0331-99-R Office & Professional Employees International Union, Applicant v. Corporation of the City of Waterloo and City of Waterloo Staff Association, Responding Parties v. Jim Walsh, Peter Ysselstein, Teresa Peemoeller, Ruth Ann Reiner, Alan M. McGregor, Teresa Soulliere, Samuel B. Besse, Patricia Rutter, Dorothy Gow, Mary Vogt, Dawn Tozer, Shirley Stuebing, Cheryl Czerwinski, Doreen Rahn, Mary Maxwell, Elaine Nesbett, Jodi Dietrich, Pataricia Syms Sutherland, Bruce Hawkins, Colleen April, Heather Card, Robert Deyman, Susan Greatrix, Bebe Khan, Shirley Hayes, S. E. Leask, Jim Bowman, Susan Cameron, Debra Dubé, Wes Matthews, Crystal Hetke, Joan Chrysafidis, Val Zuber, Margaret-Ann Tannassee, Kari Mathers, Janice Winkler, Jean L. Wagner, Pat LeBlanc, Janice Mitchell, Cameron Rapp, Anne Barry and Lynne Phillips, Intervenors.
BEFORE: Mary Ellen Cummings, Alternate Chair.
APPEARANCES: Christopher Wilson for the City of Waterloo Staff Association and the applicant; Stephen F. Gleave, and Kathy Durst for the Corporation of the City of Waterloo; Bob Deyman, Jim Walsh, Teresa Soulliere, Doreen Rahn, Susan Greatrix, Lynne Phillips, Patricia Syms Sutherland, Bruce Hawkins and Patricia Rutter for the intervenors.
DECISION OF THE BOARD; February 10, 2000
This is an application pursuant to section 68 of the Labour Relations Act, 1995 (the “Act”) for a declaration that the Office and Professional Employees International Union (the OPEIU) is a successor trade union to the City of Waterloo Staff Association (Staff Association). The City of Waterloo (the employer or the City) and a number of members of the Staff Association (the intervenors) oppose the application.
There are a number of issues in dispute. After hearing submissions from the parties, I decided to first hear and decide the questions of whether the Staff Association was a "trade union" under the Act, and, more importantly, whether it was the "bargaining agent" for the employees prior to the alleged successorship. Although the employer and the intervenors could have argued that the application be dismissed in the event I concluded the Staff Association did not have bargaining rights to transfer to the OPEIU, that was not their position. Instead, they submitted that the Board should exercise its discretion pursuant to section 68 (2) of the Act, and hold a representation vote.
Much of the evidence I heard was not controverted. The Staff Association was formed in October, 1953 with the dual aims of promoting social functions and improving wages and benefits for employees not represented by a trade union. I heard that the impetus to the formation of the Staff Association was City Council's reversal of a granted salary increase. As a result, employees felt a need for contractual protection to prevent a recurrence.
In 1967, the Staff Association's Constitution and By-laws were amended. Its "Objects" included both social aspects and:
To negotiate with the employer for certain members of the Association for the purpose of wage schedules and related employee benefits.
At that time, the distinction between "active members" and "associate members" was made. "Associate members" are members of management who pay dues, and participate in social activities. However, the Staff Association's activities with respect to salaries and benefits are undertaken only on behalf of non-managerial "active members" and only "active members" can be on the Executive and on the negotiation committee. In accordance with the By-laws and the parties' practice, the employer determines who is an "active member" and who is an "associate member". This is done not only with employees as they are hired, but also when they change jobs. Most recently, two corporate re-organizations have resulted in status change for a number of employees. The Staff Association was involved in none of these changes, nor has it challenged any. The biggest change came from the establishment of the positions of “team leader” and “organizational leader”. The City concluded that “team leaders” should be “associate members” and “organizational leaders” “active members”. However, the employer maintains that organizational leaders have supervisory powers (although I heard little detail), and ask me to conclude that supervisors are part of the group on behalf of which the Staff Association negotiates.
All employees of the City who are not in another bargaining unit are members of the Staff Association as a condition of employment. All members pay dues of $104 a year, through automatic deduction by the employer. There are 160 members of the Staff Association in total of whom 130 are active members.
