[1989] OLRB Rep. June 658
2228-88-R Tish Vassair, Applicant v. Teamsters Union Local 419, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent V. Nedco, Division of Westburne Industrial Enterprises Ltd., Intervener.
BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members G. 0. Shamanski and R. R. Montague.
APPEARANCES: D. Brown and T. Vassair for the applicant; Dave Watson and Frank Grimaldi for the respondent; Walter Thornton and B. Dodds for the intervener.
DECISION OF THE BOARD; June 5, 1989
- This is an application for termination of bargaining rights made pursuant to section 57 of the Labour Relations Act. The relevant provisions of that section are as follows:
57.-(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;
(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as it determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
There is no dispute that this application is timely. Another panel of the Board has already ruled that it should be heard on its merits, even though it follows rather closely upon an earlier application which was dismissed.
The formula established by section 57 is relatively straightforward. The Board first determines the number of employees in the bargaining unit represented by the trade union. The Board then determines whether at least forty-five per cent of them have voluntarily signified in writing that they no longer wish to be represented by the trade union. If there is the requisite showing of opposition, the Board directs that a representation vote be taken.
The problem in the instant case is that first step: how many employees are there in the bargaining unit currently represented by the union? Until that question is determined the Board cannot do the "arithmetic" contemplated by section 57(3).
The union contends that the bargaining unit that it represents also includes a large number of so-called "agency" or "temporary" workers, who do not appear on the employee list filed by the employer in response to this application. If the union's contention is correct, and these "agency workers" are added to the list, this application must fail because the petition opposing the union - even if voluntary - would not contain the signatures of forty-five per cent of the employees in the bargaining unit. The parties are agreed that we should deal with this issue first, and turn to the question of "voluntariness" only if that becomes necessary.
The recognition clause in the parties' most recent collective agreement reads as follows:
ARTICLE II- RECOGNITION
2.01 The Company recognizes the Union as the exclusive bargaining agent of all employees of the Company's Nedco Division in Mississauga, Ontario, save and except supervisor, persons above the rank of supervisor, clerical, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed for the school vacation period.
2.02 The Company agrees not to enter into any agreement or contract with its employees, individually or collectively, which in any way conflicts with the terms and conditions of this Agreement.
Article 4 may also be of interest:
ARTICLE IV - RELATIONSHIP
4.01 All employees on record at ratification shall as a condition of employment sign an authorization to deduct whatever sum may be so authorized for Union dues as per Article 4.04.
4.02 New employees shall make application for membership in the Union at the time of their hiring and shall become and remain members of the Union in good standing as a condition of employment as soon as their probationary period has been served.
4.03 When a new employee signs an application for membership, the application card will be forwarded to the Union office by the Company within seven (7) days from the date of employment.
4.04 The Company agrees to deduct monthly dues, as specified in the Union Constitution, by the first pay period of each month from each eligible employee and remit the monies so deducted, together with a list showing from whom and in what amount the deductions were made, to the Secretary-Treasurer of the Union in the current month in which the monies were deducted. The Secretary-Treasurer of the Union shall notify the Company by letter of any change in the amount of Union dues, and such notification shall be the Company's conclusive authority to make the deductions specified.
4.05 The Company will, at the time of making each remittance to the Union, specify the employees from whose pay such deductions were made.
4.06 The Company shall show the yearly monthly dues deductions on employees' TA slips.
4.07 The Union will not engage in union activities during working hours or hold meetings at any time on the premises of the Company without the permission of the General Manager or his designee.
II
The intervener, Westburne Industrial Enterprises Limited (Nedco Division), ("Westburne") is a supplier of electrical components. It has a permanent work force of between forty and fifty employees who are engaged in warehouse and delivery operations. In addition, Westburne uses the services of various numbers of casual workers whom it obtains from three temporary employment agencies. Those agency workers perform essentially the same tasks as Westburne's own staff, and while on the job, are under the direction and control of Westburne's supervisors.
The largest supplier of temporary help is a firm known as Aimco Labour Lease Inc. Aimco supplies temporary help to a number of businesses in the Metropolitan Toronto area. Aimco recruits those workers through newspaper advertisements and offers them a variety of job options. Some workers work full time, while others work only two or three days a week. It is their choice.
Aimco sets the rates of pay and provides for the payment of worker compensation levies, unemployment insurance, Canada Pension Plan payments and vacation pay. Aimco provides T-4 slips for taxation purposes, as well as other related employment documentation. Agency workers are paid by cheques bearing Aimco's name and drawn on its own account.
Aimco derives its profit from the difference between the fees which it charges its clients and the amount which it pays to the agency workers. The clients do not dictate the rates of pay nor does Aimco necessarily take into account the amounts which a client pays to its own employees doing similar tasks; however, it is conceded that, in Westburne's case, the agency employees are paid less than the sums provided in the Teamsters' collective agreement, and further that Westburne does not want Almco to pay more than the entry rate for any given job. The reason for this is quite simple. Temporary workers who perform well may be offered permanent positions with Westburne, and Westburne wants to maintain an incentive for recruiting purposes. If agency workers do join Westburne's permanent staff, Almco is entitled to a bonus of as much as $1,500.00.
