Independent Paperworkers of Canada v. Domtar Inc., 1992 CanLII 6782

[1992] OLRB Rep. November 1184

1553-92-R Independent Paperworkers of Canada, Applicant v. Domtar Inc., Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. A. Correll and B. L. Armstrong.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER W. A. CORRELL; November 27, 1992

1. As indicated in the Board's November 5,1992 decision certifying the applicant herein, the intervention of the Canadian Paperworkers Union and its Local 934 (hereinafter jointly refer to as the "CPU") was dismissed by a majority decision (Board Member Armstrong dissenting) in an oral ruling given at the hearing on November 4, 1992. Our reasons in that respect follow.

2. By application dated September 17, 1991 in Board File No. 2256-91-R, two employees of the respondent herein in a bargaining unit represented by the CPU applied for a declaration ter­minating those bargaining rights; namely, with respect to "all employees of the Company in its Plant situated at St. Marys, Ontario, save and except Foremen, and those above the rank of Fore­man, Office Personnel, Sales Staff, watchmen and guards, and employees engaged in confidential capacity relating to labour relations". By decision dated June 24, 1992, now reported at [1992] OLRB Rep. June 682, which decision was unanimous in the result, the Board (differently consti­tuted) found that not less than forty-five per cent of the employees in that bargaining unit at the time the application was made had voluntarily signified in writing that they no longer wished to be represented by the CPU, and directed that a representation vote be taken in that respect.

3. In the course of their June 24, 1992 decision, the majority of the Board reviewed some of the material facts as follows:

4. During the two and a half days that were devoted to hearing evidence and argument regard­ing this application, the Board heard testimony from the following three persons: the applicant Stephen Stacey, who at all material times was the President of Local 934; the applicant Frank King, who at all material times was the Local's Recording Secretary; and Bill Conley, a Local 934 steward who was also called as a witness by applicants' counsel. (Those three persons and all others holding office in the Local lost their positions when the Local was placed under trustee­ship by the National following the commencement of these proceedings.)

5. The possibility of leaving the CPU was first discussed by members of the bargaining unit at a Local 934 meeting in February of 1991. At that meeting a motion was made that the Local hire a business representative, because it was felt that the Local was not getting enough assistance from the National. Concerns were also expressed about other matters, including what Mr. Sta­cey described as "political games being played at the top". The idea of leaving the CPU came up during the discussion of that motion. The motion was defeated at that meeting but another motion to the same effect was passed at a subsequent meeting (in March or April of 1991), as a result of which the Local hired as a consultant Gary Bucella (who, prior to being terminated by the National in the Fall of 1990, had been a CPU National Representative whose duties included servicing Local 934). Employee dissatisfaction with the CPU was also raised by some of the bar­gaining unit employees in discussions which took place following meetings of the Local in the Spring of 1991.

6. No CPU National Representative attended the "local issues" bargaining session that was held in August of 1991 in respect of the St. Marys plant. The only persons in attendance other than Company representatives were members of the Local 934 Executive and Mr. Bucella.

7. The idea of leaving the CPU resurfaced in September of 1991. At the regular meeting of the Local on September 7, 1991, Mr. Stacey reported to the membership that when the negotiation committee met with management to discuss local issues in August, "no one from the CPU both­ered to show up that day". The members were extremely upset by that information and decided to discuss the matter further after the Local 934 meeting was adjourned. Accordingly, following the adjournment of that meeting, the forty to fifty people in attendance had a discussion about getting out of the CPU and looking elsewhere for another union. Mr. King and other members of the Local 934 Executive were aware from discussions with executive members from other locals that employees at other Domtar plants were also thinking about leaving the CPU. This information was passed on to the membership during the course of the discussion which fol­lowed the adjournment of the September 7 meeting. During that discussion it was agreed that Mr. Stacey and another person (whose name was not disclosed in the evidence) would check out the employees' options by looking into other unions, and that they would get back to the mem­bership at the next meeting of the Local. Mr. Bucella was also asked to look around "to see if there was anything out there". No decision was made on September 7 about whether or not to leave the CPU as Mr. Stacey and others involved in the matter felt that they "still had lots of time" because a company other than Domtar had been chosen as the CPU's target company, negotiations with that target company had not yet begun, and all that had occurred in respect of the Domtar negotiations was "the exchanging of main agendas".

