Short v. Retail, Wholesale Canada, 1994 CanLII 9845

[1994] OLRB Rep. July 891

0834-94-R; 0835-94-R Primrose G. Short, Applicant v. Retail, Wholesale Canada, Canadian Service Sector, Division of the United Steelworkers of America, Locals 414, 422, 440, 448, 461, 483, 488, 1000, 1688, Responding Party; Claudette A. Williams, Applicant v. Retail, Wholesale Canada, Canadian Service Sector, Division of the United Steelworkers of America, Locals 414, 422, 440, 448, 461, 483, 488, 1000, 1688, Responding Party.

BEFORE: M. Kaye Joachim, Vice-Chair, and Board Members F. B. Reaume and E. G. Theobald.

APPEARANCES: Primrose Short and Lois Barclay for the applicants; Robert McKay and Jim Waters for the responding party.

DECISION OF M. KAYE JOACHIM, VICE-CHAIR, AND BOARD MEMBER, F. B. REAUME; July 12, 1994

1. The style of cause is amended to reflect the correct name of the responding party: "Retail, Wholesale Canada, Canadian Service Sector, Division of the United Steelworkers of America, Locals 414, 422, 440, 448, 461, 483, 488, 1000,1688".

2. These applications are brought pursuant to section 58 of the Labour Relations Act. The applicants request declarations that the responding party no longer represents the employees in the bargaining units for which it is currently the bargaining agent.

Background

3. The responding party (also referred to as "the union" or "Retail, Wholesale Canada") has held collective bargaining rights for the employees at Pharma Plus Drugmarts Ltd. in Orangeville for both full-time and part-time employees since July 7, 1981.

4. In the most recent collective agreements, the recognition clauses for the full-time and the part-time bargaining units are described as follows:

Full-Time Recognition Clause Orangeville

(1) The Company recognizes the Union as the sole collective bargaining representative for all its Full-Time employees at its Pharma Plus Drugmart Store in Orangeville, Ontario, save and except Store Manager and Assistant Store Manager, persons above the rank of Assistant Store Manager, pharmacists, intern pharmacists and apprentice pharmacists, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.

(2) A person classified as a management trainee is a member of the bargaining unit until such time as the Company advises the Union that the trainee has successfully completed his training which shall be done within a period up to twelve (12) months.

Part-Time Recognition Clause Orangeville

(1) The Company recognizes the Union as the sole collective bargaining representative for all its Part-Time employees at its Store in Orangeville, Ontario, regularly employed for not more than 24 hours per week and students employed during the school vacation period, save and except pharmacists, intern pharmacists and apprentice pharmacists.

(2) A person classified as a management trainee is a member of the bargaining unit until such time as the Company advises the Union that the trainee has successfully completed his training which shall be done within a period up to twelve (12) months.

5. At the time of the application, there were eight full-time and ten part-time bargaining unit employees at the Orangeville store.

6. Retail, Wholesale Canada has maintained a collective bargaining relationship with Pharma Plus Drugmarts Ltd. in the Regional Municipality of Ottawa-Carleton since 1961. At the time of the application, there were approximately 290 bargaining unit members covered by the Ottawa-Carleton collective agreement.

7. The most recent collective agreement for the Ottawa-Carleton employees contains the following recognition clause:

Recognition Clause Ottawa/Carleton

(1) The Company recognizes the Union as the exclusive representative and sole bargaining agent for all employees at its Retail Stores in the Regional Municipality of Ottawa Carleton, save and except Store Managers and persons above the rank of Store Manager, graduate and under-graduate Pharmacists including Pharmacy Interns and Apprentice Pharmacists, and Clerical Administrators assigned to the Regional Office.

(2) A person classified as a Management Trainee is a member of the bargaining unit until such time as the Company advises the Union that the trainee has successfully completed his training which shall be done within a period up to 12 months for Management Trainees not formerly in the bargaining unit and up to six months for Management Trainees coming formerly from the bargaining unit.

8. The Orangeville store has separate collective agreements for its full-time and part-time units, although historically, the collective agreements were jointly bargained. The Ottawa-Carleton stores have a master collective agreement covering both full-time and part-time employees. In each instance, the expiry date of these collective agreements is June 4, 1994.

9. At the conclusion of bargaining for the 1992-1994 Orangeville collective agreements, a membership meeting for full-time and part-time bargaining unit members was held on November 30, 1992. At that time, a Memorandum of Settlement was ratified by the membership. Attached to the Memorandum of Settlement was a Memorandum of Agreement dated November 12, 1992 between Pharma Plus Drugmarts Limited and Retail, Wholesale Canada, the full text of which is included below:

Whereas the Company and the Union are parties to collective agreements covering both full-time and part-time employees in Orangeville and in the Regional Municipality of Ottawa-Carleton.

