Court File and Parties

0176-01-R National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada), Applicant v. Coca-Cola Bottling Company, Responding Party v. United Food and Commercial Workers International Union, Local 175 and United Food and Commercial Workers Union, Local 393W, Intervenors.

0178-01-U National Automobile, Aerospace, Transportation and General Worker Union of Canada (CAW-Canada) and its Local 385, Applicant v. United Food and Commercial Workers International Union Local 175 and Coca-Cola Bottling Company, Responding Parties.

0179-01-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and its Local 385, Applicant v. United Food and Commercial Workers International Union Local 175, Responding Party v. Coca-Cola Bottling Company, Intervenor.

0203-01-R United Food and Commercial Workers International Union, Applicant v. Coca-Cola Bottling Ltd, Responding Party v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Intervenor.

BEFORE: Stephen Raymond, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.

APPEARANCES: Frank Luce, Dan MacPherson and Kim Birmingham for the applicant; Chuck R. Robertson, L. Bertuzzi, Shane Smith, Larry H. Abrams and Leslee Wills for the responding party; and D. Wray, Mini Jones and Dorothy Gossi for UFCW; D. Wray, Mini Jones and W. Hanley for UFCW Local 175; D. Wray, Mini Jones and Tony DiBartolomew for UFCW Local 393-W.

DECISION OF THE BOARD; June 21, 2001

Decision

1. Board File 0176-01-R is an application for certification pursuant to the Labour Relations Act, 1995, as amended (“the Act”) by National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) for certification of a group of employees of Coca-Cola Bottling Company at its Brampton facility (“Coca-Cola”).

2. Board File 0178-01-U is an application pursuant to section 96 of the Act by National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) and its Local 385 alleging that the United Food and Commercial Workers International Union, Local 175 and Coca-Cola Bottling Company have violated the Act.

3. Board File 0179-01-R is an application for termination of bargaining rights pursuant to section 66 of the Act by National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) and its Local 385 against the United Food and Commercial Workers International Union, Local 175.

4. Board File 0203-01-R is an application for certification pursuant to the Act by United Food and Commercial Workers International Union of a group of employees of Coca-Cola Bottling Company at its Brampton facility.

5. The Board finds that both the applicant in Board File 0176-01-R and the applicant in Board File No. 0203-01-R are trade unions within the meaning of section 1(1) of the Act. Furthermore, in respect of both certification applications, it appears that the not less than 40 per cent of the individuals in the bargaining unit proposed in the applications were members of the applicant unions at the time the applications were made.

6. A hearing was held on June 19, 2001. At the hearing, Coca-Cola indicated that the staffing of the Brampton facility had progressed to a point where much more than fifty per cent of the employees who will make up the full complement of the bargaining unit are employed at the Brampton facility. Having heard that, the Board invited submissions as to the appropriateness of holding a vote at this time. The Board issued an oral ruling at the hearing ordering a vote on June 26, 2001.

7. Given that the applications for certification were filed within one day of each other, the Board will treat the applications as if they were filed on the same day.

8. Having regard to the agreement of the parties, the voting constituency is described as follows:

all employees of the Coca-Cola Bottling Company working at or out of its plant in the City of Brampton (including those employees working at Downsview or Thorncliffe as of June 19, 2001 who have been assigned jobs at the Brampton facility pursuant to the job selection process of February, 2001), save and except office staff (including sales call centre employees), dispatch staff, merchandisers, auditors, account managers, supervisors and persons above the rank of supervisor.

The Board directs that a vote be taken of the individuals in the above described voting constituency.

9. Having regard to the agreement of the parties, the employees will not be given the option of determining whether they wish to be represented by a bargaining agent or not. Their choice will be as to the identity of the bargaining agent.

10. The employees will be asked whether they wish to be represented by the National Automobile, Aerospace, Transportation and General Workers’ Union of Canada (CAW-Canada) or the United Food and Commercial Workers International Union.

11. The vote will be held on June 26, 2001. Other vote arrangements will be as set out in the attached “Notice of Vote and of Hearing”.

12. All individuals who held an employment relationship with Coca-Cola Bottling Company at its Brampton facility on June 19, 2001 are eligible to vote. Employees having an employment relationship on June 19, 2001, include employees who were not at work on that date, so long as there is a reasonable expectation of their return to employment.

