Carleton University v. Canadian Union of Public Employees, 1995 CanLII 9947

[1995] OLRB Rep. August 1055

0777-94-R Carleton University, Applicant v. Canadian Union of Public Employ­ees, Responding Party

BEFORE: Gail Misra, Vice-Chair, and Board Members S. C. Laing and K. S. Brennan.

DECISION OF THE BOARD; August 14, 1995

1. In a decision dated July 7, 1995, the Board found that it had the jurisdiction to combine

the two bargaining units referred to in this application and further found that the two bargaining units were represented by the Canadian Union of Public Employees. These are our reasons for that decision.

2. For the purpose of this preliminary issue, the relevant section of the Labour Relations Act is section 7(1), which states as follows:

7.-(1) On application by the employer or trade union, the Board may combine two or more bar­gaining units consisting of employees of an employer into a single bargaining unit if the employ­ees in each of the bargaining units are represented by the same trade union.

3. The responding party (the "union") argued as a threshold issue that the Board did not have the jurisdiction to address this combination application because the two bargaining units in question were "not represented by the same trade union". The applicant (the "employer" or "Carleton University") took the position that the two bargaining units were represented by the same trade union, the Canadian Union of Public Employees (the "National" or "CUPE National").

4. It is apparent from the written submissions that there is not much difference between the parties on the salient facts relevant to this preliminary issue. It is unnecessary to recount all of the details of the submissions. However, the facts relied upon by the Board in reaching its decision are outlined below.

5. On August 6, 1964, the Canadian Union of Public Employees was certified as the bar­gaining agent for the following bargaining unit:

Certificate

Upon the application of the applicant and in accordance with the provisions of The Labour Relations Act THIS BOARD DOTH CERTIFY The Canadian Union of Public Employees as the bargaining agent of all employees of Carleton University in its department of building and grounds at Ottawa, save and except foremen, persons above the rank of foreman, office staff, security guards, persons regularly employed for not more than 24 hours per week and persons covered by the subsisting collective agreement between Carleton University and International Union of Operating Engineers, Local 869.

[emphasis added]

6. On September 1, 1964, the Canadian Union of Public Employees granted a Charter to "Local Union 910 Carleton University/grounds & maintenance staff. This Charter authorized the new Local to enact by-laws, which it subsequently did. It would appear that since certification and being chartered, "the Canadian Union of Public Employees and its Local 910" have entered into successive collective agreements with Carleton University.

7. The latest collective agreement submitted to the Board by the parties is dated February 13, 1991. The "Recognition and Negotiations" clause, Article 2, states as follows:

ARTICLE 2

RECOGNITION AND NEGOTIATIONS

2.01 The Employer, or anyone authorized to act on its behalf, recognizes the Canadian Union of Public Employees as the sole collective bargaining agent for all of its employees in its Buildings and Grounds Services at Ottawa, save and except foremen, persons above the rank of foremen, office staff, persons regularly employed for not more than 24 hours per week, students hired during summer vacation and persons covered by the existing collective agreement between Carleton University and Independent Canadian Transit Union, Local 6, and hereby agrees to negotiate with the Union, or any authorized committee thereof, in all matters affecting the rela­tionship between the parties to this agreement, looking towards a peaceful and amicable settle­ment of any differences that may arise between them.

2.02 The union shall have the right at any time to have the assistance of a National Representa­tive of the Canadian Union of Public Employees when dealing or negotiating with the Employer. Such representative shall have access to the Employer's premises in order to attend meetings with the Employer.

[emphasis added]

As is clear from a comparison of the text of the original certificate and the recognition clause (Arti­cle 2.01), the parties have made a number of changes to the bargaining unit description. The trade union name has not, however, been amended in the intervening period of almost 30 years.

8. Local 910 submitted examples of grievances, grievance arbitration awards, correspon­dence, and minutes of meetings in the name of Local 910. Collective agreements reached with respect to this entity have, at least since 1980, been signed by representatives of the CUPE National, along with the Local.

