Teamsters Local Union 938 v. The Corporation of the City of Gloucester, 1989 CanLII 3133

[1989] OLRB Rep. April 352

3195-88-R Teamsters Local Union 938, Applicant v. The Corporation of the City of Gloucester, Respondent v. The Association of Municipal Employees, Inter­vener

BEFORE: Owen V. Gray, Vice-Chair, and Board Members R. M. Sloan and E. G. Theobald.

DECISION OF THE BOARD; April 21, 1989

1. This is an application for certification in which the applicant has requested that a pre­hearing representation vote be taken.

2. The employees of the respondent who are affected by this application are those pres­ently represented by the intervener. Articles 2.01 and 2.02 of the most recent collective agreement between the respondent and the intervener describe the intervener's bargaining unit as follows:

2:01 The Employer recognizes the Association as the exclusive agent for all permanent employees covered by this agreement.

2:02 This agreement shall only apply to those permanent hourly and salaried positions of the Recreation Facilities and the Parks Divisions of the Recreation and Parks Depart­ment as listed in Appendices A & B attached hereto.

Appendices A & B list specific job positions and wage rates.

3. The unit represented by the intervener was recently the subject of a certification appli­cation in Board File 2358-88-R, in which Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91 ("Local 91") was the applicant. In that application, the Board directed that a pre-hearing representation vote be taken in a voting constituency described as consisting of:

all hourly and salaried permanent employees of the Recreation Facilities and the Parks Divisions of the Recreation and Parks Department of the respon­dent.

Clarity Note: The employees in [the voting constituency] are those employ­ees listed in Appendices A & B attached to the collective agreement between the Corporation of the City of Gloucester and the Association of Municipal Employees.

The vote so directed was conducted on February 13, 1989. Not more than fifty per cent of the bal­lots cast were in favour of Local 91. Its application was therefore dismissed on March 28, 1989, in a decision which noted that:

19. 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.

20. In accordance with its usual practice, upon receipt of this new application the Board authorized a Labour Relations Officer to examine the records of the applicant and the respondent for the purpose of obtaining the information required by the Board under subsection 9(2) of the Act and to meet with representatives of the applicant, respondent and intervener ("the partici­pants") to ascertain and discuss their positions on the merits of the application and with respect to the conduct of any pre-hearing representation vote and report thereon to the Board.

21. In the course of her review with the participants of the issues in this application, the Labour Relations Officer noted that, from a check of the Board's status records, it appeared that the Board had not found in any previous proceeding that an organization by the name of "Team­sters Local Union 938" was a trade union within the meaning of clause l(l)(p) of the Labour Rela­tions Act, although there had been a finding in Board File No. 1 1961-66-R that "Teamsters, Local 938" was a trade union within the meaning of the Act. The respondent's position with respect to this information was that the applicant would have to prove its "status". It also took the position that the geographic scope of the applicant's charter does not extend to the employees in question; if the geographic scope of the applicant's charter does extend to the subject employees then, the respondent argues, the six months bar imposed on Local 91 in Board File 2358-88-R should apply to the applicant in this application. The intervener takes the position that the applicant and Local 91 are one and the same organization so that the bar to applications by Local 91 applies to this applicant.

22. The applicant takes the position that it and Local 91 are separate and distinct organiza­tions and that the bar imposed on Local 91 should not apply to it. It advised the officer that it would sent a letter to the Board setting out its position with respect to the "status" issue. The Reg­istrar has since received a letter dated April 18, 1989 from counsel for the applicant, which con­tains the following assertions:

This is to confirm that the correct name of the Applicant is 'Teamsters Local Union 938", as set out in Section 1 of the Applicant's by-laws (copy enclosed).

Also enclosed for your reference is a copy of the Applicant's charter from the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as amended, which indicates a province-wide jurisdiction for, inter alia, "miscellaneous workers". The Appli­cant submits that, in any case, the geographic scope of the charter is irrelevant.

The Applicant has been certified by the Board on many occasions in the past and is the same organization named in certificates of status as: "Teamsters, Local 938"; "General Truck Drivers Union Local 938 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware­housemen & Helpers of America"; and "Teamsters Local Union No. 938, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer­ica", in Board File Nos. 11961-66-R, 3073-72-R and 2290-87-R.

Unless the Respondent or the Intervener alleges to the contrary, that is, unless it is alleged that the Applicant is not the same said organization, the Board should follow its past practice and recognize the status of the Applicant pursuant to Section 105 of the Act.

