Local Union 1075 National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW Local 1075) v. Aramark Canada Limited

1902-00-R Local Union 1075 National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW Local 1075), Applicant v. Aramark Canada Limited, Responding Party v. Service Employees International Union, Local 268, Intervenor.

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: Glen Chochla, Paul Pugh, Glen Oram and Elizabeth McKinnon for the applicant; Michelle Porteous for the responding party; J. James Nyman and Nini Jones for the intervenor.

DECISION OF THE BOARD; November 22, 2000

1. This is an application for certification by Local Union 1075 National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (Caw Local 1075) (referred to as Local 1075 in this decision). On October 5, 2000, the Board dismissed an application for certification filed by the National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) (referred to as CAW-Canada in this decision) after it lost a representation vote to the incumbent trade union, the Service Employees International Union, Local 268 (referred to as SEIU in this decision) (Board File No. 1522-00-R).

2. The SEIU represented two bargaining units of employees of the responding party at Lakehead University. One of the bargaining units is a full-time unit and one is a part-time unit. The two bargaining units have separate collective agreements with similar terms and conditions of employment. For certain purposes, such as summer lay-off, their seniority lists are combined. The CAW-Canada filed two applications for certification of the two units on August 23, 2000. The Board conducted a representation vote in both units. The CAW-Canada was successful in the part-time unit and the SEIU won the vote in the full-time unit. After it became apparent that the CAW-Canada had lost the vote in the full-time unit but before that application had been disposed of, the Board received this application. The Board declined to order a representation vote until the application in Board File No.1522-00-R was disposed of. That application was dismissed on October 5, 2000 and a vote was held in this application on October 16, 2000. That representation vote was held without prejudice to the SEIU’s position that the Board should exercise its discretion not to entertain this application in view of the recent unsuccessful application by the CAW-Canada. The ballot box was sealed in light of the SEIU’s objection to the application. The responding party took no position with respect to this matter.

3. The Board declared that it was exercising its discretion not to entertain this application in an oral decision on November 20, 2000. The following are brief reasons for the Board’s decision.

4. Section 111(1) and 2(k) of the Labour Relations Act, 1995 provide as follows

5. (1) The Board shall exercise the powers and perform the duties that are conferred or imposed upon it by or under this Act.

(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;

5. It appears that when some of the employees in the full-time unit realized that the result of the original representation votes was that they would be represented by a different union that the part-timers, they were concerned about the effect it would have on their collective agreement and bargaining relationship. The two bargaining units have a history of bargaining together. They therefore asked Glen Oram, one of the representatives of CAW-Canada who had been acting as a resource person for the inside organizers, if they could have a “second vote”. Glen Chochla another CAW-Canada organizer who had been a resource person for the organizers, then asked Local 1075 to file an application. Local 1075 represents the employees of Bombardier and does not represent the employees of any other employer. Mr. Oram and Mr. Chochla, then participated in signing up the employees in the full-time unit. The two organizers had not collected cards in the first application but had served as a resource to the internal organizers and had represented the CAW-Canada at the representation vote. The message the national representatives and the president of 1075 gave the employees, in a nutshell, was that 1075 is a separate local but that it, and the CAW-Canada, are all part of the CAW and will therefore be able to avoid any problems that would arise by being represented by a different trade union from the part-time employees.

6. Mr. Chochla argued, on behalf of Local 1075, that having the CAW and the SEIU both representing the employees of the employer was particularly problematic because of the “war” between the two trade unions. He then pointed to a number of examples in the SEIU collective agreement which he claimed would be difficult to maintain, or which would require enforcement, if the SEIU continued to represent the employees in the full-time bargaining unit.

7. The possibility that the two separate bargaining units could be represented by two different trade unions was a foreseeable result for the unions, the employer and the Board both whenever those units were originally agreed to or certified, and when these displacement applications were filed. The problems identified by Mr. Chochla are problems that result from having separate full-time and part-time bargaining units. However, the problems of fragmentation are not to be solved by having vote after vote until all the bargaining units are under the same trade union “umbrella”. Local 1075’s arguments centred around maintaining the advantages of the collective agreements negotiated by the SEIU. Those arguments demonstrate that the SEIU should be given the opportunity to exercise the mandate it won in the representation vote to bargain with the responding party on behalf of the full-time employees. The SEIU is entitled to try to show the full-time employees that it can continue to effectively represent them, unimpeded by an ongoing campaign by affiliates of the CAW.

8. This second CAW application is essentially an attempt to have a second vote. The employees wanted a second chance to choose the CAW. They did not want to join Local 1075 because they preferred it to CAW-Canada but because they wanted to be represented by the same trade union as the part-time employees. The Board therefore decided to exercise its discretion under section 111(2)(k) of the Act not to entertain this application. As the Board was able to determine this preliminary issue, the ballots were not counted and the Board hereby directs that they be destroyed. The SEIU Local 268 will continue to represent the employees in the full-time bargaining unit.

9. The parties referred to a number of prior Board decisions on this and related issues. However, this decision was made on the facts of this case and, for the reasons referred to in the oral decision, the Board does not consider it necessary to contribute to the jurisprudence in this area by providing an analysis of those decisions.

10. The responding party is directed to post copies of this decision in places where they are likely to come to the attention of affected employees. Copies should remain posted for 30 days.

“Laura Trachuk”

for the Board