International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, U.A.W v. A. G. Simpson Company Limited, 1985 CanLII 1039

[1985] OLRB Rep. September 1341

0582-85-R International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, U.A.W, Applicant, v. A. G. Simpson Company Limited, Respondent, v. Simpson Plant Council, Intervener

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members I. M. Stamp and B. L. Armstrong.

DECISION OF THE BOARD; July 5, 1985

1This is an application for certification in which the applicant has requested that a pre-hearing representation vote be taken.

2In accordance with its usual practice, the Board by order dated June 12, 1985, appointed a Labour Relations Officer to examine the records of the applicant and of the respondent and to confer with the parties as to the description and composition of an appropriate bargaining unit, the description and composition of the voting constituency, the list of employees as of the terminal date for the purposes of any vote which might be directed and other matters relating to entitlement to and arrangements for such a vote.

3The officer so appointed met with representatives of the parties on June 24, 1985. From her report, it appears to be common ground that the employees affected by this application are covered by a collective agreement dated July 6, 1982, which expires August 1, 1985 and covers

all employees of the company at Port Perry, save and except foremen, persons above the rank of foreman, office and sales staff and students employed during the school vacation period.

The parties agree that those words describe the unit of employees of the respondent appropriate for collective bargaining in this application.

4The original parties to the aforesaid collective agreement were 513487 Ontario Limited and Comco Employees' Association. It is common ground that the respondent A. G. Simpson Company Limited is the successor of 413487 Ontario Limited and bound by the terms of its agreement with Comco Employees' Association, presumably by virtue of some transaction to which section 63 of the Act would apply.

5In paragraph 5 of its intervention dated June 18, 1985, the intervener Simpson Plant Council claims that:

Simpson Plant Council is the successor of Comco Employees' Association within the meaning of Section 62 of The Labour Relations Act pursuant to an agreement dated April 25th, 1985.

At the meeting with the officer, the intervener claimed to be an incumbent trade union entitled to have its name appear on the ballot in any pre-hearing representation vote which the Board might conduct. The applicant denied that the intervener was successor to the bargaining rights held by Comco Employees' Association, which the applicant says still represents the affected employees. The applicant's position was that the names which should appear on any ballot would be its own and that of the Comco Employees' Association.

6As a result of this dispute, the parties asked that the officer adjourn her meeting without dealing with any of the other matters requisite to the Board's directing a pre-hearing representation vote. All three parties signed a document in the following terms:

By agreement of the parties, the pre-hearing vote meeting will be adjourned until the parties receive direction from the Labour Relations Board regarding whether Comco Employees' Association or Simpson Plant Council is the intervener to appear on a ballot with the applicant.

The officer invited the parties to address written representations to the Board on this issue by July 2, 1985, and adjourned her meeting in accordance with the parties' agreement.

7On July 2, 1985, the Board received written submissions on behalf of two parties. Counsel for the intervener filed a two-page letter and supporting documentation outlining the material facts on which it bases its claim to successor status. Counsel for the applicant filed a six-page letter acknowledging receipt from the Board of a copy of the Intervention, and responding to the claim set out in it. The following extracts from that letter reflect the positions taken therein:

... It is the applicant's position that the intervention is irregular in that it states that the intervener is a trade union or council that is the bargaining agent of employees affected by this application and that the [Simpson Plant] Council is the successor of Comco Employees' Association (the Association) within the meaning of Section 62 of the Labour Relations Act (the Act). It is submitted that the Registrar should settle the form of the ballot in the pre-hearing vote as set forth in Rule 68(b) of the Rules of Procedure.

The applicant submits that the two-way vote must be between the U.A.W. and the Association for reasons outlined below. The applicant also requests that the pre-hearing vote be held without delay and that any issue as to the interveners successor rights be determined at a hearing after the pre-hearing vote.

the issue of which names appear on the ballot ought logically to be settled before the vote takes place. That issue does not readily allow itself to be resolved by segregating ballots as in other situations.

... the purported merger between the Council and the Association is invalid in that the Association's constitutional provisions were not complied with respecting notice to amend the constitution of the Association and to provide for its dissolution and merger with the Council....

if the Registrar were to settle the form of the ballot by allowing the Council to appear thereon would [sic] in effect, at least in the minds of the employees concerned, confer a status on the Council that it arguably does not enjoy....

