Laundry and Linen Drivers and Industrial Workers Union, Local 847 v. Creeds Storage Ltd., 1984 CanLII 987

[1984] OLRB Rep. May 712

2878-83-R;2879-83-R Laundry and Linen Drivers and Industrial Workers Union, Lo­cal 847, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware­housemen and Helpers of America, Applicant, v. Creeds Storage Ltd., Respondent, v. Employee, Objector

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

APPEARANCES: B. Fishbein for the applicant; Roy C. Filion, Peter J. Thorup, Jeremy For­gie, Jack Creed and Jim Gray for the respondent; no one for the objector

DECISION OF THE BOARD; May 3, 1984

1. These are two applications for certification, which the Board hereby consolidates.

2. There is no question but that the applicant Laundry and Linen Drivers and Indus­trial Workers Union, Local 847, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (hereinafter referred to as "Local 847") has the status of a "trade union" within the meaning of section l(l)(p) of the Labour Re­lations Act. That has been recognized in a lengthy series of cases of the Board granting cert­ification to the applicant. The problem raised by the respondent is the applicant's apparent relationship to a second trade union and previous applicant, the Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, (hereinafter referred to as 'Local 351"). In view of this relationship, the respondent argues that the Board ought to refuse to entertain the instant application; alternatively, the respondent argues that the applicant ought to be estopped from claiming the bargaining units it now seeks as appropriate, or at least be required to justify them as being so.

3. Local 351 has also been certified by the Board in a long line of cases, most of them under its former name, Laundry, Dry Cleaning & Dye House Workers' International Union, Local 351. On February 3, 1984, Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351 applied to the Board to be certified for a unit of "all employees" of the respondent in Metropolitan Toronto (Board File No. 2532-83-R). The employer agreed that that was the appropriate bargaining-unit de­scription, and the Board, having regard to the parties' agreement, so found. The Board further found the applicant to be in a "vote" position, and directed the taking of a representation vote. The applicant lost that vote, and the Board, in accordance with its usual practice, im­posed a bar against the applicant "with respect to any of the employees in the bargaining unit" for a period of six months from the date of the Board's decision. The representation vote itself took place on March 6th, and after the ballots were counted, Fernando da Silva, the representative present for the applicant, stated to the employer: "I'll be back with another one of our unions in 6 or 7 days".

4. On March 9, 1984, the present applications were filed by Local 847. They seek certification for two smaller units of employees of the respondent, namely, "all office staff and counter clerks", and "all drivers and drivers' helpers". Apart from the comment of Mr. da Silva, the applicant Local 847 is shown on its application as having the same address ("34 Madison Avenue, Toronto") as the applicant (Local 351) in the previous application. Counsel for the applicant acknowledges that both Local Unions are affiliates within the Teamster or­ganization, and also acknowledged that some overlap may exist between the executive boards of the two unions, as well as amongst their staff representatives. Counsel submitted, however, that the specific details of that relationship are irrelevant under the Board's jurisprudence. Counsel also pointed out that the telephone number and individual signing this application are distinct from the previous application, and, in particular, that all of the membership evidence filed in support of the application is fresh evidence. The Board has now reviewed the mem­bership evidence and confirmed that that is the case. In doing so, we have noted as well that the bulk of the new cards have been collected by the same individuals (including Mr. da Silva) as collected the previous cards.

5. Section 103(2)(i) provides:

103.-(2) Without limiting the generality of subsection (1), the Board has power,

(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful appli­cation, or to refuse to entertain a new application by an unsuc­cessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union repre­senting such employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application.

