Cecil DeHaan v. United Food and Commercial Workers International Union, Local 633 and 175
[1987] OLRB Rep. December 1517
1762-87-R Cecil DeHaan, Applicant v. United Food and Commercial Workers International Union, Local 633 and 175, Respondent v. Huntsville I.G.A., Intervener
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES: Cecil DeHaan on his own behalf; Harold F. Caley and Dennis Sexton for the respondent; K. Carrick and B. Taylor for the intervener.
DECISION OF THE BOARD; December 11, 1987, as amended January 18, 1988
1This is an application for termination of bargaining rights made pursuant to section 57 of the Labour Relations Act. The relevant portion of section 57 reads as follows:
57.-(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;
(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
There is no dispute that this application is timely.
2The intervener ("the employer"), as its name suggests, operates a retail food stone in Huntsville, Ontario. Its employees are grouped for collective bargaining purposes into three bargaining units: a full-time bargaining unit of grocery clerks represented by Local 175 of the United Food and Commercial Workers International Union; a part-time bargaining unit of grocery clerks, also represented by Local 175 of the United Food and Commercial Workers International Union; and a full-time bargaining unit of meat department employees represented by Local 633 of the United Food and Commercial Workers International Union. For ease of reference these union respondents will be referred to simply as "Local 175" and "Local 633". Each of them, is of course, a "Local" trade union affiliated with, and subordinate to, its parent international organization.
3In support of this application for termination of bargaining rights, Mr. Cecil DeHaan submitted several documents purporting to indicate the wishes of employees. The preamble to those documents entitled "PETITION" reads:
"We the undersigned employees of Huntsville I.G.A. no longer wish to be represented by the United Food and Commercial Workers' International Union, and we appointed Mr. Cecil DuHaan [sic] to represent us in this matter."
The documents contain a space and heading for the signature of each employee, a notation as to the date, time, and place, and a space for a subscribing witness which, in each case, was Mr. DeHaan himself. These documents, collectively, bean the signatures of 60% of the full-time grocery clerks, 69% of the part-time grocery clerks, and two-thirds of the employees in the meat department.
4Having heard the evidence concerning the origination, preparation, and circulation of these anti-union petitions, we have no doubt whatsoever that they faithfully record the voluntary wishes of the employees who signed them. The evidence does not support the respondents' submission that Mr. DeHaan would be perceived as an agent of the employer, prompting employees to sorry that their refusal to support the anti-union petition would be duly reported to the employer and could result in reprisals. On the contrary. It is evident that, because of a protracted strike and resulting employee dissatisfaction, Mr. DeHaan - himself a vocal critic of the union's collective bargaining strategy - was able to persuade quite a number of employees to question the value of continued representation by the UFCW.
5The union has two subsidiary arguments:
The union asserts that the employees' petitions should be rejected because they do not specifically identify and distinguish the Locals of the UFCW affected by this application. In the union's submission, because the employees have referred to the UFCW generally, and not the specific local associated with the specific unit, their petition should be disregarded. In support of that proposition the union relies upon the decision of the Board in Hiram Walker and Sons Limited, [1973] OLRB Rep. Nov. 603.
The union further asserts that Mr. DeHaan, being a meat-department employee, cannot be an "applicant" entitled under section 57(3) to seek termination of bargaining rights in respect of the full-time or part-time grocery clerks' unit of which he is not himself a member. In this regard we were referred to Smale Brothers Company Limited, [1986] OLRB Rep. July 1019, Metal Closures Canada Limited, [1965] OLRB Rep. May 130, Graphic Centre (Ontario) Inc., (1977] OLRB Rep. June 379, Dunnville Supermarket Limited, [1980] OLRB Rep. Aug. 1193, Rennie Sheet Metal Limited, [1984] OLRB Rep. July 1004, and, T. E. Leroux Contracting Ltd., [1982] OLRB Rep. Aug. 1204.
We shall consider each of these propositions, in turn.
6Hiram Walker was a situation in which the evidence before the Board raised a real doubt about the employees' true intentions. There, the employees (or some of them) apparently sought to sever their relationship with the parent international union but continue to be represented by the respondent local union, which actually held the bargaining rights. The Board concluded:
We are satisfied that the signatories to these documents may very well have been confused as to the nature of the documents they were signing in that they may have misconstrued the purpose of this application as one designed merely to sever their relationship with the International Union, rather than as an application to effectively dispose of the bargaining rights of the respondent Local Union.
On that basis, the Board declined to give weight to the anti-union petition.
7That is not at all like this case. It is abundantly clear on the evidence before us that a majority of the employees in all three bargaining units want to be rid of the United Food and Commercial Workers International Union in any of its local manifestations. No distinction between locals was made, because none was deemed to be necessary. From the employees' perspective, the particular local designation was not significant. They are rejecting the UFCW (of which they are, of course, also members by virtue of their membership in a local). That was the evidence concerning the employee meetings and discussions preceding the making of this application and, in our view, it would be entirely too technical, and inconsistent with the spirit of section 57 of the Act, if we were to reject this termination application on the first ground proposed by the respondents.
