The United Food & Commercial Workers Union, Local 206 v. Knob Hill Farms Limited, 1989 CanLII 3088

[1989] OLRB Rep. August 852

1171-89-FC The United Food & Commercial Workers Union, Local 206, Applicant v. Knob Hill Farms Limited, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. Lear and E. G. Theobald.

APPEARANCES: Joanne L. McMahon, Ronald Springall and Michael Duden for the applicant; Michael Gordon and Howard Wood for the Respondent.

DECISION OF THE BOARD; August 21, 1989, as amended September 20, 1989

1. On August 17, 1989, the Board delivered a unanimous oral ruling in this matter as follows:

This is an application, under section 40a of the Labour Relations Act for a direction that a first collective agreement be settled by arbitration.

The applicant had set out its name as being the "United Food and Commercial Workers International Union, Local 206".

As a preliminary matter, the respondent asserts that there is no entity by that name and, further, that that name does not describe any party which holds bargaining rights for any of its employees. The respondent submits that this application should therefore be dismissed. The applicant acknowledges that the name in which this application has been brought is not identical to the name which describes the trade union to which a certificate has been issued by the Board with respect to employees of the respondent. However, it submits that the difference between its name and that which describes the trade union which holds the relevant bargaining rights is a mere technical irregularity, within the meaning of section 104 of the Act, and not one of substance. The applicant seeks to amend its name in this application to "The United Food & Commercial Workers Union, Local 206".

Pursuant to a certificate dated December 22, 1987 (issued pursuant to a decision of that same date and reported at Knob Hill Farms Limited, [1987] OLRB Rep. Dec. 1531), "The United Food & Commercial Workers Union, Local 206" was certified by the Board as the exclusive bargaining agent for all employees of the respondent at Oshawa, save and except Assistant Store Manager [sic], persons above the rank of Assistant Store Manager and office staff.

The differences between the name of the applicant herein and the trade union (as so found by the Board in its December 22, 1987 decision) are:

(a) there is no "The" in the name of the applicant herein;

(b) the word "and" separates the words "Food" and "Commercial" in the name of the applicant while an "&" separates those words in the name of the trade union certified by the Board;

(c) the word "International" appears in the name of the applicant but not in the name of the certified trade union.

In Hartley Gibson Company Limited, [19861 OLRB Rep. Nov. 1517, at paragraph 6, the Board stated that:

6. The majority of the Board (Board Member Sarra dissenting) disagreed. On its face, the Board's decision in Orchid Label and Printing Co. Ltd., supra, arose out of an agreement between the parties which resolved all of the matters in dispute between them and dispensed with a formal hearing into the matter. Further we are not entitled to go behind the finding of trade union status in the Board's decision. In the title of the Board's decision, the applicant is identified as being "Toronto Printing Pressmen & Assistants' Local No. 10" and it is only that entity, and no other, that was found by the Board to be a trade union within the meaning of section l(l)(p) of the Act. 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. It was therefore the view of the majority that the applicant in this proceeding is not entitled to the benefit of section 105 of the Act and that is was necessary for it to establish its status as a trade union independently.

At paragraph 20 of that decision the Board went on to say that:

Although there are practical reasons, including the speed at which matters are processed by the Board, why a trade union might not want to be known by any name other than its legal name, there is no reason in law why it cannot carry on business under a name other than that legal name, so long as it does not do so for any improper purpose....

As the Board explained in Pioneer Mechanical Limited, [1989] OLRB Rep. March 277, at paragraph 3:

3. The Board's comments in Hartley Gibson Company Limited, supra, should neither be taken out of context, nor applied without regard to the rationale for sections 104 and 105 of the Labour Relations Act; that is, that certification proceedings, which are supposed to be expeditious, do not become bogged down over matters which do not reveal any concern of substance. The Board is concerned with the label used by a trade union to identify itself to the extent that it adequately identifies it as such. For purposes of the provisions of section 105 of the Labour Relations Act, the label used by an applicant for certification must adequately identify it as an entity which the Board has previously found to be a trade union. In that regard, the Board will generally be concerned only with differences of substance between a label which has been found to identify a trade union (within the meaning of section l(l)(p) of the Act) and the label used by an applicant for certification. Consequently, in the absence of an allegation that it is of some real significance, the Board will not normally concern itself with differences in punctuation, like the use of a comma instead of a dash (or, for example, an "&" instead of the word "and") which are no more than different ways to accomplish the same end; that is, to separate parts of a sentence or label. Nor, in the absence of specific allegations, will the Board be concerned with obvious bona fide minor mistakes in the naming of an applicant for certification (see section 104 of the Act), or different presentations of what is obviously the same thing, like, for example, use of the word "Pipefitting" instead of the words "Pipe Fitting". In our view, it would be unnecessarily technical and a waste of time and resources to do otherwise. In this case, there is no difference of substance between the two labels in question.

This is not a certification proceeding or any other kind of representation proceeding as such. Because of the nature of representation proceedings and the notice or notices which must be given in them, there is generally a greater concern with the names used to describe and identify the parties in such proceedings. Nevertheless, we find the Board's comments in Pioneer Mechanical Limited, supra to be generally apposite here as well.