8. The evidence also indicates that the outcome of the election of National officers that was to be held at the CPU convention which was to commence on September 16 was likely to have a bearing on whether employees in the bargaining unit would want to change unions or remain with the CPU. If there was a change in leadership, employees might wish to remain with the CPU, but if the incumbents were re-elected the employees would likely want to get out of the CPU.

9. On Friday, September 13, 1991, Don Snow, the President of CPU Local 309 (at the Compa­ny's Keele Street Plant) telephoned David Forrester, who at that time was the Vice-President of Local 934, to tell him that the National had applied for conciliation. Mr. Snow further indicated that if they wanted to keep their options open they only had until 5:00 p.m. on Tuesday, Sep­tember 17 to get a decertification petition signed and presented to the "Labour Building". Mr. Snow also gave Mr. Forrester the wording of the petition and advised him that employees at other Domtar plants were taking similar steps. Mr. Forrester passed all of that information on to Mr. King, who took the Wording home and used it to type the petition that was subsequently filed with the Board. The heading on the petition, which was typed by Mr. King on the letter­head of Local 934 and addressed to "Labour Building, 400 University Avenue, Toronto, Ontario", reads as follows:

We the undersigned no longer desire or wish to be represented by the Canadian Paperworkers Union as our bargaining agent with our company Domtar Packaging Inc.

13. There are eighty-one signatures on the front of the petition, and twenty-six more on the reverse, which does not contain a heading (or any other wording except those twenty-six signa­tures and the words "President Local 934" which appear after Mr. Stacey's signature). Thus, the petition contains a total of 107 signatures, 101 of which coincide with names on the list of employees filed by the intervener. (As indicated above, on the basis of that list it is common ground among the parties that there were 120 employees in the bargaining unit on the date of this application for purposes of the count.)

14. At the time he typed the petition, Mr. King understood the CPU to be the employees' bar­gaining agent and understood the wording of the petition to be indicating that the employees "want to get out of the CPU". He drew no distinction between the CPU and Local 934 because he thought they were one and the same. He was also of the view that if they got out of the CPU, the employees would find another union to represent them. He viewed the purpose of the peti­tion to be keeping the employees' options open, with one of those options being that of remain­ing with the CPU if the employees wanted to do so. He did not type the petition on Local 934 letterhead for any particular reason, such as to indicate that Local 934 was supporting the peti­tion; he merely used it because it was the only unused paper which he had on hand at the time he typed the petition.

15. Mr. King brought the petition with him to the plant when he reported for work on Sunday, September 15, 1991 for the midnight shift which runs from 11:00 p.m. to 7:00 a.m. During the course of that shift he obtained 27 signatures on the petition by bringing it to the employees at their machines during working hours and explaining to them that the purpose of the petition was to keep their options open. All of the employees working on that shift signed the petition. Some of the signatures were obtained as Mr. King moved around the plant performing some of his duties as a flexo bundler, which include speaking with other employees to obtain instructions about customers' orders and walking through the plant to obtain various sheets and side panels. Others were obtained during periods in which he had temporarily completed all of his duties and was waiting for other employees to finish the work necessary to begin a new run. It is clear from the evidence that it was not unusual for Mr. King to be away from his machine several times during the course of a shift. The only member of management who was present during that shift was Carl Schmidt, who was the foreman on that shift. His desk is located thirty or forty feet away from the machine on which Mr. King is the bundler. Mr. Schmidt does not remain at his desk throughout the shift; he also moves around the plant, which occupies approximately 180,000 square feet. Although Mr. King was not particularly concerned about keeping Mr. Schmidt unaware of the petition, he did not discuss it with him. Moreover, we accept his evi­dence that neither Mr. Schmidt nor any other member of management was present when Mr. King obtained any of those signatures.

16. When Mr. King was not obtaining signatures on the petition he kept it in his back pocket. He put the petition in his locker around 6:30 a.m. (on September 16) and gave it to Mr. Conley about twenty-five minutes later. When he handed Mr. Conley the petition, Mr. King told him that the National had applied for conciliation and that in order to keep their options open to change unions they had to have a petition signed and brought to the Labour Board in Toronto by Tuesday. He asked Mr. Conley to take the petition around to the employees on his shift and then to give it to Mr. Stacey at the end of the shift. This conversation took place in front of their lockers as Mr. King's shift was ending and Mr. Conley's shift was about to begin. Mr. King selected him to circulate the petition on the day shift because he was the shop steward and no one on the Local Executive was working on that shift.

