The Municipality of Metropolitan Toronto v. Canadian Union of Public Employees, Local 79, 1996 CanLII 11125

Ontario Labour Relations Board

[1996] OLRB Rep. July/August 644

3884-95-R The Municipality of Metropolitan Toronto, Applicant v. Canadian Union of Public Employees, Local 79, Responding Party

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members J. A. Rundle and P. V Grasso.

APPEARANCES: Darrel A. Smith and Margaret A. Bromley for the applicant; J. James Nyman for the responding party.

DECISION OF RUSSELL G. GOODFELLOW, VICE-CHAIR, AND BOARD MEMBER P. V. GRASSO; July 18, 1996

1. This is an application for a declaration terminating the trade union's bargaining rights under section 8(2) of the Transitional Provisions of the Labour Relations Act, 1995. Section 8 states:

8. (1) This section applies with respect to bargaining units that include, on the day this section comes into force, guards who monitor other employees or who protect the property of an employer.

(2) within 90 days after this section comes into force, an employer may apply to the Ontario Labour Relations Board for a declaration that a trade union no longer represents the guards in a bargaining unit,

(a) if the trade union admits to membership persons who are not guards; or

(b) if the trade union is chartered by or affiliated with an organization that admits to membership persons who are not guards.

(3) The Board shall issue the declaration unless the trade union satisfies the Board that no conflict of interest would result from the trade union continuing to represent the guards.

(4) Within 90 days after this section comes into force, an employer may apply to the Board for a declaration that guards are no longer members of a bargaining unit that includes other employees.

(5) The Board shall issue the declaration unless the trade union satisfies the Board that no conflict of interest would result from the guards remaining in the bargaining unit.

(6) The Board shall consider the factors set out in subsection 14(5) of the new Act in determining whether a conflict of interest would result for the purposes of subsection (3) or (5).

(7) Upon the issuance of a declaration under this section, the collective agreement, if any, ceases to apply with respect to the guards.

2. Section 14(5) of the Act provides:

14. (5) The Board shall consider the following factors in determining whether a conflict of interest would result:

15. The extent of the guards' duties monitoring other employees of their employer or protecting their employer's property.

16. Any other duties or responsibilities of the guards that might give rise to a conflict of interest.

17. Such other factors as the Board considers relevant.

3. A hearing was held in this matter on June 6, 1996. At the outset of the hearing, the parties advised the Board that they had agreed to deal, first, with a preliminary issue raised by the applicant and, depending upon the disposition of that issue, continue the hearing at a later date. Relying on an earlier decision between the same parties, the applicant argued that the doctrine of issue estoppel applies, such that the Board should terminate the responding party’s bargaining rights without the need for any further hearing.

4. The union was certified to represent a bargaining unit consisting of full-time security guards (described by the parties as "security officers") on February 13, 1995. In a decision reported at [1994] OLRB Rep. June 795, the Board found that the union was in a certifiable position with respect to this unit and determined that a conflict of interest would arise if, at the request of the union, it were to combine that unit with another unit already represented by the union. (A subsequent decision dismissing the combination application on this and other grounds is reported at [1995] OLRB Rep. Feb. 182.)

5. In dealing with the conflict issue, the Board considered the effect of subsection 6(6) of the former Labour Relations Act, which read:

6.- (6) A bargaining unit consisting solely of guards who monitor other employees shall be deemed by the Board to be a unit of employees appropriate for collective bargaining,

(a) if the applicant trade union or the employer requests that the Board do so; and

(b) if the Board is satisfied that the monitoring of other employees would give rise to a conflict of interest if the guards were included in a bargaining unit with the employees they monitor.

After reviewing the evidence concerning the duties and responsibilities of the security officers ("SOs"), the Board concluded that "the monitoring of other employees by SOs raises the real possibility of a conflict of interest if the SOs were included with the full-time bargaining unit".

