Amalgamated Transit Union Local 616 v. Transit Windsor, 1990 CanLII 5735

Ontario Labour Relations Board

[1990] OLRB Rep. January 94

1868-89-R Amalgamated Transit Union Local 616, Applicant v. Transit Windsor, Respondent v. Group of Employees, Objectors

BEFORE: Judith McCormack, Vice-Chair, and Board Members R. W. Pirrie and B. L. Armstrong.

APPEARANCES: Paul Falzone, Ronald Seguin and Robert L. Saarinen for the applicant; Patrick F. Milloy, Robert Coghill and Stephen Harrison for the respondent; Kenneth Alan McLaughlin for the group of employees.

DECISION OF JUDITH MCCORMACK, VICE-CHAIR, AND BOARD MEMBER B. L. ARMSTRONG; January 25, 1990

1This is an application for certification where the parties met with a Board Officer on the day scheduled for hearing, and were able to clarify a number of the disputes between them. Since the applicant had not established its status as a trade union before the Board previously, the Board first heard evidence in this regard.

2The applicant is a local union of the Amalgamated Transit Union, an entity which has already proved that it is a trade union within the meaning of section l(l)(p) of the Labour Relations Act. The applicant conducts its affairs in accordance with the constitution and general laws of its parent, which, among other things, provide for certain local by-laws. It is governed by local officers which include a president/business agent, a vice-president, a financial secretary, a garage committeeman and a drivers' committeeman. The local officers are elected for three-year terms and their duties are set out in detail in the constitution. The constitution also requires monthly meetings, sets out the procedures for the holding of such meetings and provides the order of business at them. Membership eligibility provisions are included along with procedures for admitting persons into membership. To be a member in good standing, among other things, an individual is required to promise to uphold the constitution. The objects provided in the constitution include the following:

To place our occupation upon a higher plane of intelligence, efficiency and skill;... to encourage the settlement of all disputes between employees and employers by arbitration; to secure employment and adequate pay for our work, including vacations with pay and old age pensions; to reduce the hours of labour and by all legal and proper means to elevate our moral, intellectual and social condition.

3There are approximately two hundred and fifteen employees in the local at the present time. The applicant and the respondent have been in a collective bargaining relationship for at least fifty years with respect to a unit of drivers and maintenance employees. In this capacity, the applicant has negotiated successive collective agreements and has initiated grievance arbitrations. The most recent collective agreement between the applicant and the respondent with respect to this drivers' unit runs from February 29th, 1988 until February 28, 1991. In the application before us, the applicant now seeks to represent a tag-end unit of various other employees.

4Although the applicant's charter from the parent body was unavailable as a result of its antiquity, the applicant is recognized as a local union by the Amalgamated Transit Union and participates in its activities including international conventions. On the basis of its membership, the local is entitled to one voting delegate at these conventions.

5While the evidence in this case was less comprehensive than we might have required in other circumstances, there was no doubt that the applicant was a fully functioning organization whose purpose was to represent employees in labour relations. Its history of labour relations and organizational activity indicates that the applicant has been operating as a de facto trade union for over fifty years. In these circumstances, we were persuaded that the applicant was a viable organization of employees for the purpose of labour relations, and we determined that it was a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

6The parties agreed in part on the following bargaining unit description (underlined portions remain in dispute):

all employees of the respondent in Windsor save and except (supervisors), persons above the rank of supervisor, secretary to the General Manager, secretary to the Operations Manager, (the Human Resources clerk), (Accountant), the Transportation Schedule, (the Transportation Secretary), the Purchasing Agent, the Transportation Planner, persons regularly employed for not more than (24) twenty-four hours per week, students employed for the school vacation period, and employees in bargaining units for which any trade union held bargaining rights as of October 31, 1989.