We are not satisfied that the absence of the word "The" or the substitution of the word "and" for an "&" is a significant or substantial difference. The insertion of the word "International" is of a somewhat different nature, however, in that it is somewhat suggestive of a different entity. However, having regard to the material before us, including the statements by each party and the several books of documents filed, we are not satisfied that the respondent has been misled or prejudiced by the applicant naming itself as it has. In our view, the differences between the two names as aforesaid, merely once again demonstrates the applicant's apparent inability to get its own name right. In the circumstances, we are satisfied that the applicant is the same entity as the trade union certified by the Board as aforesaid and that its failure to correctly set out its name is a mere technical irregularity within the meaning of section 104 of the Act. We see no reason to not grant the amendment sought by the applicant and, accordingly, we find it appropriate to, and hereby do, amend the name of the applicant to "The United Food & Commercial Workers Union, Local 206."

As a second preliminary matter, the respondent raises what is, in our view, a more serious concern. It submits that the Board should dismiss the application as being premature or, in the alternative, adjourn it pending the disposition of other proceedings pending before the Board.

Those proceedings are in Board File Nos. 0542-86-R and 0035-86-U; that is, the proceedings in which the applicant was certified as aforesaid.

By letter dated November 14, 1988, the respondent has sought reconsideration of the Board's decision to certify the applicant. More specifically, it requests that the Board void the certificate on the ground that the applicant and its counsel have violated section 58 of the Act.

In addition, the applicant has requested that the Board reconsider its December 22, 1987 decision by altering the certificate issued therein so that it is in the name of the United Food and Commercial Workers Union, Local 175 rather than in its name. It appears that the United Food and Commercial Workers Union, Local 175 and the International Union of which Locals 206 and 175 are apparently Locals have sought to join in that request.

Finally, a group of objecting employees (apparently the same group which participated in the certification proceedings) has delivered a petition in support of a request that the Board direct a representation vote.

The two requests for reconsideration and the question of what, if anything, should be done with the request and petition of the group of objecting employees are scheduled to be heard by the panel which issued the certification decision beginning on August 29, 1989.

In the absence of a proper application for a declaration terminating the bargaining rights of the applicant, in which case the Board would have to decide how to proceed pursuant to the provisions of section 40a (22) of the Act, the Board would not and does not consider the request by the group of objection employees as being an impediment to proceeding with this application.

In the absence of extraordinary circumstances, the Board would not generally consider a request for reconsideration by an employer in which it sought revocation of a certificate issued to an applicant seeking relief under section 40a of the Act to be such an impediment either. Because of the manner in which we find it appropriate to dispose of this second preliminary matter, we find it unnecessary to determine whether the respondent's request for reconsideration in this case falls within that category of extraordinary circumstances.

Our concern is that the applicant herein has itself, in a request for reconsideration presently pending before the Board, asserted that another entity; that is, the United Food and Commercial Workers Union, Local 175, and not it, holds the bargaining rights which form the basis and foundation of this application. In that regard we note that in other proceedings (Knob Hill Farms Limited, [1988] OLRB Rep. Aug. 810) the Board found that it could not declare Local 175 to be a successor to Local 206's statutory right to serve as the exclusive bargaining agent for employees of Knob Hill Farms Limited in the face of the assertions and concessions of its counsel. Further, the Board has also found (in Knob Hill Farms Limited, [1989] OLRB Rep. Feb. 149), in essence, that Local 206 continues to exist, that Local 206 and Local 175 are not the same entity, and that Local 206 holds the bargaining rights with respect to which this application is concerned.

Yet Local 206 is itself, in effect, challenging its right to represent employees of the respondent. Although that challenge is made in other proceedings, the fact that it has been made is before us in this application. The applicant appears to say that its reconsideration request is a position advanced in the alternative to its response to the respondent's request for reconsideration and that the Board should not proceed with the applicant's request for reconsideration until the respondent's request is disposed of. However, the applicant cannot have it both ways and the fact is that its reconsideration request is before the Board. The numerous proceedings involving these and other parties and the positions adopted by the applicant herein have created a chaotic situation which must, in our view, be resolved before it is appropriate for an application under section 40a to proceed.

As for the applicant's assertion that it would be prejudiced by any delay occasioned by the Board not proceeding with this application, we note that it has been more than three years since the application for certification was filed. During that time, the applicant has not demonstrated any particular concern about delay and this application has been brought in a context in which events have overtaken the primacy of the goal of expedition in applications such as this one. In that regard also, we note that there appear to have been a number of causes for the delays which have occurred since the application for certification was first filed. While no one deserves to be blamed for it all, it appears to us that no small part of the delay has been occasioned by the applicant itself, both by its apparent inability to set out its own name and confusion with respect to its identity, and otherwise. In short, the applicant is at least partly the architect of the situation in which it finds itself. We are not persuaded that any potential prejudice to the applicant at this point outweigh the need to have the reconsideration requests and the request of the objecting employees disposed of. Indeed, it may be that this applicant, as it itself has asserted (in other proceedings), has no right to bring this application at all.

In these circumstances, we would, if the time limits imposed by section 40a were mandatory, dismiss this application as being premature. However, in Del Equipment Limited, [1989] OLRB Rep. Jan. 19, the Board held that these time limits are directory rather then mandatory (see also Nepean Roof & Trust Limited, [1986] OLRB Rep. Sept. 1287). Accordingly, we find it appropriate to adjourn this application sine die pending the disposition of the requests for reconsideration and the request of the objecting employees in Board File Nos. 0542-86-R and 0035-86-U.

The Registrar is directed to schedule this application for hearing forthwith upon those matters being disposed of.