United Steelworkers of America v. Screen Print Display Advertising Limited, 1988 CanLII 3676

[1988] OLRB Rep. June 623

3528-87-R United Steelworkers of America, Applicant v. Screen Print Display Advertising Limited, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. O. Shamanski and B. L. Armstrong.

DECISION OF THE BOARD; June 28, 1988

1. The applicant seeks certification as exclusive bargaining agent for employees of the respondent presently represented by The Employees' Association of Screen Print Display Advertising Limited ("the incumbent"). In an earlier decision (now reported at [1988] OLRB Rep. April 425), we directed that a pre-hearing representation vote be conducted. That vote was conducted on April 28, 1988. The majority of the ballots cast were cast in favour of the applicant. The only outstanding issue concerns the precise description of the bargaining unit for which the applicant is to be certified.

2. The last collective agreement between the respondent and the incumbent contains the

following recognition provision:

ARTICLE 2- RECOGNITION

The Company recognizes that the Association is the sole collective bargaining agent for all of its employees described in the wage schedule of this Agreement at its plants in the City of Brantford, save and except foremen/women, persons above the rank of foremen/women, office, creative and sales staff, security guards, part time employees, which are defined as employees whose term of employment is not expected to exceed three months and students employed during the school vacation period.

The respondent says that the appropriate bargaining unit for the purpose of this application should be described as follows:

All employees of the respondent described in the wage schedule of the agreement in the City of Brantford save and except forepersons, persons above the rank of foreperson, office, creative and sales staff, security guards, persons regularly employed for not more than 24 hours a week

and students employed during the school vacation period.

[emphasis added]

In accordance with the usual practice, a Labour Relations Officer met with representatives of the applicant, the respondent and the incumbent ("the participants") after the application was filed and before the Board made its order directing conduct of a pre-hearing representation vote. One of the purposes of that meeting was to confer with the participants as to the description and composition of an appropriate bargaining unit. In her report on that meeting, the Labour Relations Officer noted the participants' agreement that at all times relevant to this application, the wage schedule of the collective agreement covered all employees of the respondent except those expressly excluded by Article 2. In those circumstances, the report also noted that the applicant did not object to inclusion of the words "described in the wage schedule of the agreement" in the bargaining unit description, but it was indicated that this would be a matter for the Board to determine. Apart from that, the applicant agreed with the respondent's description.

3. Apart from the question whether it would be appropriate to include the words "in the wage schedule of the agreement" in the description of the bargaining unit, our earlier decision raised the following concerns about the differences between Article 2 of the collective agreement and the proposed bargaining unit language with respect to part-time employees:

If the applicant were to be certified in this application for a unit described as the parties propose~ it appears the incumbent would continue to have bargaining rights for a unit (however empty and however likely to remain so) of employees regularly employed for not more than 24 hours a week, save and except employees whose term of employment is not expected to exceed three months and others presently excluded from the incumbent's unit. It is not our function to determine the appropriate bargaining unit at this stage. That is dealt with, if at all, after the vote is conducted. Against the possibility that the panel which deals with that issue may then be concerned with the differences in scope between the incumbent's unit and the proposed unit, the parties should address this point in the submissions they file after the vote is conducted.

In the submissions he filed after the vote was conducted, counsel for the respondent noted that the incumbent had originally been certified to represent the following bargaining unit:

All employees of Screen Print Display Advertising Limited at Brantford, save and except foremen, persons above the rank of foreman, office, creative and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period.

Counsel acknowledged that a reading of Article 2 of the collective agreement could lead to the interpretation that the incumbent held bargaining rights for certain persons employed for not more than twenty-four hours per week, but asserted that the incumbent Association had never in fact asserted bargaining rights with respect to any such employees. He suggested that correspondence with the Association might put this point to rest. We adopted counsel's suggestion, and directed that the Registrar write to the incumbent and ask whether it disclaimed bargaining rights for persons regularly employed by the respondent for not more than twenty-four hours per week. By letter of its President dated May 24, 1988, the incumbent did so advise the Board, thereby putting to rest the concern referred to earlier in this paragraph.

4. Turning to the question whether the words "in the wage schedule of the agreement" should be included in the bargaining unit description, we note that the wage schedule in question sets out over 40 job classifications in six departments. After this list of departmentalized classifications, there appears a general classification of "GENERAL LABOURER Overall Plant." Article 17:02 of the collective agreement provides:

17:02 The Company also has the right to institute new jobs not now in existence. The Company shall confer with the Association in setting the rates for all new jobs.

5. After the pre-hearing vote was conducted and the time for filing submission in response to the Board's Form 71 notice had expired, we directed that the Registrar write to the parties as follows:

The panel observes that a unit limited to a list of job classifications would be inconsistent with the Board's usual approach to bargaining unit composition. The panel also notes the language of Article 17.02 of the agreement between the respondent and the incumbent, which appears to support the view that the words "described in the wage schedule of this Agreement" in Article 2 did not restrict the words "all of its employees" in that agreement so as to exclude bargaining rights for "new jobs."

