Ontario Labour Relations Board
[1989] OLRB Rep. March 241
2358-88-R Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91, Applicant v. The Corporation of the City of Gloucester, Respondent v. Association of Municipal Employees, Intervener #1 v. Canadian Union of Public Employees, Intervener #2
BEFORE: Patricia Hughes, Vice-Chair, and Board Members W. A. Correll and B. L. Armstrong.
DECISION OF THE BOARD; March 28, 1989
By decision dated February 3, 1989, the Board directed the taking of pre-hearing representation votes in this application for certification. No statement of desire to make representations has been filed with the Board within the time fixed under subsection 70(2) of the Board's Rules of Procedure.
The style of cause is amended to show the applicant's name as "Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91".
The February 3rd decision indicated that the applicant had not been found in any previous proceeding to be a trade union within the meaning of clause l(l)(p) of the Labour Relations Act ("the Act"). The parties addressed this issue at a hearing held after the vote had been taken.
Under section 105 of the Act, an organization of employees may benefit in subsequent proceedings from the Board's initial finding that it is a trade union within the meaning of clause l(l)(p) of the Act. That finding serves as prima facie evidence that the organization is a trade union. Thus a trade union normally does not have to provide evidence that it is a trade union every time it makes an application. Because of the reliance on the initial finding, however, the Board must be satisfied that the organization making the subsequent application(s) is the same organization which was found to be a trade union. Any deviation in the name under which the organization applies in subsequent applications from that under which it applied in the proceeding in which it was found to be a trade union may raise doubts about whether it is in fact the same organization. The name must be exactly the same.
The applicant in this case applied under the name "Teamsters, Chauffeurs, Warehouse-men and Helpers Local 91", now amended to insert a comma after "Helpers". In a letter dated January 11, 1989, the Registrar informed the parties that the applicant had not been found in any previous proceeding to be a trade union within the meaning of clause l(l)(p) of the Act. (That information was also indicated on the Form 7 "Notice to Employees of Application and Request for Pre-hearing Vote" which was posted in the workplace). The Registrar's letter continued:
Our status records indicate that an organization with the similar name of Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union 91, affiliated with the International Brotherhood of Teamsters of America, was found to be a trade union in Board File #11896-66-R. Your attention is drawn to the following excerpt from Hartley Gibson Company Limited, [19861 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.
Please file this information with the Board on or before the terminal date set for this application.
[emphasis in original]
The letter concludes that the applicant may correct the information in writing by advising the Registrar or Deputy Registrar "of the file number of the Board proceeding in which the applicant under this exact name has been found to be a trade union" (emphasis on original). No correction was made here.
The Registrar's letter clearly and concisely indicates the reason why the names must be the same and puts the applicant on notice that it must satisfy the Board that it is a trade union.
The applicant in this case adduced documentary and oral evidence to show that it is the organization which has been found to be a trade union by the Board under the name "Teamsters, Chauffeurs, Warehousemen & Helpers, Local Union 91, affiliated with the International Brotherhood of Teamsters of America" and that it is a trade union with the meaning of clause l(l)(p) of the Act. The International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers chartered certain persons and their successors as "Local Union No. 91", originally August 1, 1961. The applicant also filed its international constitution and its local by-laws which show one of the purposes of the international and the local to be "to secure improved wages, hours, working conditions and other economic advantages through organization, negotiations and collective bargaining". The cover of the by-laws reads as follows: "By-laws of the Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 91 [over a crest] Affiliated With The International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [under the crest]"; section 1 states that the organization's name is "Teamsters Local Union No. 91". As Robert Kelly, the applicant's President, explained, the applicant had sent amendments to the International; these had been approved but the International suggested some additional amendments, including one to the applicant's name. The membership of the applicant approved the amendment, according to the undisputed evidence of Mr. Kelly and it is inserted, along with other amendments at the front of the by-laws under the heading "Bylaw Corrections Inserts". The name is changed to "Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91". Apart from the comma, this is the name under which the applicant applied for certification in this case. We are satisfied the omission of the comma was inadvertent and therefore amended the style of cause to add the comma to the applicant's name. Mr. Kelly also testified that the applicant has a membership of 2700 individuals and has negotiated collective agreements in all but the most recent certifications.
The applicant also filed several certificates which it had recently been issued by the Board. On January 21, 1987, it was issued a certificate in the name "Teamsters Union Local 91 Affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America"; on September 21. 1987 and on December 9, 1988, it was issued certificates in the name of "Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 91 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America". On February 23, 1989, it was issued two certificates in the name of "International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91", the name under which it applied in this case. The decision issuing those last certificates contains the Board's usual statement: "The Board finds that the applicant is a trade union with the meaning of section l(l)(p) of the Labour Relations Act". Although counsel for the applicant referred specifically to the date of that decision, he did not suggest that it should constitute the basis of the application of section 105 of the Act. Given the Registrar's letter and the fact that the February 23rd decision did not deal with this matter except in the usual form, we would not be satisfied to rely on that decision as a precondition for applying section 105 of the Act.
