Canadian Guards Association v. Pinkerton's of Canada Ltd., 1988 CanLII 3674

[1988] OLRB Rep. June 613

0068-88-R Canadian Guards Association, Applicant v. Pinkerton's of Canada Ltd., Respondent

BEFORE: Robert D. Howe, Vice-Chair, and Board Members W. H. Wightman and H. Peacock.

APPEARANCES: P. Turtle and Stuart Deans for the applicant; John A. Coleman, George Donovan and Jacques Charpentier for the respondent.

DECISION OF THE BOARD; June 27, 1988

1. This an application for certification. In Appendix A to its (Form 10) Reply, the respon­dent submitted that the application should be dismissed on the following grounds:

a) Respondent's labour relations fall within the exclusive constitutional jurisdiction of the federal government and consequently are not subject to this Board's jurisdiction;

b) Pursuant to section 12 of the Act, Applicant has no status to seek or acquire certifica­tion of Respondent's security guards by reason of Applicant's avowed affiliation with an organization that admits to membership persons other than security guards;

c) Applicant's membership evidence is tainted "in toto" by reason of the active and illicit participation of a representative of management in Applicant's organizing campaign.

2. Prior to the June 1, 1988 hearing of this matter, the parties' representatives met with a Board Officer and, without prejudice to the respondent's position regarding the foregoing grounds, reached agreement on certain matters, including an agreement that notwithstanding the constitu­tional jurisdictional issue, the parties would request the Board to hear argument regarding section 12 first, before considering any other issues.

3. By letter dated May 26, 1988, counsel for the applicant advised the Board, the Attorney General for Ontario, the Attorney General for Canada, and respondent's counsel as follows in respect of this matter:

I am counsel to the Canadian Guards Association in the above captioned matter. An Applica­tion for Certification with respect to certain employees of the respondent was filed on April 11, 1988. I have conferred with counsel for the respondent in this matter and we have agreed that upon the commencement of the certification hearings in Ottawa on June 1, 1988 before the Ontario Labour Relations Board the first issue to be addressed will be the preliminary objection raised by the respondent that the Board should refuse to certify the applicant trade union pursu­ant to s. 12 of the Labour Relations Act.

In reply to the respondent's position the trade union confirms that it will be taking the position that s.12 of the Act does not apply to bar certification because the trade union referred to above is not "affiliated, directly or indirectly, with an organization that admits to membership persons other than guards". Alternatively the union will be arguing that a portion of s.12 should be struck down as it violates the guarantee of freedom of association contained in s.2 (d) of the Canadian Charter of Rights and Freedoms. The trade union takes the position that the portion of s.12 which states "... no trade union shall be certified as bargaining agent for a bargaining unit of such guards and no employer or employer's organization shall be required to bargain with a trade union on behalf of any person who is a guard, if, in either case, the trade union admits to membership or is chartered by, or is affiliated, directly or indirectly with an organiza­tion that admits to membership persons other than guards" constitutes a violation of the Char­ter. The union is not challenging that portion of s.12 which prohibits the inclusion in a bargain­ing unit with other employees a person employed as a guard to protect the property of an employer as constituting a violation of the Charter of Rights and Freedoms.

4. At the June 1, 1988 hearing of this matter, counsel advised the Board that they had fur­ther agreed to request the Board to hear and determine the issue of whether or not the applicant (also referred to in this decision as the "CGA") is "affiliated, directly or indirectly, with an organi­zation which admits to membership persons other than guards" (the "section 12 issue") on the understanding that if the Board decided that it was, evidence and argument would be presented at a later date concerning the Charter issue. Since it appeared to the Board that the procedure sug­gested by the parties might expedite the hearing of the matter by avoiding unnecessary evidence and argument, the Board acceded to that request. Consequently, this decision deals only with the section 12 issue.

