National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada) v. Plastics CMP Limited, 1986 CanLII 1528

[1986] OLRB Rep. December 1761

2170-86-R; 2171-86-R; 2222-86-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada), Applicant, v. Plastics CMP Limited, Respondent, v. Cement, Lime, Gypsum & Allied Workers, A Division of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO-CLC, Intervener; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada), Applicant, v. Kawartha Moulding Limited, Respondent, v. Cement, Lime, Gypsum & Allied Workers, A Division of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO-CLC, Intervener; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, (CAW-Canada), Applicant, v. Peterborough Plastic Painters Limited, Respondent, v. Cement, Lime, Gypsum & Allied Workers, A Division of International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO-CLC, Intervener

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members 1. M. Stamp and C. A. Ballentine.

DECISION OF THE BOARD; December 3, 1986

1. These are applications for certification in which the applicant has requested that the Board conduct a pre-hearing representation vote. The applications in Board Files 2170-86-R and 2171-86-R were filed on October 28, 1986. The application in Board File 2222-86-R was filed on November 3, 1986.

2. The application in Board File 2170-86-R describes the appropriate bargaining unit as follows:

all employees of the respondent at Peterborough, Ontario, save and except foremen, supervisors, persons above the rank of foreman and supervisor, office and sales staff and students employed during their school vacation.

It is acknowledged that there was a collective agreement between Plastics CMP Limited and the intervener covering the period October 1, 1984 to October 31, 1986. One of the parties has filed a document purporting to be a copy of that agreement. The recognition clause in that agreement reads as follows:

ARTICLE 3 RECOGNITION

3:01 The Company recognizes the Union as the sole and exclusive bargaining agent of all employees in the Bargaining Unit of the said Company, and shall apply to all production employees on Plastics C.M.P. payroll in Peterborough, save and except foremen and persons above the rank of foreman, office and sales staff, and chemists.

3. In its application in Board File 2171-86-R, the applicant describes the appropriate unit as:

all employees of the respondent at its plant in Peterborough, Ontario. save and except foremen, supervisors, persons above the rank of foreman and supervisor, office, sales, quality control department, persons regularly working for not more than twenty-four hours per week and students employed during school vacation.

It is conceded that Kawartha Moulding Limited and the intervener were parties to a collective agreement covering the period October 1, 1984 to October 31, 1986. One of the parties has filed what purports to be a copy of that collective agreement. The recognition clause in that agreement reads as follows:

ARTICLE 3 RECOGNITION

3.01 the Company recognizes the Union as the sole and exclusive bargaining agent of all employees in the bargaining unit of Kawartha Mouldings Limited, 400 Plastics Road, Peterborough, Ontario, save and except foremen and supervisors, persons above the rank of foreman and supervisor, office, sales, quality control department, persons regularly working not more than twenty-four (24) hours per week, and students employed during the school vacation period.

4. In its application in Board File 2222-86-R, the applicant describes the appropriate bargaining unit as follows:

all employees of the respondent in Peterborough, Ontario, save and except foremen, supervisors, all persons above the rank of foreman and supervisor, office and sales staff.

It is conceded that Peterborough Plastic Painters Limited and the intervener were parties to a collective agreement covering the period June 10, 1985 to January 1, 1987. One the parties has filed what purports to be a copy of that collective agreement. The recognition clause in that document reads as follows:

ARTICLE 3 RECOGNITION

3.01 The Company recognizes the Union as the sole and exclusive bargaining agent of all employees in the Bargaining Unit of the said Company, and shall apply to all production and maintenance employees working in the employment of Peterborough Plastic Painters Limited in the City of Peterborough, save and except foremen, supervisors, office and sales staff.

5. In each application, the applicant has alleged that Plastics CMP Limited, Kawartha Moulding Limited and Peterborough Plastic Painters Limited "are associated or related activities or businesses within the meaning of section 1(4) of the Labour Relations Act and constitute a single employer for the purposes of the Act." In each case, the applicant asks that the Board "apply section 1(4) to this application for certification and ... issue an appropriate declaration under section 1(4)." In its reply filed in each of the three applications, Plastics CMP Limited has responded to that claim by saying that it is the correct respondent in each case and that the applicant is entitled to the relief claimed under subsection 1(4) because Plastics CMP Limited, Peterborough Plastic Painters Limited and Kawartha Moulding Limited were amalgamated on January 2, 1986 and continue under the name of Plastics CMP Limited. Following the meeting of the parties referred to later in this decision, counsel for Plastics CMP Limited filed a photocopy of that corporation's Articles of Amalgamation, the original of which appears to bear the certificate of the appropriate government official indicating that those Articles became effective on January 2, 1986 with respect to the amalgamation of Plastics CMP Limited, Peterborough Plastic Painters Limited and Kawartha Moulding Limited under the Business Corporations Act, 1982, S.O. 1982 c. 4. Section 178 of that statute provides, in part:

6. Upon the articles of amalgamation becoming effective,

(a) the amalgamating corporations are amalgamated and continue as one corporation under the terms and conditions prescribed in the amalgamation agreement;

