Terry Schisler and Leonard Fox v. Teamsters Union Local 938, 1984 CanLII 1080

[1984] OLRB Rep. November 1557

1358-84-R;1455-84-R Terry Schisler and Leonard Fox, Applicant, v. Team­sters Union Local 938, affiliated with the International Brotherhood of Team­sters, Chauffeurs, Warehousemen and Helpers of America, Respondent, v. Brink's Canada Limited, Intervener

BEFORE: Harry Freedman, Vice-Chairman, and Board Members F. C. Burnet and W. F. Rutherford.

APPEARANCES: Terry Schisler on his own behalf and Victor Brown for Leonard Fox; Ken Pet Ryshen and Gary Barr for the respondent; George Vassos, Jim Mulrooney and Arthur Morin for the intervener.

DECISION OF HARRY FREEDMAN, VICE-CHAIRMAN, AND BOARD MEMBER F.C.

BURNET; November 9, 1984

2. These are two applications for declarations terminating the bargaining rights which the respondent currently holds for employees of the intervener at its North Bay location. The application in Board File No. 1358-84-R relates to one full-time employee of the intervener and the application in Board File No. 1455-84-R relates to the part-time employees of the intervener. With the consent of the parties, the Board heard both applications at the same time.

3. All of the parties agreed that the respondent and intervener were bound by a collective agreement which commenced to operate on September 20, 1982 and expired on September 23, 1984 (See Exhibit #1). The applications were both filed during the last two months of that agreement by employees who were covered by the agreement. Therefore, the applications are

timely.

4. At the opening of the hearing the respondent submitted that the collective agreement provides for one bargaining unit comprised of all of the employees of the intervener for whom the respondent and its sister locals hold bargaining rights. The applicants and intervener submitted, to the contrary, that there are several distinct bargaining units represented by the respondent and its sister locals, whether the document filed with the Board as Exhibit #1 is construed as a single collective agreement or several collective agreements. The parties were agreed that if the Board found that there was one bargaining unit described in the collective agreement, both applications would have to be dismissed. If there were separate bargaining units for the North Bay location of the intervener, the documentary evidence filed by the applicants in support of their applications would require the Board to determine whether the statements indicating that the intervener's employees no longer wished to be represented by the respondent which were filed were voluntary expressions of the employees who had signed them.

5. The parties to the agreement are Brink's Canada Ltd. styled as the "Employer" and the Teamsters Local Union No. 879, Teamsters, Chauffeurs, Warehousemen and Helpers Local Union 91, Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 141, Teamsters Union Local No. 938, and International Brotherhood of Teamsters, Chauffeurs, Warehouse-men and Helpers of America, Local No. 880 styled as the "Union". The agreement in Article II sets out the recognition clause in the following terms:

Bargaining Unit:

(a) The UNION is hereby designated as the sole and exclusive bargaining agent for any and all employees who during the term of this Agreement work in any of the classifications listed in the Addenda attached hereto.

6. The signature page of the agreement provides as follows:

IN WITNESS WHEREOF each of the parties has caused this Agreement to be signed by their duly authorized officials or representatives as of this day of, in the year 1983.

TEAMSTERS LOCAL UNIONBRINK'S CANADA LIMITED

NO. 879

By "W R. Evans"By "Illegible Signature"

Vice President-Labour Relations

TEAMSTERS, CHAUFFEURS,TEAMSTERS UNION LOCAL

WAREHOUSEMEN ANDNO. 938

HELPERS UNION LOCAL

NO. 91

By "Robert Kelly"By "Howard Shelkie"

TEAMSTERS, CHAUFFEURS,TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS WAREHOUSEMEN AND

HELPERS

UNION LOCAL NO. 1410F AMERICA, LOCAL UNION

NO. 880

By "Illegible Signature" By "Illegible Signature"

7. The respondent called evidence about the negotiation and ratification procedures it followed in collective bargaining with the intervener. The respondent and its four sister locals each designate one or more delegates to sit on the Union's bargaining committee which meets at one bargaining table with the intervener. The five local unions conduct a single ratification vote in which all employees covered by the agreement are entitled to vote. The result of the vote is tabulated based on the total ballots cast. Article XVIII of the collective agreement deals with the acceptance or rejection of any agreement in the following terms:

In the course of negotiations for a new master agreement and Addenda, the determination of acceptance or rejection of a proposed Master Agreement and Addenda shall be based on the total votes cast by eligible employees covered by the Master Agreement.