17. During the course of his eight-hour shift, Mr. Conley, who is also a flexo bundler, obtained over forty additional signatures on the petition. Some of the employees heard about the petition and approached Mr. Conley in order to sign it. Others signed when they came to his work sta­tion to resolve work-related problems. However, most of those signatures were obtained by Mr. Conley going over to the employees in their work areas during times when his presence was not required at his own machine, during his breaks, and during times when the duties of his position required him to leave his machine and go to other places in the plant. Mr. Conley told the employees that the National had filed for conciliation and that the only way to keep their options open was to submit a petition to the Labour Board. In response to questions, he also told some of the employees that one of the options was to stay with the CPU, depending upon who was elected at the convention. No member of management was present when any of those signatures were obtained. Only one of the employees whom Mr. Conley approached about sign­ing the petition declined to do so.

18. As requested by Mr. King, Mr. Conley gave the petition to Mr. Stacey when he arrived for work shortly after 3:00 p.m. on September 16. Mr. Stacey had not had very much contact with members of the Local Executive or other employees during the preceding week because he was on the midnight shift and had been absent for several nights due to his son's hospitalization in London as a result of a serious accident. However, he was informed by Mr. Forrester of the National's conciliation application and the decertification petition when Mr. Forrester tele­phoned him late at night on Saturday September 14 or Sunday September 15 from Vancouver, where Mr. Forrester and Dan Richardson (the Treasurer of Local 934) had gone to attend the CPU convention. (Mr. Stacey had planned to attend the convention but was unable to do so because of his son's accident.) Mr. Forrester told Mr. Stacey that it was the President of the Keele Street CPU Local who had advised him of the National's application for conciliation. Mr. Forrester also explained that if they did not get the petition to the Labour Board by 5:00 p.m. on Tuesday, September 17 so as to obtain "a vote amongst all of the employees to see if they really truly wanted to leave the CPU", they would be locked in for the term of the next collec­tive agreement. He told Mr. Stacey that Mr. King would circulate the petition on the midnight shift and then give it to the steward on the day shift, who after collecting signatures on that shift would give the petition to Mr. Stacey, so that he could "look after the 3:00 - 11:00 p.m. shift". Mr. Forrester also indicated that a number of other CPU locals were going to be doing the same thing.

19. After receiving the petition from Mr. Conley, Mr. Stacey obtained a further 38 signatures on it during the course of his shift. The first ten of those signatures were obtained around 3:45 p.m. while the corrugator of which Mr. Stacey is an operator was being repaired by maintenance workers after breaking down. He obtained another signature around 4:45 p.m. when an employee who had heard about what was going on approached him at the corrugator and asked him to sign the petition. The next nine signatures were obtained in the cafeteria just after 5:00 p.m. during supper break. Before they signed their names on the back of the petition, those nine employees were told by Mr. Conley that it was a petition to decertify the CPU, which had applied for conciliation "behind [their] backs" and thereby placed them "under severe time lim­its". He explained that the petition had to be presented to the Board by Tuesday September 17. He also explained that "by signing the document it did not necessarily mean that [they] would be leaving the CPU; it was merely a request to have a vote about leaving the CPU." At least some of those employees read the front of the petition before signing their names on the back of it. The next six people signed at their (and Mr. Stacey's) work station shortly after 7:00 p.m. while awaiting the return of the two maintenance department employees who were working on that shift. Mr. Stacey obtained the next ten signatures by visiting employees at their work sta­tion during his break. All of them read the petition and were provided by Mr. Stacey with an explanation similar to that described above. After signing the petition himself, Mr. Stacey obtained one additional signature by going to see an employee just before the end of the shift. That employee signed the front of the petition (after asking Mr. Stacey if there was any special place to sign and being told "wherever you can find a place to put your signature"). Most of the employees whom Mr. Stacey approached already knew about the petition before he spoke to them. No member of management was present when any of the signatures witnessed by Mr. Sta­cey were obtained. All of the employees whom Mr. Stacey approached concerning the petition signed it, with the exception of three employees who declined to do so.