7The respondent took the position that Ann Rezler, Human Resources Clerk, Tom Bondy, Accountant, Brenda Colley, Transportation Secretary, Marcia Matthews, Cash Office Supervisor and Jo-Ann Taylor, Payroll Supervisor should be excluded from the bargaining unit on the basis that they performed managerial functions and were employed in a confidential capacity in matters relating to labour relations. The applicant argued that all these persons should be included within the bargaining unit on the basis that they were employees as defined by section 1(3)(b) of the Labour Relations Act. As a result, we appointed a Labour Relations Officer to inquire into and report back to the panel on the duties and responsibilities of the persons described above.

8The respondent also took the position that Tom Bondy should not be in the bargaining unit whether or not he was found to exercise managerial functions or to have been employed in a confidential capacity, because when the parties met with the Labour Relations Officer to discuss the bargaining unit, the applicant initially agreed to exclude "the accountant" from the bargaining unit. When it reviewed the employee lists, however, the applicant changed its position and asserted that Mr. Bondy, who is listed as an accountant, should be included in the unit. As a result, the respondent argued that the applicant was gerrymandering, and that Mr. Bondy should not be included in the bargaining unit regardless of the duties he performed. There is no dispute that the applicant changed its position before the count was announced.

9The applicant told the Board that it had originally agreed to the exclusion of "the accountant" on the basis that this title referred to an individual they considered to be part of management, one Charles McLean, whom the company later described as the financial manager. However, the applicant did tell the company that they considered everyone working below Mr. McLean to be in the bargaining unit. It was only when they reviewed the employee lists that they discovered that Mr. Bondy, who works under Mr. McLean, was described as the accountant. The respondent then advised the Board that it wished to call evidence to show that the applicant was aware that Mr. Bondy was the accountant.

10The Board decided that it would not determine this dispute as a preliminary matter. Rather, we advised the parties that, without commenting on the merits of the respondent's argument, if the respondent wished to pursue it further it would have the opportunity to call its evidence and to make submissions before the panel after the Labour Relations Officer had reported back on Mr. Bondy's duties and responsibilities.

11The respondent also took the position that ten operations supervisors should be excluded from the bargaining unit on the basis that they exercised managerial functions. However, counsel argued that we should not inquire into their duties and responsibilities in this regard, but that we should simply dismiss that part of the union's application pertaining to these persons. His reasoning was based on the fact that in 1979 the Board decided that transit inspectors, the predecessors to the operations supervisors, should be excluded from the unit of drivers and maintenance employees referred to earlier on the basis that they exercised managerial functions. Since the applicant represents that bargaining unit as well, and as it has not challenged that exclusion since the Board's decision, the respondent asked us to dismiss that part of its current application, citing in this regard Park Lane Nursing Home Limited, [1981] OLRB Rep. July 945 and The Windsor Star, [1988] OLRB Rep. April 427.

12The applicant argued that the decision was made ten years ago with respect to a different bargaining unit and that the two cases cited were inapplicable. Counsel asserted that the operations supervisors were "employees" within the meaning of the Labour Relations Act and asked us to appoint a Labour Relations Officer to inquire into their duties and responsibilities. The Board reserved its decision on this issue, which we now provide.

13It appears that transit inspectors were considered to be employees within the bargaining unit of drivers and maintenance employees from 1964 until 1979. In 1979 an application was made under section 95 [now section 106(2)] for a determination of their status as employees. The Board issued a decision in March of 1979 to the effect that the transit inspectors exercised managerial functions. As a result, they were excluded from that unit. Since that time, successive collective agreements negotiated by the parties with respect to that unit have not covered inspectors or their successors, the operations supervisors. This issue was not raised at any time by either party during negotiations.