5. It is common ground between the parties that "the guards covered by the application protect the property of employers within the meaning of section 12 of the Act, and in accordance with the Board's case law dealing with conflict of interest, such that their duties include the surveil­lance and monitoring of both property and employees of employers". It is also common ground between the parties that the applicant has entered into the following contract (the "Service Con­tract") with the United Steelworkers of America (the "USWA"):

SERVICE CONTRACT

between

UNITED STEELWORKERS OF AMERICA

(hereinafter "USWA")

and

CANADIAN GUARDS ASSOCIATION

(hereinafter "CGA")

WHEREAS the USWA and the CGA desire to enter into this Service Agreement so as to improve the quality of the working lives of all members of the CGA; and

WHEREAS the USWA and the CGA desire to develop a relationship which will result in the integration of the CGA into the USWA in a manner which preserves the identity of the CGA as part of the USWA;

NOW THEREFORE the USWA and the CGA, in consideration of their mutual promises, agree as follows:

1. This Service Contract shall be effective from October 1, 1987, to September 30, 1991.

2. The USWA shall provide all support and technical services to the CGA and to its members which the USWA provides to its own chartered local unions and to its own members.

3. In addition to the services outlined in paragraph 2, above, the USWA shall make available to the CGA the USWA offices in Ontario.

4. Commencing January 1, 1988 the CGA shall pay to the USWA at the end of each cal­endar month a Service Fee to be the total of the following:

Per member of the CGA or any of its locals who have worked for more than five days during the calendar month, the fee shall equal a total of one hour's pay based upon each member's total earnings during the calendar month provided the payment for each member by the CGA to the USWA shall not be less than Five Dollars (S5.00) per member per calendar month.

5. USWA employees and agents shall not execute any documents, including any collec­tive agreements, on behalf of the CGA.

6. The CGA shall hold the USWA harmless with respect to any act or omission per­formed by any employee or agent of the USWA in the course of such person provid­ing services to the CGA in accordance with the terms of this Agreement, if performed in good faith.

7. At least one employee or agent of the USWA shall be invited to attend every meeting of all locals of the CGA and shall be entitled to participate in such meetings but shall not be entitled to vote on any matter.

8. The CGA shall co-operate and support the USWA in complying with all sections of the Ontario Labour Relations Act (hereinafter "the Act") in the event that the USWA decides to seek to become the legal bargaining agent with respect to any or all locals of the CGA. It is expressly acknowledged that this may occur by way of appli­cations under the successor union provisions of the applicable statute or by way of dis­placement application for certification filed with the Ontario Labour Relations Board or the Canada Labour Relations Board, as the case may be. It is also expressly under­stood and agreed that no such application shall be filed prior to October 1, 1988 so as to afford the CGA a reasonable opportunity to evaluate the services provided by the USWA in accordance with this Agreement.

9. In the event that any employer objects to any USWA displacement application for certification or any USWA application under section 63 of the Act filed with the Ontario Labour Relations Board as aforesaid in paragraph 7 above, the CGA expressly agrees that it will join with the USWA in any and all legal proceeding to challenge any such employer objection on any grounds including the constitutional validity of section 12 of the Act. The USWA expressly agrees that it shall be responsi­ble for all fees with respect to legal representation in any such proceeding and the CGA expressly agrees that both the CGA and the USWA shall be represented by legal counsel selected by USWA. CGA may appoint its own legal counsel at its own cost. USWA shall reasonably consider any request by CGA to name the legal counsel acting on the application.

10. Before February 1, 1988 the CGA shall provide the USWA with a complete list of all the bargaining units of the CGA including the names and addresses of all employers with whom the CGA have [sic] collective agreements, the number of employees in each CGA bargaining unit, as well as with copies of each CGA collective agreement and, where possible, a list of the names, addresses and telephone numbers of all members of the CGA. This material shall be updated on January 15, April 15, July 15 and October 15 of each year and forwarded to the USWA by not later than thirty days following each date as aforesaid.

11. The USWA and the CGA both recognize that during the life of this agreement the CGA and for [sic] its locals may lose their/its legal existence and that it/they may become part of the USWA but that the integration of the CGA and/or any of its cur­rent locals into the U5WA will be accomplished by maintaining the CGA's indepen­dent identity even after the integration.

12. In the event that the CGA and the USWA cannot be integrated as aforesaid because of the determination by the Ontario Labour Relations Board or by any Court, the USWA and CGA expressly agree that this service agreement will be subject to renewal negotiations commencing on June 15, 1991.

13. Subject to paragraph 14, below, this Agreement may be terminated for any reason whatsoever upon written notice of not less than three calendar months by one party to the other during which time the USWA and the CGA shall continue to comply with this agreement.