20. Mr. Stacey returned the petition to Mr. King when the latter reported for work at 11:00 p.m. on Monday September 16. Mr. King put it in his locker and left it there until his shift ended at 7:00 a.m. on September 17. He then brought the petition to his home and, after having breakfast and visiting with his family until approximately 8:30 am., drove to Toronto and deliv­ered the petition to the Board. He subsequently obtained facsimiles of a blank Form 17 applica­tion form and a completed Form 17 application form from Mr. Snow, and used the completed form as a precedent to assist him in filling out the blank form. After typing in the pertinent information on the form and having it signed by himself and Mr. Stacey, Mr. King forwarded it by courier to the Board.

21. The Board went on to reject the various submissions of the CPU that the application should be dismissed, including their assertion that the termination application (or the petition in support thereof) was either employer supported or otherwise not voluntary within the meaning of section 58 of the Labour Relations Act.

22. The representation vote directed by the Board was held on August 12, 1992. Of the 133 persons eligible to cast ballots, 109 did so, and 95 of them marked their ballots against the CPU.

23. No objection to the vote or statement of desire to make representations with respect to it was filed with the Board within the time fixed therefor. Accordingly, by decision dated August 28, 1992, the Board gave effect to the results of the representation vote and terminated the right of the CPU to represent the employees in the bargaining unit with respect to which the termination application had been brought.

24. Subsequently, by letter from counsel dated September 10, 1992 (some two weeks later) the CPU requested a reconsideration of the Board's decision terminating their bargaining rights as follows:

We are writing to you in connection with the above-noted matter.

On or about August 25, 1992 we wrote to the Board requesting that the Board set aside the rep­resentation vote conducted by the Board.

On or about August 28, 1992 the Board rendered a decision terminating our client's bargaining rights.

In view of our position as set out in our letter dated August 25, 1992, we request that the Board reconsider its decision of August 28, 1992 and accept our letter of August 25, 1992 as an Appli­cation in that regard.

Additionally, our client has reason to believe that an Application for Certification may have been filed or is about to be filed covering employees for whom our client previously held bar­gaining rights. In view of our continuing interest we request notice of any such Application.

In the August 25, 1992 letter to which the September 10, 1992 letter refers, counsel had written as follows:

We are the solicitors for the Canadian Paperworkers Union, Local 934 in connection with the above-noted matter.

On behalf of our client we request that the Board set aside the results of the vote and direct the taking a new representation vote. In the alternative in the event that a decision has already issued based on the results set out in the Officer's Report dated August 12, 1992 we request that the Board reconsider its decision, set aside the results of the vote and direct that a new repre­sentation vote be taken. Our reasons for so requesting are premised on the following:

1. Local 934 was placed into Trusteeship in the fall of 1991. Officers of the Local were removed from Office. The Company was notified of the Trusteeship and directed to deal exclusively with the Trustee, Mr. Andre Foucault. The Employer granted time-off with pay to the former Officers of the Local to pursue their Termination Applica­tion, including time-off with pay to attend the Board hearings.

2. During the week of July 27, 1992 following the Board order directing the representa­tion vote, a Company supervisor attended by Mr. David Forrester, a leader of the drive to terminate the bargaining rights of our client, ordered a representative of our client to stop leafletting in the gate area.

3. During the same week the Plant Manager, Mr. Don Leslie, specifically directed rep­resentatives of our client to leave the plant gate area where they were actively compaigning[sic] on behalf of our client.

4. On or about July 30, 1992 representatives of our client were leafletting the plant at the gate. Employees in receipt of leaflets were accosted by Mr. Forrester and other employees as they entered the main plant doors and directed to throw the leaflets in boxes containing such slogans as "CPU propoganda' '[sic] and Marvin's bullshit". Mr. Forrester and the other employees had been granted time-off with pay by the Com­pany to attend at the plant door and ensure the destruction of the leaflets.

5. On or about August 10, 1992 a number of employees who supported the termination drive came out of the plant while on shift to prevent representatives of our client from discussing issues with employees entering the plant. These employees were allowed to leave their jobs in the plant while on shift and to remain off their jobs for an extended period in order to campaign against our client.

6. It is our position that the Employer has supported the Termination Application throughout and in light of the circumstances the vote should be set aside and a new vote ordered.

7. In dismissing this request for reconsideration (by decision dated September 23, 1992), the Board noted that CPU had failed to explain their failure to deliver their August 25, 1992 letter to the Board within the time fixed for making objections or representations with respect to the rep­resentation vote, and further found that there was nothing before the Board which would, in the circumstances, justify granting the request for reconsideration.

