[1990] OLRB Rep. January 49
0591-89-R; 0592-89-R Canadian Union of Public Employees, Applicant v. The Hamilton-Wentworth Roman Catholic Separate School Board Professional Staff Association, Respondent v. Group of Employees #1, Objectors; Canadian Union of Public Employees, Applicant v. The Hamilton-Wentworth Roman Catholic Separate School Board Professional Staff Association, Respondent v. Group of Employees #2, Objectors
BEFORE: Judith McCormack, Vice-Chair, and Board Members R. M. Sloan and K. Davies.
DECISION OF THE BOARD; January 17, 1990
These are two applications under section 62 of the Labour Relations Act in which the applicant requests a declaration that it has acquired the rights, privileges and duties of the Hamilton-Wentworth Roman Catholic Separate School Board Professional Staff Association ("the Association"). Board File 0591-89-R deals with a unit of clerical, technical and office employees described by the parties as bargaining unit #1. Board File 0592-89-R refers to a unit of educational assistants and professional support staff described by the parties as bargaining unit #2. Each bargaining unit is covered by a collective agreement between the Association and the Hamilton-Wentworth Roman Catholic Separate School Board expiring December 31, 1989.
On December 11, 1989, this matter came up for hearing and the Board issued the following oral decision:
After reviewing the submissions and the material filed, we declare that pursuant to section 62, the Canadian Union of Public Employees has acquired the rights, privileges and duties under the Labour Relations Act of The Hamilton-Wentworth Roman Catholic Separate School Board Professional Staff Association.
We now provide our reasons.
At the time of this application, there was no dispute that the two bargaining units were represented by the Association. On April 4, 1989, at a general meeting provided for by the constitution of the Association, a motion was passed to have the president of the Association take the necessary steps to call a meeting to take a vote on whether the Association should affiliate with the Canadian Union of Public Employees ("CUPE"). Although it is not clear what was meant by the word "affiliate", notice of a special meeting was then sent out in accordance with the constitution, specifying the purpose of the meeting and attaching a copy of a proposed motion "to affiliate, merge, amalgamate or transfer its (the Hamilton-Wentworth Roman Catholic Separate School Board Professional Support Staff Association) jurisdiction, rights, privileges, duties, with or to the Canadian Union of Public Employees".
The special meeting was held on April 18, 1989 and the motion was passed by more than the two-thirds majority required by the Association's constitution. Subsequently, the Association and CUPE executed an agreement which provided that the Association joined CUPE, that it ceased to exist as a separate organization, and that its jurisdiction was transferred to CUPE. The material before us indicates that this sequence of events conformed to the constitutions of both the Association and CUPE. On April 20, 1989, Mr. William Brown, a representative of CUPE, wrote to the Hamilton-Wentworth Roman Catholic Separate School Board to advise it that the Association had transferred its jurisdiction to the CUPE and requesting a meeting to discuss the matter. Subsequently, the current applications were filed.
The applicant characterized what had occurred as a transfer of jurisdiction from the Association to CUPE. Having regard to the Board's jurisprudence in this regard, we find it more accurate to consider this sequence of events as a merger or an amalgamation of the Association with CUPE. While the motion passed was not specific, having regard to the subsequent agreement between CUPE and the Association and in particular, the fact that the Association ceased to exist as a separate organization, it appears to us that a merger or amalgamation occurred.
The applications were set down for hearing because a group of employees filed an objection in each application. Counsel for Group of Employees #2 advised the Board at the commencement of the hearing that his clients' concerns had been resolved and that any objections they might have had were withdrawn.
Charles Milazzo and Tony F. Vario spoke on behalf of Group of Employees #1. They did not contend that there was anything improper or defective in the manner in which the merger or amalgamation had taken place. Rather, they indicated their concern was that the audio-visual technicians whom they represented were grossly outnumbered by the office and clerical staff, that they had never wished to be part of the Association's bargaining unit and did not wish to continue in the bargaining unit to be represented by CUPE. They volunteered that they had not signed any form or union card when the Association was formed and indicated that they would prefer to be part of a bargaining unit of caretakers and tradesmen employed by the Hamilton-Wentworth Roman Catholic Separate School Board. In essence, they asked us to carve the audio-visual technicians out of bargaining unit #1.
Section 62 provides as follows:
62.-(1) Where a trade union claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.
(2) Before issuing a declaration under subsection (1), the Board may make such inquiry, require the production of such evidence or hold such representation votes as it considers appropriate.
(3) Where the Board makes an affirmative declaration under subsection (1), the successor shall for the purposes of this Act be conclusively presumed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise, and the employer, the successor and the employees concerned shall recognize such status in all respects.
- In our view, our jurisdiction under section 62 is quite limited. Unlike section 63, which specifically empowers the Board to define the composition of bargaining units and amend bargaining unit descriptions in certificates or collective agreements, section 62 provides only that the Board may declare that the successor has or has not acquired the rights, privileges and duties of the predecessor, or the Board may dismiss the application. While the Board may do certain things under section 62(2) to arrive at that conclusion, there is no provision to amend a bargaining unit in a current collective agreement. The contrast with section 63 is quite striking in this regard. It appears to us that section 62 contemplates a successor union acquiring the rights, privileges and duties of the predecessor intact, and without amendment by the Board. As the Board said in Deseronto Public Utilities Commission, [1977] OLRB Rep. April 248:
We feel it is worth stressing at this point that a declaration under section 54 [now section 621 has no greater effect than to substitute one union for another in a bargaining relationship. The bargaining rights and privileges possessed by the successor union are no greater than, or different from, the rights and privileges formerly possessed by the predecessor union.
In this case, those rights and duties involve bargaining rights and responsibilities with respect to the specific bargaining units set out in two collective agreements between the Association and the Hamilton-Wentworth Roman Catholic Separate School Board. CUPE inherits those collective agreements and those bargaining units as they are, and the Board is not at liberty to make the kind of adjustment requested here.
In any event, if we do have the power to carve out the audio-visual technicians from bargaining unit #1, we would not be inclined to do so in this case. It was evident that the concerns of these employees were not at all related to the merger between the Association and CUPE, but rather to their inclusion in the bargaining unit at all. This situation has apparently existed since 1985, and is not a product of the sequence of events before us. It is evident that the concerns raised by the audio-visual technicians are essentially irrelevant to the question before us, that is, whether there has been a merger, amalgamation or transfer of jurisdiction between the Association and CUPE. It makes good sense to us that a successor union acquires the bargaining unit represented by its predecessor, in a manner analogous to a displacement application for certification in which the applicant will usually be required to accept the contours of the existing bargaining unit. Moreover, while we have some sympathy for the position of Mr. Vario and Mr. Milazzo, the fact is that the Labour Relations Act generally contemplates a scheme of "majority rule" in labour relations. Bargaining units will often encompass a variety of different employees, and there will frequently be minority interests involved, both permanently with respect to a particular group of employees and temporarily in regard to a specific issue. As a result, we were not prepared to accede to the audiovisual technicians' request. We did, however, point out to them that CUPE and the employer were free to amend the bargaining unit description should they so desire, and that CUPE had certain obligations to them contained in section 68 of the Labour Relations Act.
As a result of our finding that the Association had merged or amalgamated with CUPE, we declared that CUPE had acquired the rights, privileges and duties under the Labour Relations Act of the Hamilton-Wentworth Roman Catholic Separate School Board Professional Staff Association.