The members elect an Executive at an Annual General Meeting. Meetings are called to deal with issues, as I will set out in more detail later. The City permits the Staff Association to use its facilities for meetings and social events, and the Staff Association makes regular use of the employer’s E-mail system to communicate to members. The Staff Association is permitted to meet during working hours, but large meetings are generally held during lunch hours or after work.
The By-laws establish a Wage Negotiating Committee that has historically given notice to bargain and met with members of the employer every three years to negotiate. The Wage Negotiating Committee seeks input from "active members" about proposals, and meets with the employer to settle an agreement. Typically the agreements establish wages, benefits, vacations, sick leave, probationary period and hours of work. The most recent agreement has a dispute resolution mechanism. The agreements are silent on such issues as lay off, just cause termination, discipline and discharge, seniority, job posting and a grievance and arbitration procedure. The evidence established that in some instances, "active members" of the Staff Association enjoy salary, benefits and vacation entitlements in excess of those set out in the agreement. These improved terms were negotiated between the individual employees and the employer, without a role for the Staff Association. I heard evidence that executive members of the Staff Association were aware of at least some of these instances, but have never objected. The employer has terminated employees without involving the Staff Association, although on at least one occasion, the employer suggested that the employee get advice from the Staff Association about the package the employer was offering.
The Association has never filed a grievance. I heard that the Staff Association has never contemplated job action in the event that an agreement was not reached.
The agreements were reached after exchanges of proposals, and meetings of two to three days duration. The agreements were ratified by the Association members, through a show of hands at a meeting called for that purpose. The employer routinely presented the agreements to its Council, and the employer has always abided by its terms, and implemented whatever changes were negotiated.
In fact, on two occasions, the City approached the Staff Association to seek amendments to the agreement; to change the benefit plan, and to make salary changes to implement internal equity. In both cases, the Staff Association held a meeting and active members voted to accept the amendments. The City also included representatives of the Staff Association on its consultation team (along with representatives of other bargaining agents) when it developed and implemented corporate re-organizations. On the other hand, the Staff Association did not negotiate a pay equity plan pursuant to the Pay Equity Act, and its members were included in the City’s non-union plan.
There was no real issue about the status of the Staff Association until 1992, when the Canadian Union of Public Employees (CUPE) brought an application for certification with respect to some employees who are now part of the Staff Association. [Between 1973 and 1993, 30 or so members of the Staff Association most closely connected with the “outside” operation of the City (parks, recreation, works etc.) formed their own Supervisory and Maintenance Staff Association, but retained links to the larger Staff Association. In 1993, that group re-joined the Staff Association. It was some of the employees of the Supervisory and Maintenance Association that CUPE sought to represent.] The Supervisory and Maintenance Staff Association filed an intervention, claiming it held bargaining rights. The employer, however, took the position that the Supervisory and Maintenance Staff Association did not hold bargaining rights. Ultimately, the CUPE application was withdrawn, so the status of the Supervisory and Maintenance Staff Association was not determined.
But I heard evidence that these events caused the executive of the Staff Association to pursue the status issue. The first step was an alliance with the Canadian National Federation of Independent Unions (CNFIU) in 1995, which gave the Staff Association access to advice. The decision to join CNFIU was made after an affirmative vote of the membership. Mike Tout, a former President of the Staff Association testified that the executive sought advice from CNFIU about how to resolve their status. CNFIU advised the execution of a voluntary recognition agreement. On October 3, 1995, the Staff Association and the employer executed the following voluntary recognition agreement:
Whereas the eligible employees defined in this document, of the Corporation of the City of Waterloo have shown their desire to be represented by the City of Waterloo Staff Association, the parties hereto do formally agree to a voluntary recognition of the City of Waterloo Staff Association as sole bargaining agent for all full-time and part-time employees paid within the existing salary grades A-J and A-I1 inclusive. This recognition does not include those employees paid outside the bounds of the aforementioned grades.