8. The respondent meets with the employees from North Bay, and from the two other locations of the intervener for which it holds bargaining rights, Sudbury and Sault Ste. Marie, to solicit their suggestions for bargaining proposals. The proposals from each location are then presented to the union bargaining committee, comprised of delegates from the five local unions, that determines which proposals will be presented to the intervener. The members of the committee attempt to reach a consensus about which proposals will be presented. If no consensus is reached, a vote is held by the committee about the proposals in dispute, with each local having one vote.

9. Each of the locations listed in the various addenda to the master agreement became subject to the agreement after one of the local unions that is a party to the agreement was certified to represent the employees at that location. In the case of North Bay, the Board issued two certificates to the respondent, for a full-time and part-time bargaining unit. Each addendum to the Agreement, running from Addendum "A" through to Addendum "0" with no Addendum "I", contains a section 1 headed "Bargaining Unit" and listed in that section are the employee classifications subject to the agreement, as provided for in Article 11(a). The parties agreed that seniority is exercised separately in each location covered by the agreement and that employees do not transfer seniority rights between locations.

10. Counsel for the respondent submits that there is one bargaining unit as evidenced by the recognition clause of the agreement, and by the bargaining structure. He further submits that the various addenda simply take into account local conditions, but they do not detract from the recognition clause which establishes one bargaining unit. Counsel relies on Bestview Holdings Ltd., [1983] OLRB Rep. 185 to support his position.

11. The applicants simply submitted that they thought the bargaining units were the ones for which the union was certified.

12. Counsel for the intervener submitted that each addendum creates or establishes a separate bargaining unit, which is consistent with the way the bargaining rights for each of the units were obtained. He further submits that the bargaining rights for the employees are held separately by each of the local unions, and the S local unions are, at best, a council of unions, acting as the agent for each of the locals in respect of each of their bargaining units. He further submits that the way a union chooses to set up its own internal bargaining structure cannot dictate the description of the bargaining unit. He referred the Board to several sections of the Act to support his argument, and in particular section 41(1) which states:

Every collective agreement shall be deemed to provide that the trade union that is a party thereto is recognized as the exclusive bargaining agent of the employees in the bargaining unit defined therein.

Since the five local unions are not a certified council of unions, he submits that they are not a single trade union within the meaning of the Act. Thus, he argues that the bargaining agent of the employees remains the local union which obtained bargaining rights in respect of each group of employees as defined in the addenda to the master agreement. The Board was referred to M. J. Guthrie Construction Ltd., [1984] OLRB Rep. Jan. 50 at page 56 where the Board held that an uncertified council of trade union was not a trade union, but could enter into a collective agreement on behalf of the unions that were members of the council.

13. The collective agreement before the Board is between Brink's Canada Ltd. and five local unions of the Teamster's Union. Each of those locals is a discrete trade union which has acquired bargaining rights for different groups of employees of the employer at different times. There was nothing before the Board to suggest that the respondent's bargaining rights, obtained by certification, had been assigned or transferred to any other entity. In our view, the respondent continues to be the union that holds the bargaining rights for the two groups of employees in respect of which it was originally certified.

14. The collective agreement is signed by a different representative from each of the five local unions. The groups of employees covered by the agreement are contained in section 1 of each of the addenda entitled "Bargaining Unit". While the bargaining format and the method of ratification suggest one bargaining unit, in our view, the other factors adverted to suggest that there are separate bargaining units contained in that collective agreement. (See Ontario Hydro, [1978] OLRB Rep. Aug. 754.)