14. The USWA may terminate this Agreement upon one week's notice to the CGA, or tour weeks notice if a paragraph 9 application is being processed, if the USWA deter­mines that the CGA has failed to comply with the provisions of paragraph 4, above. Said notice shall be by registered mail and time commences to run the 3rd day after mailing. Termination shall be cancelled by payment within the time period. The time period may only end on a regular business day and extensions shall automatically take effect.

DATED at Toronto, this 12 day of February, 1988.

6. Other documents entered as exhibits in these proceedings on the agreement of the par­ties (subject to argument concerning their relevance, if any, to the section 12 issue) include the USWA Constitution, the Constitution of the Canadian Labour Congress (the "CLC"), the CGA Constitution and By-Laws (and some amendments thereto), and certain CGA motions concerning the Service Contract. That documentation indicates that the CGA's Constitution has been amended to permit the applicant to merge with the USWA on the approval of a two-thirds major­ity vote of the National Executive Board and Council present and voting at an annual, general, or special meeting. (That constitutional amendment also provides for any objection to a merger vote to be brought forth at a special meeting of the CGA to be called by the National Executive Board after a request for such meeting is filed by a majority of locals.) The documentation also indicates that the CGA's per capita union dues are one and one-half hours' pay per month.

7. The following letter, which was sent on CGA letterhead on or about March 21, 1988, was also entered as an exhibit on the agreement of the parties:

TO ALL PINKERTON GUARDS IN OTTAWA

WELCOME

You are all aware of the grave necessity for the improvement in wages, benefits and many other working conditions to improve the integrity of the Security Guard industry in Ottawa.

The Canadian Guards Association was established in 1957 and its members currently earn an average of $11.00 per hour.

In 1982, an Association similar to ours in Quebec, composed of only 6 guards, entered into a service contract and eventually merged with the United Steelworkers of America. They now represent more than 13,000 security guards and have increased salaries and benefits by over 50%, thus greatly improving the working conditions they live under.

On February 12, 1988, the Canadian Guards Association in Ontario entered into a similar con­tract with the United Steelworkers of America in an attempt to benefit from their vast organiz­ing experience, their research, legal and service staff resources, and to bring here in Ottawa, the significant benefits and success enjoyed by those security guards unionized in the Province of Quebec.

You have a legal right to join the Guards Association under Ontario law, free of company inter­ference. As you are aware the company terminated Mr. Doug Foley's employment for his union activities. Charges are being filed with the Ontario Labour Relations Board and our legal staff are confident that the company will be forced to return Mr. Foley to his job.

The signing campaign is going very well and with your support, we will be able to apply for cer­tification in the near future. If an organizer has not already called on you, and you wish to sign a card or get more information, please call 737-1195.

Fraternally yours

"Stuart Deans"

Stuart Deans

National Executive

Officer

Canadian Guards

Association

It is an agreed fact that the telephone at the number set forth in that letter is answered "United Steelworkers of America".

8. Respondent's counsel submitted that the CGA is affiliated with the USWA by virtue of the Service Contract. In support of that position he referred to various provisions of the contract and to the CGA motions which laid the ground- work for it. He also referred the Board to the defi­nition of "affiliate" contained in The Random House Dictionary of the English Usage, which reads in part as follows:

9. to bring into close association or connection...

10. to attach or unite on terms of fellowship; associate....

He also quoted the following definition of "affiliation" contained in Black's Law Dictionary (5th Ed., 1979):

Act or condition of being affiliated, allied, or associated with another person, body, or organiza­tion. Imports less than membership in an organization, but more than sympathy, and a working alliance to bring to fruition the proscribed [sic] program of a proscribed [sic] organization, as distinguished from mere co-operation with a proscribed [sic] organization in lawful activities, is essential....

The respondent also contends that in view of the provisions of the Service Contract, guards could well find themselves in a conflict of interest situation when called upon to provide surveillance and monitoring of employees represented by the USWA, if the CGA were certified as the guards' bargaining agent.