The job classes set out in the voluntary recognition agreement cover all “active members” of the Staff Association. The voluntary recognition agreement concluded with a paragraph indicating that a copy of it would be sent to the Ontario Labour Relations Board. Mr. Tout signed the voluntary recognition agreement and testified that he did so “to solidify that we were the sole bargaining agent”. On the other hand, he said that the Staff Association was not seeking “to have us made a union by the back door”. The principal goal was to clarify the relationship with the City; concerns about a raid by another union were secondary. Tim Anderson, another member of the Staff Association executive, who also signed the voluntary recognition agreement, testified that the purpose was to defend the Association from future takeovers, and to resolve its concerns, first seen during the CUPE application, that the employer did not recognize its status, and might not, therefore, comply with the agreements.
Don Cere, the Director of Human Resources for the employer at the time, signed the voluntary recognition agreement. He testified that it was his intention simply to confirm the “status quo”. Mr. Cere said that it was not the City's intention to confer the status of trade union on the Staff Association; in Mr. Cere's view, that could only occur after an application was brought to the Board. However, Mr. Cere acknowledged in cross-examination that he had been aware that a trade union could acquire bargaining rights through voluntary recognition. In Mr. Cere's view, the document was only a recognition that the City would voluntarily sit down and discuss issues concerning compensation and benefits with the Staff Association. Mr. Cere also testified he had no reason to believe the Staff Association did not represent the employees at the time.
The voluntary recognition agreement was not ratified by the Staff Association’s members, although they were advised of its existence at the next Annual General Meeting.
In 1998, the CNFIU affiliated with the Labourers’ International Union of North America (LIUNA) and advised the Staff Association that continued affiliation with CNFIU would mean joining LIUNA. This precipitated another identity crisis. The SACIC Report prepared by the Staff Association, described the problem as follows:
At this time the Association was unclear of its current status (non-union or union) or options with regard to certification as a union if that was desired by the membership.
In order to respond to CNFIU, and to learn the current status of the Association, a committee was established. The Staff Association Certification Investigation Committee (SACIC) received the mandate from the Association to investigate our options with regard to certification and to provide information on job security in the event of [municipal] amalgamation.
- I heard evidence about the SACIC Report and the subsequent steps that were taken to decide the Staff Association's future because it is relevant to the employer and the intervenors' argument that status of the Staff Association continued uncertain even in 1998, and more important, that the communication from the Staff Association to its members maintained that confusion. In other words, whatever the real legal status of the Staff Association as bargaining agent, the Staff Association was not clearly asserting that it was the bargaining agent, with the result that any votes and decision-making that followed were tainted by that confusion. For these reasons, both the City and the intervenors submit, the Board should exercise its discretion and order a representation vote.
DECISION
Let me start with the governing statutory provision:
(1) Where a trade union claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.
(2) Before issuing a declaration under subsection (1), the Board may make such inquiry, require the production of such evidence or hold such representation votes as it considers appropriate.
(3) Where the Board makes an affirmative declaration under subsection (1), the successor shall for the purposes of this Act be conclusively presumed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise, and the employer, the successor and the employees concerned shall recognize such status in all respects.
It is common ground among the parties that only a "trade union" can become a "bargaining agent" and the trade union claiming it is the predecessor in a merger must also be a bargaining agent as a necessary pre-condition to a successorship finding.
"Trade union" is defined in section 1(1) as follows:
"trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.
Neither the intervenors nor the employer seriously challenged that the Staff Association is a "trade union" within the meaning of the Act. I conclude that the Staff Association is a "trade union". It is an organization of individuals that has existed for over 40 years. One of its objects, as set out in its Constitution, is the regulation of relations between the City and its members. It has a Constitution that has been put before its members for approval and amendment over the years, at meetings called for that purpose. It has elected officers to carry out the work of the organization.
But as the Board noted in Kubota Metal Corporation, Fahramet Division [1995] OLRB Rep. 467, while the statute does not prescribe other criteria that an organization must meet in order to be found a trade union, capable of operating under the Act, consideration of the term in the context of the Act offers much guidance. For example, section 15 of the Act prohibits the Board from certifying a trade union to be a bargaining agent if an employer or employers' organization “has participated in its formation or administration or has contributed financial or other support to it”. Section 53 deems an agreement between an employer and a trade union acting as bargaining agent not to be a “collective agreement” if the employer or employer's organization participated in the formation or administration of the trade union or contributed financial or other support to it.