This letter refers at length to the Board's approach to issues of trade union status when they arise in pre-hearing vote certification applications and other circumstances. It does not appear from the officer's report that there was any challenge to the proposition that both Comco Employees' Association and Simpson Plant Council are trade unions within the meaning of section l(l)(p) of the Labour Relations Act. In that connection, we note that each of those entities has been found to be a trade union in previous proceedings before this Board. Counsel for the applicant approaches the question of which trade union shall be treated as incumbent and placed on any ballot as though this were a question to be settled by the Registrar under section 68(b) of the Rules. That section does not come into play until the Board directs that a pre-hearing representation vote be conducted. No such direction has been made. The Board does not normally direct the conduct of a pre-hearing representation vote until a Labour Relations Officer has met with the parties, reviewed with them all of the matters referred to in paragraph 2 of this decision, and reported to the Board thereon. In this case, the officer has not dealt with all the necessary matters; her meeting for that purpose was adjourned at the request of all parties, including the applicant.

8All parties, including the applicant, requested that the Board resolve the identity of the incumbent whose name would appear on any ballot, before conducting any vote. It is not apparent to us how we could answer that question without resolving Simpson Plant Council's claim to be successor to the statutory rights and obligations of Comco Employees' Association. Indeed, despite her submission that the successorship issue should be dealt with after a vote, counsel for the applicant devoted a good deal of her letter to a review of the Board's jurisprudence on section 62 and to the proposition that there has been no valid merger of the Council with the Association. Counsel for the applicant makes no reference to the parties' meeting with the officer or to the agreement they made at that meeting. The necessary result of that agreement, in our opinion, is that the successorship claim must be dealt with before the officer's meeting resumes. Whatever might have been the case had there been no such agreement, the question at hand at this stage in this case is not whether the Board will deal with the successor rights issue as a preliminary matter, but only how it will do so.

9Section 62 of the Labour Relations Act provides:

62.-(l) where a trade union claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.

(2) Before issuing a declaration under subsection (1), the Board may make such inquiry, require the production of such evidence or hold such representation votes as it considers appropriate.

(3) where the Board makes an affirmative declaration under subsection (1), the successor shall for the purposes of this Act be conclusively presumed to have acquired the rights, privileges and duties of its predecessor, whether under collective agreement or otherwise, and the employer, the successor and the employees concerned shall recognize such status in all respects.

Sections 19 to 22 of the Board's Rules of Procedure provide:

An application for a declaration concerning the status of a successor trade union shall be made in quadruplicate in Form 22.

20.-(l) The Registrar shall serve a copy of the application and a notice of application in Form 23 upon,

(a) the respondent;

(b) the trade union named in the application as the predecessor trade union; and

(c) the employer where the respondent named in the application is a person other than the employer.

(2) The registrar shall serve the employer with an appropriate number of notices of application in Form 24 for posting.

A respondent, a trade union or an employer served under section 20 shall file a reply in quadruplicate in Form 25 not later than the terminal date for the application.

22.-(l) where a party requests a hearing by the Board of an application under section 19, he shall set out in the application or reply, as the case may be, a concise statement of,

(a) the material facts upon which he proposes to rely at the hearing;

(b) the relief to which he claims to be entitled by reason of such facts; and

(c) the submissions he proposes to make in support of a claim for relief.

(2) Any employee or group of employees affected by an application under section 19 who desires to make representations in opposition to the application shall file a statement of desire as prescribed in Form 24 not later than the terminal date for the application.

(3) where no reply has been filed as required by section 2 1 and no statement of desire to make representations has been filed in the form and manner required by subsection (2), or any such reply or statement that has been filed does not state that a party, employee or representative of a group of employees desires a hearing before the Board, the Board may dispose of the application upon the material before it without further notice to any party or to the employees.

(4) where a party or an employee or the representative of a group of employees requests or the Board directs a hearing, the registrar shall serve each of the parties and each such employee or representative of a group of employees with a notice of hearing in Form 8.

