[1985] OLRB Rep. October 1429
1210-85-R Canadian Union of Operating Engineers and General Workers, Applicant, v. Abex Industries Ltd. Friction Products Division, Respondent, v. United Steelworkers of America, Intervener
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members W. H. Wightman and P. J. O'Keeffe.
APPEARANCES: Michael 0'Malley, Al Giason and Claude Middleton for the applicant; Kenneth Ashton and Peter C. Mimer for the respondent; Brian Shell and Winston Curtis for the intervener.
DECISION OF THE BOARD; October 29, 1985
1. This is an application for certification in which the applicant requested that a prehearing representation vote be taken. The Board, differently constituted, issued a decision September 5, 1985 in which it directed the taking of a pre-hearing vote as requested. The vote was taken on September 10, 1985 and, by direction of the Board, the ballot box was sealed and the ballots not counted pending further direction by the Board.
2. The reason for the Board directing that the ballot box be sealed and the ballots not counted was because of an apparent dispute between the parties about whether the bargaining unit sought by the applicant was a unit of employees appropriate for collective bargaining. The Board's decision of September 5th describes the dispute in the following terms at paragraph 4:
The applicant seeks to displace the intervener as the bargaining agent for a unit of stationary engineers and maintenance personnel. Those employees are currently part of a larger plant wide bargaining unit represented by the intervener, pursuant to a collective agreement between the respondent and intervener which expires on October 7, 1985. It appears that both the respondent and intervener are opposed to the 'carve-out" of the bargaining unit sought by the applicant from the larger plant wide bargaining unit
A hearing of the application was scheduled in order to deal with this dispute.
3. When the application came before the Board as constituted herein, the Board heard the submissions of the parties on how it should proceed with the issue. Part of the intervener's submissions were that the Board should dismiss the application unless the applicant could satisfy the Board that there was good and sufficient reason for the Board to depart from its policy respecting applications for certification in which one trade union seeks to displace the bargaining rights of another. During the course of the applicant's submission, the applicant advised the Board that the employees which it was seeking to represent were employees in the bargaining unit described in the collective agreement between the respondent and the intervener and that the applicant was not seeking a craft unit within the meaning of section 6(3) of the Labour Relations Act.
4. After receiving the full submissions of the parties, the Board recessed the hearing to review and consider those submissions. When the Board reconvened the hearing, it rendered the following oral decision which is hereby confirmed:
The applicant is seeking by way of this application to represent approximately nine employees of the respondent engaged in maintenance work. They are amongst 149 employees of the respondent presently represented in collective bargaining by the intervener United Steelworkers of America. It is common ground amongst the parties that the nine employees do not constitute a craft bargaining unit. The applicant advises the Board that it is not seeking an appropriate bargaining unit under section 6(3) of the Labour Relations Act, rather it is seeking an appropriate unit under section 6(1) of the Act.
An application for certification made when there is an incumbent trade union representing in collective bargaining the employees affected by the application, is referred to by the Board as a displacement application. The Board normally requires a displacement applicant to take all of the employees in the existing bargaining unit described in the collective agreement between the employer and the incumbent trade union. See Toronto Star Limited, [1974] OLRB Rep. July 416 at p. 416. That is because of the Board's concern to preserve the integrity and viability of established bargaining units. When an applicant seeks to carve out part of an established bargaining unit, it must have compelling reasons why its unit would be appropriate if it is going to overcome the strong presumption in favour of the established unit.
The only reason advanced by the applicant herein as to why the proposed bargaining unit would be appropriate, is that the employees believe they have not been adequately represented by the intervener. That reason standing alone is insufficient reason for the Board to depart from its policy of requiring a displacement applicant to take all of the employees in the unit described in the collective agreement between the intervener and the respondent; to disrupt the prima facie appropriateness of the existing bargaining unit; and to fragment the bargaining relationship between the respondent and its employees presently represented by the intervener.
For these reasons, the Board finds that the bargaining unit sought by the applicant would not be an appropriate unit for collective bargaining purposes within the meaning of section 6(1) of the Act. In the result, this application is dismissed and the ballots cast in the pre-hearing representation vote taken in this matter will be destroyed by the Registrar following the expiration of thirty days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such thirty day period.
5. This matter is referred to the Registrar.