After setting out these provisions (or their predecessors), the Board in Kubota continued:
These sections taken together ensure that a "trade union" must originate and operate at arm's length from an employer. A union that receives employer support (etc.) cannot be certified to represent employees nor enter into a collective agreement binding these employees. It is an unfair labour practice for an employer to create or support a "trade union" in order to hinder employees' efforts to seek truly independent representation.
Indeed, the permissive provisions of section 51 which allow an employer and a trade union in its capacity as bargaining agent to include collective agreement provisions setting up a “closed shop” and the mandatory collection of dues; access by the trade union to the workplace and use of the employer's facilities "despite anything in this Act" clearly signal that in other circumstances, these activities would be improper demonstrations of employer support [see J. Paiva Foods Ltd. [1985] OLRB May 690].
Applying those principles to this case, the Board concludes that while the Staff Association maintains all the paper trappings that would lead to a determination that it meets the definition of "trade union" under the Act, it cannot be found to be a bargaining agent.
The organization's long history provides a compelling picture of its relationship with the City. First, the Staff Association's formation and administration is riddled with employer support, with the result that it could not be found to be a bargaining agent. And second, the Staff Association has not behaved in a manner that is consistent with being the exclusive bargaining agent of the employees.
The most serious manifestation of employer support has existed since the Staff Association's inception and continues today. The City requires that all employees in certain classifications belong to the Staff Association. Employees are not free to join or refrain from joining; their employer requires them to belong to the Staff Association. It is difficult to think of a more blatant form of employer involvement in the formation and administration; effectively the employer "signs up" the members. Section 51(4) of the Act permits an employer and a bargaining agent to negotiate a collective agreement with a "closed shop" arrangement, only where the trade union has established that that at the time it entered into the collective agreement, 55% of the employees were its members, it had already been bound to a collective agreement for a year or it was certified by the Board. A "closed shop" in other circumstances is prohibited and an indicator of improper employer support. In the case before me, there is no illusion that employees freely choose whether or not to join the Staff Association.
The City's support of the Staff Association is extended to the financial by the mandatory deduction of "dues" which are then remitted to the Staff Association. In case more evidence of the extent of the City's involvement in the Staff Association were necessary, the City determines which employees are managerial, and therefore excluded, from the Staff Association, and allows use of its E-mail system, meeting rooms and work time for the Staff Association. All of those are impermissible activities.
Counsel for OPEIU argued that the signing of the voluntary recognition agreement effectively "washed away" any taint because there is no question that at that time the Staff Association represented the members. But that does not resolve the problem that the Staff Association existed because the employer created and supported it. Again, the evidence does not support a finding that the employees chose to be represented by the Staff Association either at the time of the signing of the voluntary recognition agreement or after. That taint cannot be cured. The Staff Association cannot become a bargaining agent.
Having regard to the evidence in its totality, I am persuaded that the signing of the voluntary recognition agreement was not the seminal moment that its wording suggests. As counsel for the employer argued, after its signing the parties went on as before. The parties continued to negotiate their limited agreements; the employer dealt unilaterally with employees, and basically operated a "non-union shop". Whatever the words of the voluntary recognition agreement, the parties did not behave as if the Staff Association was the "sole bargaining agent".
That brings me to the second difficulty for the Staff Association in this case; it has not acted as if it were the exclusive bargaining agent for the employees. I make one brief digression. Although I am essentially considering two separate questions, as required by section 68, that is whether the Staff Association was a "trade union" and whether it "was the bargaining agent" at the time of the merger, the questions are not entirely separable. Although "bargaining agent" is not defined in the Act, it is an important concept; it is the vessel into which the bargaining rights, conferred by the Board or by way of voluntary recognition, are poured. Upon certification or voluntary recognition, the bargaining agent acquires the right to exclusively negotiate on behalf of a specific group of employees who work for a particular employer. The status of bargaining agent defines the relationship between the trade union and employees in the particular workplace. In a successful displacement or termination application, the incumbent bargaining agent loses the right to negotiate exclusively for those employees; it loses its relationship with those employees and the employer, but it does not lose its status as a trade union. Or to put it another way, while every bargaining agent has to be a trade union, not every trade union is a bargaining agent.
