[1985] OLRB Rep. May 631
2282-84-R Canadian Union of Public Employees, Applicant, v. Bethesda Service Employees Association, Respondent, v. Bethesda Home for the Mentally Handicapped Inc., Intervener, v. Group of Employees, Objectors
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members W. H. Wightman and W. F. Rutherford.
APPEARANCES: Helen O'Regan, George Wilson, Vein G. Dell, Tim Tobson and Roman Rozborowskyj for the applicant; no one for the respondent; Mark Contini for the intervener; H. Blokezy and Ken Janzen for the objectors.
DECISION OF THE BOARD; May 28, 1985
1This is an application under section 62 of the Labour Relations Act. The applicant, Canadian Union of Public Employees ("CUPE), claims that it has acquired the rights, privileges and duties of its predecessor, the Bethesda Service Employees Association (the Association), by reason of a merger, amalgamation or a transfer of jurisdiction. The intervener employer takes no position on this issue. It describes its position as neutral and does not now contest the facts set out by the applicant in support of its application, nor does it question the regularity or propriety of the steps taken by the two union entities to effect a merger. The intervener employer is content to have this matter determined on the basis of the material before the Board without the necessity of a formal hearing.
2However, certain employees have written to the Board respecting this matter. In particular, Ms. A. M. Clark wrote a letter signed by some forty-four other individuals. She indicates that subsequent to the vote, which was narrowly in favour of a merger with CUPE, certain employees may have had a change of heart because they became aware of other unions which might be interested in representing the employees and which the executive of the Association Lad not explored or raised at the meeting scheduled to consider merging with CUPE. For the Association, it was asserted that no such concern was raised at the merger meeting, or at any other time prior thereto. In its submission, there was ample notice given to the employees potentially affected — not least because the employer actively campaigned against the merger and gave opponents two hours off work to attend the meeting.
3A hearing was held, in Toronto, on March 4, 1985. The applicant, respondent, and intervener all appeared. No one appeared on behalf of the objecting employees. It was the applicant's information (albeit secondhand) that Ms. Clark did not intend to appear; however, it was impossible for the Board to determine whether this was so, or whether she had simply been dissuaded because of inclement weather. Accordingly, the Board determined that it was unwise to proceed on that day. Instead, the Board scheduled a new date for hearing.
4The matter came on for hearing again on May 13, 1985. As before, the applicant, respondent, and intervener all appeared, and Ms. Clark did not. However, two other employees did. These two individuals had signed Ms. Clark's letter, but were unaware of the circumstances in which the other signatures were solicited or the precise views of those employees. The two employees made it clear that they represented only themselves and not the other individuals in the group.
5Mr. Blokezyl submitted that his fellow employees may not have fully realized the implication of the merger with CUPE and should be given another opportunity to take a second look at the situation. He points out that, while he has always opposed the merger and voted against it, some of the other employees who voted in favour may now be having second thoughts. He does not challenge the constitutionality of the steps taken to effect the merger, or the adequacy of the notice to employees of the membership meetings. Nor does he contest that all employees who wished to do so had an opportunity to attend and participate. Indeed, of a total of approximately 83 employees potentially eligible to vote, 73 employees attended the meeting and cast their ballots. This participation rate (88%) is much higher than in most federal or provincial elections.
6Mr. Blokezyl was also concerned about the effect of the merger with CUPE and the Board's successor rights determination. But it appears that these concerns result, at least in part, from a misunderstanding. For the short run at least, the executive of the Association will remain in place. The collective agreement also remains in place until its expiry date in March, 1986, at which time a local bargaining committee, with the legal and economic assistance of CUPE, will meet with the employer for the purpose of concluding a new agreement. Mr. Blokezyl was concerned about the possibility of a strike, but under the CUPE constitution, that remains a matter for the local employees themselves to determine. Ironically, it appears that, under the CUPE constitution, it requires a larger employee majority to authorize a strike than would be necessary under the auspices of the Association. In any event, we do not think these concerns are sufficient to warrant the refusal of a declaration under section 62 of the Act, or to warrant the exercise of the Board's discretion to direct the taking of a vote pursuant to section 62(2) of the Act. The Board notes that in the last two months of the current collective agreement, the employees will be entitled to seek to displace their existing bargaining agent and replace it with another union or no union at all, if that is their wish.
7On the basis of the totality of the material before the Board, the Board declares that the applicant, the Canadian Union of Public Employees, has acquired the rights, privileges and duties under the Act of its predecessor, the Bethesda Service Employees Association, by reason of a merger, amalgamation or transfer of jurisdiction.