14The Board has wrestled with the problems presented by this kind of situation both in the context of section 106(2) applications and in other kinds of proceedings. Its jurisprudence identifies two themes: the need for stability and finality in labour relations, and the recognition that labour relationships evolve and change. The first element has led the Board to take an approach drawing on the doctrine of res judicata where there has been an earlier Board finding, and reminiscent of estoppel where there has been a prior agreement between the parties. The Board reviewed this approach at some length in Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501, where a union had applied to be certified to represent certain employees who had previously been excluded from another bargaining unit by the Board on the basis that they exercised managerial functions. While the Board decided that it would not apply a doctrine analogous to res judicata in that case because the parties were different, it did have this to say about the importance of finality in the Board's decisions:

Although the Act does not expressly authorize the application of the doctrine of res judicata, there are strong practical and policy grounds for doing so. Rights and duties have meaning only if they are certain and relatively stable. Parties expect that a decision of the Board will clarify their legal relationship and put an end to the controversy between them. Board decisions would lose much of their value if they did not provide a reliable guide for the conduct or planning of the parties' affairs. Continuous litigation would undermine the harmonious relationship between the parties which the Act is designed to foster, and could give rise to abuse and harassment of a weaker party. It could also give rise to costly duplication, inefficient utilization of the Board's scarce resources, and a serious impediment to the effective administration of the Act. This potential consequence is especially serious in labour relations matters where "time is of the essence" and finality is an important statutory objective. Moreover, from an institutional point of view, the prospect of relitigation greatly increases the possibility of inconsistent decisions which can only undermine the credibility of the adjudication system and the adjudicators. The doctrine of res judicata serves to minimize these possibilities, and is based upon the entirely reasonable expectation that if a judgement is rendered in an earlier case which is related logically to a subsequent proceeding, the former will be taken into account in resolving the latter.

15Similarly, in Park Lane Nursing Home, supra, a union had applied to represent an "all employee" bargaining unit and agreed to exclude nurses on the basis that they exercised managerial functions. Several months later, the union applied for certification for a bargaining unit of nurses. The Board decided that since the applicant had agreed a few short months previously that nurses were managerial, and it was not contented that their duties had changed in the interim, it was not open to the union to now claim that the nurses were not managerial. Since there were thus no employees in the bargaining unit applied for, the application as a whole was dismissed, apparently on the basis of an estoppel-like rationale.

16On the other hand, the Board has recognized that while parties rely on its decisions in structuring their relationship, changes in circumstances or in the law itself may require it to take another look at a previously-litigated or agreed-upon proposition. In Globe and Mail Limited, [1976] OLRB Rep. Nov. 662, the union had also applied to represent employees previously excluded from another of its bargaining units on the basis they performed managerial functions. In deciding the issue on its merits, the Board commented:

Before leaving this phase of the case, the Board is indeed quite concerned that we ought to preserve the stability of the collective bargaining relationship established by the parties through the years as a result of a Board certificate. Nonetheless, it does not follow that any Board decision made in the past is "carved in stone" and is thereby rendered immune from review. Should the merits of this case with respect to issues raised herein fall in favour of the applicant trade union, the respondent employer may simply be required (subject to its rights of review) to make whatever adjustments are necessary to accommodate our pronouncements. In other words, the decisions of this Board as they are amended or varied from time to time must take precedence over the parochial concerns of a constituent party notwithstanding the inconvenience that may result.

17An appropriate balance between these two themes has been formalized in the case of applications under section 106(2) in a series of threshold tests. The most recent of those tests was set out by the Board in The Windsor Star, [1988] OLRB Rep. April 427 in the following terms:

14. Therefore, the Board will no longer restrict the evidence to be adduced before a Board Officer with respect to the duties and responsibilities of the person(s) in dispute to "changes" in those duties and responsibilities, as in the past. Section 106(2) applications commonly are initiated through an often sparse letter to the Board merely naming the individual(s) in dispute. Henceforth, the applicant must, in addition, indicate the basis for the application, i.e., the nature of the position, including duties and responsibilities (to the extent known, where the applicant is a trade union), the historical dimension to the position (if any) including any Board determinations and parties' agreements and how the mischief against which sections 1(3)(b) or 12 are directed has arisen or has ceased. The respondent must outline fully any grounds it asserts as to why the Board should not entertain evidence as to the duties and responsibilities of the person(s) in dispute. The Board must be satisfied a "question" has arisen as to the "employee" or "guard" status of the individual(s) in dispute before a duties and responsibilities examination will be directed. Where the individual's status has not been previously determined by the Board in a certification or earlier 106(2) application or by specific agreement of the parties, an examination will generally be directed. Where the Board has previously determined the status of a person in a certification application or prior section 106(2) application or where the parties have reached a specific agreement as to the person's status, the Board will not permit evidence as to the person's duties and responsibilities to be adduced before a Board Officer unless the Board is satisfied, on the face of the application, that it appears the mischief against which section 1(3)(b) or section 12 is directed has arisen or has ceased. Where the Board is not so satisfied, the application may be dismissed without a hearing. In the Board's opinion, this policy does not undermine agreements of the parties as to a person's status and avoids repeated or frivolous examinations, yet provide sufficient flexibility to adequately respond to circumstances where the mischief against which sections t(3)(b) and 12 are directed has arisen or has ceased.

18In essence, the respondent now asks us to dismiss his application with respect to the operations supervisors, both as a result of the approach reflected in Park Lane Nursing Home, supra, and as a result of extending the Windsor Star test to this certification application.

19Turning to the respondent's first argument, we have a number of reservations about applying either a res judicata or an estoppel approach to the facts before us. It is true that the 1979 decision was the result of a dispute litigated between the same parties. However, the decision is ten years old and describes the reasons for excluding transit inspectors, not operations supervisors, from a different bargaining unit. While a finding on employee status is not necessarily predicated on any particular bargaining unit, it is also fair to say that this kind of determination is more of an art than a science, involving a review of numerous factors and occupational functions in differing combinations and with varying weights and significance. The composition of the bargaining unit may be of some relevance in a borderline case, where the presence or absence of other employees in the unit subject to the supervision of the disputed individual brings the conflict of interest which lies at the core of the section l(3)(b) exclusion into sharper or softer focus.

20In this case, the age of the previous decision together with the change in classification titles also provides a credible context for assertions that circumstances have changed to the point where a review is now warranted. In addition, the elapse of time tends to rebut the suspicion that the Board's processes are being abused. We are not persuaded that the applicant organized employees and brought this application for the purpose of circumventing the Windsor Star section 106(2) test, as contended by the respondent.

21The fact that the applicant did not raise the status of these individuals in negotiations is of some concern to us, but it does not have quite the same implications that an express agreement might have in similar circumstances. Indeed, given the applicant's view that the operations supervisors belong in a tag-end bargaining unit, their exclusion from the drivers' and maintenance unit in the collective agreement is somewhat ambiguous. In other words, the applicant's conduct does not suggest to us the kind of unfairness which often gives rise to estoppel arguments. In these circumstances, we are not persuaded that we should utilize a res judicata or estoppel approach to prevent a determination of this dispute on its merits.

22Similarly, we do not see any necessity to extend the Windsor Star test rationale to this application. We agree that many of the concerns addressed in that case may arise in these circumstances as well. However, in our view they can generally be adequately dealt with either under the less formal application of the Board's res judicata or estoppel line of jurisprudence, or by the Board's powers under section 102(13) of the Labour Relations Act and section 71 of the Board's Rules of Procedure. Under section 102(13), the Board may direct parties to file a variety of information and material (see for example, Caterpillar of Canada Ltd., [1987] OLRB Rep. Feb. 192 and Green Gables Manor Incorporated, Board File No. 2030-85-R unreported, January 28, 1986). The Board may then find it is in a position to issue a decision on the basis of the material filed, or the Board may dismiss a claim under section 71 if the material filed under section 102(13) does not disclose a prima facie case for the remedy requested. In other words, much the same result as outlined in Windsor Star can be achieved by different means, and in an ad hoc manner that is more appropriate for certification applications.

