3795-99-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. OPTIONS, Northwest, Responding Party v. Service Employees International Union, Local 268, Intervenor.
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.
DECISION OF THE BOARD; November 30, 2000
This is a displacement application for certification. By decision dated September 6, 2000, the Board determined that there were two bargaining units in the responding party’s workplace at the time this application was filed.
It is useful at this point to sketch in some background information. The application was filed on March 21, 2000 in respect of a proposed bargaining unit of full-time employees, which the applicant (“the CAW”) estimated to contain 165 employees. The responding party employer (“OPTIONS”) stated in its response that the appropriate bargaining unit should exclude certain additional classifications than those excluded in the applicant’s proposed bargaining unit, but it too proposed a bargaining unit of full-time employees. It claimed that the bargaining unit proposed by the CAW contained only 73 employees, and it filed notice of a section 8.1 objection. In its intervention, filed on March 23, 2000 the intervenor (“SEIU”) described the appropriate bargaining unit in precisely the same terms as those appearing in the application.
By letter dated March 27, 2000, SEIU changed its position. It claimed that the appropriate bargaining unit was that described in the collective agreement to which it and OPTIONS were parties. SEIU maintained that that collective agreement described a bargaining unit of full-time and part-time employees. On the same day, the Board (differently constituted) issued a decision ordering the representation vote. In accordance with Board practice, the voting constituency ordered in the decision reflected the largest of the proposed bargaining units advanced by the parties, which in this case was the combined full-time and part-time bargaining unit advanced by SEIU in its March 27, 2000 letter. The Board also determined that OPTIONS objection under section 8.1 was not numerically relevant. The Board ordered the segregation of the ballots cast by part-time employees from those cast by the full-time employees, and, because of certain other allegations by SEIU which are no longer in dispute, ordered the ballot box sealed. Finally, the Board ordered OPTIONS to post the decision in the workplace so that all affected employees would have notice of the vote.
On March 28, 2000, OPTIONS wrote to the Board advising that it disagreed with SEIU’s characterization of a single collective agreement. OPTIONS took the position that there were two collective agreements covering two bargaining units, one full-time and one part-time. That same day, at the pre-vote consultation supervised by a Labour Relations Officer, the CAW changed the position it had taken in its March 21 application, and agreed with SEIU’s contention of a single bargaining unit consisting of full-time and part-time employees. While OPTIONS maintained that there were two distinct bargaining units, it agreed to, and did provide a list of 58 part-time employees for the purposes of the establishment of a voters list. Parenthetically, it bears noting that a comparison of the membership cards containing the names of employees who match the names on the list of part-time employees provided by OPTIONS, shows that the CAW has established the 40% threshold of support that would have entitled it to a representation vote in a part-time bargaining unit, had it originally taken the position that there were two separate bargaining units.
The representation vote was held on March 29, 2000. The certification worksheet completed by the attending Labour Relations Officer on March 29, 2000 following the taking of the vote, and signed by the parties, indicates that SEIU changed its position on the bargaining unit configuration, and now agreed with the position taken by OPTIONS that there were two distinct bargaining units. The CAW continued to maintain that there was one bargaining unit covering both full-time and part-time employees. These were the main positions of the parties advanced at the hearing on August 8, 2000.
On April 28, 2000 the ballots of the full-time employees were counted. More than 50 per cent of those ballots were cast in favour of the applicant. The part-time ballots remained sealed.
At the hearing on August 8, 2000 the applicant advanced the position it took on March 28, 2000 with respect to a single bargaining unit of full-time and part-time employees, and two alternative positions. In the first alternative, the applicant stated that if there were indeed two discrete bargaining units in existence in the responding party’s workplace, the Board should, subject to combining the part-time ballots issue two certificates to the applicant. In the second alternative, the CAW urged the Board to combine the bargaining units, and issue to the applicant a single certificate, again subject to the results of the part-time vote.
As indicated above, the Board determined that there were two bargaining units in the workplace of OPTIONS, a full-time and a part-time bargaining unit, each represented by SEIU at the time that the application was filed by the CAW.
In light of that determination, the parties were invited to file written submissions concerning the CAW’s alternative positions. The CAW filed its submissions, to which SEIU responded. OPTIONS filed no submissions. The CAW filed reply submissions to those of SEIU.
In terms of the issue of whether the CAW’s application could be, or in fact was properly amended, SEIU takes the position that any amendment to the bargaining unit proposed in the application must, by virtue of the Labour Relations Act, 1995, S.O. 1995, c.1 (“the Act”) and the Board’s Rules of Procedure, be made prior to the responding party filing its response. This is particularly so within the statutory framework created by the introduction of section 8.1, as the Board makes its determination of section 8.1 objections on the basis of the bargaining unit applied for by the applicant. In this case, SEIU submits, the Board made its section 8.1 determination on the basis of a full-time bargaining unit. A subsequent amendment of the proposed bargaining unit after the responding party has filed its response, has the effect of throwing into doubt the section 8.1 issue. SEIU contends that the CAW is seeking to introduce a second application, in a context that undermines the ability of the Board to exercise its statutory responsibility to determine whether there is sufficient support to warrant a representation vote under section 8.1.
