[1993] OLRB Rep. August 783
1347-93-M Retail, Wholesale and Department Store Union, Canadian Service Sector Division of the United Steelworkers of America, Local 414, 422, 440, 461, 1000 and the Retail, Wholesale and Department Store Union, Canadian Service Sector Division of the United Steelworkers of America, Applicants v. New Dominion Stores, a division of the Great Atlantic and Pacific Company of Canada, Limited, Responding Party v. Retail, Wholesale and Department Store Union, AELCIO-CLC and its Local affiliate Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Local 414, 429, 545, 579, 582 and 915, Intervenors
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. N. Fraser and B. L. Armstrong.
APPEARANCES: James K. A. Hayes, David W. T. Matheson, Paula Turtle, Thomas Collins, Dan Garvey and Harry Hynd for the applicant; Charles R. Robertson, John R. Peardon and Chris MacDonald for the responding party; Chris G. Paliare, Nick Coleman, Barbara Hillman and John Monger for the intervenors.
DECISION OF THE BOARD; August 12, 1993
I
This decision concerns an application for "interim relief" in a proceeding before the Board that is scheduled for hearing "on the merits", beginning August 9, 1993. It involves the way in which employees are to be represented, and the way in which the parties are to conduct themselves, while their case is before the Board.
In order to make this decision easier to read, we will sometimes refer to the parties in abbreviated form. The United Food and Commercial Workers International Union will be referred to as the UFCW. The United Steelworkers of America will be referred to as "the Steelworkers". The Retail, Wholesale and Department Store Union, AFL-CIO-CLC will be referred to as "RWDSU". Where we wish to refer only to the parent American organization, we will refer to "RWDSU International". Geographically defined "local" unions, which are (or were) affiliated to RWDSU, will be referred to simply by their local number (e.g. RWDSU Local 414). New Dominion Stores, a division of the Great Atlantic and Pacific Company of Canada, Limited will be referred to as "New Dominion/A & P" or "the employer".
The provisions of the Labour Relations Act to which reference will be made are as follows:
2.1 The following are the purposes of this Act.
To ensure that workers can freely exercise the right to organize by protecting the right of employees to choose, join and be represented by a trade union of their choice and to participate in the lawful activities of the trade union.
To encourage the process of collective bargaining so as to enhance,
(i) the ability of employees to negotiate terms and conditions of employment with their employer.
(ii) the extension of co-operative approaches between employers and trade unions in adapting to changes in the economy, developing work force skills
and promoting workplace productivity, and
(iii) increased employee participation in the workplace.
To promote harmonious labour relations, industrial stability and the ongoing settlement of differences between employers and trade unions.
To provide for effective, fair and expeditious methods of dispute resolution.
63.- (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.
92.1-(1) On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.
(2) A party to an interim order may file it, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.
II
- On July 13, 1993, the Board received a successor rights application, filed under section
63 of the Labour Relations Act. The purpose of that application is to determine which of several
competing unions now represents several thousand employees working at New Dominion/A & P
stores in Southern Ontario.
Shortly thereafter, the Board received a related unfair labour practice complaint. That complaint, too, involves the activities and rights of the competing unions.
In these various proceedings, each of the trade unions makes allegations about the behaviour of the others, and about its own rights under the Labour Relations Act. Each union urges the Board to rule in its favour, and declare that it represents the employees mentioned above. Each union urges the Board to find that the opposing union has acted improperly.
However, the unions were unable to agree among themselves about how they should conduct their day-to-day affairs while the Board was dealing with their various assertions. Accordingly, on July 29, 1993 the Board made the following interim order:
DECISION OF THE BOARD; July 29, 1993
Applications have been filed with the Ontario Labour Relations Board to determine which trade union now represents employees working at a number of New Dominion/A & P stores in Southern Ontario.
More than one trade union now claims to represent those employees.
The applications raise legal and practical problems which cannot be easily resolved on a short-term, interim basis.
On the other hand, a bearing in this matter is currently scheduled to begin before the Board on August 9, 1993. That proceeding is expected to take several days, and will decide, among other things, which union is now entitled to represent the employees.
The employer and the various unions all submit that it is important that the employees' right to representation not be prejudiced while this case is being considered by the Board.
The employer stresses the importance of its being able to carry on business as usual, so that this dispute between trade unions does not interfere with the interests of the employer or the employees.
