Ontario Labour Relations Board
[1997] OLRB REP. MARCH/APRIL 281
2049-96-R; 2059-96-R United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, Applicant v. Titan Tool & Die Limited, Responding Party v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Local 195, Intervenor; National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Local 195, Applicant v. Titan Tool & Die Ltd., Responding Party v. United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, Intervenor
BEFORE: Russell C. Goodfellow, Vice-Chair, and Board Members S. C. Laing and D. A. Patterson.
APPEARANCES: Frank Lace, Roy Symons and Dan Flynn for the applicant; George W King and William Beale for the responding party.
DECISION OF RUSSELL G. GOODFELLOW, VICE-CHAIR AND BOARD MEMBER D. A. PATTERSON; April 7, 1997
This is the continuation of an application for certification. By decision dated October 22, 1996 in this file and in Board File No. 2049-96-R, the Board directed the holding of a single representation vote. Board File No. 2049-96-R is an application for certification by the United Auto Workers ("UAW") for the same bargaining unit. Although there was initially some dispute, the Board treated the applications as having been filed on the same day.
The vote was held on October 24, 1996. Employees were given the option of choosing the applicant ("Local 195"), the UAW, or no union at all. There were 112 names on the voter's list. One hundred and eight employees voted. Seven ballots were segregated and not counted. One ballot was spoiled. Of the remaining 100 ballots, 62 were cast in favour of Local 195, 37 were cast in favour of the UAW, and I ballot was marked in favour of no union. There were no challenges to the manner in which the vote was conducted. The only remaining issue is whether the Board should decline to give effect to the results of the vote having regard to a bar imposed upon the CAW-Canada in a decision dated December 7, 1995. The bar was imposed following an earlier unsuccessful application for certification for the same bargaining unit. The responding party identified the "bar issue" in its response and a differently constituted panel of the Board ruled that the issue could be dealt with, as necessary, following the taking of the representation vote and the counting of the ballots. As the issue remained unresolved at that stage, the matter was scheduled for hearing before this panel.
Only Local 195 and the employer participated in the hearing. It was the employer's position that although the Board has in the past accepted applications for certification by a local within the period of a bar imposed upon a national or international, and vice versa, the law has been changed by Bill 7. According to the employer, section 10(3) of the new Act was intended to alter the effect of the Board's prior case law by imposing an automatic one year bar following an unsuccessful "application for certification by the trade union as the bargaining agent of the employees in the bargaining unit". The gist of the employer's argument was that, by introducing a separate provision which uses the term "trade union" rather than "applicant" as appears in section III (2)(k) of the Act, the Legislature must have intended to bar a broader class of applicants. In the alternative, the employer submitted that the evidence in this case establishes that this was, in effect, a second application for certification by the CAW-Canada within a period of a year and that it ought to have been caught by the bar imposed in the Board's earlier decision.
Taking each of these arguments in turn, the Board is not persuaded that section 10(3) was intended to alter the effect of its prior case law by barring subsequent applications for certification by different trade union applicants. Section 10(3) states:
(3) If the Board dismisses an application for certification under this section. the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the bargaining unit until one year has elapsed after the dismissal.
There is no dispute that the CAW-Canada and Local 195 are different entities, each of which qualifies as a "trade union" within the meaning of the Act. Both have "status" before this Board. Moreover, and as acknowledged by the employer, the Board's approach has been to interpret the discretionary bar it traditionally imposed under section 111 (2)(k) as applying to subsequent applications for certification by different trade unions. We believe that if the Legislature had intended the Board to alter this approach, it would have expressed that intention in much clearer language than by the use of the phrase "the trade union" in section 10(3).
Section 10(3) has two purposes. First, it makes mandatory in application for certification that which was formerly discretionary under section 111(2)(k). Second, and consistent with concurrent amendments to section 111(2)(k), section 10(3) extends the period of the bar to one year rather than ten months. In the Board's view, the use of the phrase "the trade union", rather than "the applicant", simply reflects the fact that section 10, unlike section 111(2)(k), deals only with applications for certification. Further, the phrase "the trade union" can be found throughout the certification provisions of the Act and, more particularly, in the two preceding subsections, which state:
(1) The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.
(2) The Board shall not certify the trade union as bargaining agent and shall dismiss the application for certification if 50 per cent or less of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.
