[1989] OLRB Rep. February 109
2638-88-R; 2669-88-R Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 880, Applicant v. The Butcher Engineering Enterprises Limited, Respondent
BEFORE: Owen V. Gray, Vice-Chair, and Board Members R. W. Pirrie and D. A. Patterson.
DECISION OF THE BOARD; February 21, 1989
- These are two applications for certification in which the applicant has requested that the Board conduct a pre-hearing representation vote.
Board File No. 2638-88-R
It appears to the Board on an examination of the records of the applicant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent in the voting constituency hereinafter described were members of the applicant at the time the application in Board File No. 2638-88-R was made.
Having regard to the agreement of the parties, the Board directs that a pre-hearing representation vote be taken in Board File No. 2638-88-R of the employees of the respondent in the following voting constituency:
All employees of the respondent in the City of Windsor save and except supervisors, persons above the rank of supervisor, office and sales staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.
- All those employed in the voting constituency on February 6, 1989 who are so employed on the date the vote is taken will be eligible to vote. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
Board File No. 2669-88-R
- It appears to the Board on an examination of the records of the applicant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent
in the voting constituency hereinafter described were members of the applicant at the time the application in Board File No. 2669-88-R was made.
- Having regard to the agreement of the parties, the Board directs that a pre-hearing representation vote be taken in Board File No. 2669-88-R of the employees of the respondent in the following voting constituency:
All employees of the respondent in the Village of St. Clair Beach, save and except supervisors, persons above the rank of supervisor, office and sales staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.
- All those employed in the voting constituency on February 8, 1989 who are so employed on the date the vote is taken will be eligible to vote. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
Common Issues
- In each of these two applications, the Registrar wrote to the applicant as follows:
In reviewing the application in the above matter, it appears from a check of the Board's status records that the Board has not found in any previous proceeding that the applicant has been found to be a trade union within the meaning of section 1(l)(p) of the Labour Relations Act under the name of Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 880.
Our status records indicate that an organization with the similar name of Teamsters, Chauffeurs, Warehousemen and Helpers, Local 880 was found to be a trade union in Board File #12109-66-R. Your attention is drawn to the following excerpt from Hartley Gibson Company Limited, [1986] O.L.R.B. Rep. Nov. 1517: "Section 105 of the Labour Relations Act sets up a rebuttable evidentiary presumption of trade union status for organizations that the Board has previously found to be a trade union. Because of the nature of that provision, an applicant in certification proceedings is not entitled to the benefit thereof unless its name is identical to that which the Board has previously found to be a trade union. Even a relatively minor difference in name may reflect that an applicant with a name "similar to" or even "substantially the same as" that of an organization previously found to be a trade union is either an entirely different entity or that it has undergone some change which may result in it being a trade union no longer."
If our information is correct, you must be prepared to satisfy the Board in accordance with its usual practice that your organization is a trade union within the meaning of section 1(l)(p) of the Labour Relations Act.
- In the letter to the Registrar dated February 8, 1989, counsel for the applicant wrote:
Further to your letters of January 27 and 31, 1989 regarding the correct name of the respondent, I am advised that the correct name of the respondent [sic] is "Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 880" and is affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
I enclose a copy of the local charter and Section 1 of the by-laws which indicates the correct name of the local.
I have also enclosed a copy of a decision of the Board in Board File No. 1844-88-R, together with a copy of the certificate issued therein. The Board found in Board File No. 1844-88-R that the applicant "Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 880, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a trade union within the meaning of Section l(l)(p) of the Act.
Accordingly, the applicant submits that it is entitled to rely on the said Board's decision pursuant to the provision of Section 105 of the Act.
The name of the applicant found to be a trade union in Board File No. 1844-88-R was "Teamsters ,Chauffeurs, Warehousemen and Helpers Local Union No. 880, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America."
We do not at this stage determine whether the applicant is a "trade union" within the meaning of clause l(l)(p) of the Labour Relations Act ("the Act"), nor whether the applicant is entitled to the benefit of the presumption in section 105 of the Act. Those are issues which go to the merits of the application. In an application in which a pre-hearing vote is requested, the merits are not determined until after any vote is conducted and the parties have had an opportunity of a hearing, as contemplated by subsection 9(4) of the Act. However, we do at this stage determine whether the ballots cast in the pre-hearing votes in these applications should be counted before any hearing is conducted. That generally turns on whether the applicant will have to prove something at hearing before it can be found to be a "trade union": see Emery Industries Limited, [1980] OLRB Rep. Mar. 316 at paragraph 9.
An applicant for certification is expected to correctly name itself in the space for "Applicant" in the title portion of an application for certification. When an applicant places words in that space, that is taken to signify that those words form part of the applicant's name. Everything an applicant writes in that space is taken as being a significant and essential part of the organization's name and not, for example, a collateral statement of its affiliations with or memberships in other organizations. If such collateral statements are necessary at all, they belong in the body of the application, not in its title. Where the name by which an applicant organization describes itself in its application for certification is different from the name under which any organization has previously been found to be a trade union, the benefit of section 105 is unavailable to the applicant unless and until it can show that it is a continuation of one of the organizations previously found by the Board to be a trade union and that the change in name since that finding is not coincident with other constitutional changes which have altered its character: see generally Coca Cola Ltd., [1975] OLRB Rep. Nov. 862; and, Consumers Distributing Company Limited, [1981] OLRB Rep. May 509. Thus, where an organization applies under a name different from one under which it has previously been found to be a trade union, it has something to prove at hearing before it will be so found in the new application.
For reasons best known to them, some trade unions are not particularly careful to always describe themselves by the name set out in their constitution or bylaws: from time to time they describe themselves by "aliases" consisting of contractions, expansions or approximations of their proper name. Indeed, if counsel's representations are correct, that is what this applicant did in Board File 1844-88-R, since the name under which that application was filed is not the name in Section 1 of the Bylaws enclosed with counsel's letter. An organization which chooses to describe itself differently in different applications for certification can expect to be called upon to show that it is a trade union on each such occasion until all of the "aliases" under which it operates have been the subject of a finding in a Board proceeding.
The Registrar has quite properly advised the applicant in this application that it will be called upon to show that it is a trade union. As the applicant is in that position, we follow the Board's ordinary course by directing that the ballot boxes in each of these applications be sealed and the ballots not counted unless and until there has been such a finding.
The parties have tentatively agreed on vote arrangements which result in the vote in one of these applications being conducted before the vote in the other. The respondent had asked that the ballots cast in the first vote not be counted until after the polls closed in the second vote. We would not have been inclined to grant that request, but the question is academic in view of the direction contained in the previous paragraph.
The matter of the conduct of the pre-hearing representation votes in these two applications is referred to the Registrar.