Ontario Labour Relations Board

[1983] OLRB Rep. July 1233

0120-83-R United Steelworkers of America, Applicant, v. Service Employees International Union and Service Employees Union, Local 204, Respondents, v. Employee, Objector

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and P. J. O'Keeffe.

APPEARANCES: James Haves and Alex Muselius for the applicant; Stewart D. Saxe and Ron Davidson for the respondents; no one for the objector.

DECISION OF THE BOARD; July 20, 1983

1. This is an application for certification.

2. The Board finds the applicant to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. The respondent is, of course, itself a trade union, and as an employer before the Board in this case, raised two preliminary issues for the Board to consider prior to proceeding with this application. The application concerns both the office and field staff of the respondent local union, the applicant seeking to combine them in one bargaining unit appropriate for collective bargaining, and the respondent arguing that, if anything, separate units of the two groups of employees would be appropriate. But apart from this, the respondent argues that the application ought to be dismissed, at least insofar as it relates to its field staff, on the following grounds:

4. That the fact that the applicant is an "employer" raises in the particular circumstances of this case a section 13 bar;

5. that the applicant is precluded by its own constitution from admitting the respondent's field staff as members.

6. Section 13 of the Labour Relations Act reads:

The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin.

5. The respondent readily concedes that every trade union must engage "employees" to carry on its functions and that some limitation must obviously be put on the meaning of the word "employer" in section 13. But he argues that the prohibition does apply in this case to those employees who are engaged in the "core" function of the respective trade unions, i.e., the organizing of employees into membership. The respondent argues that since there is, in theory at least, an admitted overlap in jurisdiction between the Service Employees International Union and the United Steelworkers of America, there is potentially a real conflict of interest in persons employed to function as staff representatives in their capacity of employees of the respondent, with their capacity as members of the Steelworkers Union. Counsel relies on the following passage from the Board's decision in Canada Crushed Stone Ltd., [1977] OLRB Rep. Dec. 806, in support of his argument that the concern under section 13 is not limited to influence or support by the employer of the very employees being organized. The Board in that decision stated:

27. Section [13] of the Act bars the certification of a trade union which has accepted the support of "any employer". The broad purpose of the section, simply stated, is to preserve the integrity of the collective bargaining process by barring the application of any trade union which, because of employer support, does not owe its sole allegiance to those whom it seeks to represent. A trade union which has accepted the support of any employer whose interests may be affected by its representation places itself in a potential conflict of interest and thereby undermines itself as a union "qualified" to act on behalf of those it seeks to represent. Section [13] catches both the "sweetheart" arrangement between the parties directly affected and also the accepted support of any outside employer whose interests may be affected by the collective representation of those whom the union seeks to represent. In both instances the union's acceptance of employer support activates the section [13] bar.

6. But in that case the Board was dealing with a situation where certain of the drivers in the proposed bargaining unit were found to be the actual employers of other drivers included within the unit. The Board's concern, therefore, as stated at paragraph 22 of the decision, was that the applicant was seeking to organize these "employers" in the very bargaining unit which contained the persons they employed. In fact, the "employers" were the same persons whom the Board found to have been spearheading the organizing drive. This brought the case much closer to the classic kind of conflict seen in The Dr George A. Morgan United Auto Workers Dental Centre, [1977] OLRB Rep. Jan. 1, where the International Union was seeking to organize the employees of one of its own locals. The "conflict" in the present case, by contrast, relates only to a possible jurisdictional one sometime in the future, where, according to the respondent, employees will be placed in the position of not knowing whether they owed their allegiance to the employer (the respondent) or their trade union. While such a jurisdictional conflict is admittedly a possibility, it is not an obvious one based on current practice. To the extent that it may arise, there are ways of dealing with it: for example, the applicant has filed one of its collective agreements wherein it represents the staff representatives of the Manitoba Food and Commercial Workers Union, Local 832, in the Province of Manitoba, and that collective agreement deals with the issue in the following article pertaining to "loyalty":

SECTION 8 LOYALTY

It is agreed that in the event of conflict of interest between the Manitoba Food & Commercial Workers and the United Steelworkers of America regarding jurisdiction or other matters of a similar nature, the Representatives' loyalty shall be with the Manitoba Food & Commercial Workers.