Finally, we believe that the use of the definite article before the words "trade union" in section 10(3) discloses a legislative intention which is clearly at odds with the employer's first argument.
Turning to the employer's second argument, section 111(2)(k) provides:
(2) Without limiting the generality of subsection (1), the Board has power,
(k) to bar an unsuccessful applicant for any period not exceeding one year from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing the employees within any period not exceeding one year from the date of the dismissal of the unsuccessful application.
As already indicated, employer counsel did not dispute that the Board's practice has been to treat different legal entities and different "trade unions" as different "applicants" within the meaning of section II l(2)(k); nor did counsel suggest that the CAW-Canada and Local 195 are not different entities under the Act. Rather, counsel argued that the evidence supported a finding that this was, in effect, a second application for certification by the CAW-Canada within the one year period. In the majority's view, this argument, too, must be rejected.
To begin, once it is conceded or established that Local 195 and the CAW-Canada are two different entities, each of which qualifies as a "trade union" within the meaning of the Act, that is properly the end of the matter for the purposes of the bar imposed in the Board's December 7, 1995 decision. As employer counsel noted, the Board treats nationals and locals as separate entities and has not concluded that a bar imposed against one should apply to the other, nor has it refused to entertain a subsequent application for certification. Although the Board has, in some cases, heard evidence as to the relationship between a subsequent applicant and a former applicant in the context of a "bar" argument, the circumstances have been extremely limited and our attention was not drawn to any cases in which such arguments have succeeded. Thus, for example, the Board has heard evidence: that employees would have been confused as to which union had been the subject of the earlier vote; of an alleged agreement between two locals that the applicant would, immediately upon certification, transfer its bargaining rights to a sister local that had been the subject of an earlier bar; and that a national applicant and a local union that had been the subject of an earlier bar were not legally distinct (see e.g. The Clorox Company of Canada Ltd., [1980] OLRB Rep. Feb. 184; The Corporation of the City of Gloucester [1989] OLRB Rep. Aug. 846; Repla Limited, [1990] OLRB Rep. May 612). Moreover, as the last mentioned case made clear, allegations of this kind are properly dealt with under the refusal to entertain portion of section 111(2)(k).
In the present case, it seems clear that the issue raised by the employer really amounts to an assertion that the Board should treat these two applicants as the same for the purpose of evaluating whether the Board should entertain the subsequent application. Accordingly, we have considered this limb of the employer's argument in the context of the latter part of section 111(2)(k).
Whether the Board should exercise its discretion to refuse to entertain a subsequent application for certification by any applicant in respect of a bargaining unit whose members have, within the preceding year, been the subject of an unsuccessful application must be decided by reference, to the statutory purpose of the "bar" and "refusal to entertain" provision. Although that purpose may vary depending upon the type of application involved, in the context of representation applications the purpose is "to provide a cooling off-period during which the employees may assess their position with respect to their desire to be represented by the applicant; or because the Board does not consider repetitious applications where the membership evidence has been fully tested to be in the interest of sound labour relations ...": see The Bristol Place Hotel, [1979] OLRB Rep. June 486. The reason, one must assume, that a "cooling-off' period is necessary or that repetitious applications are not deemed to be in the interest of "sound labour relations" is because of the uncertainty and disruption generated in the workplace by an application for certification. These principles must be understood, of course, in the context of a legislative scheme which seeks to promote the free expression of employee wishes about trade union representation with as few limitations as possible.
. In the context of applications for certification, and prior to the enactment of section 10(3), these competing considerations had been resolved by the Board exercising its discretion, pursuant to the first part of section 111 (2)(k), to bar subsequent applications for certification by the same applicant for a period of six months. As previously indicated, however, and having regard to these same considerations, the Board defined its mandate under this part of section 111 (2)(k) quite narrowly. It limited the meaning to be given to the phrase "unsuccessful applicant" to the same applicant or, in cases such as this, to the same trade union. It was only that union, whether it be a local, a national or an international, that the Board refused to allow a second opportunity to test employee wishes within the six month period. Although we have concluded that section 10(3) was not intended to alter the Board's approach to different applicants, that does not mean that the Board will not undertake the kind of inquiry requested by the responding party in this case. The practical relationship between two separate entities may have some meaning to the outcome of an application for certification within the one year period identified in the latter part of section 111(2)(k). The question under this aspect of the provision, however, is whether, having regard to the competing statutory considerations identified above, the Board should refuse to entertain a subsequent application for certification by a legally different applicant within the one year period.