The membership cards filed by the applicant in this case are in English and in French. The name of the organization is different in English and in French - and neither name is that under which the applicant has made this application. On the English language side of the application, the individual applies for membership in the "International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 91"; on the French language side of the application, the individual indicates he or she wishes to become a member of the "Teamsters Union Locale 91 affilie a la Fraternite Internationale des Teamsters, Chauffeurs, Hommes d'Entrepots et Aides d'Amerique".
We have detailed the evidence in this matter because it illustrates a not uncommon aspect of the application of section 105 and clause l(l)(p) of the Act: put simply, some organizations are careless about ensuring they apply in subsequent applications in exactly the same name as the name under which they were found to be a trade union. Yet they seek the benefit of section 105 of the Act. That benefit, however, has a price, albeit, in our view, a not particularly onerous one: the organization must make the effort to use the name under which it has been found to be a trade union exactly and consistently. Failure to do so runs the risk at least of having to prove trade union status each time it makes an application or whenever it applies under a slightly different name and possibly, of delay, extending of the terminal date or even dismissal of the application.
In Hartley Gibson, supra, there had been a merger. That is not the case here. No party alleged that the applicant was a different organization than the one which had been found to be a trade union in Board File No. 11896-66-R. Rather they emphasized the confusion that can result from the use of different names. In Hartley Gibson, supra, there was also a discrepancy between the name used in the application and that used on the applications for membership: a full name was used on the cards, while an acronym was used on the application and therefore on Form 7 and on the Form 69, "Notice of Taking of Vote". As in our case, there was "no allegation of actual confusion or objection with respect to this discrepancy... by any party with an interest in the proceedings and the evidence before us demonstrates that the variations in nomenclature creates no real basis for expecting that there was any confusion amongst the employees as to what they were joining or voting for".
We advised the parties orally that we were satisfied that the applicant in this application is the same organization which was found to be a trade union in Board File No. 11896-66-R. We are further satisfied that the applicant is a trade union within the meaning of clause l(l)(p) of the Act.
We also advised the applicant that it had to stop making applications under a variety of names and that it might well be put to strictly proving its status in future applications should there be any discrepancy between the name in which it has been found to be a trade union in this proceeding and the name in which it applies in future applications.
Counsel for the applicant advised us that "Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91" is the proper name of the applicant and would be the name under which it would file future applications. Its applications for membership will be changed to reflect that name.
The Board therefore finds that the applicant "Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91", is a trade union within the meaning of clause l(l)(p) of the Act.
The Board's February 3rd decision directed the taking of pre-hearing representation votes in two voting constituencies because certain of the employees for whom the applicant sought certification were represented by an incumbent bargaining agent, while other employees had been represented by a bargaining agent which had abandoned its bargaining rights.
On the taking of the pre-hearing representation vote in voting constituency #1, not more than fifty per cent of the ballots cast were in favour of the applicant.
The application is therefore dismissed with respect to voting constituency #1.
The Board will not entertain an application for certification by the applicant with respect to any of the employees of the respondent in voting constituency #1 within the period of six months from the date hereof.
The parties agreed to the appropriate bargaining unit with respect to the employees in voting constituency #2. Having regard to that agreement, the Board finds that
all employees of the respondent in the City of Gloucester, save and except forepersons and those above the rank of forepersons, casual staff, aldermanic assistants and persons in bargaining units for which any trade union held bargaining rights as of December 22, 1988,
constitute a unit of employees of the respondent appropriate for collective bargaining. The exclusion of "casual employees" reflects the fact that the collective agreement covering the employees in issue referred to "all permanent hourly employees"; the change in language makes the description more consistent with the Board's usual "all employee" description while recognizing that non-permanent or casual employees had not been included in the unit for which the applicant sought certification when it had been represented by the previous incumbent. The applicant had not sought to include those employees even after the incumbent abandoned its bargaining rights.
The Board is satisfied that not less than thirty-five per cent of the employees of the respondent in the bargaining unit described in paragraph 20 above were members of the applicant at the time the applicant was made.
On the taking of the pre-hearing representation vote in voting constituency #2, more than fifty per cent of the ballots cast were in favour of the applicant.
Accordingly, a certificate shall issue to the applicant with respect to the employees in the bargaining unit described in paragraph 20 above.
The Registrar will destroy the ballots cast in the pre-hearing representation votes taken in voting constituency #1 and in voting constituency #2 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.