Canadian Union of Professional Security-Guards v. Meadowvale Security Guard Services Inc., 1993 CanLII 7871

[1993] OLRB Rep. December 1340

2084-93-R Canadian Union of Professional Security-Guards, Applicant v. Meadowvale Security Guard Services Inc., Responding Party v. The Christian Labour Association of Canada (CLAC), Inter'venor

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.

APPEARANCES: E. C. Carla Zabek and James A. Whyte for the applicant; John Hughes for the responding party; Ron Rupke and Ed Bosveld for the intervenor.

DECISION OF THE BOARD; December 1, 1993

1. This is an application for certification filed with the Board on September 23, 1993 ("the certification application date"). The application is in respect of employees who are essentially employed as security guards at a condominium location in Richmond Hill, Ontario.

2. On the certification application date the security guards at that location were employed by either York Regional Condominium Corporation 645 or Ontario Guard Services Inc.

3. On October 6, 1993 Meadowvale Security Guard Services Inc. ("Meadowvale") acquired the contract to provide security services at the condominium location and became the new employer of the employees employed as security guards at that location.

4. Meadowvale has a collective agreement with the Christian Labour Association of Ontario ("CLAC"). That collective agreement is effective from September 1, 1993 to August 31, 1996. The recognition clause of that collective agreement refers to a bargaining unit which appears to include the employees at the condominium location. The recognition clause states:

ARTICLE 2- RECOGNITION

2.01 The Employer recognizes the Union as the sole bargaining agent of all employees in the bargaining unit as defined in Article 2.02 and as classified in Schedule "A" attached hereto and made part hereof.

2.02 (a) This Agreement covers all persons employed on all sites outlined in Sched­ule "B", save and except Patrol Supervisors and persons above the rank of Patrol Supervisor, dispatch personnel, Head or Branch office personnel employed as Managers, Client Service Representatives, sales staff, accounting and payroll staff, office and clerical staff.

(b) Any new sites obtained by the Employer shall be added to Schedule "B", effective on the date on which the Employer enters into a contract with a client to provide services for that site.

(c) Any sites currently operated by the Employer shall be added to Schedule "B" at such time when the Union has been chosen as bargaining agent by a majority of employees on that site.

5. An application pursuant to the successor employer provisions of the Labour Relations

Act (section 64 of the Act) had not been filed by any party prior to the hearing of this matter on

November 8, 1993.

6. Representatives of Meadowvale and the applicant union ("CUPSG") participated in the Board's usual telephone waiver process. During the course of that process these two parties agreed that the correct name of the responding party was "Meadowvale Security Guard Services Inc." and agreed upon the following bargaining unit description:

all security officers of Meadowvale Security Guard Services Inc. employed at 326 Major Mac­Kenzie Drive East in the Town of Richmond Hill, save and except patrol supervisors and per­sons above the rank of patrol supervisor.

Representatives of CLAC did not participate in that telephone waiver process.

7. As the parties could not agree upon the status of CLAC to participate in this certifica­tion application and could not agree upon the effect, if any, of the collective agreement between Meadowvale and CLAC, the matter proceeded directly to hearing. More specifically, an issue arose as to whether that collective agreement constituted a bar to the certification application filed by CUPSG.

8. At the hearing counsel for the CUPSG asserted that the collective agreement between CLAC and Meadowvale did not act as a bar to the certification application because on September 1, 1993 (when the collective agreement became effective) and on September 23, 1993 (when the certification application was filed) Meadowvale was not the employer of the affected employees. Counsel for the CUPSG therefore requested "a certificate indicating that the [CUPSG] is the exclusive bargaining agent of the affected employees as of the date of our application for certifica­tion" because CUPSG had demonstrated it had more than fifty-five per cent support in the agreed-upon bargaining unit. Counsel submitted that by virtue of the successor employer provisions of the Act (and in particular section 64(2.1)), Meadowvale "steps into the shoes" of the predecessor employer and became the correct respondent in the certification proceedings. In addition, counsel argued that CLAC had no status to intervene in these proceedings as it did not represent any of the affected employees, was not the bargaining agent of such employees on the certification applica­tion date and had not filed any membership evidence on behalf of such employees.

9. Although the CUPSG's primary position was that the collective agreement between Meadowvale and CLAC was irrelevant, it asserted in the alternative that the collective agreement was not valid by reason of section 49 of the Act. Moreover, insofar as the collective agreement referred to future sites and future employees, the collective agreement constituted a voluntary rec­ognition agreement of a bargaining unit which CLAC was not entitled to represent as it did not have majority, or any, support within that bargaining unit (see section 61(1) of the Act). CUPSG submitted that CLAC and Meadowvale ought therefore to be put to the strict proof of their collec­five agreement and CLAC's entitlement to represent the employees within this "expanded" bar­gaining unit.