9. On July 15, 1994, the Board issued a certificate for the following unit of employees at

Carleton University:

Certificate

Upon the application of the applicant and in accordance with the provisions of the Labour Rela­tions Act, THIS BOARD DOTH CERTIFY Canadian Union of Public Employees as the bar­gaining agent of all employees of Carleton University in the Regional Municipality of Ottawa-Carleton, in the Central Heating Plant employed as Stationary Engineers and persons primarily employed as their helpers, save and except the Chief Operating Officer.

[emphasis added]

10. On July 27, 1994, the Canadian Union of Public Employees granted a Charter to "Local Union 3778 Carleton University Stationary Engineers", pursuant to which this Local could enact its own by-laws. By-laws were later enacted and an executive elected. There is presently no collec­tive agreement for this bargaining unit.

11. The CUPE National Constitution was submitted to the Board to support the union's contention that the National recognizes each local union as a separate and distinct union having an affiliation with the National. The responding party contends that CUPE National transferred its membership to Local 3778 when the latter was chartered.

12. The employer filed an application for combination of these two bargaining units on May 30, 1994, after an application for certification for the stationary engineers had been filed by CUPE National on May 19, 1994 (Board File No. 0617-94-R).

13. It is on the basis of the facts outlined above that the responding party argued that the two Locals were represented by separate bargaining agents and that the Board therefore had no jurisdiction to consider the combination application.

14. The parties agree the Board's jurisprudence establishes that a parent union and its locals may each have distinct and separate status under the Labour Relations Act as may two locals of the same union (see, for example, Repla Limited, [1990] OLRB Rep. May 612, and The Corpo­ration of the City of Gloucester, [1989] OLRB Rep. Aug. 846).

15. In the more recent section 7 jurisprudence, the Board has held that two distinct locals affiliated with the same international trade union cannot be combined if each holds its own trade union status within the meaning of section 1(1) of the Act. (See FPC Flexible Packaging Corporation, [1994] OLRB Rep. July 844, at paragraph 8, and Canadian Bank Note Company Limited, April 20, 1995, Board File No. 1687-93-R, unreported.)

16. The Board has long held that for a trade union to be recognized as an exclusive bargain­ing agent for a group of employees under the Labour Relations Act, it must first establish its trade union status to the satisfaction of the Board. Once status has been proven, it does not have to be proved again every time that union seeks bargaining rights under the Act.

17. There is no evidence, and indeed nothing before the Board, to suggest that Locals 910 and 3778 respectively have ever proven their status before the Board. They have therefore not been recognized by the Board as trade unions within the meaning of section 1(1) of the Act.

18. Section 63 of the Act states how a successor union may acquire the rights, privileges and duties of a predecessor union. It states as follows:

63.- (1) Where a trade union claims that by reason of a merger or amalgamation or a transter of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer ot 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 (I). 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.

19. The responding party claims that there was a transfer of membership from CUPE National to Locals 910 and 3778 respectively when each Local was granted its Charter from the National.

20. However, there is no evidence before the Board that the Board made any findings of successorship for either of these Locals.

21. Since the Board has not found CUPE Local 910 and CUPE Local 3778 to have trade union status under the Act, and since there has been no declaration of a transfer of jurisdiction made by the Board from CUPE National to these two Locals, it is difficult to see how the two Locals can be found to be two distinct trade unions.

22. The recognition clause referred to in paragraph 7, above, refers to "the Canadian Union of Public Employees as the sole collective bargaining agent for all of (Carleton University's] employees in its Buildings and Grounds Services at Ottawa ...". It too suggests that the National Union continues to hold exclusive bargaining rights for the Local 910 members.

23. It was for all of the above reasons that we found that the trade union representing the employees in the two bargaining units in question was the Canadian Union of Public Employees and that the Board therefore has the jurisdiction to consider this combination application.