Toronto Typographical Union No. 91 v. Starways Distributors, 1986 CanLII 1587

[1986] OLRB Rep. April 556

3013-85-R Toronto Typographical Union No. 91, Applicant, v. Starways Distributors, A Division of Harlequin Enterprises Limited, Respondent, v. The Southern Ontario Newspaper Guild, Local 87, Newspaper Guild, Intervener

BEFORE: Robert J. Herman, Vice-Chairman, and Board Members W H. Wightinan and P. V. Grasso.

APPEARANCES: Joe Herbert and Joe Bigeau for the applicant; Derek L. Rogers, T. Nigel Campbell and Gary Kapitan for the respondent; G. Charney, Gail Lem and Sherry Liang for the intervener.

DECISION OF THE BOARD; April 23, 1986

1The name of the respondent is amended to read: "Starways Distributors, A Division of Harlequin Enterprises Limited"

2This is an application for certification.

3The applicant filed its application on March 7, 1986, and pursuant to Rule 2 of the Board's Rules of Procedure the Registrar fixed a terminal date of March 20, 1986.

4The intervener filed its own application for certification by the terminal date, and in accordance with the practice of the Board notice of that application was not served upon the employees. At the hearing the Board invited submissions on whether it was necessary, for reasons of fairness and natural justice, to serve employees with a notice of the intervener application.

5In our view, as a general proposition, the mere fact that a second application has been filed, irrespective of whether the bargaining unit description contained therein is identical or different to the bargaining unit description in the applicant's application, is a matter of which employees ought to be notified. Both applicant and intervener strenuously opposed such notification, as in their submission employee rights to participate were essentially limited to the right to file petitions in opposition to a union. The applicant and intervener suggested that a vote was likely in the circumstances of the instant application, thus rendering irrelevant any employee petition, as the result of any petition filed and subsequently found by the Board to be voluntary would only be to cause a vote to be held. As a vote was going to be held in any event, lt was unnecessary to provide the employees an opportunity to so file petitions.

6We cannot accept the limited participation rights of employees as suggested by the applicant and the intervener. As the Board stated in Tektron Equipment Corporation, [1983] OLRB Rep. Nov. 1932:

The granting of an application for certification has a substantial effect on the rights and obligations of the individual employees in the bargaining unit for which the certificate is granted. An employee's right to bargain individually with his or her employer, however real or illusory that right may be, is terminated if the applicant trade union is granted a certificate for a bargaining unit which includes that employee. The terms and conditions of his employment are thereafter subject to the influence of the trade union, which thereafter has the exclusive right to bargain with respect to his terms and conditions of employment and to establish with his employer a collective agreement by which he is bound by virtue of section 50 of the Labour Relations Act. The rules of natural justice require that persons so directly affected by quasi-judicial proceedings be given notice of those proceedings and an opportunity to make representations. Pursuant to the Board's Rules of Practice, notice is given to affected employees of applications for certification (Forms 6, 7 and 78), as well as of applications to terminate bargaining rights (Form 19), applications to declare successor trade union status (Form 24) and applications under Sections 63 and 1(4) (Forms 28 and 33).

Sufficiency of membership support is not the only issue with which the Board must deal in a certification application. The Board must also determine the composition of the appropriate bargaining unit and the employee status of persons alleged to be or not be in that unit. As the resolution of those issues can be determinative in individual cases of the effect of the certification application on employees, employees are equally entitled to make representations on those and, indeed, any other issues pertinent to the disposition of the applicant: Ilsco of Canada Limited, [1973] OLRB Rep. May 221. Examples of cases in which objectors' representations have been entertained with respect to the bargaining unit include Tamco Limited, [1974] OLRB Rep. Nov. 764, Mason Windows Limited, [1981] OLRB Rep. March 302 and Windsor Western Hospital Centre Inc., [1979] OLRB Rep. May 462. Indeed, in the last mentioned case the position taken by the objectors was at odds with the terms of an agreement between the applicant employer and the respondent union. The status of individual employees or their representatives to make representations with respect to issues other than membership support is not dependent on the timely filing of a statement of desire: Jim Davidson Motors Ltd. [1968] OLRB Rep. June 268; Strathmere Ladge, Middlesex County Home for Aged, [1973] OLRB Rep. Aug. 42S (and see Larain Products (Canada) Ltd. [1977] OLRB Rep. Nov. 734 where a group of employees was granted status to intervene after a pre-hearing vote had been conducted, when applicant trade union had at that point invoked section 8 of the Act.) As the status of an employee or group of employees to make such representations is not dependant on having filed a statement of desire, their status for those purposes cannot be adversely affected by the fact that they have filed a statement of desire which is determined to be irrelevant in the sense described in paragraph 9 above.

While the interests of individual employees may often parallel those either of the employer or the union, that does not diminish the employees' right to have notice of and participate in certification hearings. A concerned employee is not limited to offering himself or herself as a witness to one or other of the employer or union, in the hope that by doing so his or her point of view will be represented. Indeed, this Board has made it plain that the employer has no standing as spokesman for its employees except with respect to a narrow range of issues: Federated Building and Maintenance Co. Ltd., [1979] OLRB Rep. Oct. 974.

7We adopt this reasoning. If employees are entitled to participate in issues raised in certification proceedings, they must equally be entitled to meaningful notice in order to decide whether they wish to so participate. The fact that a second application, by a different union, had been made is a material fact and one of which employees ought to have received notice.

8Both applicant and intervener submitted, in the event the Board decided that notice of the intervener application be provided to employees, that it was unnecessary to extend the terminal date. In our view it is unnecessary to deal with this issue at this stage of the proceedings, particularly as no party to these proceedings was requesting that the terminal date be extended. Such an issue may become relevant should either the applicant or intervener at a later stage seek to be certified without a vote, but a resolution of that issue can more properly be dealt with at that time.

9Accordingly, for the reasons set out above the Board directs that the Registrar forward the attached Notice to the employer and we further direct that the employer post several copies of the attached Notices in conspicuous places where they are most likely to come to the attention of all employees who may be affected by the application and intervener application. Those notices shall remain posted upon the employer's premises until the close of business on the 2nd day of May, 1986. The employer is further directed to complete and send to the Board immediately the Return of Posting (Form 74), which shall be attached to the notices forwarded to the employer.

10This matter is referred to the Registrar.

11This panel of the Board is not seized with this matter.