10. Meadowvale was not represented by counsel at the hearing. Mr. John Hughes spoke on behalf of the corporate entity and took no position with respect to the status of CLAC to intervene in these proceedings. He submitted that the collective agreement was a valid collective agreement entered into after CLAC had been certified to represent several of the sites at which Meadowvale provides security services. The purpose of the broad recognition clause was to avoid future prob­lems relating to "the intermingling of employees at sites" in the event Meadowvale acquired con­tracts to provide services to other sites. Some of the security guards employed by Meadowvale

move from site to site and Meadowvale wished to avoid the "administrative nightmare" which would result if employees were subject to a collective agreement at one site and not another. In a similar vein, Mr. Hughes expressed concern that he would prefer employees to be represented by a single trade union, not by different trade unions. Neither did he wish employees to be covered by different collective agreements depending on the site at which they worked at any particular time. It was his further position that it was up to the employees to choose which union they wished to have represent them, that he would abide by their wishes, but that he preferred to have "one union throughout the company". Mr. Hughes emphasized he had no preference whether that union was CLAC or CUPSG.

11. It was not disputed by the representatives of CLAC that as of the date of application by the CUPSG it was not entitled to represent any of the employees in the agreed-upon bargaining unit. Its interest in the employees and the site however, arose when Meadowvale acquired the con­tract and became the employer of the employees affected by this application. Although it had no interest or status in these proceedings when the responding party was York Regional Condomin­ium Corporation 645 or Ontario Guard Services Inc., once Meadowvale became the employer of the employees and, through application of section 64 of the Act the responding party to this certifi­cation proceeding, CLAC acquired an interest in the proceedings and by virtue of its collective agreement status to intervene. It was submitted that, although CUPSG can, or could have been certified with respect to the employees of York Regional Condominium Corporation 645 or Ontario Guard Services Inc., once CUPSG agreed that Meadowvale became the respondent, it had to consider the collective agreement between CLAC and Meadowvale.

12. The substance of the argument of CLAC is that with Meadowvale as a respondent comes Meadowvale with a collective agreement already in place. It was the position of CLAC, however, that the wishes of the employees with respect to choosing a trade union to represent them was significant. The CLAC representative therefore advocated that a run-off vote between the two unions be conducted to determine the wishes of the employees (a position opposed by CUPSG).

13. There are a number of issues which arise as a result of the facts surrounding this appli­cation. There is merit to each of the parties' positions. It is our view, however, that the issues raised by these facts can only be properly addressed by the parties and, in the absence of agree­ment amongst them, can only be properly adjudicated by the Board in the context of a successor employer application. In particular, it is our view that the range of remedies and powers available to the Board to address the issues raised by the parties can only be found in the successor employer provisions.

14. In our view, in the context of this certification application, the ability of the Board to fashion an appropriate result (and one which makes labour relations sense) is somewhat circum­scribed. For example, if the Board were to accept at face value the assertion that the correct respondent was Meadowvale and were to accept at face value the agreed-upon bargaining unit description reference to "employees of Meadowvale" without looking at any of the surrounding circumstances and the application of the successor employer provisions, the Board might conclude that the application for certification should be dismissed because, on the certification application date, Meadowvale did not have any employees in the bargaining unit (see section 8 of the Act). On the other hand, if Meadowvale is the employer, and by reason of the successor employer provi­sions the employer of the employees in the bargaining unit on the certification application date, the effect of its collective agreement with CLAC and the challenges to the validity of that collective agreement raised by CUPSG must be considered. Similarly, in the context of the present certifica­tion application, the Board could not, in our view, address the intermingling concerns raised by Meadowvale. In our view, there may also be an issue as to whether the Board has the jurisdiction to direct the taking of such a two-way representation vote in the context of this certification appli­cation. In addition, it must be recalled that employees at the Condominium location have only been given notice of CUPSG's certification application. In the face of that notice, it would be sur­prising indeed if they were now asked instead to choose between two competing unions.

15. In all of the circumstances, the Board has determined that it should not consider this certification application further until a successor employer application pursuant to section 64 of the Act is made by either CUPSG, CLAC, Meadowvale or any other interested person. Through the filing of an application under section 64 of the Act, not only will notice be given to all employees affected by that application and the certification application, but the Board can then address the various issues and disputes raised as a result of the circumstances and can deal with these matters from a perspective that makes labour relations sense.

16. This panel is not seized with this matter.