(b) the amalgamated corporation possesses all the property, rights, privileges and franchises and is subject to all liabilities, including civil, criminal and quasi-criminal, and alt contracts, disabilities and debts of each of the amalgamating corporations;

[emphasis added]

Unless there is some question of the authenticity or effectiveness of these Articles of Amalgamation, it appears that a declaration under subsection 1(4) would be entirely unnecessary. The three corporations in question have become one corporation and, hence, one employer, for all purposes including the purposes of the Labour Relations Act. Unless either of the other parties to these proceedings advises the Board that it takes issue with the authenticity or effectiveness of the Articles of Amalgamation or with the legal conclusion we have drawn on the basis of section 178(b) of the Business Corporations Act, 1982, it does not appear necessary for the Board to entertain the application under subsection 1(4) of the Labour Relations Act (hereafter "the Act").

6. In each of its applications, the applicant says that if the application under subsection 1(4) of the Act is granted, the appropriate bargaining unit in these applications ought to be a single unit encompassing the three bargaining units contained in the aforesaid collective agreements plus lab technicians not presently represented by the incumbent, or any trade union.

7. A Labour Relations Officer was appointed in each of these three applications to meet with representatives of the parties for the usual purposes in connection with the requests for conduct of pre-hearing representation votes. At that meeting, representatives of the respondent took the position that the appropriate bargaining unit would be one encompassing the three bargaining units contained in the aforesaid collective agreements but not lab technicians. The intervener took the position that there were three appropriate units, one each in each of three divisions of Plastics CMP Limited corresponding to the businesses formally carried on by the three corporations which were amalgamated to form Plastics CMP Limited.

8. All three parties agree that a single bargaining unit which would neither add to nor delete from the bargaining rights contained in the three Collective Agreements between the intervener and the Respondents would be described as follows:

all production and maintenance employees of the Respondent at its plant at 400 Plastics Road, Peterborough, Ontario, save and except foremen and supervisors and persons above the rank of foremen and supervisor, office and sales staff, and students employed during the school vacation period, chemists in the plating department (previous C.M.P. division) and quality control department and persons regularly working not more than 24 hours per week in the Moulding department (previous Kawartha Moulding Division).

Clarity Note: For the purposes of clarity the parties agree that that line technicians and lab technicians in the plastics C.M.P. division have not been included in the bargaining unit as described.

It is not clear that the parties are correct in saying that a unit described in this way would cover all those who were covered by the three expired agreements. We note, for example, that students were not excluded from the bargaining units covered by the interveners agreements with Peterborough Plastic Painters Limited and the predecessor Plastics CMP Limited. It is not necessary for us to deal with that problem at this stage, however.

9. As noted above, the Applicant seeks bargaining rights broader than those currently held by the intervener. The Applicant describes its proposed unit as:

All production and maintenance employees of the Respondent at its plant at 400 Plastics Road, Peterborough, Ontario, save and except foremen and supervisors and persons above the rank of foremen and supervisor, office and sales staff, and students employed during the school vacation period, chemists in the plating department (previous C.M.P. division) and quality control department and persons regularly working not more than 24 hours per week in the Moulding department (previous Kawartha Moulding Division).

Clarity Note: For the purpose of clarity the parties agree that line technicians and lab technicians are included in the bargaining unit.

The respondent and intervener both object to the inclusion of line technicians and lab technicians on the basis that the applicant should not have the right to displace a unit with a different scope from that for which the intervener had bargaining rights.

10. All three parties agree that if the Board finds that one unit for the three files (Board files 2171-86-R, 2222-86-R, 2170-86-R) is not appropriate then the appropriate bargaining unit in each file is the one described in the Collective Agreement between the intervener and the originally named respondent, except in the case of Plastics C.M.P. Limited, where the applicant takes the position that the appropriate bargaining unit would be:

all employees of the Respondent at Peterborough, Ontario, save and except foremen, supervisors, persons above the rank of foremen and supervisor, office and sales staff and students employed during the school vacation period.

The applicant submits that this unit would encompass the same employees as that in the Collective Agreement between the intervener and Plastics C.M.P. Limited, with the addition of line technicians and lab technicians.

11. The circumstances of this case raise some interesting legal questions which may or may not ultimately have to be answered. One of those is the nature of the bargaining rights enjoyed by the incumbent trade union when these applications were filed, having regard to the corporate amalgamation which took place on January 2, 1986. The effect of amalgamation of two or more corporate entities when only one is bound by a collective agreement was addressed in Canadian Appliance Manufacturing Company Limited, [1979] OLRB Rep. Jan. 8 and Re Canadian Appliance Manufacturing Company Limited (1978), 1978 CanLII 3509 (ON LA), 20 L.A.C. (2d) 59 (Shime). The result in those cases was that the collective agreement formerly binding only with respect to employees of the unionized predecessor corporation was binding on all employees of the amalgamated corporation who were capable of falling within its grammatical scope. This is the same result which would obtain if the businesses of the unorganized predecessor corporations had been purchased or initiated by the unionized predecessor corporation. The effect of an amalgamation of two or more corporate entities all of which are bound by collective agreements with different trade unions was addressed in Eaton Yale Limited, [1971] OLRB Rep. Oct. 667, and to some extent in Westeel Products Limited, [1966] OLRB Rep. Dec. 718 and Pitts Engineering Construction, [1983] OLRB Rep. June 938. There the approach seems to have been that the amalgamation should be treated as "any other manner of disposition" under subsection 63(1) of the Act, with the result that a union which had bargaining rights for employees of a predecessor corporation would have bargaining rights with respect to a like unit of employees of the amalgamated corporation unless and until relief under subsection 63(6) is sought and granted.