The CAW argues that it made a timely amendment to its application when, prior to the representation vote, it agreed with the position, as it then was, of the SEIU, that is, the CAW agreed that the appropriate bargaining unit was a combined unit of full-time and part-time employees. Although its original application was for a full-time bargaining unit, it claims that it filed membership evidence indicating support from both full-time and part-time employees, and it argues that the employees were on notice that the CAW was seeking to represent both categories of employment. As for the section 8.1 issue, the CAW argues that the Board dealt with that matter in its decision of March 27, 2000 ordering the representation vote, and that in the absence of a request for reconsideration by OPTIONS or submissions filed by OPTIONS in response to the Board’s September 6, 2000 decision, the Board should disregard SEIU’s argument. Moreover, the CAW submits that, as an intervenor, SEIU may not plead and rely on section 8.1.
The Board does not accept the assertion of SEIU that the Board’s Rules of Procedure or the Act prohibit the applicant in an application for certification from amending its application after the filing of the response. The Rules of Procedure, in fact, contemplate amendments to applications of all kinds. Of course, the Board must be cautious in considering whether to permit any such amendments, to ensure that the parties in opposition are not irrevocably disadvantaged or prejudiced. If no such disadvantage or prejudice flows, then, as a general principle, the amendment should be allowed. The Rules of Procedure have a number of purposes, one of which is to maintain a level of balance and fairness in litigation before the Board. As long as that level is maintained, flexibility in the positions taken by parties should not be discouraged. Otherwise, the issues and the litigation required to resolve them will tend to proliferate. That is not a desirable labour relations result.
We are of the view that the CAW was not automatically precluded from adopting the position of another party to the proceeding after the filing of the response. The Board has previously tolerated the wholesale switching of positions: see, for example, Morrow Transport Inc. [1999] OLRB Rep. May 434.
A somewhat more difficult consideration is the section 8.1 issue. While we agree that a section 8.1 objection is one that only a responding party employer may raise and plead, we do not view SEIU’s submissions as a section 8.1 objection per se. Rather, SEIU points out the legal problem that can arise when an applicant’s proposed bargaining unit changes after the responding party has filed its response, including its section 8.1 objection. We think SEIU is entitled to make that submission. However, we are of the view that the argument is not persuasive in the circumstances of this case.
As indicated above, OPTIONS initially filed with its response a section 8.1 objection, estimating that the full-time bargaining unit which the CAW ostensibly proposed contained only 73 individuals, a far cry from the 165 individuals estimated by the CAW. The Board determined in its March 27, 2000 decision ordering the representation vote, that there was no numerical significance in the section 8.1 objection because the membership evidence filed in support of the application was more than 40% on either parties’ estimates of the number of employees in the applicant’s proposed bargaining unit.. The section 8.1 objection was effectively dismissed.
It was arguably open to OPTIONS, once it was informed prior to the vote of the CAW’s changed position, to request that the Board seal the ballot box on the basis that the section 8.1 objection should be revived given the now expanded bargaining unit being sought by the CAW. It is perhaps understandable, however, that it did not do so, because the ballot box was already ordered sealed by the Board for other reasons. That being said, there was no such request by OPTIONS. Instead, OPTIONS cooperated in the compiling of a voters list, and submitted the names of 58 part-time employees for that purpose.
At one point in the hearing on August 10, 2000, in response apparently to SEIU’s submissions concerning the section 8.1 issue, counsel for OPTIONS stated that he wished to revive the section 8.1 objection. Before any submissions could be entertained, counsel for the CAW suggested that, in fairness, the best course of action would be for the CAW to articulate its two alternative positions with respect to the appropriate bargaining unit or units outlined above in the form of written submissions, and that SEIU and OPTIONS, if they so wished, could file written submissions as well, including any submissions with respect to section 8.1. All the parties agreed to that suggestion, and the Board reflected that agreement in its September 6, 2000 decision directing the filing of submissions, first from the CAW, then by the parties in opposition, and permitting the CAW a right of reply.
As we have pointed out, OPTIONS did not participate in the filing of any written submissions. The only inference available to be drawn is that OPTIONS is no longer concerned about the section 8.1 issue in light of the CAW’s alternative positions concerning the appropriate bargaining unit in this matter. It appears from OPTIONS’ silence that it does not claim prejudice arising from the CAW’s alternative positions regarding the issue of two certificates, and is no longer pursuing the revival of its initial section 8.1 objection. As we have previously indicated, the CAW’s level of support in the part-time unit would have entitled it to a representation vote in respect of part-time employees had its application been differently framed at the outset. As the policy concerns raised by SEIU respecting the timing of bargaining unit amendments in the face of section 8.1 do not arise, we see no reason not to consider the possibility of issuing two certificates in this case if that is warranted by the representation vote results.