In support of his position that the relationship between two bona fide trade unions is irrelevant to the Board in its application of section 103(2)(i), counsel relied specifically upon Pinehill Auto Ltd., [1968] OLRB Rep. July 375; Elmtree Nursing Home, [19781 OLRB Rep. Nov. 984; and Clorox Company of Canada Ltd., [1980] OLRB Rep. Feb. 184. Counsel for the respondent argued that these cases go no further than to establish that an already-imposed bar cannot be read as extending beyond the trade union named therein, and does not by its terms apply to any other trade union having a separate and distinct status under the Act. Counsel for the respondent points out that he is in this case placing in issue neither the status of the applicant as a "trade union" under the Act, nor the application of the earlier bar imposed specifically against Local 351; the issue now before the Board, he submits, is solely the ques­tion of whether the Board considers this an appropriate case to exercise the additional dis­cretion given to it under section 103(2)(i), when another trade union applies for certification, of refusing to entertain that application.

6. In Elintree Nursing Home, a bar was imposed against Local 204 of the Service Em­ployees International Union after it lost a representation vote, and the International itself then applied for certification within the proscribed period of time. In Clorox Company, the '~Na­tional" Brewery Workers Union lost a vote and had a bar imposed, and its Local 304 then brought the fresh application. In both cases the Board reviewed its earlier jurisprudence and found it appropriate to entertain the subsequent applications. Both cases commented on the fact that the Board has traditionally viewed parent and local unions, or sister locals of the same parent union, as having a separate and distinct status under the Labour Relations Act, and this is particularly true with respect to the form of membership evidence which the Board has considered to be acceptable in an application for certification. Membership evidence in a local, for example, which does not clearly identify that local in contradistinction to any other local or its parent, has long been rejected by the Board. See Beatrice Foods (Ontario) Ltd., [1977] OLRB Rep. Mar. 192; Bernardin of Canada, [1975] OLRB Rep. Oct. 737; Mac­Donalds Consolidated Ltd., [1969] OLRB Rep. Aug. 634; Beaver Foundation Ltd., [1967] OLRB Rep. Oct. 652; Milson Floors Ltd., [1966] OLRB Rep. Sept. 419; Swansea Construc­tion Company Ltd., [1965] OLRB Rep. Mar. 645. The Board in both Elmtree and Clorox also was satisfied that no grounds existed for finding that employees would not have known they were signing a card in a different trade union the second time, notwithstanding the similarity in names and the involvement of the same organizers in both campaigns. While both cases do, as respondent counsel submits, make the finding that the two unions in question each en­joyed the status of a separate trade union under the Act, and that the bar imposed against one accordingly did not apply to the other, it is apparent from a fair reading of both cases that the Board then went beyond that narrow "bar" issue and considered other discretionary grounds for refusing to entertain the applications as well. In Elmtree, for example, the Board noted, on the "abuse of process" argument that the second applicant had not been brought into existence solely for the purpose of making the application before the Board. And in Pi­nehill Auto Ltd., the earliest of the three cases relied upon by the applicant (and referred to in the other two), the second application was made by the General Truck Drivers' Union, Local 938 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, following a bar being imposed against the Teamster affiliate which is the applicant in the pres­ent case, Local 847. The Board in that situation saw fit to entertain the second application, notwithstanding the explicit argument of the employer's counsel "that the Board should not entertain the instant application so soon after the dismissal of the earlier application ...". It cannot fairly be said, therefore, that the Board in the previous cases has failed to turn its mind both to the application of an existing bar, and to the obvious alternative ground of "refusing to entertain" a subsequent application, under the provisions of section 103(2)(i). Rather, the Board appears to have viewed the limitation it was placing on the effect of a bar as a logical extension of the separateness with which it insists membership evidence of one versus another local, or a local versus its parent, be viewed in other contexts.

7. That is not to say that the applicant trade union, whose apparent relationship to the previous applicant, and the persons through whom it acted, has not been rebutted, has not placed itself in a position of having to satisfy the Board of the appropriateness of the bar­gaining units which it now is seeking, as opposed to the bargaining unit which was sought and agreed upon in the prior application. Having regard to the representations of the parties, the Board appoints an officer to inquire into and report to the Board on the community of interest which the office staff and counter clerks, and the drivers and drivers' helpers, share with the other employees of the respondent. At the same time, the officer is directed to inquire into and report to the Board on the duties and responsibilities of the dispatcher, Ernest Perry, if a dispute still exists between the parties as to his status.