23That said, we have given some thought as to whether we should require the kind of information set out in Windsor Star in the exercise of our powers under section 102(13) in this case. On balance, we have come to the conclusion that it is not warranted here. In addition to those factors described earlier which led us to reject the application of a res judicata or estoppel approach, it also appears that there is only one classification for which this argument was made. We do not anticipate lengthy or complex examinations with respect to that position and in the particular circumstances of this case, it appears to us that it would be more expeditious to proceed to an examination on the merits of the dispute, rather than imposing preliminary filing requirements which might form the basis of a pre-emptive decision. We note, incidentally, that our conclusion is not inconsistent with the Windsor Star rationale (see Fleetwood Ambulance Services, [1988] OLRB Rep. Sept. 886).

24It is worth emphasizing, however, that the history of the operations supervisor positions may still have a significant impact on the merits of the case. While the primary onus is on a party seeking to characterize an individual as beyond the protection and benefit of the Labour Relations Act, the Board has previously pointed out under section 106(2) that in practical terms there is an inevitable evidentiary onus on a party who wishes to persuade the Board that a long-standing arrangement or a prior decision should not speak with great authority (City of Thunder Bay, [1981] OLRB Rep. Aug. 1121). We find this proposition equally applicable to the case before us, and it is not affected by our decision not to impose certain threshold requirements.

25As a result, we appoint a Board officer to inquire into and report back to the panel on the duties and responsibilities of the operations supervisors.

26Whether or not any of the disputed employees were included in the bargaining unit, the Board was satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on November 14, 1989, the terminal date fixed for this application and the date which the Board determines under section 103(2)(j) of the Labour Relations Act to be the time for the purpose of ascertaining membership under section 7(1) of the said Act. As a result, we were satisfied that these disputes could not affect the applicant's right to certification. In these circumstances, the Board would normally issue an interim certificate to the applicant. However, the respondent took the position that since over half of the bargaining unit was in dispute due to the disagreements described above, an interim certificate should not issue because collective bargaining would be an artificial exercise in these circumstances. Counsel for the respondent described a number of ways in which he anticipated that bargaining would be hindered by the outstanding disputes. The applicant argued that an interim certificate should issue in the usual manner because there were a number of areas which could be usefully dealt with by the parties in bargaining, and counsel provided a number of examples in this regard.

27Section 6(2) of the Labour Relations Act provides as follows:

Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

28As the Board noted in City of Mississauga Public Library Board, [1976] OLRB Rep. Feb. 1, this section was established to reduce or eliminate the mischief which may be caused by the delay attendant on a bargaining unit dispute during the critical post-certification period of high expectations and uncertainty:

This section of the Act allows the Board to certify a trade union pending a resolution of a bargaining unit dispute in those situations where the ultimate determination by the Board cannot affect the right of the union to certification. Prior to its enactment a union which had established the required membership support could not commence to negotiate a first agreement and was required during this critical period of high expectations and uncertainty to await the final bargaining unit determinations. The amendment is designed to neutralize whatever prejudice may be suffered by a trade union and its constituents in these circumstances by confirming its right to certification and by permitting it to serve notice and to commence to bargain pending the resolution of bargaining unit disputes.

29In this case, the status of a little over one-half of the employees was in dispute. Although this is a substantial number, the Board commented in City of Mississauga, supra, that the prime consideration in the exercise of the Board's discretion under section 6(2) is whether meaningful bargaining can take place, rather than any particular formula based solely on the size of the dispute. In this regard, the Board said:

The exercise of the Board's discretion must be on a case to case basis whereby the prime consideration is whether or not meaningful bargaining, on even a restricted number of items, can take place. If meaningful bargaining cannot take place, for reasons related to a genuine bargaining unit dispute, then the Board in the exercise of its discretion must consider the negative effect of placing the parties in a collective bargaining interface at that point in time.