15. The Best view case, supra, referred to by counsel for the respondent, although some­what similar, involved an agreement between the employer and a single union. In this case, there are five separate unions, each of which obtained and holds bargaining rights for distinct groups of employees. In our view, that distinction is important to ascertain whether there is one or more than one bargaining unit.

16. In Hickeson-Langs Supply Company Ltd., [1978] OLRB Rep. Nov. 996, two locals of the Teamsters Union had been certified to represent two groups of employees of the employer at London and Toronto at different times. The bargaining practice and collective agreement were described by the Board in paragraph S of that decision in this way:

The company and the two local unions have conducted common negotiations which resulted in a collective agreement in 1971, 1974 and 1976, signed by representatives of the company and by representatives of each of the locals. The headings of the 1974 and 1976 agreements indicate that the parties thereto are the company on the one hand and Local 419 and Local 141 "collectively called the Union" on the other hand.

The Board reviewed the submissions of counsel in that case in this way:

11. The position taken by the Locals, however, is that the employees at London and the employees at Toronto form one bargaining unit. ...

12. In support of its argument that there is only one composite bargaining

unit, the union refers to the recognition clause in the collective agreement

of March 29, 1976 which is incorporated into the agreement of June 19,

1978 set out above. The recognition clause states as follows:

The Company recognizes the Union as the exclusive Bargaining Agen­cy with respect to all matters arising under this Agreement from all employees at Toronto and London, save and except foremen, persons above the rank of foreman, office staff, sales staff. Part-time and Casual employees and Students, shall be covered only as specifically set out in Appendix "B" to this Agreement.

17. The Board in that case noted the problem with the union's position at paragraph 13 where it stated:

18. The argument based upon the recognition clause runs into initial difficul­ty in view of the fact that there are here two distinct bargaining agents, one in London and the other in Toronto.

19. The Board found in that case that there were two separate bargaining unit and commented as follows at paragraph 14:

In the instant case not only is there no question of one union being the overall bargaining agent but, on the contrary, there are two distinct certified bargaining agents — one in London and the other in Toronto. There is nothing to suggest that the locals comprised a council of trade unions under section 43 [now 51] of the Act, nor was there any suggestion that individual bargaining rights had been transferred from one local to the other or by both to a third bargaining agent of any kind. The Memorandum of Agree­ment recognizes the separate identities of the locals not only in the heading but, more to the point, in the text. The separate identities as bargaining agents are further emphasized by the manner in which the signatures are affixed to the document.

19. While some of the facts in that case are different from the facts before us, those differences are not material. The principles the Board applied there are, in our view, equally applicable here. The signatories to the agreement are the employer and each of the local unions. There is nothing before the Board to suggest that the bargaining rights the respondent obtained in respect of the employees at North Bay were assigned to any other entity. All of the addenda to the agreement refer to ~'bargaining unit" and seniority is exercised in each location separately.

It is for these reasons that we believe that the two North Bay addenda, addendum "N" and addendum "0" describe distinct bargaining units.

20. At the hearing of this matter, the Board reserved its decision on the bargaining unit issue raised by the respondent after receiving evidence and argument related to it. The Board then conducted its usual inquiry into the voluntariness of the statements filed in support of the two applications.

21. In respect of Board File No. 1 350-84-R, the full-time unit, the Board received evidence from Terry Schisler, the only employee in the unit at the time it was filed and the only signatory to the statement filed in support of his application. The Board can entertain and process an application for a declaration terminating the bargaining rights of a union when there is only one employee in the bargaining unit. (See A.R. Milne Electric, [1982] OLRB Rep. June 911.)

22. Mr. Schisler's evidence was clear and straight forward. He had been opposed to the union before it began to organize in 1982, and has remained opposed to it after it was certified and up to the present time. There was no evidence of management involvement, actual or perceived, in respect of his application. In our view, his application has been made voluntarily, notwithstanding the unlawful conduct of the intervener more than two years earlier which had prompted the Board to certify the respondent under section 8. In our view, the Board can take cognizance of longstanding employee opposition to a union in assessing whether an employee's desire to seek termination of the union's bargaining rights is voluntary. (See J.A.K. Electrical Contractors Ltd., [1977] OLRB Rep. May 275.)

