Ontario Labour Relations Board
[1984] OLRB Rep. March 518
2583-83-R Seafarers' International Union of Canada, Applicant, v. Seafarers' Training Institute, Institut De Formation Des Marins, Respondent, v. Group of Employees, Objectors
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members S. Cooke and W. H. Wightman.
APPEARANCES: Andrew Boyle, Malcolm Boyle and Michael Desjardins for the applicant; no one appearing for the respondent; C. J. Abbass (as agent for Wilson & McClelland, Barristers & Solicitors), Phillip E. Caddick, Robert P Smith, C. Martel and Barbara Sheridan for the objectors.
DECISION OF THE BOARD; March 14, 1984
This is an application for certification. For ease of reference and to avoid confusion, the respondent, the Seafarers' Training Institute, will be referred to simply as the "employer". The applicant union will be referred to as "the union" or the "SIU".
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
The employer is a non-profit corporation formed for the purpose of establishing and operating a school for the training of seamen. The employees who are the subject of this certification application work for the school either as instructors or support staff. The corporation itself is run by a board of directors. There are six directors in all: three from the SIU and three representatives of the Great Lakes Shipping Companies. The president of the respondent employer is Roman Gralewicz. Mr. Gralewicz is also the president of the SIU. The other two union" representatives on the respondent employer's board of directors are Richard Thomasson, an area vice-president of the SIU, and Roger Desjardins, the secretary-treasurer of the SIU. It is Roger Desjardins whose (stamped) signature appears on the Form 9, Statutory Declaration, attesting to the regularity and sufficiency of the applicant union's membership documents. Michael Desjardins, the collector of the membership cards filed in support of this application is the son of Roger Desjardins. It is apparent, therefore, that the applicant union and the respondent employer are inextricably intertwined. This impression was reinforced by the facts adduced before the Board at the certification hearing on February 6, 1984.
It is not disputed that certain employees of the School were interested in trade union representation and were "shopping around". When this came to the attention of Mr. Gralewicz, he held a meeting of the employees and suggested that they consider joining his union, the SIU. Subsequently, most of the employees did, in fact, join the SIU. We therefore have the rather unusual spectacle of the chairman of the employer's board of directors suggesting that the respondent's employees should join a trade union of which he is also president.
Mr. Boyle, the executive vice-president of the SIU, filed the application for certification and told the Board that he would be responsible for negotiating the collective agreement covering the employees of the School and, as well, would be responsible for dealing with any grievances or other administrative problems which might subsequently arise. Mr. Boyle reports to Mr. Gralewicz and, as a perusal of the SIU constitution indicates, is subject to the president's authority. It is a little difficult to see how he could be an independent advocate of employee interests or press a position on behalf of the employees which Mr. Gralewicz thought was inconsistent with the orderly running or success of the School. For example, is it conceivable that the SIU or its officers would support a strike against the SIU School?
Collective bargaining, by its very nature, requires an arm's length relationship between the "two sides" whose interests and objectives are sometimes divergent. To put the matter colloquially: the bargaining table really must have two sides and the employees' representative cannot wear two hats. The union's first interest and loyalty must be to those it represents and while this does not mean that there cannot be harmonious employer-employee relationships within a collective bargaining framework, neither should there be any doubt about the employees' right to an independent spokesman. Proper representation demands that the union be unfettered by any conflict of interest. No group of employees should be left to wonder whether an unpopular stand was the product of a behind-the-scenes deal, or a "cozy relationship" between those who run the union and those who run the employer.
These concerns find expression in a variety of statutory provisions. Section 13 of the Act prohibits the Board from certifying a trade union "if any employer.. .has participated in its formation or administration or has contributed financial or other support to it". An organization which has been the beneficiary of employer support cannot conclude a collective agreement. Under section 48 of the Act, such agreement is deemed to be void. Indeed, section 64 of the Act expressly prohibits employer participation in the formation selection or administration of a trade union. Finally, the effect of section l(3)(b) of the Act is to exclude from participation in collective bargaining those who, in the opinion of the Board, exercise managerial functions. This exclusion of management from the bargaining units is another recognition of the potential division of loyalties between the employees whom the union represents and the representatives of the employer. These legal controls have all been enacted to preserve the independence and the arm's length relationship to which we have referred.
In view of the relationship between the applicant and the respondent, the Board is of the view that granting a certificate in the instant case would be contrary to section 13 of the Labour Relations Act. It is said by the applicant that if the Board does not grant certification, the employees will not be able to be admitted into membership in the SIU and will therefore lose certain advantages. The Board was advised that membership in the union is closed and that new members are only admitted as a result of a successful organizing campaign. This may be so; but if that is the result, it flows from the SIU's decision to close its membership, not the decision of this Board and, in any event, is no answer to the clear meaning and intent of section 13 of the Act.
For the foregoing reasons, this application is dismissed.
CONCURRING OPINION OF BOARD MEMBER W. H. WIGHTMAN;
While concurring with the decision reached by my colleagues, I would wish to add comments on the obiter, particularly as found at paragraphs 6 and 7.
These paragraphs accurately describe the conceptualization of collective bargaining systems as provided for by the laws of most Western democracies. These laws establish a legal framework within which "labour" and "management" are effectively told to choose sides and have a fight. A less direct and more polite way of stating the foregoing is to say that public policy, as reflected in our labour laws, endorses an adversarial system of union/management relations.
This adversarial approach has some attraction, if only in terms of a certain congruity, in those societies where the "class struggle" has had long tradition and meaning. It is less attractive (notionally) in the classless societies of North America.
The various forms of adversarial systems which collective bargaining can be found in North America have worked with varying degrees of success at different times in our history. However, there is an increasing desire among some people to find alternative systems which do not necessitate choosing sides for purposes of a fight.
This totally correct decision merely serves to illustrate the need to interpret the preamble to the Ontario Labour Relations Act in such a way as not to exclude the co-existence of other systems which also have as their objective "harmonious relationships between employers and employees", particularly when the alternative systems may have additional objectives such as enlargement of the economic pie, the effective training and allocation of the work force and opportunities for equal participation by employees.
Finally, it should be noted, at the risk of stating the obvious, that no member of the panel intends that the decision should be interpreted as suggesting that the SIU is a weak and dependent union.