7. Section 105 of the Act provides:

8. 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 Board does not grant an applicant certification without making a finding that it is a trade union within the meaning of clause l(l)(p) of the Act. The question whether an applicant is a trade union is a question of fact. By virtue of section 105 of the Act, that question may be answered in the affi­rmative if the Board is satisfied that the applicant is an organization in respect of which an affirma­tive finding was made in a previous application. The degree of similarity or difference between the name under which an applicant applies and the name under which an organization was previously found to be a trade union may affect the Board's willingness to assume that the two are the same in the absence of any assertio~1 to the contrary but, in the end, all an applicant need do is satisfy the Board that it is one of the organizations which the Board has previously found to be a trade union. It may not be particularly difficult for this applicant to "prove its status", as the respondent insists it must, when this application is dealt with at hearing.

8. At this stage, however, we are called upon to deal only with the matters referred to in subsections (2) and (3) of section 9 of the Act and not with the merits of the application for certifi­cation. As the Board stated in Taiga Trucking (Ontario) 1980 Inc., [19871 OLRB Rep. Nov. 1433:

9. Our function at this stage is to make the determinations contemplated by subsection 9(2) of the Act. We do not determine the appropriate bargaining unit or assess the weight to be given to the applicant's membership evidence. As appears from subsection 9(4) of the Act, those mat­ters are only decided after the vote is conducted, when all interested persons will be notified in Form 71 of the contents of the Returning Officer's report and of their opportunity to make rep­resentations and have a hearing before the Board with respect to any issue affecting the certifi­cation application or the pre-hearing representation vote. Indeed, at this stage the Board does not attempt to resolve any dispute about its constitutional jurisdiction (Kenting Earth Sciences Limited. [1985] OLRB Rep. Feb. 293) or the applicant's ~'trade union status" (Emery Industries Limited, supra) or the identity of persons employed in any proposed bargaining unit at any rele­vant time (The Board of Education for the City of North York, [1984] C'LRB Rep. July 989), or the application of subsection 1(4) of the Act (Satin Finish Hardwood Flooring (Ontario) Limited), [1984] OLRB Rep. Nov. 1602). These and any other issues affecting whether and how the results of a pre-hearing vote should affect the disposition of the application for certification are only resolved after any such vote is conducted.

[emphasis added]

9. Having regard to the provisions of what is now section 9 of the Act, the Board in Emery Industries Limited, [1980] OLRB Rep. Mar. 316 concluded that the question of the "status" of an applicant as a "trade union" is one of those questions with which the legislature intended the Board should deal at the hearing contemplated by subsection 9 (4), after any pre-hearing represen­tation vote had been conducted. As the Board said in paragraph 11 of that decision:

There is no reason for according the 'status issue" a special significance which removes it from the ambit of a legislative scheme which specifically provides for a resolution of disputed issues after a vote is taken.

The same may be said of a dispute about whether an exercise of the Board's jurisdiction under 103(2)(i) of the Act should result in the dismissal of an application brought by a previously unsuc­cessful applicant or by a trade union seeking to represent employees who were affected by a previ­ously unsuccessful application. Where the propriety of the Board's entertaining a subsequent appli­cation on its merits is put in issue, the Board will nevertheless direct the taking of a pre-hearing representation vote if the prerequisites defined in subsection 9(2) of the Act have been met, but will also ordinarily exercise its jurisdiction under subsection 9(3) to seal the ballot box pending determination of that dispute: U-Need-A Cab Limited, [1989] OLRB Rep. Mar. 301; and see The Board of Education for the City of Toronto, [1985] OLRB Rep. July 1180.

10. We determine that the voting constituency for the purpose of any pre-hearing represen­tation vote in this matter should be the voting constituency described in the Board's decision of February 3, 1989 in Board File No. 2358-88-R, which we have quoted in paragraph 3 of this deci­sion.

11. It appears to us on an examination of the records of the applicant and the respondent that not less than thirty-five per cent of the employees of the respondent in the voting constituency were members of the applicant at the time the application was made.

12. Accordingly, we direct the taking of a pre-hearing representation vote. All those employed in the voting constituency on April 11, 1989 who are so employed on the date the vote is taken will be eligible to vote. Voters will be asked to indicate whether they wish to be represented by the applicant or the intervener in their employment relations with the respondent. As the pro­priety of the Board's entertaining this application on its merits has been put in question, the ballot box shall be sealed and the ballots cast shall not be counted (except on agreement of the applicant, respondent and intervener) pending determination of that question.

13. The matter is referred to the Registrar.