

Appearances: Harold Caley and Frank Kelly for the applicant James Hassell and Dave Silverstein for the respondent Orval Bartraw for the objectors

DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER F. W. MURRAY; December 7, 1983

This is an application for certification in which the parties met with a Board officer on the date set for hearing and reached agreement on the following bargaining-unit description:

All employees of the respondent at Toronto save and except supervisors, persons above the rank of supervisor, office and clerical staff, persons regularly employed for not more than 24 hours per week, students employed during the school vacation period and persons covered by subsisting collective agreements.

The parties then agreed to the appointment of a Board officer to receive their evidence on, inter alia, whether certain persons were "persons covered by a subsisting collective agreement".

When the parties subsequently met with the officer for the purpose of commencing the examination, however, it quickly became apparent that the parties were operating with two different views as to what "persons covered by a subsisting collective agreement" meant, and what, consequently, was the appropriate scope of relevant evidence before the officer. The matter was accordingly put back on for hearing before the Board, and the submissions of the parties have now been received.
The applicant initially applied for a "tag-end" form of "all-employee" unit described as follows:

All employees of the respondent in its bakery at 195 McCaul St., Toronto, save and except office staff, persons covered under existing collective agreements, foremen, persons above the rank of foremen and persons regularly employed for not more than twenty-four hours per week.

The respondent has two collective agreements in force with Bakers' Union Local 181, which is not the present applicant. The first collective agreement covers the respondent's craft baking staff, and dates back several decades. The second agreement arose out of a 1981 application for certification, as a result of which the parties entered into a voluntary-recognition collective agreement covering, in broad terms, "production help". That collective agreement has since been renewed, and is described in its scope as:

ARTICLE I - RECOGNITION

1.01 The Employer voluntary recognizes Local 181 as the bargaining agent for all employees of Silverstein's Bakery Limited, 195 McCaul Street, Toronto, Ontario who are not covered by a classification in the present agreement with Local 181, Toronto, Ontario, save and except foremen, foreladies, and drivers, and persons above the rank of foreman and foreladies and office and clerical employees.

The applicant claims that it relied on that scope clause to determine the existing unit, and organized on the basis of what was stated as the only relevant exclusion, being "drivers". It understood that term to mean those persons primarily engaged by the respondent to drive trucks, and who spend the bulk of their time on the road.

There are, as it turns out however, eight other persons whom the respondent asserts have, by agreement of itself and Bakers' Local 181, never been covered by the subsisting collective agreements: 6 of these individuals are described by the respondent as "shipper/drivers" or "receiver/drivers" and, according to the respondent, have driving included as a "regular", though not "primary", part of their duties. The other 2 are described by the respondent as "shipper" and "packager" respectively, and are said to act as drivers as required from time to time, although admittedly less frequently than the other six. The respondent argues that the Bakers' Union and itself have, for their own reasons, chosen to exclude all eight from the scope of the existing units, and that all eight have in fact been so excluded from the outset. The respondent argues that that is the simple reality of the situation, and that the applicant, or anyone else coming on the scene at this date, must take the situation as it finds it. Alternatively, if the Board is now going to seek to interpret the collective agreement, and in particular the word "drivers", it ought to treat that word as ambiguous and look at evidence of how the two parties to the collective agreement have interpreted that word in practice. The applicant, on the other hand, argues that it ought not to be bound by either the express agreement or the practice of the Bakers' Union. It argues that a collective agreement must in circumstances such as these be interpreted according to its language, and if that language is clear, then a third party must be able to rely upon it. The applicant argues that this is the only way to provide clarity to an outside trade union arriving on the scene and focussing its resources on the body of employees which it will in fact be required to organize. The meaning to be given to the word "drivers" then, it argues, is an objective one, and should in fact be determined by the test of "primary" employment, in accordance with the approach of the Board, for example, in determining whether one construction trade or another is being employed on the date of an application, or with the approach of boards of arbitration generally. The applicant further requests leave to amend the description of the bargaining unit it seeks to "all retail and wholesale drivers of the respondent", to more accurately reflect the unit which it had intended to organize all along.
The Board recognizes the benefit of clarity in these situations, and the difficulties which an organizing union may sometimes face in obtaining information which is complete and accurate. Nevertheless, the present case is not the only situation in which that arises. In the construction industry, for example, a trade union is aware that it must, in spite of the potential difficulty in gaining information, sufficiently identify the ongoing jobsites of an employer to meet the percentage levels required for a vote or certification. If it has misinformed itself, it must accept the consequences. The industrial context, it appears to us, at least offers a more limited scope for inquiry to an aspiring union, and the Board, in circumstances like the present, does not appear to have evolved a policy of anything less than requiring the trade union to take the situation as it finds it. If a trade union arrives late on a scene, in the sense that another trade union has already organized in the work place and entered into a collective agreement, the Board is not going to permit the new union to ignore, for example, the historical exclusion of a plant clerk, and litigate before the Board the issue of whether that clerk ''ought'' to be excluded as ''office staff'', as it might if arriving on a fresh scene. Collective agreements tend not to be negotiated with third parties in mind, and there is nothing inherently sinister in two parties to the bargaining process agreeing, for their own reasons, that certain persons do not fall within the intended scope of their recognition or collective agreement. Those agreements by their recognition clauses may be more ambiguous or less ambiguous in a given case (noting, for example, the latent ambiguity in the word "drivers" on the facts of the present case), and it would be unrealistic to try to develop a policy of reliance by third parties based on whether their reading of the intended scope of two other parties' collective agreement was a "fair" one or not. The only policy of the Board which offers any predictability at all is the normal requirement that a third party take the situation as it finds it, and an organizing trade union knows from that the kind of inquiries that it must endeavour to make.
None of the cases cited by the applicant deal with the situation where the employer and an incumbent trade union are ad idem that the individuals in question are not covered by the incumbent's collective agreement, and the Board has great difficulty conceiving of an inquiry which would effectively be aimed at determining whether or not a given person is covered by a collective agreement, when both parties to that agreement have never been in doubt that the person is not. A determination by the Board in the applicant's favour would, of course, not be binding upon the incumbent union, who has shown no interest in, apparently, representing these people, or in participating in these proceedings. The result of such a decision, therefore, would not be to place these people under the coverage of the subsisting agreement, but rather to simply leave them adrift between the two units. The creation of that kind of additional tag-end unit is not something to be accepted without further justification.
In that regard, the Board is prepared in the present circumstances to permit the applicant to amend the description of the bargaining unit it seeks. Given the degree of organizing at this work place, however, it will be for the applicant to satisfy the Board that the eight persons in dispute are sufficiently distinct in their community of interest to justify their exclusion from any bargaining unit which the applicant may at this stage be granted. The terms of appointment of the officer are accordingly altered to inquire into and report to the Board on the community of interest which the aforesaid eight persons said to be presently excluded from the subsisting collective agreements share with the group of drivers whom both parties agree are in the unit. The parties will, of course, have full latitude to call any evidence relevant to the issue of community of interest. The officer shall also receive evidence as to whether the eight persons in dispute have in fact, as the respondent states, been treated by the respondent and Local 181 as not covered by the subsisting collective agreements, should the parties be unable to agree on at least that factual issue.
The officer is at the same time instructed to carry on with his inquiry into the duties and responsibilities of those persons alleged to perform "managerial functions", which the applicant has now expanded to include:

Dominic Annechiairicco

Nizar Bhimji

John Nunes

DECISION OF BOARD MEMBER B. L. ARMSTRONG;

The applicant seeks to be certified to represent a unit of the respondent's employees who, it submits, are not currently covered by a collective agreement, excluding the office staff, part-time employees and students employed during the school vacation period. It ascertained which of the respondent's employees were not subject to a collective agreement by examining the scope clauses of the two collective agreements that are binding on the company. The production agreement, arrived at through voluntary recognition contains the following scope and recognition clause:

ARTICLE I - RECOGNITION

[emphasis added]

The applicant took the reasonable position that only the drivers and the other classification specifically mentioned in the provision were not subject to a collective agreement and therefore restricted its organizing efforts to that discreet group. The respondent now asserts that the collective agreement does not mean what it says, and that there are other employees, who are not employed or classified as "driver", but are employed as "shipper/driver", "receiver/driver", "shipper" or "packager", who are not covered by the collective agreement.
The collective agreement between the parties not only directly affects the incumbent union and the respondent but also affects its employees and third parties, such as the applicant. Because the collective agreement determines when a certification application is timely in respect of the employees bound by it, the term of the agreement must be certain so that third parties and employees will know when they can exercise their rights under the Act to make a representation application. Similarly, I believe that the scope and recognition clause of the agreement must be specific, as it is in this case, so that employees and third parties can rely on the words of the collective agreement when making an application for certification to the Board.
In my opinion, the words of the agreement are clear and the respondent is bound by them for purposes of this application. Only the respondent's drivers and the office staff, etc., are specifically excluded from the current collective agreement. Therefore, the applicant should be permitted to apply for certification in respect of only drivers without being required to litigate whether the shipper/driver, receiver/driver, shipper or packager have a community of interest separate from the drivers.
I accept that the respondent might well, as its counsel has advised the Board, be able to establish that the employees in those classifications have not been covered by the agreement, notwithstanding the clear words which suggest otherwise. However, that determination should not prejudice the applicant in this case. If our finding that the drivers form an appropriate bargaining unit results in the employees in the other four classifications becoming eligible for representation by another trade union, with the possibility that the respondent will have to deal with four, rather than three, "production" bargaining units, that may be unfortunate, but it is not the fault of the applicant who, in organizing, relied on the clear words of the agreement.
If this Board were to permit parties to a collective agreement to assert in a certification proceeding that the scope and recognition clause of the agreement applies to employees who are not mentioned, or does not apply to employees who are mentioned, then it places third party unions and employees at a severe disadvantange when they seek to exercise their rights to terminate or change bargaining agents or become represented by a union for the first time.
I am of the view that employees and third parties place considerable reliance on the clear words contained in the scope and recognition clause of a collective agreement. This Board should encourage, rather than discourage such reliance. Therefore, when we are required to choose between reliance on a collective agreement and the possibility of undue fragmentation, we should select the former to encourage certainty and discourage parties to a collective agreement from entering into private arrangements which may place employees and other trade unions at a serious disadvantage should they attempt to exercise their rights under the Act to terminate the incumbent union's bargaining rights, replace their union as bargaining agent, or apply for certification, as in this case, because the employees are not currently represented by any trade union.