Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 880 v. The Butcher Engineering Enterprises Limited, 1989 CanLII 3132

[1989] OLRB Rep. April 332

2638-88-R; 2669-88-R Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 880, Applicant v. The Butcher Engineering Enterprises Limited, Respondent; Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local No. 880, Applicant v. The Butcher Engineering Enterprises Limited, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. 0. Shamanski and D. Patterson.

DECISION OF VICE-CHAIR, OWEN V. GRAY AND BOARD MEMBER, G. 0. SHAMANSKI; April 21, 1989

1. These are two applications for certification in which the Board conducted pre-hearing representation votes. In its applications the applicant described itself as "Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 880". It did not appear from the Board's status records that an applicant so named had in any previous proceeding been found to be a trade union, although an organization named "Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 880" had been found to be a trade union in Board File 12109-66-R. When this was brought to the applicant's attention by the Registrar, the applicant asserted that it was the same organization as had been found to be a trade union in Board File 1844-88-R under the name "Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 880, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America."

2. At the pre-vote meeting between one of the Board's Labour Relations Officer and rep­resentatives of the applicant and respondent, the respondent did not concede that the applicant was the same organization as had been before the Board in File 1844-88-R. Its position was that the Board should inquire into the question of the applicant's "status."

3. The application came on for hearing before this panel on April 5, 1989. The applicant filed its bylaws. According to those bylaws, the applicant's name is "Teamsters, Chauffeurs, Ware­housemen and Helpers Union, Local No. 880". (The title of this proceeding has been amended to name the applicant that way.) The applicant led evidence which satisfied us that it is the organiza­tion which applied for and was granted certification in Board File No. 1844-88-R in the name "Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 880, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America."

4. No doubt mindful of the passage from Hartley Gibson Company Limited, [1986] OLRB Rep. Nov. 1517 quoted in the Registrar's letter to it (see paragraph 8 of the Board's earlier deci­sion in these applications, reported at [1989] OLRB Rep. Feb. 109), counsel for the applicant also led evidence to establish (as it did) that the applicant is a trade union without relying on section 105. We wish to make it clear that in our view, section 105 of the Act can apply to an applicant which relies on a previous finding that a differently named organization is a trade union, if the applicant satisfies the Board that it is in fact the organization which was the subject of that earlier finding: see Canadian Johns-Manville Co., Limited, [1971] OLRB Rep. Apr. 209; and, Consumers Distributing Company Limited, [1981] OLRB Rep. May 509. In this case it was enough for the applicant to establish, as it did, that it is the organization which was found to be a trade union in Board File 1844-88-R. That is prima facie evidence in this proceeding that the applicant is a trade union within the meaning of clause l(l)(p) and, there being no contrary evidence, we so find.

5. After the pre-hearing votes were conducted and within the period prescribed for mak­ing written submissions with respect to the conduct of the vote, the applicant wrote to the Regis­trar as follows:

The applicant hereby objects to the conduct of the representation votes held in these matters on March 9, 1989. The applicant is advised that certain employees acting as agents for management misconducted themselves during the voting at the plant in St. Clair Beach (Board File No. 2669-88-R) in such a manner as to undermine the reliability of the vote results as a indication of the true wishes of the employees. Specifically, two employees stood outside the entrance to the poll­ing station during the vote holding large signs saying "VOTE NO". The applicant is currently investigating this and other is conduct by the respondent andlor employees acting on behalf of the respondent and will be filing a formal complaint shortly.

In a letter to the Registrar dated March 28,1989, the respondent's counsel noted that no complaint had been filed, and demanded that full particulars be provided forthwith so that the respondent could prepare to deal with the allegations at the hearing which had by then been scheduled for April 5, 1989. By letter sent to counsel for the applicant and copies to the Registrar, the respon­dent's counsel noted that he had been provided with the names of the two alleged agents and that the respondent's position was that the named individuals did not exercise managerial functions and were not otherwise agents of the respondent on the occasion in question. He also noted the agree­ment of the applicant and respondent that

… both the Applicant and Respondent request that only the issue of status be heard on April 5th next and that the Applicant and Respondent will be requesting the Board that any allega­tions regarding the conduct of Messrs. Adams and Murray, and any charges that may be filed, be scheduled for hearing on another date.