All parties agree that uncertainty is undesirable. Despite the dispute between unions, employees should know whom to approach for help if they have an employment problem.
But the union parties are unable to agree among themselves on any interim arrangement so employees may be fairly assured of union assistance in their dealings with their employer, should they require such assistance over the next few weeks.
On July 23, 1993 and July 27, 1993 the Board held a hearing to consider whether it should impose some interim arrangement governing the employer's labour relations while the case is before the Board, and, if so, what that arrangement should be. The various unions and the employer were all represented by lawyers and made submissions about whether an interim arrangement was appropriate, and what such arrangement might be.
Having heard the parties' submissions, the Board orders that:
(1) Until the Board determines which trade union has bargaining rights for and is entitled to represent the employees of New Dominion/A & P stores in its Southern Ontario stores, and unless the Board otherwise directs, the employees at each store will continue to be represented in their dealings with their employer by the individual union representative(s) who customarily dealt with their employment problems prior to July 10, 1993.
(2) Until the Board determines which union has bargaining rights and is entitled to represent the employees of New Dominion/A & P stores in its Southern Ontario stores, the employer's local store managers and other managerial personnel may continue to deal with the individual union representative(s) with whom they have customarily dealt in respect of employer-employee matters prior to July 10, 1993.
The Board wishes to make it clear that in making this interim order, it is not indicating a preference or support for any of the trade unions involved. The Board's concern is to preserve orderly labour relations until the dispute between the trade unions is resolved.
Finally, the Board directs that copies of this decision be provided to all of the company's store managers and that it be posted, immediately, in each store, where it will most likely come to the attention of the employees.
In this decision we will set out our reasons for making that interim order, and for not making any further direction.
It will be convenient to begin with an outline of the way in which these competing union claims have arisen.
III
The Steelworkers, the UFCW, and the RWDSU are all "international" unions, with headquarters in the United States, and a significant number of Canadian members. Each of these unions is subdivided into "local" unions, which are subordinate to their "parent" international body (e.g. RWDSU, Local 414). The affairs of the RWDSU and the Steelworkers are governed by their respective international Constitutions. RWDSU "local" unions have their own local by-laws which govern their local affairs.
New Dominion/A & P operates a chain of retail food stores in Ontario. New Dominion/A & P has collective bargaining relationships with both the UFCW and the RWDSU.
Until recently, New Dominion/A & P has been able to deal with RWDSU or its affiliated locals without having to worry about which of them had bargaining rights for its employees. As long as there was peace within the union family, no one had to consider whether, as a matter of law, bargaining rights were held by with the parent union, or the constituent local(s). Collective bargaining could proceed and collective agreements could be signed without precise identification of the employees' bargaining agent.
However, in these proceedings, the union parties debate whether the employer's collective bargaining relationship is with the RWDSU (International), or with the various geographically defined locals of the RWDSU, or perhaps some combination of the RWDSU and its locals.
We might also note that Article 10 of the most recent (1990-92) collective agreement provides that employees working at the employer's retail food stores must become members of "the union" as a condition of employment. Compulsory membership requirements such as this are permitted under section 47 of the Labour Relations Act. The union, as statutory bargaining agent, is entitled to negotiate an arrangement which requires membership in the union organization. But again: which union is the bargaining agent which the employees must join?
The UFCW and the RWDSU both represent employees in the retail sector, and for the last couple of years, there have been ongoing discussions between them about merging the two organizations into a single union. In April 1993, those discussions culminated into a formal merger agreement, whereby the RWDSU and the UFCW could eventually become one union. We say "could" because the merger agreement provides rather elaborate procedures for effecting the amalgamation, as well as a procedure for cancelling the merger within the next four years.
The details of these arrangements need not be set out here. It is sufficient to sketch in an overview of what was to happen.
The merger agreement contemplates separate and different ratification procedures for the Canadian and American sections of the RWDSU. As we understand it, based upon the material before us, the procedure for the American section of the union, involves a vote of delegates from the American affiliated locals at a meeting that was to be held in Pittsburgh on June 12, 1993. A majority of the delegates voting at the Pittsburgh meeting would bind all of the U.S. affiliates to merge (or not) with the UFCW. The American locals would either remain with an independent RWDSU, or merge with the UFCW as a block.