23. We therefore find that not less than forty-five per cent of the employees of Brink's Canada Limited at North Bay in the full-time bargaining unit, at the time the application was made, had voluntarily signified in writing that they no longer wish to be represented by the respondent union on September 5, 1984, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent union under section 57(3) of the said Act.

24. Victor Brown, an employee in the part-time bargaining unit at North Bay, appeared at the hearing on behalf of the applicant Leonard Fox in Board File No. 1 455-84-R. Mr. Brown did not know who prepared the statement filed in support of Mr. Fox's application and was not present when anyone else signed it. The only evidence the Board has before it concerning that statement is that Mr. Brown signed it at the request of Mr. Fox. The Board has no other evidence as to the origination or circulation of the statement that the part-time employees no longer wish to be represented by the respondent.

25. The Board observes that Mr. Fox, by undated letter filed with the Board at the hearing, authorized Mr. Brown to speak on his behalf and on behalf of the other part-time employees. However, Mr. Brown had no direct knowledge concerning the circumstances under which the document signed by the employees indicating that they no longer wished to be represented by the respondent was prepared or how the other signatures to that document were obtained. Mr. Fox was specifically advised of the requirements that would have to be met to establish the voluntariness of the statement that was filed with the Board in support of the application seeking termination of the respondent's bargaining rights in a letter to him from the Board's Registrar

dated September 7, 1984, acknowledging receipt of his application. That letter provided, in part:

The applicant will be required to attend the hearing in order to present its case to the Board and to speak to such issues as may arise in connection with this application. Failure of the applicant to appear at the hearing of this case, either in person or through an authorized representative, will result in the rejection by the Board of the application.

It should be noted that any employee or representative who appears at the hearing will be required to testify, or produce a witness or witnesses who will be able to test ify from his or their personal knowledge and observation, as to (a) the circumstances concerning the origination of the materialfiled, and (b) the manner in which each of the signature /sic] was obtained.

[emphasis added]

Therefore, due to the absence of sufficient evidence concerning the origination and circulation of the statement filed in support of Mr. Fox's application, the applicant has failed to satisfy the Board that not less than forty-five per cent of the employees in the part-time bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the respondent on September 17, 1984, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent union under section 5 7(3) of the said Act.

26. The application in Board File No. 1455-84-R is hereby dismissed.

27. With respect to the application in Board File No. 1358-84-R, having regard to our finding as set out in paragraph 23, the Board directs that a representation vote be taken of the full-time employees of Brink's Canada Limited. Those eligible to vote are all employees of the respondent at North Bay, save and except dispatchers, persons above the rank of dispatcher, office, clerical and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken.

28. Voters will be asked to indicate whether they wish to be represented by the respondent in their employment relations with Brink's Canada Limited.

29. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER, W. F. RUTHERFORD;

1. I dissent.

2. The last paragraph of clause 18 of the Brinks Master agreement states: "In the course of negotiations for a new Master agreement and addenda, the determination of acceptance or rejection of a proposed Master agreement and Addenda shall be based on the total votes cast by eligible employees covered by the Master agreement.

3. This procedure means the adoptions or rejection of the Master agreement is governed by the overall vote of all units in the agreement. One unit may oppose the agreement but the over all vote of all units would be the determining factor.

4. It is usual in Master agreements to have addenda for the different areas to take into consideration local conditions that could include wages and seniority.

5. It was in evidence that each area submitted their contract amendments to a joint meeting where each local had one vote on the proposed amendments. The adoption or rejection of any proposal depended on the accepting by the majority of the group not the individual local, including the contract addendas for the different areas.

6. It is my contention that a company cannot through voluntary recognition and then negotiations for a master agreement with a union, deny that the agreement binds all parties when one unit applied to decertify the union.

7. I would have dismissed this application and on that basis would not have to decide on the voluntariness of the petition.