8. This application was filed on September 1, 1992. September 10, 1992 was fixed as the

terminal date for the application, the same day that the CPU requested a reconsideration of the Board's decision terminating their bargaining rights.

10. At the November 4, 1992 hearing, the CPU complained that they did not receive notice of this application until September 17, 1992, despite the fact that they had asked for it. Upon receiving notice, they arranged to be represented at a meeting scheduled by a Labour Relations Officer with respect to the application on September 18, 1992. Upon arriving for that meeting, however, they were informed that the application had been "waived" in accordance with the Board's standard waiver procedure and that the meeting had been cancelled. The CPU immedi­ately filed an intervention in which they stated that it was their "position" that the application for certification "should be held in abeyance pending the disposition ... of the ... request for reconsid­eration" in the termination application as aforesaid. The CPU also asserted a "position" that the applicant herein is not a trade union within the meaning of the Labour Relations Act and had received support from the respondent employer, and that the application should therefore be dis­missed.

11. It seems that this intervention, although received by the Board on September 18, 1992, went astray and did not find its way to the certification file until October 2, 1992. Subsequently, the Registrar scheduled the November 4, 1992 hearing to deal with the matter.

12. The CPU submitted that they were entitled to and did not receive timely notice of this application, and that they were entitled to participate in the application on the basis that the CPU's constitution contains provisions which provide that the employees of the respondent in the bar­gaining unit that the CPU had represented until their bargaining rights in that respect were terminated by the Board's August 28, 1992 decision in Board File No. 2256-91-R remained their mem­bers until three months later.

13. A trade union which seeks to intervene in another party's application for certification must establish that it either represents or is the bargaining agent for at least one employee in the bargaining unit which is the subject of that application. However, as the Board observed as long ago as Napev Construction Limited, [1976] OLRB Rep. Mar. 109, a trade union seeking to inter­vene in another party's application must either be the present bargaining agent or hold representational authorization from one or more persons in the bargaining unit. Evidence of repre­sentational authorization upon which a trade union seeking intervener status seeks to rely may be filed subsequent to the terminal date fixed for the application for certification in question. Indeed, it has been the Board's practice to accept such evidence as late as the hearing at which the issue of the right to intervene is dealt with (see for example, Chukini Lumber Company Limited, [1970] OLRB Rep. Apr. 63; Runneymede Development Corporation Limited, [1987] OLRB Rep. Oct. 1305; Les Ingenieries Consbec Inc., [1987] OLRB Rep. Nov. 1402).

14. The bargaining rights which the CPU held with respect to any of the employees in the bargaining unit affected by this application were terminated before this application was filed. The request for reconsideration in that respect was made after this application was made and did not in any way stay the decision terminating those bargaining rights. Consequently, the CPU was not the bargaining agent for any employees of the respondent affected by this application at any material time. In these circumstances, the CPU was not automatically entitled to notice of this application, either pursuant to Board Practice Note No. 8 or otherwise.

15. Further, a constitutional provision like the CPU's does not, by itself, constitute a suffi­cient representational authorization to entitle a trade union to intervene in a proceeding and pur­port to speak for employees to which the constitutional provision purports to apply. That is partic­ularly true in circumstances where, as here, employees have voted overwhelmingly to terminate the bargaining rights of a trade union which alleges that it still represents some or all of those employees solely on the basis of such a constitutional provision, and where there is absolutely no indication that any individual employee affected by this application for certification has even impli­citly authorized it to do so.

16. Further, the CPU failed to explain why their attempt to intervene in this application was made as late as it was. They were clearly expecting an application and do not dispute that the usual Board Notices with respect to the application were posted a full week prior to the terminal date. The CPU's assertion that they received no notice of this application till September 17, 1992 when they received it from the Board, and their failure to intervene in a timely manner suggests that no affected employee alerted the CPU to the application and that no such employee wishes them to represent him/her in that respect.

17. In the result, the majority of the Board was not satisfied that the CPU was either the bargaining agent for or otherwise represented any employee affected by this application for pur­poses of this application. Nor was there any other apparent basis upon which the CPU had a right to intervene or participate in the application. The intervention was therefore dismissed as afore­said.

DECISION OF BOARD MEMBER BROMLEY L. ARMSTRONG; November 27, 1992

1. I dissent.

2. I would have given status to Canadian Paperworkers Union and its Local 934.