It appears that there were different arrangements prescribed for the affiliates in Canada. Delegates from affiliates in Canada were also invited to convene a meeting and vote for or against the proposed merger with the UFCW, and it is asserted that if a majority of the Canadian delegates rejected the proposed merger, each of the Canadian affiliates would be deemed to have disaffiliated from the RWDSU effective October 1, 1993.
The vote of approval, or disapproval and deemed disaffiliation, was not dependent upon the outcome of the American vote. In this sense, the Canadian group was entitled, as a group, to choose its own destiny. However, the merger agreement also provided that any Canadian affiliate of the RWDSU could opt to be bound, in advance, by whatever the American majority decided - provided the Canadian affiliate exercised that option before the Americans voted on June 12, 1993. In effect, individual locals also had the option to remain affiliated with the RWDSU, whether it ultimately merged with the UFCW, or remained a separate entity. Locals embracing this alternative did not have to choose disaffiliation. For example, a major local in Northern Ontario chose this local option as a result of a referendum of its local membership, and therefore bound itself to follow the American locals into the UFCW.
On June 12, 1993 the American delegates voted to approve merger with the UFCW. As a result of this vote, all American locals and some Canadian locals (i.e. those who had exercised the local option mentioned above) were committed to merge with the UFCW. That merger was to become effective on October 1, 1993.
On July 10, 1993 delegates from other Canadian locals held a meeting in Toronto, and voted not to approve the UFCW merger. By that vote, these dissenting Canadian locals were launched on a path leading to disaffiliation from the RWDSU, so long as the disaffiliating locals provided indemnification, and otherwise took the confirmatory steps prescribed in the merger agreement. If this was done, the dissenting locals would be independent, they would assume certain rights and responsibilities formerly held by the RWDSU, and they would receive a share of the property, funds, and assets situated in Canada. For example: Article 16(e)(4) of the merger agreement reads:
Upon disaffiliation, each disaffiliating Local Union, Joint Board and Joint Council shall assume all responsibility and liability in connection with its collective bargaining agreements and indemnify and hold harmless the RWDSU and all RWDSU affiliates and their respective officers, agents and employees and UFCW and all UFCW chartered bodies and their respective officers, agents and employees from any claim or liability, including reasonable attorneys' fees, arising therefrom, and will by their appropriate officers execute a binding written document embodying this indemnity agreement.
There were other stipulations concerning such matters as pension funds which had previously been administered by RWDSU. Again, the details need not be reproduced here.
In these proceedings, the RWDSU (International) submits that the merger agreement is the only route which could lead to disaffiliation from the parent organization in a way that could be sanctioned under the RWDSU International Constitution. The merger agreement provides an opportunity for disaffiliation which is not otherwise available under the RWDSU Constitution, but, that being so, it is necessary to adhere to its terms strictly.
The parent RWDSU submits that if the dissenting locals had properly followed the mechanism provided in the merger agreement and the union Constitution, there would be no cause for controversy. As at October 1, 1993 they would be independent from the parent organization, and they would have an equitable share of the assets and liabilities, rights and responsibilities formerly held by the parent union. But in counsel's submission, they did not follow the terms of the merger agreement, or the terms of the International Constitution by which they were bound. Nor did they or could they disaffiliate prior to October 1, 1993, the date mentioned in the merger agreement.
The dissenting locals reply that those merger arrangements would not have produced an independent unified Canadian organization if locals opted not to merge with the UFCW; and, in any event, the parent international was not intending to act in good faith in the months preceding October 1993. The dissenting locals (now aligned with the Steelworkers) assert that the International proposed to use its powers under the International Constitution to subvert the true intent of the merger agreement, and to steer the disaffiliated locals in the direction of the UFCW. The dissenting locals assert that it was necessary for them to take pre-emptive action to create a unified Canadian presence. And that (they say) is what they did.
As we have already noted, on July 10, 1993 delegates from a number of Canadian locals voted not to merge with the UFCW - thereby, it would appear, opting to disaffiliate from the RWDSU. The following day, those same delegates met again, and purported to create a reconstituted union organization called "RWDSU Canada", with its own Constitution and officers. The delegates then purported to affiliate their RWDSU locals to that new organization: "RWDSU Canada". Finally, "RWDSU Canada", in turn, purported to merge with the Steelworkers, to become a part of or associated with that international union.