6. On the basis of this finding, and referring to a recent decision of the Court of Appeal in Rasanen v. Rosemount Instruments Limited (1994), 1994 CanLII 608 (ON CA), 1 C.C.E.L. (2d) 161 and a number of Board decisions (ie. Arnold Markets Ltd. (1961), 62 CLLC ¶16,221; Holland River Gardens Co. Ltd. (1964), 64 CLLC ¶16,304; and Canadian General Electric Company Limited, [1978] OLRB Rep. Apr. 384), the applicant argued that the requirements for the application of the doctrine of issue estoppel are present: (1) the same question (i.e. the existence of a conflict of interest between the SOs and other employees represented by the union at Metro) has already been decided; (2) the earlier decision was final; and, (3) the parties in the earlier proceeding were the same as they are in the present case. According to the applicant, the issue of conflict has already been resolved between these parties, and to inquire further into this matter would offend the principle that there ought to be an end to litigation.

7. Issue estoppel is a rule of evidence. It serves to prevent a party against whom an issue has earlier been decided from calling evidence to contradict that result. As the Board noted in Canadian General Electric Company Limited, supra, pp. 3 89-390, at para. 20, the rule is not without exceptions:

Two factors that would negate the application of an otherwise successful plea of res judicata, however, would be either a material change in the law or a significant change in the facts since the original decision.

8. In this case, there is no argument that there has been a material change in the facts. Indeed, the union expressly acknowledged that the duties and responsibilities of the SOs have not changed since the Board's earlier decision. The union did argue, however, that there has been a material change in the law, such that it would be inappropriate to rely on the Board's earlier findings as dispositive of the issues in this case.

9. A majority of this panel agrees with the responding party. Essentially, it is our view that, although there is clearly a substantial overlap between the issue decided in the earlier proceeding and that which is raised before us, the issues are not the same and, accordingly, the matter ought not to be resolved without affording the responding party an opportunity for a hearing on the merits.

10. The statute has recently undergone a number of changes. Prior to Bill 40, section 12 of the Act prohibited the Board from (1) including in a bargaining unit with other employees "a person employed as a guard to protect the property of an employer" and, (2) from certifying a trade union for a bargaining unit consisting of such guards if the union "admits to membership or is chartered by, or is affiliated, directly or indirectly, with an organization that admits to membership persons other than guards". In giving effect to this provision, the Board defined the word "guard" by reference to a "conflict of interest" test. The effect of that test was that the Board would apply the prohibitions contained in section 12 in respect of those guards whose duties raised a real possibility of a conflict of interest between their duties to the employer and their allegiance to other union members.

11. In developing its conflict of interest test, the Board expressly recognized that it was engaged in a balancing of interests between the rights of employees to engage in collective bargaining through a trade union of their choice and the rights of employers to expect undivided loyalty in the performance of an employee's duties. In Wells Fargo Armcar Inc., [1981] OLRB Rep. July 1046 application for judicial reviewed dismissed (1982), 1982 CanLII 1786 (ON HCJ), 36 O.R. (2d) 361 (Div. Ct.), the Board put the matter this way:

Since the effect of section 11 is to place limits on what constitutes an appropriate bargaining unit and on an employee's free choice of what trade union will represent him in collective bargaining, this test is a reasonable balancing of those restrictions with the need to protect an employer from the conflict posed by a guard's duty to protect that employer's property and any loyalty that the guard might feel towards other employees of the employer. [para. 16]

12. Subsequently, under Bill 40, the absolute prohibition against certification of a bargaining unit consisting of both guards and non-guards, and against the representation of guards by certain types of trade unions, was repealed. The only remaining restriction, imposed at the request of either party, was the inclusion of guards within their own bargaining unit provided the Board was "satisfied that the monitoring of other employees would give rise to a conflict of interest if the guards were included in a bargaining unit with the employees they monitor". Section 8 of the Transitional Provisions of the new Act seeks to overcome the effects of the Bill 40 provisions by enabling employers to apply to the Board for a declaration terminating bargaining rights for those trade unions that admit to membership persons who are not guards or that are "chartered by or affiliated with an organization" that does so. Pursuant to section 8(4), the Board is required to grant the declaration unless the trade union satisfies the Board that no conflict of interest would result from the continued representation of the guards by the trade union.