10What has arisen here is a question of the sort contemplated by section 62 of the Act. It might be debated whether sections 19 through 22 of the Board's Rules of Procedure must be complied with when the claim to a declaration of successor rights arises in the course of an existing proceeding rather than in a separate application. In our view, it is not necessary to resolve that debate in the abstract. If those sections do not apply to the resolution of questions of successorship which arise in the course of existing proceedings, then the Board is still obliged to fashion a procedure in those circumstances and, in our view, ought to ensure that the procedure it adopts accomplishes the objects addressed by sections 19 to 22 of the Rules. On the other hand, if those sections do apply to questions of successorship which arise in existing proceedings, then it is still open to the Board to modify the approach provided for in the Rules in order to reflect the circumstances in which the issue arises. In either event, then, when a question of trade union successorship arises in an existing proceeding, the Board both can and should follow a procedure which needs the substantive requirements of Rules 19 to 22 which are, in essence, that the proponent of the successorship claim give the Board notice of all the facts and circumstances on which it is based and that the Board ensure that employees in each affected bargaining unit, their employer(s) and the alleged predecessor and successor trade unions all have notice of that claim and an opportunity to be heard before the Board determines the issue.

11In the circumstances, the Board directs as follows:

(1) The letter of July 2, 1985 to the Board from counsel to the Board shall be treated as though it were an application filed in accordance with section t9 of the Board's Rules of Practice affecting the bargaining unit of employees of the respondent described in paragraph 3 of this decision.

(2) The Registrar shall fix a terminal date with respect to the Intervener's application.

(3) Rules 20 to 22 shall apply to the intervener's application, mutatis mutandis. The necessary changes to Forms 23, 24 and 25 include the following:

(a) The File number shall be as in this application.

(b) The words "IN A PENDING PROCEEDING" shall be added to the title of proceeding (style of cause) immediately below the words "BEFORE THE ONTARIO LABOUR RELATIONS BOARD".

(d) The word "applicant" in paragraph 1 of each of Forms 23 and 24 shall be changed to ''intervener".

(e) the words "in this proceeding" shall be added immediately after the word "declaration" in paragraph 1 of each of Forms 23 and 24.

(4) Because of the substantial likelihood that an oral hearing would be requested by one of the interested parties in these circumstances, and having regard to the Board's concern for expedition in matters involving certification, particularly matters involving pre-hearing representation votes, the Registrar is further directed to now schedule a hearing date for the purpose of hearing the evidence and representations of interested parties with respect to the intervener's application under section 62, and to give notice thereof by further amending Forms 23 and 24 as follows:

(a) add the words "AND OF HEARING" between the line that ends "SUCCESSOR TRADE UNION" and the line that reads "BEFORE THE LABOUR RELATIONS BOARD" in the title of each form.

(b) in form 24 add "and" at the end of subparagraph 4(c). delete "and" at the end of subparagraph 4(d) and delete subparagraph 4(e).

AND FURTHER TAKE NOTICE that the hearing of the application by the Board will take place at the Board Room, 400 University Avenue, Toronto, Ontario, on .... day, the .... day of 19..., at ... o'clock in the ... noon.

THE PURPOSE OF THE HEARING is to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to, the application referred to in paragraph 1.

IF YOU DO NOT ATTEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS.

12In a supplementary letter delivered to the Board July 4, 1985, counsel for the applicant says:

It was and is the applicant's position that the Comco Employee's Association (the Association) and not the Simpson Plant Council (the Council) should appear on the ballot.

Since our last letter of July 2, 1985, however, additional facts have come to light which we believe are relevant in the Registrar's determination on the form of the ballot. It is submitted that these facts speak to an additional reason why the Counsel [sic] ought not to be given status to appear on the ballot.

These "new" facts are said to demonstrate that Simpson Plant Council received employer support in connection with proceedings taken to effect merger between it and Comco Employees' Association, and that an official of Simpson Plant Council intimidated employees during those proceedings. It is apparent on the face of this letter that the facts said to have come to light since July 2, 1985, have been known to the applicant trade union since February, 1985.

13The pre-hearing vote procedure is meant to enable the conduct of representation votes without having first to hear and determine contentious matters of the kind now raised by the applicant. The applicant's position is that the Board should act on these contentious allegations before a vote is conducted. We would not and could not do so without conducting a hearing. We are left in a serious doubt whether the Board should, in these circumstances, exercise its discretion to direct the conduct of a pre-hearing representation vote. Accordingly, at the hearing which we have directed that the Registrar schedule, the applicant will be required to show cause why the Board should not refuse its request that a pre-hearing vote be conducted.