In 1988 approximately 200 persons from Aimco worked for Westburne. About seven per cent of those workers were eventually hired by Westburne on a full time basis. The average working period of an agency employee is about sixteen days, but there seems to be considerable variation. Drivers fill in on a sporadic basis to cover gaps in Westburne's regular employee complement caused by vacations, illness, injury, or temporary vacancies. Warehouse personnel work on a more regular basis.
When these agency workers are actually on the job, they perform the same duties as Westburne's permanent employees, use Westburne's tools and equipment, and are subject to the direction and control of Westburne's foremen. They have the same working hours and start times as Westburne's own permanent work force, and, for convenience, they "punch in" on the same time clock. Their cheques from Aimco are delivered to them at the Westburne location. However, if there are discipline or performance problems other than of a minor nature, Aimco is contacted and either takes corrective action or transfers the worker to some other job. Aimco provides no on-site supervisors at the Westburne location. On the other hand, there is no doubt that if Westburne is dissatisfied with an agency employee, that worker will be removed.
These facts obviously raise the question of whether the so-called agency employees are, in law, employees of Westburne rather than Aimco. The documentation and form of the relationship suggest that they are not. The direct control by Westburne's foreman, the similarity of work, and the degree of integration into Westburne's enterprise point to the opposite conclusion.
Counsel drew to our attention a number of cases in which the Board analyzed similar problems and set out the criteria which should be applied in determining the identity of the "real employer" of employees affected by proceedings before it. In the instant case, however, we are not persuaded that we need pursue that analysis. If the agency workers are not part of the bargaining unit in any event, it does not matter whether, in law, they are employees of Westburne. That is a legal and collective bargaining question which draws us back to the interpretation of section 57 of the Act and the terms of the collective agreement set out above.
III
Bargaining rights are created and can be terminated in respect of an employee grouping described as a "bargaining unit". On an application for certification it is the Labour Relations Board which fashions that unit. Subsequently, the bargaining parties can substitute their own bargaining unit description, although, typically, the bargaining unit description in the parties' collective agreement will simply mirror that determined by the Board.
That is the case here. The bargaining unit found by the Board to be appropriate (on the agreement of the parties) is set out in paragraph 4 of the Board's certification decision dated July 29, 1985, and now appears as Article 2.01 of the parties' collective agreement. But what does that bargaining unit description mean? Who does it encompass; and, in particular, would it encompass agency workers if, as a matter of law, they were found to be employees of Westburne? In answering this question, it is useful to consider how the parties themselves treated the matter both on the initial application for certification and afterwards.
When the union applied for certification in 1985, there was a dispute about the number of employees in the bargaining unit. The union had the opportunity to examine the employee list and ultimately agreed upon the number of employees in the bargaining unit. That list did not include agency workers, nor did the union suggest that it should, - even though there were agency workers present in the workplace at the time. The union was content to be certified on the basis of an employee list which excluded workers of the kind which it now says are part of its bargaining unit; moreover the evidence before us indicates that, had it taken this position on the original application for certification the result may well have been different: the Board might have either dismissed the certification application or, at the very least, directed that a representation vote be taken. Thus, if the union in the 1985 certification application had taken the position which it now takes before us, it is problematic whether bargaining rights would have been established at all.
Following its successful certification application, the union entered into a collective agreement incorporating the bargaining unit language found by the Board to be appropriate. In the subsequent administration of that agreement, no one ever suggested that agency employees were part of the bargaining unit. Agency employees did not receive the wage rates stipulated in the agreement for the work that they were performing. No union dues were ever deducted for agency workers. Agency workers were never included on the seniority lists periodically provided to the union. No grievances were considered or processed on behalf of agency workers nor, until after this termination application was filed, did the union ever seriously protest the presence of agency workers in the workplace. No agency workers were invited to make application for membership in the union at the time of their hiring despite Article 4.02 of the collective agreement, and no agency employee was censored for not doing so. There is no evidence that agency workers were invited to, or did, participate in any union meeting or vote to ratify a proposed collective agreement (see sections 72(5) and (6) of the Act). In short, the union has treated the agency workers in the same way as it did on the initial application for certification: they were not included in the bargaining unit, and were not persons for whom the union sought or exercised bargaining rights. A bargaining demand to remove the exclusion of part-time employees from the recognition clause and prohibit the subcontracting of bargaining unit work, was advanced at the most recent round of bargaining but then withdrawn.
The intention of the parties is further clarified by their response to an earlier termination application.
In Board File No. 2427-87-R an employee, as here, filed an application seeking the termination of the union's bargaining rights. A dispute arose concerning the composition of the bargaining unit. The Board appointed a Labour Relations Officer to meet with the parties in an effort to settle that matter.