6. At the hearing of April 5, 1989, counsel for the applicant was unable to say whether the applicant would be pursuing its complaint and, perhaps, requesting certification under section 8. He requested that the application be further adjourned to await the applicant's decision in that regard. Counsel for the respondent fairly noted that he felt bound by the earlier agreement to join in the request for adjournment. In the circumstances, and particularly as to do otherwise might prejudice the respondent, we granted the adjournment. We noted, however, that the delay seemed inappropriate, and advised counsel that if within one week the Board had not received any com­plaint from the applicant, this panel would issue a decision directing that the ballots be counted. Within that week the applicant did file a complaint which brings into question the reliability of the vote conducted in Board File 2669-88-R. No question is raised with respect to the vote conducted in Board File 2638-88-R.

7. We direct that Board File 2669-88-R be scheduled for hearing to deal with the allega­tions raised in the applicant's complaint insofar as they affect the disposition of that application. We anticipate that the Registrar will list the complaint for hearing at the same time before the same panel. It will be for the panel before whom the application and complaint are listed for hear­ing to determine how they should be heard.

8. We direct that the unsegregated ballots cast in the pre-hearing vote taken on March 9,

1989 in Board File 2638-88-R now be counted.

DECISION OF BOARD MEMBER D. A. PATTERSON;

1. I concur with the decision of the Board on this decision but feel obliged to elaborate in writing what I expressed to counsel for the applicant orally on the day of the hearing.

2. My comments are not so much a criticism of the applicant but rather should be inter­preted as a simple response to the problem of status the applicant was confronted with at the hearing.

3. For the benefit of counsel for the applicant and other of its Local Unions which have certificates of status on file with the Board, closer scrutiny revealed that the Teamsters, Chauf­feurs, Warehousemen and Helpers Union and its Local Unions number 24 to date in the province. These 24 Local Unions have a total of 37 certificates of status on file with the Board. Some locals have up to 4 separate certificates of status on file. These certificates of status represent various con­figurations of one another.

4. The applicant in this case has 3 separate certificates excluding the present case, which when released would give the applicant 4 different certificates of status on file. A number of other Local Unions of the International union have more than 1 certificate, they are:

L.U. 230 - 3 certificates of status

L.U. 91 - 4 certificates of status

L.U. 352 - 2 certificates of status

L.U. 419 - 2 certificates of status

L.U. 847 - 2 certificates of status

L.U. 879 - 2 certificates of status

L.U. 647 - 2 certificates of status

5. The problem which counsel for the International Union must address via the staff and/or Local Union Officers is what name does the respective Local Union wish to operate under. The Board has no preference, but when an application is submitted to the Board, if the Board finds the name applied under does not match the certificates of status on file then the applicant receives a letter from the Registrar asking the applicant to reply with the correct name or Board file under the applied name in which the Board found it had status. Failure to respond obligates the Board to schedule a hearing where the applicant has to prove status.

6. The crux of my concurring opinion is simply this: The Board doesn't concern itself with what name any applicant uses in applying for certification after the applicant has been found to prove status as long as the same applicant consistently uses the same name. If this procedure was followed applicants would not be in hearings proving status to the Board. The time, money and energy could be better spent on more pressing matters.

7. I also think it is appropriate to cite some recent jurisprudence which also hopefully brings the point to bear on the applicant and its Local Unions. In Pioneer Mechanical Limited, [1989] OLRB Rep. March 277, the Board quoted Hartley Gibson Company Limited, [1986] OLRB Rep. Nov. 1517 at paragraph 3 of its decision:

8. The Board's comments in Hartley Gibson Company Limited, sypra, [sic] 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 i(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 pans 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.

9. The same issue was addressed by a differently constituted panel of the Board in The Corporation of the City of Gloucester, [1989] OLRB Rep. March 241 in paragraphs 4, 10 and 13:

10. 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.

11. 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 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.

12. 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.

13. Another case that came before a panel of the Board also addressed the issue in Humpty Dumpy Foods Limited, [1989] OLRB Rep. Feb. 147 at paragraph 9:

14. 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".

15. In Mediacom Inc. Backlight Graphics Division, unreported, File No. 2957-88-R, March 17, 1989, the Board made reference to an earlier decision Butcher Engineering Enterprises Limited at paragraph 7:

16. …

In Butcher Engineering Enterprises Limited, (decision dated February 21, 1989, Board File #2638-88-R, as yet unreported) the Board observed that:

11. 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.

12. 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 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., [1985] 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.

13. 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.

14. For all the aforementioned reasons and cited jurisprudence I believe that the Interna­tional Union and its Local Unions should clear up this situation as soon as possible. I don't believe the Board should be overly technical in its approach to applications and the name used such as a mere spelling mistake or missed coma etc., but at the same time I believe that the applicant union has an obligation to the members on whose behalf it is applying, to itself, and to any parent organi­zation, to make its style of cause accurately reflect its own name, as it may be contained in an exist­ing certificate of status on file with the Board.