8The second ground, however, is more problematic. Section 57(3) does appear to contemplate that a termination application can only be made by an employee in the bargaining unit affected by it, and, there is some support in the Board's jurisprudence for this proposition. In Smale Brothers it was held that a construction labourer, not at work on the application date, was not an employee in the bargaining unit at the relevant time, and therefore had no status to bring a termination application. In Metal Closures it was held that an employee in a bargaining unit represented by one craft union could not seek to terminate the bargaining rights for another craft bargaining unit in the same enterprise. In Graphic Centre it also held that an individual excluded from a craft bargaining unit could not seek to terminate the craft union's bargaining rights. In T. E. Leroux (supra) certain individuals not employed as carpenters on the application date were not entitled to seek termination of bargaining rights held by the Carpenters' union. Similarly, in Rennie Sheet Metal an employee outside the geographic scope of the bargaining unit represented by the union was not entitled to apply for termination of the union's bargaining rights. Dunnville Supermarket, however, supports the employees' position; because, there, the Board (in a somewhat different context) indicated a willingness to look beyond the mere form of the application and the "technicality" of the nominal applicant(s) in order to determine who the "true applicants were". The Board there decided that having recently dismissed one application by employee X made on behalf of a group of disenchanted bargaining unit employees, it should not readily entertain a subsequent similar application made on behalf of those same employees by employee Y.
9None of these cases involve documentary on other evidence of the kind before us: a petition which clearly expresses the employees' wish to terminate their union's bargaining rights and a designation that the applicant, Mr. DeHaan, will represent them in this matter. The plain meaning on natural implication of those words is that the employees are authorizing Mr. DeHaan to file a termination application on their behalf. That reading of the petition document is entirely consistent with the evidence concerning the discussion with the employees which led to their signing of the petition document.
10In our opinion we should not take an unduly "technical" view of applications such as these, and we are supported in that approach by cases such as Gardiner's Supermarket Limited, [1985] OLRB Rep. Dec. 1737; St. Michael Shops of Canada Limited, [1979] OLRB Rep. Oct. 1023; Thomas Construction (Galt) Limited, [1982] OLRB Rep. Nov. 1727 and Cara Operations Limited (Retail Stores Division), [1984] OLRB Rep. Oct. 1378. Indeed, the situation in Cara Operations Limited is very similar to the present one because, there, the nominal applicants were members of a full-time bargaining unit, but the termination application and the related anti-union petition encompassed employees in the pant-time bargaining unit as well. The Board found that the nominal applicants were making application both on their own behalf, and on behalf of the employees in the other bargaining unit. That approach was approved and followed by the Board in Economy Fair, [1985] OLRB Rep. Sept. 1357.
11We are inclined to take the same view. In the instant case it is evident from the documentary and other evidence before us that the majority of the employees in each bargaining unit wish to terminate the respondent(s) bargaining rights, and have designated Mr. DeHaan to take such steps as are necessary to accomplish that objective. Indeed, had Mr. DeHaan framed his application as being on his own behalf and on behalf of the signatories to the supporting petition there would be no issue. But when the application and the petition document are read together, that is obviously the employees' intention, and we find nothing fatal in the omission of those words from the application's style of cause. While the nominal applicant (Mr. DeHaan) is a member of the meat department bargaining unit, we find that this application is, in fact, being made by a majority of employees of each of the three bargaining units, and that the documentary and other evidence before us warrants the taking of a representation vote to test the union's continued support.
12The three bargaining units mentioned above in abbreviated form, are more particularly described as follows:
FULL-TIME FOOD STORE CLERKS UNIT
All employees of 388281 Ontario Limited carrying on business as Huntsville I.G.A. Market, at Huntsville, Ontario, save and except meat department employees, head cashier, department managers and persons above the rank of department manager, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.
PART-TIME GROCERY CLERK UNIT
All employees of 388281 Ontario Limited carrying on business as Huntsville I.G.A. Market in its store in Huntsville, Ontario, who are regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except head cashier, department managers and persons above the rank of department manager.
MEAT DEPARTMENT UNIT
All meat department employees of 388281 Ontario Limited carrying on business as Huntsville I.G.A. Market at its store in Huntsville, Ontario, save and except department managers and persons above the rank of department manager and persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
13A representation vote will be taken among the employees in each of the above-described bargaining units. The meat department employees will be asked whether they wish to continue to be represented by Local 633 of the United Food and Commercial Workers Union in their employment relationship with the intervener employer. The other grocery store employees in the other above-described full-time and part-time bargaining units will be asked to indicate whether they wish to continue to be represented by Local 175 of the United Food and Commercial Workers International Union in their employment relationship with the intervener.
14Those entitled to vote will be all employees on the date hereof who do not terminate their employment with the intervener or are not discharged for cause between the date hereof, and the date on which the vote is taken.
15The matter is referred to the Registrar so that appropriate vote arrangements may be made.