12. Of course, it is not our function at this stage to determine the appropriate bargaining unit(s) in these applications. At this stage, we are only called upon to strike a voting constituency or constituencies in such a way as to maximize the possibility that use can be made of the results of votes in those constituencies once a determination of the appropriate bargaining unit(s) is made by the Board in hearings held after the votes are conducted. However powerfully all the matters referred to in the parties' submissions to date may point toward the appropriateness of a single unit for the future despite whatever the past may have held, we cannot at this stage ignore the possibility of a finding that there are two or more appropriate units of employees of what is now a single employer as a matter of law, particularly in view of the timing differences in the applications and prior collective agreements.

13. The Board's decision in Toronto East General and Orthopaedic Hospital, Inc., [1981] OLRB Rep. Feb. 225 addresses the Board's practice in an application in which the unit sought is broader than that represented by the incumbent. For reasons explained there, the Board in those circumstances establishes two voting constituencies: one corresponding to the unit represented by the incumbent and the other covering the accretion to that unit which would result if the Board adopted the applicant's definition of the bargaining unit.

VOTING CONSTITUENCY NO. 1

all employees of Plastics CMP Limited in Peterborough, Ontario, employed in that portion of its business which was conducted prior to January 2, 1986, by its corporate predecessor Plastics CMP Limited, save and except foremen and persons above the rank of foreman, office and sales staff, and chemists.

VOTING CONSTITUENCY NO.2

all employees of Plastics CMP Limited in Peterborough, Ontario, employed in that portion of its business which was conducted prior to January 2, 1986 by its corporate predecessor Kawartha Mouldings Limited, 440 Plastics Road, Peterborough, Ontario, save and except foremen and supervisors, persons above the rank of foreman and supervisor, office, sales, quality control department, persons regularly working for not more than twenty-four (24) hours per week, and students employed during the school vacation period.

VOTING CONSTITUENCY NO. 3

all employees of Plastics CMP Limited at Peterborough, Ontario, employed in that portion of its business conducted prior to January 2,1986 by its corporate predecessor Peterborough Plastics Painters Limited, save and except foremen, supervisors, office and sales staff.

VOTING CONSTITUENCY NO. 4

all line technicians and lab technicians employed by Plastics CMP Limited at Peterborough, Ontario, save and except foremen and supervisors and persons above the rank of foreman and supervisor.

We note that the parties were able to come to total agreement on the voting constituency in which each employee of Plastics CMP Limited fell as of the relevant dates.

15. It appears to the Board on an examination of the records of the applicant and the records of the respondent in each of these proceedings that not less than thirty-five percent of the employees in each of the aforesaid voting constituencies were members of the applicant at the time the relevant application was made. Accordingly, the Board directs that a pre-hearing representation vote be taken of the employees in each of the aforesaid voting constituencies. In each case, employees in the voting constituency on November 18, 1986 who have neither voluntarily terminated their employment nor been discharged for cause between that date and the date the vote is taken will be eligible to vote. In voting constituency No. 4, voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with their employer. In the other three voting constituencies, voters will be asked to indicate whether they wish to be represented by the applicant or the intervener in their employment relations with their employer.

16. The respondent Plastics CMP Limited asks that the ballot box in any pre-hearing representation vote be sealed and the ballots cast not counted pending resolution by the Board of the outstanding issues with respect to the appropriate bargaining unit(s). Neither the applicant nor the intervener has joined in that request. Indeed, both trade union parties wish to be able to have the ballots counted before the Board's hearing begins. The respondent's concern seems to focus more on the possibility that the Board might conclude that there are three appropriate units than on any risk associated with counting the ballots cast in three separate voting constituencies. In our view, the counting of ballots cast in three (or four) separate voting constituencies cannot prejudice a finding that there is only one appropriate unit. If there is such a finding, the appropriate results in the individual constituencies can simply be added together (subject to the Board's observations in Toronto East General and Orthopaedic Hospital inc., supra) in order to determine the result. Accordingly, we would not direct the sealing of the ballot boxes for that reason. However, we note that the applicant has not filed a Form 9 Declaration in Board File 2171-86-R. The attention of the applicant is directed to the Board's decisions in Halton Roman Catholic Separate School Hoard, (1986] OLRB Rep. July 962 and Northridge Plastics Limited, [19861 OLRB Rep. July 1012. For the reasons given in those decisions, we direct that the ballots cast in voting constituency No. 2 not be counted unless and until the applicant files an apparently proper Form 9 Declaration with respect to the membership evidence it has submitted in connection with that application.

17. This matter is referred to the Registrar.