In accordance with our direction, the Registrar offered the parties, and particularly the respondent, the opportunity to file further written submissions with respect to this issue in light of these observations, indicating whether or not an oral hearing was desired. The Registrar also indicated that in the absence of any further submissions, it was our inclination not to include the words "in the wage schedule of the agreement" in describing the appropriate bargaining unit.

6. The applicant's final position on this issue appears to be this: it would be appropriate to omit the words in issue from the bargaining unit description, but the applicant would be content to have those words included if it were clear that they do not restrict the words "all employees." Counsel for the respondent made the following submissions:

In our respectful submission, there is no basis for the Board's proposed amendment of the bargaining unit description contained in the incumbent Association's expired collective agreement. The parties to this application met and agreed upon certain modifications to that bargaining unit description and while the Applicant neither consented nor objected to the continued inclusion of the words "described in the wage schedule of the agreement" therein, we submit that, for the following reasons the bargaining unit description sanctioned by the Board should be that one described in paragraph seven (7) of the Board's April 21, 1988 decision for the following reasons.

It is generally accepted that, although the Board has the power to amend the bargaining unit description, in a displacement application, the applicant union inherits the bargaining unit described in the incumbent union's collective agreement. Reported Board cases which support this proposition are Best View Holdings [19811 OLRB Rep. September, p. 185, Canada Cement Laforge Ltd. [1983] OLRB Rep. February, p.214' each of which refers to Militronics Limited, [1980] OLRB Rep. January, p.56 and Ontario Hydro [1978] OLRB Rep. August, p.754.

In the particular circumstances of this case, the confusion concerning which employees the Applicant will represent has now been cleared up, further, the bargaining unit description acceptable to our client does not, in any way, grant less bargaining rights to the Applicant than those possessed by the Incumbent.

On the other hand, the Board's proposed deletion of the words "described in the wage schedule of the agreement" has the potential effect of expanding the scope of the bargaining unit which we submit is inappropriate in a displacement application unless sufficient reasons are demonstrated to the Board in support of such an amendment.

The Board is no doubt aware that in collective bargaining, the scope of the bargaining unit cannot be made the subject of an impasse between the parties. We submit that it would be patently unfair and unreasonable in the circumstances here for the Board to grant this amendment since the "offending" language in the present unit description could be made the subject of bargaining (although not pressed to impasse) between the parties. In effect, the Board would be granting a tactical advantage in bargaining to the Applicant should it issue the description you have indicated that it is disposed to.

Neither the applicant nor the respondent wishes an oral hearing.

7. The decision in Bestview Holdings Limited, [1983] OLRB Rep. Feb. 185, and the other decisions cited by counsel for the respondent do articulate the general proposition that, on an application for certification with respect to employees presently represented by a trade union, the appropriate bargaining unit is the unit of employees for which the incumbent trade union holds bargaining rights. In each of those cases the unit applied for did not include all of the existing employees for whom the incumbent had bargaining rights, and the contest was whether omitted employees constituted a separate bargaining unit or units. That is not the issue here. As the respondent would frame it, the issue here is whether the appropriate bargaining unit should have a scope broader than the single unit for which the incumbent holds bargaining rights.

8. Implicit in the last two paragraphs of the submissions we have quoted is the assertion that there are some currently unoccupied classifications of employee for which the incumbent does not have bargaining rights by reason of the words "described in the wage schedule of the agreement", and that the applicant would acquire bargaining rights for such employees if we did not use those words in describing the bargaining unit for which it will be certified in this application. If any question of the scope of the incumbent's bargaining rights had arisen between incumbent and respondent, it would have turned on an interpretation of Article 2 in light of all of the provisions of the collective agreement, including those to which we have referred in paragraph 4 of this decision. Viewed in that context, it would appear that the words "described in the wage schedule of this Agreement" in Article 2 did not restrict the scope of the words "all of its employees" in that Article so as to exclude bargaining rights for classifications which are neither listed in the wage schedule (otherwise than as "GENERAL LABOURER Overall Plant") nor expressly excluded by the balance of the language of Article 2. Counsel's submissions do not disclose the basis for his contrary assertions, nor do they identify the classification or classifications for which it is implied that the incumbent did not have bargaining rights.

9. On the view we take of the collective agreement, certification of the applicant for a bargaining unit defined without reference to the wage schedule in the incumbent's collective agreement would not give the applicant any bargaining rights which the incumbent did not have. If the scope of the incumbent's bargaining rights is less clear than it seems to us, that is all the more reason not to import that uncertainty into our bargaining unit description by including a reference to the wage schedule in the previous bargaining agent's last collective agreement.

10. Accordingly, we determine that the appropriate bargaining unit for the purpose of this application consists of

All employees of the respondent in the City of Brantford save and except forepersons, persons above the rank of foreperson, office, creative and sales staff, security guards, persons regularly employed for not more than 24 hours a week and students employed during the school vacation period.

The applicant is a trade union within the meaning of clause l(l)(p) of the Labour Relations Act. We are satisfied that not less than thirty-five per cent of the employees of the respondent in the bargaining unit were members of the applicant at the time the application was made.

11. A certificate will issue to the applicant.

12. The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.