And Whereas the Company and the Union desire having one collective bargaining relationship with respect to the employees covered by these collective agreements. Therefore, the Company and the Union agree as follows:

1. The Orangeville collective agreement shall be terminated upon its expiry on 4 June

2. Upon the termination of the Orangeville collective agreement the Company shall grant the Union recognition as the bargaining agent for the full-time and part-time employees of the Orangeville store in the Ottawa-Carleton collective agreement.

3. From 4 June 1994 and thereafter there shall be one collective bargaining relationship and one collective bargaining agreement covering all employees of the Regional Municipality of Ottawa-Carleton and Orangeville.

4. Upon entering into negotiations for the renewal of the Ottawa-Carleton collective agreement the parties shall negotiate and discuss any differences arising out of the consolidation of these two bargaining units and collective agreements.

10. On March 14, 1994 the union served the employer with notice of its desire to negotiate a new collective agreement.

11. On June 4, 1994 both Orangeville collective agreements expired, as did the Ottawa-Carleton collective agreement and the above-mentioned Memorandum of Agreement came into effect. On Monday, June 6, 1994 the applicants filed two applications to terminate the union's bargaining rights with respect to the full-time and the part-time Orangeville bargaining units. Also on June 6, a membership meeting of the Orangeville bargaining units was held to discuss collective bargaining proposals and to elect a negotiating committee for the next round of negotiations. The union and the employer have held one day of negotiations, after which negotiations broke down. As of the date of the hearing, the union had not yet entered into a new collective agreement with the employer.

Preliminary Motion

12. As stated previously, the applicants filed two applications, one in respect of each of the full-time and part-time Orangeville bargaining units. They filed one petition containing the signatures of the eight full-time bargaining unit members and the ten part-time bargaining unit members. The union took the position at the outset that, as a result of the Memorandum of Agreement dated November 12, 1992, the three separate bargaining units (full-time Orangeville, part-time Orangeville, all-employee Ottawa-Carleton) had been combined into a single unit effective June 4, 1994. The union argues that, even if the signatures on the petition are voluntary, the applicants have not demonstrated support of forty-five per cent of the employees in the combined bargaining units. The union requested that the applications be dismissed without a hearing.

13. The applicants responded that their understanding of the Memorandum of Agreement was that it meant that the three units would sit down and discuss jointly negotiating a collective agreement in 1994. They noted that the Memorandum of Agreement was not incorporated into the collective agreements signed subsequent to the Memorandum of Settlement. The union conceded that the Memorandum of Agreement was not incorporated into or attached to the collective agreement, but argued that that was an oversight.

14. The panel ruled orally at the hearing (Board Member Theobald dissenting) that it would proceed to hear the merits of the termination application. These are the reasons of the majority of the panel for rejecting the union's preliminary motion.

15. The applicable provisions of the Act are sections 58(2)(a) or (c) and 58(3), which read as follows:

58.-(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 62, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit, [emphasis added]

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.

(3) Upon an application under subsection (I) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at the time that is determined under clause 105(2)(j.1) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

16. The union has argued that as a result of the Memorandum of Agreement, the bargaining units have been combined effective June 4, 1994, and a termination application brought after that date must be brought with respect to the combined unit.

17. The majority of the panel does not agree that the effect of the Memorandum of Agreement is to bar an application under section 58(2) with respect to the full-time and part-time Orangeville bargaining units. It appears to the panel that the result of the Memorandum of Agreement is that the employer has agreed to combine the three bargaining units effective June 4, 1994. However, this agreement has not yet been incorporated into a collective agreement.

18. Section 58(2) refers to employees in the bargaining unit defined in a collective agreement. The "bargaining unit" referred to in 58(3) is, by implication, also the bargaining unit defined in a collective agreement. Therefore, the "bargaining unit" for which an application to terminate bargaining rights may be brought (under 58(2)), and for which the Board must determine the number of employees (under 58(3)) is the bargaining unit defined in a collective agreement. In International Union of Doll & Toy Workers of the U.S.A. and Canada, Local 905, [1977], OLRB Rep. Aug. 534, the Board stated:

19. The representative of the employer requested that the Board apply this application not only to the bargaining unit referred to above, but also to a second bargaining unit for which the respondent possesses bargaining rights. This request was based upon the fact that since 1973 negotiations for both bargaining units have been carried on simultaneously and that the terms of the resulting collective agreements have been identical. At the hearing the Board indicated it could not accede to the employer's request. Section 49(2) of the Act stipulates that any of the employees 'in the bargaining unit defined in a collective agreement" may apply for a declaration that the trade union no longer represents the employees "in the bargaining unit". By implication it is the bargaining unit defined in the collective agreement which is also "the bargaining unit" referred to in subsections (3) and (4) of section 49. Having regard to these statutory provisions, it is incumbent upon the Board to concern itself only with the bargaining unit defined in the relevant collective agreement.