As a result of these transactions, the applicant(s) contends that the dissenting locals have become part of the Steelworkers' organization (as a retail division of the Steelworkers), and the Steelworkers have acquired the right to represent the employees in the New Dominion/A & P Food stores formerly serviced by the dissenting locals. Those former members of the RWDSU have now (or now must) become members of the Steelworkers.
It is easy to say that the Locals scheduled for disaffiliation in October 1993 have found a new "home" in the Steelworkers' union and should not be "penalized" for moving early; however, the actual legal effect of these various transactions is at the heart of the current controversy between the union parties, and will be the subject of a Board hearing that is to begin on August 9, 1993. For present purposes, we should only note that in the material before us, there was no mention of any immediate challenge to the seating or credentials of the delegates attending the Canadian affiliates' meeting on July 10, 1993, nor was there any immediate quarrel with their right to vote against the UFCW merger and consequently in favour of disaffiliation from the RWDSU. But there is a challenge to the creation of "RWDSU Canada", and its subsequent merger or association with the Steelworkers - none of which, the RWDSU contends, could properly be done in July 1993 under the terms of the merger agreement or the International Union Constitution.
Essentially, then, the Board is being asked to determine the propriety and effect under the Labour Relations Act, of these Constitutional manoeuvres by the dissenting Canadian locals and the parent internationals. But to complicate things a little, the Board also has before it a declaration from a member and employee of RWDSU, Local 414, stipulating that the UFCW merger agreement was never properly put to the members of the local union prior to the selection of delegates for the July 10 meeting, nor were the members ever given a proper opportunity, as required by the by-laws of Local 414, to consider a merger with the Steelworkers' organization. That individual further stipulates that when he pointed out the requirement of the Local by-laws for a special membership meeting to address such issues, he was told that no meeting of members would be held because it would cause problems. Finally, the Board has before it petitions signed by a number of employee members of RWDSU locals indicating, among other things, that they do not wish to be members of any division of the Steelworkers. On this interim motion, those declarations have not been tested through cross-examination or otherwise.
Nor did the parent RWDSU (International) remain passive while these steps were being taken by the dissenting locals. Its actions are also part of the legal and factual mix, and prompted the unfair labour practice complaint mentioned above.
As a result of the events of July 11 (i.e. the purported creation of "RWDSU Canada", the merger with the Steelworkers, etc.), the RWDSU International (the parent union) took the position that the dissenting locals were in breach of both the merger agreement, and the International Union Constitution by which they were bound. RWDSU International, therefore, moved under the RWDSU Constitution, to put those dissenting locals under "trusteeship", suspending their autonomy, removing the authority of their officers, and freezing the assets and bank accounts. RWDSU International advised employers, banks, and other affected parties that, henceforth, the affairs of the RWDSU in Canada would be handled by either a trustee geographically located in New York, or officials from Northern Ontario or other locals who were accompanying the RWDSU into the UFCW. In other words, the affairs of the dissenting locals would be handled by the parent International Union or those Canadian locals which were in agreement with the International's wish to merge with the UFCW.
The RWDSU International asserts that this action is permitted under the Constitution and is necessary to rectify or redress massive violations of the Constitution by the officers of the dissenting locals, who had no right under the Constitution and no authority from the membership, to take the steps they have taken. The applicants (being the dissenting locals, in association with the Steelworkers) contend that the actions of the parent RWDSU International would have taken place in any event and merely demonstrate the power that it could wield to cripple the disaffiliating locals and steer them towards the UFCW. The applicants argue that the actions of the parent, RWDSU International, contravene various sectors of the Labour Relations Act.
As part of what is described as the "political manoeuvring" of the applicants, it is alleged that a number of the actual individuals who serviced the members' needs in the geographic areas represented by the dissenting locals, have quit their employment with the RWDSU and have become employees of the Steelworkers. This leaves the RWDSU International and/or the trustee, without sufficient personnel to service the needs of these local members, because a number of the individuals who have historically done so, have gone over to the rival organization(s). To meet this challenge, the RWDSU International proposes to bring in union representatives from Northern Ontario locals who have opted to merge with the UFCW, as well as to "borrow" a number of union representatives currently employed by the UFCW.
We are therefore left with a curious situation in which, we are told, the collective bargaining needs of employees in the dissenting locals should be looked after either by a group of individuals familiar with them but now employed by the Steelworkers, or, alternatively, by a group of individuals drawn from other local unions or from the UFCW.