9. Counsel for the applicant submitted that the CGA is neither directly nor indirectly affili­ated with the USWA. She contended that the Service Contract is merely a contract which provides for services to be rendered by the USWA as an agent for the CGA, in exchange for money. She acknowledged that the Service Contract contemplates that the CGA may be integrated into the USWA, but submitted that such integration has not yet occurred and that its future possibility can­not be taken into account in this case. It was also her contention that there can only be an affilia­tion where entities are bound together or controlled by constitutional obligations such as those which exist between the CLC and its affiliated organizations under the CLC Constitution, or between a parent union and its locals under a union constitution. She further submitted that the relationship between the CGA and USWA under the Service Contract does not give rise to a conflict of interest of the type which section 12 is designed to prevent. During the course of her submissions she referred the Board to Canadian Paperworkers Union, Local 4 v. Fraser Inc., 85 CLLC ¶16,064 (N.B.I.R.B.). She also cited Ontario Hydro Employees Union and Ontario Hydro-Electric, 57 CLLC ¶18,080, and Navco Food Services Limited, [1971] OLRB Rep. Feb. 80, which she acknowledged to be Board decisions that, in the context of sucessorship proceedings (under what is now section 62 of the Act), adopt a position at variance with that advocated by the CGA in the instant case, by construing affiliation as covering situations where no control is exerted by one union over another. However, she urged the Board to adopt a more restrictive approach in the context of section 12.

10. Section 12 provides as follows:

The Board shall not include in a bargaining unit with other employees a person employed as a guard to protect the property of an employer, and no trade union shall be certified as bargaining agent for a bargaining unit of such guards and no employer or employers' organization shall be required to bargain with a trade union on behalf of any person who is a guard if, in either case, the trade union admits to membership or is chartered by, or is affiliated, directly or indirectly, with an organization that admits to membership persons other than guards.

The purpose of that section is to protect against conflicts of interest between guards' duties to the employer whose property they are obliged to protect, and their expected loyalty to the employer's employees: see, generally, Kimberly Clark of Canada Ltd., [1987] OLRB Rep. Oct. 1255; Citicom Inc., [1985] OLRB Rep. Jan. 57; Wells Fargo Armcar, Inc., [1981] OLRB Rep. July 1046; and Canadian Paperworkers Union, Local 4 v. Fraser Inc., supra.

11. It is unnecessary in the instant case to attempt to exhaustively define the term "affiliat­ed". It is sufficient for the purposes of this decision to indicate that, in our view, the portion of sec­tion 12 which is in issue in these proceedings covers contractual arrangements of the type contained in the Service Contract, and is not confined to situations in which unions are bound together or controlled by constitutional obligations. Thus, having duly considered the submissions of counsel and all of the material which has been placed before us, we have concluded that the applicant is "affiliated, directly or indirectly, with an organization which admits to membership persons other than guards", namely, the USWA. Under the terms of the Service Contract, the USWA is obliged to provide all support and technical services to the CGA and to the CGA's members which the USWA provides to its own chartered local unions and to its own members. It is also required to make available to the CGA the USWA offices in Ontario. As a result of the latter provision, guards in the employ of the respondent were invited (by the letter quoted above), as part of the applicant's organizing campaign, to call a number which is answered "United Steelworkers of America". At least two-thirds of the dues paid by members of the CGA flow through to the USWA under the terms of the Service Contract, which also requires the CGA to provide the USWA with a complete list of all CGA bargaining units and, where possible, with a list of the names, addresses, and telephone numbers of all members of the CGA. It also obligates the CGA to co-operate and support the USWA in complying with all sections of the Act in the event that the USWA decides to seek to become the legal bargaining agent with respect to any or all locals of the CGA. The contract further stipulates that at least one employee or agent of the USWA shall be invited to attend every meeting of all locals of the CGA and that the employee or agent shall be entitled to participate in such meetings. Thus, in view of the very close relationship which exists between the CGA and the USWA under the terms of the Service Contract, we have concluded that the CGA is "affiliated, directly or indirectly," with the USWA within the meaning of section 12 of the Act.

12. For the foregoing reasons, the Board has concluded that unless the applicant's Charter argument is successful, section 12 will preclude the Board from certifying the applicant and requir­ing the respondent to bargain with the applicant on behalf of arty of the respondent's guards, because the applicant is affiliated with an organization that admits to membership persons other than guards.

13. This matter is referred to the Registrar to be listed for continuation of hearing.