If, beyond this, a staff representative of the respondent were to become improperly confused at a material point down the road as to whom he owed his allegiance in carrying out his job functions, the respondent presumably would have ample means of dealing with the matter on a normal employer-employee basis.

7. The respondent argues further on this point, again distinguishing its field staff from the office and clerical workers, that there are a very limited number of potential employers for persons of the staff organizers' skills, and that the present applicant is a major one of those. The respondent points to the fact that indeed two of its present staff organizers have come to it by way of the applicant union itself. The respondent argues from this that when a major employer such as the applicant approaches one of its field staff representatives and asks him to sign a membership card, the employee may feel fettered in his ability to make up his own mind and say "no". The reason for this difficulty, the respondent argues, is that in the back of the employee's mind, he may feel that he may some day have to approach this same applicant trade union for employment.

8. Once again, the Board finds this scenario too remote to cause it to be given any weight in the present application. While the list of collective agreements filed by the respondent does show a clear preponderance of having "professional" staff workers of a trade union organized by an "independent" association, the Board can see no reason to find this not to continue to be a matter of the employees' choice.

9. Alternatively, for the same reasons, the respondent argues that the Board ought in this particular case to define the question of "appropriateness" of a bargaining unit in terms of who is the applicant, and find that the sought-for bargaining unit for this applicant is inappropriate. The Board, however, has not in the past dealt with the question of appropriateness in these terms, and, also for the same reasons given above, does not consider this to be an appropriate case to start.

10. Finally, the respondent's argument on the applicant's constitution is that it precludes the respondents staff representatives from becoming members, and that the Board, subject to satisfactory evidence of practice under section 103(4) of the Act ought to refuse to certify the applicant on the authority of such cases as Gavmer & Oultram, 54 CLLC ¶17,073. But the applicant's constitution does not contain such a prohibition. What it does contain is a list of offences for which a member may, at some future point, be declared to be no longer a member in good standing. Those offences include, in Article XII:

(f) working in the interest of or accepting membership in any organization dual to the International Union.

But as far as joining the union at this point, there are no relevant restrictions whatever under the "eligibility requirements" of Article III of the constitution, which embraces "all working men and working women in the United States and Canada ...". The only time that the staff representatives of the SEIU would have a problem is if the Executive of the USWA decided that the SEIU was an organization "dual" to the USWA, within the intended meaning of the latter's constitution. That, based on the present preponderance of the two unions' jurisdictions, seems unlikely, particularly when it would have the effect of eliminating the employees of the very bargaining unit whom the Steelworkers seek to represent. It is obvious that the applicant and the employees do not feel uncomfortable with the situation as it presently exists, and the respondent trade union, as employer, need not be quite so solicitous of their interests. If a problem should in fact materialize under the constitution in the future, the employees making up this bargaining unit would have available for them the appropriate procedures under the Labour Relations Act for resolving it.

11. The parties met with a Labour Relations Officer on May 24, 1983, in order to identify the bargaining-unit issues in dispute. Having regard to the report of the Officer, the Board appoints an officer to inquire into and report to the Board on:

(a) the community of interest between the respondent's field staff and its office staff;

(b) in light of the unresolved question of one bargaining unit or two, the practice by the respondent of using part-time employees or students with respect to either office or field staff;

(c) the duties and responsibilities of Joseph Aggimenti, Eugene R. Laliberte, Barbara Spooner and A. J. Edge; and

(d) in light of the unresolved question of one bargaining unit or two, the community of interest of Joyce Hansen, Carlo Mastragostino and Joyce Todkill.

The parties should also state to the Officer the specifics of their position with respect to V. Ghose and R. Nahls, so that the Board may ultimately make a determination, should such determination be material.