[emphasis in original]

30In University of Ottawa, [1975] OLRB Rep. Sept. 694 the Board described its approach in a slightly different way, focusing on whether the problems caused by the dispute were insuperable barriers to the commencement of bargaining:

9. It may well be that problems of the sort suggested by the respondent will to some indeterminate extent restrict or inhibit bargaining. However, none of the problems to which the respondent has alluded are, in our view, insuperable barriers to the commencement of bargaining and it cannot therefore be said that no useful purpose is to be served by granting interim certification. Accordingly, we are prepared to grant the applicant's request, pursuant to the provision of section 6(la) [now section 6(2)] of the Act.

31The essence of the respondent's argument was that its bargaining strategy would be affected by not knowing the exact composition of the bargaining unit. We did not doubt that this was so, and that the applicant would be labouring under a somewhat similar disadvantage. Indeed, we accepted that it might well be difficult for the parties to conclude a complete collective agreement while this dispute was outstanding. However, as the Board noted in University of Ottawa, supra, the question is whether those problems present insuperable barriers to the commencement of bargaining. In this case, it appeared to us that the parties could productively address in negotiations at least some aspects of many typical contract provisions, for example, those relating to management rights, union dues, grievance and arbitration, seniority, job competitions, lay-offs, scheduling, hours of work, overtime, premium pay, holidays and vacations. Even some portions of the wages and benefit provisions could be resolved at this point. As a result, the fact that the parties might have some difficulty in maximizing their bargaining strategy did not in itself suggest to us that meaningful bargaining could not take place, or to use the words of the Board in University of Ottawa, supra, that "no useful purpose [was] to be served by granting interim certification".

32We acknowledged, as the Board pointed out in Caterpillar of Canada Limited, [1987] OLRB Rep. Jan. 27, that the parties may have to employ more flexibility and creativity in the actual process of bargaining than they might have otherwise had to do. However, on balance, it was our view that the problems raised by the respondent were not insuperable barriers to the commencement of bargaining, and that some meaningful negotiations could take place. We also noted that with the parties' co-operation, the inquires directed by the Board could be accomplished and the disputes between them resolved in an expeditious manner, which would have the effect of shortening the period during which collective bargaining would be hampered by these disputes.

33Accordingly, we issued an interim certificate in the terms described in paragraph 6 above. A formal certificate must await the final determination of the bargaining unit.

34Since that time, we have been advised that the parties met with respect to the disputes outlined in paragraphs 7 to 10 above, and were able to settle their differences in this regard. As a result, the only outstanding issues are the status of the operations supervisors, and the final composition of the bargaining unit.

35This panel of the Board remains seized of this application.

DECISION OF BOARD MEMBER ROSS PIRRIE; January 25, 1990

1. I dissent with respect to the decision of the majority reached in paragraph 25.

2. I would dismiss the application for certification with respect to the operations supervisors. This would leave it open to the union to file a section 106(2) application requesting reconsideration of the 1979 Board decision that the positions in question be excluded from the existing operations and maintenance bargaining unit. Additionally, I would require in such a 106(2) application that the union provide the Board with some justification other than the passage of 10 years and a change in the title to warrant the Board entertaining such a reconsideration request.

3. Aside from my concern that a Board Officer appointment is premature, I am also concerned that the course the majority is pursuing could conceivably lead to the Board being the author of a bad labour relations situation. Were ultimately the Board to find that the operations supervisors should not be excluded from the provision of the Act, we would be obliged to include them in the bargaining unit presently being applied for. This in my view would be inappropriate.

4. By taking the course proposed in paragraph 2 above, the union would not be denied its day in court, the same conclusion with respect to whether the operations supervisors are to be included in or excluded from the provisions of the Act will be reached, and I am persuaded the Board will avoid the trap of producing what at best could be a difficult labour relations scene.