Ontario Labour Relations Board
[1989] OLRB Rep. February 147
2624-88-R Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647, Applicant v. Humpty Dumpty Foods Limited, Respondent v. The Retail, Wholesale Bakery and Confectionery Workers' Union, Local 461, of the Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Intervener
BEFORE: M. Brian Keller, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.
APPEARANCES: Frank Luce for the applicant; E. T. McDermott for the respondent; Robert McKay for the intervener.
DECISION OF THE BOARD; February 28, 1989
This is an application for certification.
Having regard to the representation of the parties, the Board finds the following unit to be the unit of employees appropriate for collective bargaining:
All office and clerical employees of the respondent in the City of Brampton, save and except supervisors, those persons above the rank of supervisor, statistician, confidential secretary to the General Manager and Sales Manager, confidential secretary to the District Sales Managers and the Controller, plant nurse, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period and employees in any bargaining unit for which a trade union held bargaining rights as of January 23, 1989.
Clarity Note: It is agreed and understood that for the purposes of the application, the statistician, the secretary to the General Manager and Sales Manager and secretary to the District Sales Managers and the Controller are excluded from the bargaining unit by virtue of being employed within a confidential capacity as it relates to labour relations.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on February 3, 1989, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
The respondent alleged that the applicant had not proven that it is a trade union within the meaning of section l(l)(p) of the Labour Relations Act. The applicant took the position that it is the same organization which the Board has already determined to be a trade union within the meaning of the Act even if the nomenclature is not identical.
The application reads:
'Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647"
By letter dated January 26, 1989 the Registrar informed the applicant that trade union status had never been granted to any organization so named. The letter further indicated that the Board had found an organization with the name:
'Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union No. 647, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America".
The Board heard evidence from Mr. Milt Aylivin, President of Local 647, that there is, in fact, only one organization, that the applicant is the same organization as the one previously determined by the Board to be a trade union. He styled the difference as a technical error. He further testified that the Teamsters, Local 647, have an existing relationship with the respondent for another group of employees.
Having regard to the evidence, the Board is satisfied that the applicant as described in the style of cause is the same organization which the Board has previously found to be a trade union and, as such, benefits from that previous determination as provided in section 105 of the Act.
Where in any proceeding under this Act the Board has found or finds that an organization of employees is a trade union within the meaning of clause l(I)(p), such finding is prima facie evidence in any subsequent proceeding under this Act that the organization of employees is a trade union for the purposes of this Act.
The respondent also makes the point that because the posted Notice made no reference to the Teamsters, employees would be misled as to the true applicant. The evidence is clear, however, that the application cards which the employees signed contain clear reference to the Teamsters as well as reference to "Milk and Bread Drivers, Dairy Employers, Caterers and Allied Employees, Local Union No. 647". As well, given the past relationship at the same site between the applicant and respondent, the Board is satisfied that no confusion resulted from the way the application was styled.
No certification order can issue to an organization other than one which has proved to the Board that it is a trade union within the meaning of the Act. Once it has been so proven, however, it need not do so again in cases of further applications. Because of section 105 of the Act, the Board has established a procedure to identify organizations which it has already identified as trade unions. Once an organization has been so identified, the certification process can be speeded up because there is one less issue for the Board to determine. This permits the parties to make use of the "waiver" procedure and, on agreement, avoid a formal hearing before the Board. As a result of the importance the Board places on this matter, any deviation from the name the Board already has on its files as being a trade union will result in the issue of "status" having to be determined. Thus, the applicant will have to prove it is a trade union or it may prove that, in spite of a difference in nomenclature, it is the same organization as a trade union previously granted "status".
In order to benefit from the provisions of section 105 of the Act it is incumbent on an applicant to style themselves in exactly the same fashion as the organization which has already been granted "status". Where, as in this case, there is any confusion or deviation, a hearing results. This is unnecessary and time-consuming and may well, depending on the circumstances, have different results from those in this case. Applicants would be best served in ensuring that any application is styled in the correct manner.
A certificate will issue to the applicant in respect of the above-described bargaining unit.