For the most part, the Act is concerned with the relationship between the bargaining agent and the employees and employer; it is not generally concerned about trade unions and their status except to the extent that status issues affect the workplace relationships. As an example, the Act and the Board are concerned about the "status of a trade union" in the certification process to ensure that only viable entities are granted the right to exclusively represent, or become the bargaining agent for employees. So while one can formulate separate questions, that is whether the Staff Association was a "trade union" and whether it "was the bargaining agent" for the employees, in a practical sense, they are closely related.
Counsel for the employer submitted that the most important characteristic of a bargaining agent is the exclusivity of its representation of the employees. Indeed, section 45 of the Act provides that "every collective agreement shall be deemed to provide that the trade union that is a party thereto is recognized as the exclusive bargaining agent of the employees in the bargaining unit defined therein". The Staff Association, counsel argues, has never acted as exclusive bargaining agent for the employees. It has merely bargained for salary and benefits, and even with respect to those matters, the City has made separate arrangements with employees, without objection from the Staff Association. The agreements, counsel argued, cannot be considered collective agreements since they are so lacking in fundamentals.
The Staff Association chose to negotiate about a limited range of issues, and has left a large measure of discretion to management, and in matters that are typically at the heart of the employment relationship; seniority, just cause discharge etc. I have considered the submissions of counsel for OPEIU. As he put it, just because the Staff Association was not the most effective bargaining agent, does not mean it was not a bargaining agent; it made proposals on issues that its members wanted to negotiate about. But when I combine the limited range of issues negotiated, with the Staff Association's failure to behave as if it had exclusive bargaining authority, I conclude that the Staff Association simply did not behave as if it were a trade union with exclusive bargaining agent status. As one of the Staff Association's officers testified, until this hearing he had never heard of the term "just cause provision". The cumulative evidence points to a mutual intention between the City and the Staff Association to reach agreement on limited issues of importance to employees, particularly salary and benefits. But the evidence does not support a finding that they intended to negotiate a collective agreement, whose terms would be governed by the Act.
In reaching this conclusion, I mean no criticism. The City and the Staff Association held discussions, reached agreements, and both parties held to their deals. But the evidence does not establish that they intended to reach agreements whose enforcement and validity would be determined under the Act. Similarly, the City and the Staff Association did not develop the kind of relationship that one would expect of a trade union and employer operating under the Act. Indeed, as I have already set out, the characteristics of the relationship between the City and the Staff Association run afoul of many provisions of the Act. I conclude that the parties never intended that relationship to be viewed through the prism of the Labour Relations Act, 1995 . The Staff Association was not the bargaining agent of the employees at the time of the alleged merger with the OPEIU.
REMEDY
The City and the intervenors have requested as a remedy that the Board exercise its discretion pursuant to section 68(2) and order a representation vote, in which employees would be asked if they wish to be represented by the OPEIU in their relationship with the City. The OPEIU opposes a vote on the basis that a full campaign and election has already taken place, establishing OPEIU as the employees' choice.
With some reluctance, I have decided to dismiss this application, notwithstanding what I consider to be the measured and perhaps, generous, remedy proposed by the City and the interveneors. While I recognize that section 68(2) gives the Board discretion to order a representation vote as part of its inquiry into a section 68 application, I do not think it is appropriate to do so in this case. I have concluded that the Staff Association was a trade union, but was not a bargaining agent and did not hold bargaining rights at the time of the merger. Essentially, I have concluded that the Staff Association has not met one of the two of the significant pre-conditions to establishing a successorship under the Act. Or to put it another way, I have determined that the Staff Association did not have any rights or obligations under the Act that could be transferred to a trade union pursuant to section 68. Where the fundamental basis for a section 68 determination is lacking, I do not think it appropriate to order a representation vote.
DISPOSITION
This application is dismissed.
“Mary Ellen Cummings”
for the Board