The employer takes no position on these competing union claims. The employer points out that it has collective bargaining relationships with several of the protagonists, and wants only to remain neutral. The employer submits that it is now "caught in the middle" between rival unions.
The employer submits that while Constitutional niceties and questions of bargaining rights are being debated between the contending unions, the employer should be entitled to carry on business as usual - including its ordinary labour relations activities. The employer submits that it should not have to choose between rival union representatives who appear at its stores claiming to represent the employees, nor should it have to risk its legal neutrality by seeming to defer to the demands of one or other of the competing groups. The employer urges the Board to prescribe some interim arrangement, preserving the status quo and orderly labour relations until these matters can be formally adjudicated (i.e. for several weeks).
The competing unions also urged the Board to prescribe the "status quo", in the interests of the members, and pending adjudication of their rights. But the unions define that "status quo" in their own way and in their own interest.
The Steelworkers and the dissenting locals wish to leave in place the representatives who have serviced the members before, but who, of course, may have now declared their loyalty to, and become employed by, the Steelworkers' organization. RWDSU International urges the Board to respect the processes prescribed in the International Union Constitution which, it says, defines the status quo that has been violated by the dissenting local officers. Counsel for RWDSU International refers the Board to the decision of the Court of Appeal in Astgen, et al, v. Smith, et al, 1969 CanLII 488 (ON CA), [1970] 1 O.R. 129, and urges the Board not to depart from its expressed reluctance to interfere in internal union affairs. In counsel's submission, to tell the RWDSU who could represent its members on an interim basis - indeed, to direct that they be represented by employees of another union would amount to a serious and unwarranted interference with the rights of the RWDSU established in its Constitution. It would reward the dissenting local officers for their own Constitutional misconduct, and would lead to the disruption of settled collective bargaining relationships.
RWDSU International also urges the Board to order a secret ballot vote to determine whether or not the members in Southern Ontario really do wish to be represented by the Steelworkers. RWDSU International indicates that it would be quite content to abide by a vote of the membership on that question because, in its submission, the members have never been properly consulted on that course of action.
The applicant union(s) reply that it is not so easy to frame the question(s) to be put to those employees in a representation vote - not least because of the confusion about who now has bargaining rights; moreover, the possibility, or form, of a representation vote is best left to the hearing on the merits, which is to begin on August 9, 1993. A vote at this time would be premature and unnecessarily disruptive.
IV
The legal and labour relations problems posed by this case are quite unusual, and seems to involve a mixture of public and private law which the Board has seldom been called upon to consider. The Labour Relations Act is primarily concerned about institutional collective bargaining relationships - the trade union in its role as statutory bargaining agent. The Statute does not purport to regulate internal union affairs, nor does it prescribe any general code of "democratic practice" (see: CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association, 1972 CanLII 563 (ON CA), [1972] 2 OR. 498). Indeed, the Statute is exceedingly (and we think intentionally) sparse in respect of such matters, leaving them to be determined, for the most part, in accordance with the union's Constitution. It is the union Constitution which prescribes the rights of members within that organization, eligibility for office, elections, dues levels, property rights and so on; and where the Statute does provide a platform for potential intervention (the duty of fair representation, for example), the Board has been careful not to intrude upon internal union matters not covered by the statutory duty.
On the other hand, the "club" or "private-contract model" of trade unionism discussed in Astgen v. Smith, supra, is not a complete answer either; nor does it fully capture the statutory dimension of trade unionism, or the array of statutory rights and responsibilities exercised by a modern trade union under the Labour Relations Act. For the fact is, a trade union is not a voluntary organization like a club or a church, held together by some notional "common-law contract" between the members. Not untypically (as in this case), membership is not a matter of voluntary contract, but is required as a condition of employment by virtue of a collective agreement whose existence and attributes depend primarily, if not entirely, upon the Statute; moreover, the trade union acquires and retains the status of bargaining agent for employees, who become its members, in accordance with that same Statute.
In this sense, the union is not a wholly private organization. It receives statutory support in order to facilitate the statutory objectives spelled out in Article 2.1 of the Act and it has a variety of statutory rights and responsibilities. And, of course, bargaining rights do not depend upon the continuing support of the very employees (members or not) who first established the union's status as bargaining agent, nor does the union exercise those bargaining rights solely in respect of its members, nor does the continuation of its exclusive bargaining agency depend solely on the union's Constitutional arrangements.