Two union representatives, representatives of the employees, and counsel for the employer all met with the officer to examine the employee list. The list did not include "agency employees", nor did the trade union representatives suggest that it should. Their agreement with respect to the bargaining unit composition is dated June 17th, 1988 and signed by the representatives of all interested parties. The agreed employee list does not include agency workers. There were agency employees working for Westburne at the time.
This earlier termination application was dismissed for reasons which need not be canvassed here. The fact remains, however, that, as late as a few months before the present termination application the union was taking the position that the agency workers (whose continued presence in the workplace, for years, could not have been missed), were not part of the bargaining unit.
We should also note that the union's reply to this application stated its estimate of the number of employees in the bargaining unit that it represents, and that that number approximates the group suggested by the employer: 40 employees. It was only later that the union submitted that there were as many as an additional thirty-five agency workers who should also be considered a part of the bargaining unit. It was only after the filing of this application and the filing of the union's initial reply that the union filed a grievance contending that the agency workers were really "employees" of Westburne and should therefore be covered by the collective agreement.
There was evidence put before us about the diligence of union stewards and the difficulties which they may have had concerning the enforcement of the collective agreement. It was said that the union was not doing its job. We do not think that this evidence is either accurate or particularly helpful.
It is clear to us that whatever the skills of the local stewards, the appointed business agents, or senior union officials, they were all abiding by what they understood to be the need to enforce the rights of employees that the union represented. But that group did not include the so-called agency workers. The union did not seek to represent them because no one believed them to be in the bargaining unit. The union did what it could to bring those workers into the union fold by proposing changes in the collective agreement, and, no doubt, those agency workers would have been better off had they been paid at "union rates", but when those collective bargaining proposals were dropped, the union was left with the status quo: agency workers were not covered by the existing arrangement.
IV
Ordinarily, determining the composition of the bargaining unit is a relatively simple matter. One merely looks at the description in the relevant collective agreement and compares that description to the employer's employment records. If the agreement stipulates that it covers "all employees", it means what it says, and neither bargaining party can resile from it.
Here, though, there is a complication, because there are many individuals who are "arguably employees" of the employer but have never been so treated by either bargaining party from the very inception of collective bargaining, and through at least two collective agreements. If the agency workers were employees of Westburne the term "employee" in article 2 of the collective agreement" might be broad enough, as a matter of abstract law, to include them; but on the evidence, we are satisfied that the bargaining parties never intended that they be included in any bargaining unit represented by the union.
The situation currently before us is somewhat similar to that addressed by the Divisional Court in General Concrete of Canada Ltd. v. Local 487, United Cement, Lime and Gypsum Workers, International Union, 1978, 78 CLLC ¶14,205. There, the union had negotiated a collective agreement purporting to cover all of the company's "employees", and a question arose as to whether the term "employee" was intended by the parties to include certain owner-operators. The Labour Relations Board determined that those owner-operators were "employees" for the purposes of the Labour Relations Act, and were, therefore, entitled to engage in collective bargaining, but the Court held that this did not necessarily mean that they were caught by the term "employee" appearing in the collective agreement. That, the Court said, depended upon the parties' intention when the agreement was signed. The Court ruled that there was a latent ambiguity in the collective agreement, that the term "employee" was not precise, and that an arbitrator should have received extrinsic evidence to determine whether the collective agreement was intended to apply to these individuals - even though, on the surface, they were employees eligible for inclusion in the bargaining unit, and a cursory reading of its terms would suggest that they were covered.
We think that the same problem has surfaced in the present case and that the Court's approach is instructive. Assuming (without finding) that the agency workers are employees of Westburne who might fall within the "all employee" bargaining unit described in the collective agreement, was this ever the parties' intention? In our view, the answer is no. To put the matter colloquially: the parties in this case have written their own legal dictionary. They have decided that these agency workers whose situation is ambiguous - but obviously different from that of Westburne's permanent employees - should not be treated as employees "in the bargaining unit" even if, as a matter of law there is an argument that they are Westburne's employees and therefore might fall within the scope of the bargaining unit description.
Having regard to the totality of the evidence, we are satisfied that despite the apparent all-inclusive nature of the bargaining unit description found in the Board's initial certificate and subsequently transplanted into the parties' collective agreement, neither the union nor the employer ever intended that those individuals whom we have described as agency workers would be part of that bargaining unit or subject to the terms of the collective agreement. In particular, we find that the agency workers are not employees in the bargaining unit for the purposes of section 57 of the Act.
For the foregoing reasons this matter is relisted for hearing on the question of whether the employees' statement opposing the union represents a voluntary expression of the individuals who signed it.
Notwithstanding the foregoing, the Board hereby appoints a Labour Relations Officer to meet with the parties to determine whether there is any possibility of a settlement of the matters still in dispute between them.