[1988] OLRB Rep. August 810
0764-88-M Knob Hill Farms Limited, Employer v. United Food and Commercial Workers Local 175, Trade Union v. Group of Employees, Intervener
BEFORE: Owen V. Gray, Vice-Chair, and Board Members W. N. Fraser and K. S. Davies.
APPEARANCES: Michael Gordon, Paul G. Normandeau and Howard F. Wood for the employer; A. J. Ahee and J. McMahon for the trade union; D. H. Brown and D. Baydek for the intervener.
DECISION OF THE BOARD; August 18, 1988
On December 22, 1987, another panel of this Board ("the certification panel") certified "The United Food & Commercial Workers Union, Local 206" ("Local 206") pursuant to section 8 of the Labour Relations Act ("the Act") as the exclusive bargaining agent for a unit of employees of the Employer in Oshawa, Ontario. On January 15, 1988, a notice to bargain was sent to the Employer in the name of Local 206. By application dated April 26, 1988, the United Food and Commercial Workers International Union, Local 175, ("Local 175") requested that the Minister appoint a conciliation officer pursuant to section 16 of the Act.
One of the Employer's responses to that application was that the Minister could not act on the request of Local 175 because Local 175 did not have bargaining rights with respect to the subject employees. Local 175 responded that "effective November 1,1986 U.F.C.W. Local 206 merged with U.F.C. Local 175." The Minister concluded that a question had been raised as to his authority to appoint a conciliation officer in the circumstances of this request. Pursuant to section 107 of the Act, he has referred the following question to the Board for its advice: Does the Act authorize the Minister to appoint a conciliation officer pursuant to the request from Local 175 in the circumstances of this case?
The Reference came on for hearing before a different panel of this Board on July 14, 1988. That panel's decision records that counsel for Local 175 then advised it that he would be asking the Board to "make a declaration in the nature of a section 62 declaration that a merger had occurred between the two locals." The majority then ruled that Local 175 should deliver particulars of this claim by July 21, 1988 and that notice of it should be given to affected employees. It adjourned the Board's hearing to a date to be fixed by the Registrar in the week of August 15, 1988. Particulars were filed. Notices to employees were posted, the sufficiency of which is questioned by the Employer and by the employees who have intervened to oppose the request for a declaration that Local 175 is successor to Local 206. The reference came on for hearing before this panel on August 17, 1988.
Subsection 62(1) of the Act provides that
62.-(1) Where a trade union claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.
[emphasis added]
In paragraph 15 of the particulars it filed following the hearing of July 14, 1988, Local 175 asserted
that, at the time of the alleged merger between Local 175 and Local 206,
Local Union 206 did not have bargaining rights for the bargaining unit of employees of the Employer Knob Hill Farms Limited, and therefore the condition precedent for an application under Section 62 of the Ontario Labour Relations Act does not obtain.
[emphasis added]
In paragraph 16 of its particulars, Local 175 states that it seeks
a declaration by the Board, pursuant to its powers and authority under section 107(2) of the Ontario Labour Relations Act, that Local Union 175 is the successor to Local Union 206
in this proceeding.
In answer to our questions, counsel for Local 175 confirmed that the negatives in paragraph 15 of the particulars were intentional and stated that the "time of' the alleged merger was November 1, 1986, more than a year before the decision granting Local 206 certification with respect to the subject unit of employees. When asked to identify the time when Local 175 said that the alleged merger had actually occurred, rather than an effective date as of which the trade union participants may have agreed to "back date" the merger once all conditions precedent to the merger had been fulfilled, counsel again said that date was November 1, 1986. Counsel for Local 175 conceded that if, as it asserted, "the condition precedent for an application under section 62 of the Labour Relations Act does not obtain" then, equally, the condition precedent to a declaration under section 62 does not obtain. He said that his client's claim (in paragraph 16 of its particulars) to a declaration that Local 175 is the successor to Local 206 depended on the proposition that the Board's jurisdiction to so declare is broader under subsection 107(2) than it is under subsection 62(1). He agreed that if this proposition is incorrect we could not declare Local 175 to be successor to Local 206 in the circumstances of this case. All counsel then agreed that we should hear argument with respect to the correctness of this proposition before dealing with the adequacy of notice to employees or hearing any evidence with respect to the purported merger. Having heard and considered that argument, we conclude that counsel's proposition is not correct.
Subsection 16(1) and section 107 of the Act provide:
16.-(1) Where notice has been given under section 14 or 53, the Minister, upon the request of either party, shall appoint a conciliation officer to confer with the parties and endeavour to effect a collective agreement.
107.-(l) Where a request is made under section 1, subsection 44(4) or subsection 45(1), the Minister may refer to the Board any question that arises that in his opinion relates to his authority to make an appointment under any such provision that is mentioned in the reference, and the Board shall report to the Minister its decision on the question.
(2) Where a question referred under subsection (1) involves an issue as to whether one trade union is the successor of another trade union or whether a business has been sold by one employer to another or where such question involves an issue under subsection 63(11), the Board has the same powers and authority as it has under section 62 or 63, as the case may be, as if an application had been made thereunder, and the Board may issue such directions as to the conduct of the proceedings as it considers advisable.
[emphasis added]
In our view, the emphasized words are a complete answer to the proposition that the Board can under that subsection resolve an issue as to whether one trade union is the successor of another trade union by making a declaration which could not have been made if the issue had arisen in an application under section 62. If the Board has the same powers and authority as it would if an application had been made under section 62, then it must follow that it does not have broader or different powers or authority. Counsel for Local 175 asserts that, on its own view of the facts, we would not have the power on an application under section 62 to declare Local 175 successor to the statutory rights and obligations of Local 206 with respect to the subject bargaining unit. That assertion compels us to conclude that we do not have that power in these proceedings.
During the course of his argument, counsel for Local 175 made a series of inconsistent and ultimately equivocal statements about whether Local 206 continues to exist or not. Counsel for the employer expressed the belief that there would be other unspecified proceedings between the Employer and some entity purporting to have the right to represent its employees. He suggested that the question whether Local 206 had ceased to exist might have to be answered in those proceedings. Given the way the issues before us have developed, we do not have to answer that question in this proceeding. Furthermore, the conclusions expressed in this decision do not depend on any particular view of the possible outcome of, for example, an application to the certification panel by either the Employer or Local 175 requesting reconsideration of the certification decision.
The collective agreement referred to in subsection 16(1) of the Act is a collective agreement which would cover a particular bargaining unit of employees; the word "parties" in that subsection means the employer of those employees and the trade union which has the right under the Act to act as their exclusive bargaining agent. The Board's decision of December 22, 1987 certified Local 206 to be the exclusive bargaining agent of the unit of employees with which the application for conciliation services is concerned. We are not asked to reconsider that decision. Local 175 does not claim to be one and the same trade union entity as was certified in that decision. Since we cannot declare Local 175 to be successor to Local 206's statutory right to serve as exclusive bargaining agent in the face of the assertions and concessions of its counsel, we must conclude that Local 175 is not a party within the meaning of section 16.
Section 16 does not give the Minister authority to appoint a conciliation officer at the request of anyone other than a "party." Having concluded that Local 175 is not a "party", it is our respectful advice to the Minister that the Act does not authorize the Minister to appoint a conciliation officer at the request of Local 175 in the circumstances of this case.