Given these considerations, we believe that the discretion granted by the "refusal to entertain" portion of section 1ll(2)(k) should be exercised, at least in cases involving a test of employee wishes, with reference to such factors as: the legal identity of the current applicant; the practical and legal relationships between the earlier and current applicants; the time at which the current application was made in relation to the expiry of the maximum one year period; the reason(s) for making the application at that time; and the number of other such applications that have been made within the twelve-month period. Applying these factors to the case at hand, we are satisfied that the Board quite properly entertained this application and that we ought not to refuse to give effect to the clear results of the representation vote. In coming to this conclusion, we are prepared to accept all of the findings of fact urged upon us by the employer, including the assertion that the filing of the application by Local 195 was motivated by a desire to avoid the effects of the bar imposed on the CAW-Canada. We accept, further, that in almost all material respects the application by Local 195 was filed on the strength of an ongoing organizing campaign run by the CAW-Canada, albeit with Local assistance. Consequently, it appears that the first time that employees may have become aware that the applicant would, in fact, be Local 195 rather than CAW-Canada was when they were presented with newly-minted membership cards bearing the Local 195 name. It also appears to be the case that, according to the Constitution of the CAW-Canada and the by-laws of Local 195, membership in the Local is membership in the National, the Constitution of the National is the Constitution of the Local, and that the by-laws of the Local are subordinate to the Constitution of the National. (As noted, however, it was not asserted that these factors made the two entities legally "the same".) Finally, it appears that the reason the application was filed prior to the expiry of the 12 month period and by Local 195, was because the CAW-Canada became aware of a competing organizing campaign being run by the UAW that would likely result in an application for certification that would have been entertained by the Board before the end of the one year period in which the CAW-Canada had continued to organize.
While these factors clearly demonstrate a close relationship between the two entities, the majority is satisfied that there would be no statutory purpose in refusing to entertain the application or in not giving effect to the results of the representation vote. An application for certification was filed by the UAW either on the same day or, perhaps, on the day before the Local 195 application. There is no question that this application would have been entertained by the Board and a vote conducted. In these circumstances, the only remaining issue was how many names would be on the ballot. Given the fact that a vote would have been held in any event, that more than ten months had elapsed from the date of the dismissal of the earlier application, that this ten month period was well into the maximum 12 month period during which the Board is given the discretion to refuse to entertain a subsequent application and exceeds the six month period which the Board had previously established for the pre-Bill 7 discretionary bar, we are satisfied that we ought not to refuse to entertain the application. In these circumstances, the addition of the Local 195 name to the ballot did nothing to compromise the concern for uncertainty and disruption underlying the bar or refusal to entertain provision while, at the same time, maximizing the competing consideration of employee choice.
Accordingly, the Board sees no reason to refuse to give effect to the results of the representation vote.
Further, and having regard to the agreement of the parties, the Board finds that:
all employees of Titan Tool & Die Limited in the City of Windsor save and except supervisors, persons above the rank of supervisor, office and sales staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period,
constitute a unit of employees of the responding party appropriate for collective bargaining.
On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant in Board File No. 2059-96-R. A certificate will issue to that applicant. Having regard to the results of the vote, the application for certification in Board File No. 2049-96-R is hereby dismissed.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.
The responding party is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously.
DECISION OF BOARD MEMBER S. C. LAING; April 7, 1997
I dissent from the majority decision which, with respect to my colleagues, fails to give any meaningful interpretation to the statutory bar imposed following an unsuccessful certification application.
The unique facts of this case cry out for a Board response which ought to clearly signal that technical maneuvering in an attempt to subvert the bar will not form the basis of a sound collective bargaining relationship and therefore, is not the type of activity the Board will sanction.
Although there is no question (on the Board's jurisprudence) that the CAW-Canada and the CAW Local 195 are separate entities - what is very questionable is their independence from one another.
The majority is seemingly unmoved by the facts which tie the two entities together. Indeed, it is undisputed that the employees of Titan Tool & Die will (with the majority's findings) become members of the barred national union during the time period in which a bar is imposed on them. Surely, this ought to cause the Board sufficient concern that it exercise its discretion under section 11 l(2)(k) of the Act and refuse to entertain the subsequent certification application, as it is in essence one made by the barred CAW-Canada, and I would so find.