Retail, Wholesale and Department Store Union v. Alpha Taxi Ltd., 1984 CanLII 1059

[1984] OLRB Rep. February 165

2380-83-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant, v. Alpha Taxi Ltd., Respondent, v. Canadian Union of Operating Engineers and General Workers Local 222, Intervener #1, v. The Ottawa Taxi Owners and Brokers Association, Intervener #2

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members B. L. Armstrong and W. H. Wightman.

APPEARANCES: Frank Reilly and Hugh Buchanan for the applicant; Eugene Gitzi, Alberto Copelli and Julius Gitzi for the respondent; Pat Newell, Don Villeneuve and John Villeneuve for intervener #1; E. Rovet for intervener #2.

DECISION OF THE BOARD; February 16, 1984

1. This is an application for certification. For ease of reference the respondent employer will be referred to as "Alpha", and the interveners will be referred to as the "CUOE" and the "Taxi Association".

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

3. When this matter came on for hearing before the Board on February 3, 1984 there were two issues raised: the status of the interveners to take part in these proceedings; and the constitutional jurisdiction of this Board to entertain the case. It will be convenient to refer briefly to each of these matters, beginning first with the constitutional question.

I

4. Alpha, as its name suggests, is a Taxi business in the City of Ottawa. It operates pursuant to a municipal licence. A small percentage of its business involves trips to Hull in the Province of Quebec. In a similar case involving Windsor Airline Limousine Services Ltd., the Board was persuaded that the company's business was within provincial jurisdiction, and on judicial review, the Divisional Court agreed with the Board's conclusion (see Re Windsor Airline Limousine Services Ltd. and Ontario Tavi Association, 1688 (1980) 1980 CanLII 1897 (ON HCJ), 30 O.R. (2d) 732. However, the Ontario Court of Appeal has recently concluded that the wrong test was applied in Windsor Airline Limousine Services Ltd. The Court held that a percentage of business test should not govern the constitutional determination (see Ottawa-Carleton Regional Transit Commission and Amalgamated Transit Union Local 279 et al., decision released December 20, 1983,) [now reported at 84 CLLC ¶14,006]. It commented:

Rather, the determination of the essential issue as to whether the undertaking connects provinces should be based upon the continuity and regularity of the connecting operation or extra provincial business.

5. To determine this Board's jurisdiction, it will be necessary to:

a) hear detailed evidence concerning the nature and extent of Alpha's business, and

b) apply the law as developed in Ottawa-Carleton Regional Transit Commission and the cases cited therein.

As of the date of the hearing, none of the parties had seen the recent Court of Appeal decision or had had an opportunity to consider its applications for this case. The parties were not in a position to put before the Board the detailed evidence necessary to resolve the constitutional question nor were they prepared to argue the law. They thought the constitutional question had been settled by the Divisional Court, but, obviously it has not. On this basis alone, it would be necessary to adjourn the proceeding to a later date.

6. But there is an additional reason for an adjournment. It appears that all of the parties in this case are potentially affected by a parallel certification application ified by the CUQE with the Canada Labour Relations Board. That Board too will have to make a constitutional determination, and it is obviously in no one's interest to have two cases involving the same parties proceeding in tandem in different forums. On the other hand, the applicant is anxious to have an expeditious resolution of this application, and it is by no means clear that this can be accomplished by awaiting the decision of the Canada Labour Relations Board. Accordingly, the parties indicated that they would make enquiries of the Canada Labour Relations Board and subsequently advise this Board of the status of the other proceeding. We will then be in a better position to determine whether this case should be continued or be adjourned pending a federal decision.

II

7. The other matter raised at the hearing involves the right of the interveners to participate.

8. There is a collective agreement between the CUOE and the Taxi Association affecting a number of employers in Ottawa. The Association argues that this collective agreement does not cover the drivers who are the subject of this application (i.e., the drivers are not in the bargaining unit described in the collective agreement), however, the Association argues that it is interested in this case because of its potential effect on the Taxi industry in Ottawa. The Association submits that it has a practical or pragmatic interest in the outcome because, for some years, it has been attempting to achieve a common broad-based bargaining relationship which will minimize industrial conflict. To introduce a new union on the scene would only complicate its operations, as would a constitutional determination which fragments the established bargaining structure or divides regulatory authority between the two levels of government. The Association is a party in the federal proceeding. It seeks amicus curiae status here.

9. No doubt the Association has a commercial interest in this case, but we are not prepared, on that basis alone, to grant it status as an intervener. The Association is not an employer of any of the employees affected by the application, nor does it represent any such employer. Alpha may well be a member of the Association, but, the fact is, Alpha chose to appear on its own. It could have designated the Association to represent it — just as a trade union may represent certain employees — but it did not. Nor is it significant in our view that the Association may have status in the federal proceeding where the circumstances are quite different. We do not think the Association has a sufficient interest in this matter to be granted status as an intervener.

III

10. The CUOE is also seeking status as an intervener, claiming to be the incumbent union representing the employees whom the applicant now seeks to represent. The CUOE asserts that those employees are already bound by its existing collective agreement which operates as a bar to the present application.

11. The CUOE did not file any documentary evidence indicating that any of the individuals potentially affected by this application are members of the CUOE. All that was filed is the collective agreement with the Association — the very collective agreement which, as we have noted, the Association asserts does not cover the employees in this case — and, on its face, that agreement does not cover these drivers. Moreover, that collective agreement was based upon an earlier voluntary recognition agreement (also filed with the Board). It does not clearly relate to the drivers either. On the contrary, it appears to exclude them, and certain of its provisions contemplate the organization of drivers by another union — the very thing which has happened here. And of course, there is nothing before the Board to indicate that at the time this voluntary recognition arrangement was entered into, the CUOE represented anyone — let alone the drivers which the applicant seeks to represent.

12. It may be that the CUOE has tried to assist drivers from time to time, and it may be that the drivers, pursuant to the agreement, are required to contribute sums to the union to support some of its activities. The agreement mentions the negotiation of "cab rents'~ which are obviously of interest to the drivers, however, it is conceded that such negotiations are not with employers but with the municipal licencing body. In other words, such activity as CUOE might undertake on behalf of the drivers is not collective bargaining activity in the sense contemplated by a labour relations statute. (We need not consider the legality of the CUOE using a collective agreement to extract money from employees it does not represent in collective bargaining.) Finally, although not binding upon us, we take note of a recent arbitration award between the CUOE and the Association involving this very issue and this very collective agreement. In a decision dated July 28, 1983, the arbitrator concluded (as we find, and the Association asserts) that drivers whom the applicant union seeks to represent, are not covered by the collective agreement.

13. For the foregoing reasons, the Board is satisfied that the CUGE does not have status as an intervener, nor is it an incumbent trade union with the status to participate on that basis. Whether it could intervene as the representative of one or more employees in the bargaining unit, we need not now determine. In order to do so it would have to file documentary evidence of membership on behalf of such individual(s) and no such evidence has been filed.

14. This matter is hereby adjourned sine die while the parties are considering their positions and making enquiries of the Federal Board. The Board notes the respondent company s willingness to meet with the applicant union with a view to concluding an agreed statement of facts. If the applicant and respondent can reach agreement on the general nature of the company's business, it may well shorten any subsequent hearing which may be held, or eliminate the need for a hearing altogether.