20. For the purpose of these applications under section 58(2), the bargaining units defined in the collective agreements were the full-time and part-time Orangeville units described in paragraph 4 above. Therefore, the applicants were entitled to bring their separate applications with respect to the full-time and part-time Orangeville bargaining units.

21. The panel wishes to emphasize that its conclusion with respect to the effect of the Memorandum of Agreement is confined solely to the effect on the applicants' right to bring a termination application pursuant to section 58(2) of the Act.

22. In the result, the panel decided to hear the merits of the application.

Voluntariness of the Petition

22. In an application under section 58(2), the onus is on the applicant to satisfy the Board that not less than forty-five per cent of the employees in the bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the trade union. In order to satisfy this onus, the Board generally requires evidence with respect to the origination, preparation and circulation of the petition.

23. Primrose Short, one of the applicants, gave evidence with respect to the circulation of the single petition containing the signatures of both full-time and part-time bargaining unit members. Ms. Short testified that as early as October 1993, the bargaining unit members at the Orangeville store began discussing their dissatisfaction with the union. In late May 1994, members discussed the possibility of decertifying the union. Ms. Short contacted the Labour Relations Board and requested the appropriate applications. On June 1, Ms. Short met with three other bargaining unit members, Lois Barclay, Shelly Lawson and Claudette Williams, at Tim Horton Doughnuts in Orangeville to discuss decertifying the union. This meeting was prompted by a notice of a membership meeting to be held on June 6 to discuss amendments to the collective agreement. The employees decided to hold their own meeting to discuss whether to proceed with the collective bargaining process or to apply for decertification. They decided to hold a meeting at the home of Lois Barclay on Sunday, June 5. They made up a list of employees and divided the list amongst themselves; each of them contacted some of the employees to advise them of the meeting at Lois Barclay's house.

24. Prior to the meeting, Ms. Short, Ms. Barclay and another bargaining unit member, met and drafted the petition. Ms. Short testified that she remembered the wording which was required because she had attended a prior decertification application hearing in 1990 (in which, incidentally, she had opposed the decertification application). In any event, based on that previous experience, she drafted the heading to the petition.

25. On the evening of June 5, approximately thirteen bargaining unit members met. Ms. Short opened the meeting with a discussion inquiring whether the members were happy with their union representation. There was a thirty-minute discussion in which the bargaining unit members overwhelmingly voiced their dissatisfaction with the union. Ms. Short advised the members that if they were unhappy with the union and wished to decertify, they could sign the petition which was located on the table at the front of the room beside her. At that point, coffee was served and there was discussion amongst the members. During the meeting, twelve of the thirteen bargaining unit members present signed the petition in the presence of Ms. Short.

26. At the end of the evening, Ms. Short left Ms. Barclay's house and proceeded to the home of Claudette Williams, where she contacted Employee No. 13 and advised her what had transpired. Employee No. 13 indicated that she would like to sign and Ms. Short proceeded to her home and witnessed her signature. Upon her return to Ms. Williams' house, Employee No. 14 (who had previously been at the meeting at Lois Barclay's house) attended at Ms. Williams' house and signed the petition in the presence of Ms. Short. Employee No. 15 contacted Ms. Short at Ms. Williams' house and indicated that she would like to sign the petition. Ms. Short attended at her home and witnessed the signature of Employee No. 15 on the petition. Ms. Short took the petition home with her on the evening of June 5.

27. The next morning, June 6, Claudette Williams came to Ms. Short's home. Ms. Williams visited Employees Nos. 16, 17 and 18 and obtained their signatures. As there was no direct evidence by Ms. Williams as to the obtaining of those signatures, the Board will not consider them.

28. When Ms. Williams returned with the signatures of Employees Nos. 16, 17 and 18, Ms. Short took the petition, made the appropriate number of photocopies, and mailed the petition directly to the Labour Relations Board.

29. In light of the above evidence, the Board is satisfied that not less than forty-five per cent of the employees in the bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the respondent trade union.

30. The Board directs that two representation votes be taken in respect of the employees in the bargaining units described in paragraph 4 above. Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with the employer.

31. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER E. G. THEOBALD; July 12, 1994

1. Board Member, E. G. Theobald, concurs in the result of the decision.