The problems posed in this case involve a mix of public and private law, as well as a mix of private interests and public policy considerations. And they are not easy questions to answer when "private" Constitutional re-arrangement may have statutory or public law consequences.
V
However, in this interim decision, we do not have to come to any final conclusion about either the Constitutional correctness of the steps the union parties have taken, or the relationship between those steps and the parties' rights and responsibilities under the Labour Relations Act. The above remarks are only intended to describe the nature of the problem. For present purposes, we need only decide, as we do, that there is a legitimate representational dispute between the union parties which must be decided by this Board, and which can only be decided by this Board which has the exclusive jurisdiction to apply the terms of section 63 of the Act to the facts at hand. To put the matter another way: in a statutory regime which depends upon the identification of an exclusive bargaining agent for a defined group of employees, it is the Board which must ultimately determine who that bargaining agent is, when competing unions make that claim; and for present purposes, this panel need only decide whether some interim order is desirable pending a resolution of these questions.
All of the union parties in this matter point to their history of representing employees in Ontario. All of the union parties assert that the interests of the employees are important and should not be prejudiced while the legal controversy is being decided by the Board. All of the union parties assert that they are ready, willing and able to represent the employees working in the employer's food stores in Southern Ontario while the case is before the Board. And, no doubt they are. But none of the unions is able to agree on how this can be done, and each asserts that the others will take "political advantage" of any interim arrangement which leaves its partisans in place, with preferred access to the members whose loyalties they seek to win; moreover, in the absence of either an agreement between the unions, or a Board-imposed arrangement, the employer is left to cope with these competing claims on a day-to-day basis in some one hundred food stores, while the employees will be uncertain about whom to turn to if they have an employment problem. That is not a desirable state of affairs from the perspective of either the employer or the employees who, in some sense, are both "third parties" to this controversy between unions. Nor is it congruent with the concept of an exclusive bargaining agent, which is an integral part of the statutory scheme, and is designed to avoid problems of this kind.
We are not entirely sanguine about intruding into the internal affairs of a trade union; for there is much to be said for Mr. Paliare's submission that this is an unusual course of action. Nevertheless, we are satisfied that it is in the interests of the employer and the employees that the status quo as at July 10 be maintained until the case before the Board can be completed (i.e. a few weeks). And that is the interim order that we made pursuant to section 92.1 of the Act.
The "status quo" that we are preserving is essentially the situation which obtained prior to the events which have now given rise to controversy; and, if we take the RWDSU International at its word, it is also the situation which would have prevailed after October 1, 1993, if the dissenting locals had quietly disaffiliated in accordance with the terms of the merger agreement, with their officers and employees intact. Most important, though, this "status quo" maintains the historical and continuing personal relationship which union representatives had with store managers and with the employees at the stores which they serviced. In our opinion, those are the representatives who are most likely to be familiar with and able to address any employment problems which arise over the next few weeks, and who are best able to deal with the store managers in the locations where such problems arise.
In making this interim arrangement, we recognize that partisans left in place may be tempted to exploit their position for political purposes. But that is likely to be the case whichever union is able to put its loyalists into the workplace, with preferred access to the members whose support they seek to win. In the unusual context of this case, it is not very helpful to try to compare the relative harm to the union parties (which in any case seems evenly balanced), and there is little that the Board can do about these union politics, other than to assure employees that it takes no position as between the contending unions. And, of course, as in many political situations, the individuals affected are perfectly capable of assessing the motives and merits of the competing “politicians". Meanwhile, we think it is important that employees be assured of continued representation, if they need it, by persons familiar with the stores in which they work, and it is important that the local store managers know who they may deal with over the next several weeks.
In our opinion, the best (albeit imperfect) way to accomplish these latter objectives, to balance the competing interests, on a short-term basis, and to promote harmonious labour relations, industrial stability and effective dispute resolution, is with the interim order set out above.
That said, we do not think that it is necessary or desirable at this time to make any other interim order. The Board has no general mandate to settle internal union questions concerning the ownership of union property, the relationship of a union with its own employees, eligibility for office, or the "abuse" of union office under the union Constitution, and so on. We therefore make no direction with respect to any of these matters. To the extent that they are relevant or must be understood to evaluate the behaviour under review, they can be addressed in the course of the proceeding on the merits, which begins before another panel of the Board on August 9, 1993.