13. There is a dispute among the parties as to whether employees of Coca-Cola who have been identified by Coca-Cola as employees who will be working at the Brampton facility by mid-July 2001 should be eligible to cast a ballot in this vote. Coca-Cola is directed to provide a list of the employees to the trade unions, and if it has not done so, to post the list of employees in the facilities where they presently work along with a copy of this decision. If any individual on the list wishes to cast a ballot, the individual shall identify himself or herself as being on the list and such individual shall be entitled to cast a ballot. Any ballot cast by such an individual shall be segregated and not counted until the Board so orders or the parties agree.

14. Coca-Cola raises an issue pursuant to section 8.1 of the Act in relation to the application for certification in Board File No. 0176-01-R. After comparing the membership evidence provided by the applicant as against the information provided by the responding party, the Board finds that the numerical differences between the parties is not significant. The applicant has established sufficient membership support in its proposed bargaining unit for the purpose of obtaining a vote and having that vote counted. Coca-Cola asserts that the CAW must also demonstrate support of forty per cent of the members of the now larger bargaining unit. The Board is not prepared at this time to make a determination of that matter. When Coca-Cola’s list of employees is received, the Board will review the application of section 8.1 of the Act, if requested to do so by Coca-Cola.

15. The Board presently has before it two certification applications, one termination application and an application alleging an unfair labour practice. Section 8 of the Act contemplates a “quick vote” of employees in a certification application where an applicant has demonstrated that appearance of at least 40 per cent support. Under section 66 of the Act, the Board has a discretion to direct the taking of a vote amongst employees in a termination application “as [the Board] considers necessary”. In Penegal Trim & Supply Ltd., [2000] OLRB Rep. Mar./Apr. 333, the Board explained why the legislature included the power to hold “representation votes” in the Board’s remedial arsenal as follows:

91. It seems to me that section 66(2) is an information gathering device, and permits the Board to conduct the kind of secret ballot vote that would have been conducted if the trade union had sought certification in the first place, (or that would have been conducted if the application had been launched under section 63). A representation vote may not be necessary, but section 66 identifies that possibility; and as in the case of a ratification vote (if the union holds one), the Board can use the results of the representation vote(s) to inform the exercise of its discretion under section 66(1). For example: if the union were able to demonstrate solid support in a Board-supervised representation vote, the Board might well decline to inquire into a termination application, or refuse to grant such application, despite some question of "entitlement" at the time the collective agreement/voluntary recognition arrangement was entered into. In this sense, a positive representation vote affirming support for an incumbent union might "cure" any insufficiency of the incumbent's evidence, and derail what might otherwise be a difficult historical enquiry. (A "negative" representation vote would, of course, be irrelevant and unnecessary if the union were otherwise able to meet the section 66(3) onus, because that is the evidence that feeds the power to terminate under section 66(1) and (4)).

92. From a policy point of view, a representation vote is one way to ensure that the situation remains consistent with the statutory purpose - that the union be the freely designated representative of the employees - and in an appropriate case, it may make it unnecessary to examine the depth of the union's support some months before. Why worry about the wishes of employees at the time that the agreement was entered into, when the employees today are satisfied with the status quo (at least in the absence of concerns under section 53)? Section 66(2) permits a direct test of employee wishes, that may assist the Board in disposing of the case. Section 66(2) permits the Board to gather information of employee wishes that can then be used in the exercise of discretion.

16. In the Board’s view, a test of employee wishes is appropriate at this time. The result of that vote may assist the parties and may provide helpful information to the Board in the exercise of its statutory responsibilities. The Board has not, however, determined what legal effect, if any, the results of that vote will have on the proceedings. Furthermore, in our view, holding a representation vote at this time will have no impact on the parties’ rights to pursue their positions in the pending applications.

17. Coca-Cola is directed to post copies of this decision and of the "Notice of Vote and of Hearing" adjacent to each of the posted copies of the "Notice to Employees of Application for Certification". These copies must remain posted for 30 days.

18. Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification, other than status disputes, including any matters relating to the representation vote, must file a detailed statement of representations with the Board and deliver it to the other parties, so that it is received by the Board within five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken. Representations with respect to any status dispute must be made in accordance with the directions provided in Information Bulletin No. 4: Status Disputes in Certification Applications (Non-Construction).

19. The hearing dates of June 19, 20, 21 and 29, 2001 are adjourned. Hearing dates scheduled for July 23 and 24, 2001 are not adjourned.

“Stephen Raymond”

for the Board