13. The changes in statutory language affect the employer's argument in two ways. First, the consequences of a finding of conflict differ as between the Board's 1994 decision and the present case. In 1994, the issue was dealt with in the context of an application to combine bargaining units under section 7 of the Act. Although the combination application was, ultimately, dismissed, the trade union's bargaining rights were maintained. The employees continued to be represented by the union of their choice, albeit in a "guards only" bargaining unit. In the present case, by contrast, a finding of conflict would prevent the employees from being represented by the bargaining agent of their choice and, in fact, would leave them unrepresented.

14. Second, the issue to be decided in the earlier proceeding is not the same as in the present case. In the combination application, the issue was whether there was a real possibility of conflict if the guards were to be included in the same bargaining unit with the employees they monitor. Now, the issue is whether any conflict of interest would arise because "the trade union admits to membership persons who are not guards" and "is chartered by or affiliated with an organization" that does so. In other words, the issue is whether a conflict of interest would arise in circumstances where the SOs and the persons they monitor are in different bargaining units.

15. Moreover, unlike the situation under Bill 40 or the legislation that preceded it, the Board is now expressly required to consider the following "in determining whether a conflict of interest would result":

1. The extent of the guards' duties monitoring other employees of their employer or protecting their employer's property.

2. Any other duties or responsibilities of the guards that might give rise to a conflict of interest.

3. Such other factors as the Board considers relevant.

16. While it is true, as employer counsel points out, that subsection 6(6) of the former Act also required the Board to consider the "monitoring" of other employees and that the Board evaluated "the extent" of that monitoring in its earlier decision, the context was different. In the earlier case, the evidence was evaluated against the possibility of employees being included within the same bargaining unit as the employees they monitor, not in a separate bargaining unit. It is at least possible, therefore, as counsel for the responding party points out, that the extent of the monitoring that was sufficient to support a finding of conflict in the earlier decision would not result in the same finding in the present case. Moreover, and again as responding party counsel suggests, it is also possible that "other factors" (see para. 14(5)3 of the Act) may now be relevant to a finding of conflict that may not have been considered previously (e.g. provisions in the union's constitution designed to deal with the possibility of conflicts between guards and other members).

17. Consequently, and while there may be some attractiveness to the notion that a "conflict is a conflict is a conflict", the Board is conscious of the fact that the tests it applies and the conclusions to which it comes are influenced by changes in both law and context. Where such changes occur, the Board must be prepared to consider the possibility that outcomes may also change.

18. Having said that, it is not obvious to the panel that there is much in the way of additional evidence that the responding party might wish or, in fact, be entitled, to call. As already indicated, counsel agreed that the duties and responsibilities of the SOs have not changed, and those duties were canvassed at some length in the Board's earlier decision. Accordingly, two weeks prior to the continua­tion of the hearing in this matter, the trade union will be required to file with the Board and the applicant a detailed statement of the additional material facts upon which it intends to rely and an outline of the argument it wishes to make. Within one week of the receipt of that information, the applicant must file its reply with the Board and the responding party.

19. The matter is referred to the Registrar to schedule additional hearing dates in consultation with the parties.

DECISION OF BOARD MEMBER J. A. RUNDLE; July 18, 1996

1. The parties in the present case are agreed that there has been no change in the job duties of the Security Officers since the date of the prior ruling ([1994] OLRB Rep. June 795). In that earlier decision the Board, within the strict confines of the language of subsection 6(6) of Bill 40, found a conflict of interest existed. The premise underlying subsection 14(5) of the current Act is conflict of interest therefore it is unclear to me why the limited resources of the Board are being used to further inquire into this matter.