Ontario Labour Relations Board
[1999] OLRB REP. NOVEMBER/DECEMBER 975
1964-99-R; 2010-99-R Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 880, Applicant v. Catlyn Environmental Services Inc., Responding Party v. Canadian Union of Operating Engineers and General Workers (CUOE), Intervenor; Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 880, Applicant v. Canadian Union of Operating Engineers and General Workers ("CUOE"), Responding Party v. Catlyn Environmental Services Inc., Intervenor
BEFORE: Brian McLean, Vice-Chair.
DECISION OF THE BOARD; November 9, 1999
The style of cause in Board File No. 1964-99-R is hereby amended to reflect the correct name of the responding party: "Catlyn Environmental Services Inc.".
Board File No. 2010-99-R is an application to terminate bargaining rights under section 66 of the Labour Relations Act, 1995 (the "Act"). Board File No. 1964-99-R is an application for certification.
By decision dated October 18, 1999 the Board directed the parties to file submissions with respect to whether these two applications should be heard together and whether, under the circumstances, the Board should order that a representation vote be held. This decision deals with those two issues.
These issues arise because, it appears to be undisputed that the Canadian Union of Operating Engineers and General Workers (CUOE) was voluntarily recognized by the employer in late 1998 or early 1999 and entered into a collective agreement in January, 1999. The applicant has submitted membership evidence which both gives it authority to bring the termination application and gives it the appearance of 40 percent support necessary to obtain a representation vote in the application for certification.
The applicant asserts that the Board should hold a representation vote immediately. It relies on the Board's jurisprudence (e.g. In the City of Toronto, [1996] OLRB Rep. July/Aug 552) in which the Board held that the statutory scheme demands a quick vote in every case. The applicant also relies on Board jurisprudence under section 66 of the Act and its predecessors in which an application under section 66 and its predecessors have been treated as applications for certification (e.g. Trent Metals Limited, [1979] OLRB Rep. Aug. 827). Finally, the Applicant relies on the Board decision in Can Arm Ltd., [1996] OLRB Rep. Sept/Oct. 747 where the employer and intervenor alleged that the intervenor employees' association already represented the employees in the bargaining unit and that a collective agreement was already in place. In Canarm the Board ordered a vote to be held immediately.
The employer and the CUOE assert in their responses to these applications that the CUOE and the employer have a relationship that extends beyond the current collective agreement to a predecessor employer. They also assert that the CUOE represented a majority of employees prior to the voluntary recognition and that voluntary recognition was given in lieu of an application for certification. Both parties also assert that a collective agreement was negotiated (based on the collective agreement which existed with the predecessor) and that the collective agreement was ratified by a majority of employees.
The issues which arise in these applications raise two conflicting policy objectives. There is a tension between the Act's mandate that a representation vote in an application for certification be held quickly and the Act's clear policy direction that a trade union which legitimately represents employees in a bargaining unit during the term of a collective agreement (excluding the open period) be able to enjoy a period from challenge to its representation rights.
In this case, we are satisfied that these competing interests weigh in favour of deferring any representation vote in the application for certification to until after the termination application is heard.
The Trent Metals line of cases relied on by the applicant suggest only that an application for certification in the first year of a voluntary recognition agreement will be treated as an application under section 66 of the Act. In this case, the applicant made both applications, so those decisions do not assist it. Moreover, it is also apparent from those decisions that the application under section 66 was dealt with prior to the certification issue, the existence of a collective agreement being a bar to the application for certification absent a declaration under section 66.
The Can Arm decision also does not assist the applicant. In that decision the application for certification was filed in the open period of the alleged collective agreement, and therefore regardless of whether the incumbent employees' association was a trade union under the Act or not, the application was timely. The Board made a note of this fact when it directed the representation vote at paragraph 5 of that decision and said "and in the apparent absence of any 'timeliness' issue, ...".
Finally, given the inherent damage to an incumbent union's representation rights that an application for certification brings, the Board must examine the facts alleged by the incumbent union and the employer in order to determine when a vote ought to be held. In this case, these parties allege both that the CUOE had majority support and that a majority of employees ratified the collective agreement which was negotiated between the parties. Each of these factors, if proved, strongly suggest that the CUOE is entitled to represent the employees at issue, absent any other relevant consideration such as employer support.
Under the circumstances, therefore, it is appropriate to delay the holding of any representation vote until the Board has decided the application under section 66 of the Act. The two applications, will, however, be heard together on December 13 and 14, 1999 in the "Boardroom", 2nd Floor, 505 University Avenue, Toronto, Ontario.
These matters are referred to the Registrar.