The Board is satisfied that it has jurisdiction, notwithstanding the applicant’s main position at the September 6, 2000 hearing concerning the appropriate bargaining unit, to issue two certificates if it turns out that the part-time ballots indicate majority support for the CAW. In Fairfield Management Inc. [1985] OLRB Rep. July 1038, a case cited by both SEIU and the CAW, the union sought one bargaining unit, which included office and sales staff, in its application for certification. When the Board held that the office and sales staff should in fact be excluded from the unit applied for in accordance with the Board’s normal policy at that time, and that a second office and sales staff unit was appropriate, the union was certified for the two units even though it had only made an application for one. At pages 1042-43, the Board held:
The Board’s unanimous decision, rendered orally at the hearing and for reasons to be given later, was that it was proper in the circumstances of this application to find that there was a second appropriate unit comprised of office and sales staff. The Board’s reasons for so concluding follow. This application had been framed by the applicant so as to include office and sales staff located at the properties included within the geographic scope of the bargaining unit proposed by the applicant. The Board’s Notice to Employees of the application put the employees on notice that the applicant was seeking a bargaining unit which was described so as to include all employees of the respondents and which did not exclude office and sales employees. Therefore, office and sales employees were aware from the notice that the applicant was seeking to represent them in collective bargaining together with the other employees. Accordingly, the Board is satisfied that office and sales employees were given proper notice that the applicant was seeking to represent them. There were no representations filed with the Board from any employees opposed to the application on any grounds. Absent any objection from employees who would be affected by the application, particularly office and sales employees, there is nothing to prevent the Board from finding that the employees whom the applicant is seeking to represent comprise two bargaining units which are appropriate for collective bargaining purposes.
A similar result obtained in the decision of the Board in Hamilton Yellow Cab Company [1989] OLRB Rep. Feb. 144. That was an application for reconsideration of a previous decision of the Board to issue two certificates in respect of a single application for a proposed bargaining unit comprising taxi drivers and taxi owner-operators. In its request for reconsideration, the employer argued that the Board had no jurisdiction to create two separate bargaining units. The Board stated at page 145:
On an application for certification section 6(1) of the Act gives the Board a broad discretion to fashion the unit of employees appropriate for collective bargaining. As a matter of procedure, the union tenders its proposed unit(s), the respondent employer submits its proposed unit(s), and any intervening employees are entitled to make their representations as well. The Board is under no statutory obligation to accept the unit(s) proposed by any of the parties appearing before it, and has a plenary independent jurisdiction to fashion the bargaining structure it considers appropriate based upon the evidence and representations before it, as well as labour relations policy considerations. Indeed, it is not at all unusual that the bargaining unit the Board ultimately determines to be appropriate will differ from that which one or other of the parties propose, and it is certainly quite common for the unit to differ from that proposed by the union. Under section 6(1) the Board is not bound by the (sometimes polar) positions put by the parties, but is entitled to structure the bargaining unit configuration in accordance with the evidence and the policy considerations which it considers appropriate. Thus, even pursuant to section 6(1), the Board may well decide to fashion two bargaining units when the applicant union seeks only one consolidated unit.
The employer subsequently sought judicial review of the decision in Hamilton Yellow Cab Company. The Ontario Court of Justice (Divisional Court) found that the Board did not exceed its jurisdiction by issuing two certificates where the application was for a single “mixed” bargaining unit.
The reasoning in the Fairfield Management Inc. and Hamilton Yellow Cab Company cases applies in the instant case. We have found that there are two bargaining units currently in place. The CAW has made a single amended application for employees comprising both units. By virtue of the Board's posted decision of March 27, 2000, all the employees were given notice of the potential scope of the application. All the affected employees had the opportunity to vote. No objections have been filed by any employees affected by the Board’s decisions of March 27, 2000 and September 6, 2000. There is no compelling reason why, if successful in the part-time portion of the representation vote, the CAW should not be granted two certificates. We are not, however, persuaded by the arguments made by the CAW with respect to its second alternative position in which it maintained that this was an appropriate case to combine the two bargaining units into one.
Accordingly, the Board directs that the ballot box containing the part-time ballots be opened, and the ballots counted for the purpose of determining which trade union has the bargaining rights. If SEIU succeeds in the part-time vote, it will continue to be entitled to represent the part-time employees. The CAW has already established its entitlement to represent the full-time employees. If it prevails in the part-time vote, the Board is prepared to issue two certificates to the CAW.
The responding party is directed to post copies of this decision in a location or locations where it will come to the attention of all employees affected in this matter. Those copies are to remain posted for a period of 30 days from the date of this decision.
“Patrick Kelly”
for the Board