National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) v. Service Employees International Union Local 220, 2001 CanLII 16548

National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) v. Service Employees International Union Local 220

1202-01-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Service Employees International Union Local 220, Responding Party Trade Union v. Winston Park Retirement Home, Responding Party Employer v. Canadian Health Care Workers, Intervenor.

BEFORE: Christopher J. Albertyn, Vice-Chair.

APPEARANCES: Anthony F. Dale, Tammy Heller and Jim Paré for the applicant; D. Wray and Dr. J. Stephen for the responding party trade union; Tom Moutsatsos for the responding party employer; no one appearing for the intervenor.

DECISION OF THE BOARD; November 8, 2001

Background to this decision

1This is an application under section 68 of the Labour Relations Act, 1995 (“the Act”) for a declaration that the applicant (“CAW-Canada”) has acquired the rights, privileges and duties of a predecessor trade union, the Service Employees International Union, Local 220 (“Local 220”), pursuant to agreements (“the Agreement”) concluded between them. (The Agreement is more fully described below: it consists of a Settlement Agreement and a Supplementary Agreement).

2Previous decisions were issued by the Board on July 24, July 26, July 31, August 3, 2001 and October 4, 2001.

3Pursuant to the Board’s direction a representation vote was taken on August 8, 2001 in respect of a bargaining unit of employees of the responding employer, being:

all retirement home employees of Winston Park Retirement Home, carrying on business as the Village of Winston Park, in the City of Kitchener, save and except supervisors, persons above the rank of supervisor, graduate and registered nurses, office and clerical staff, and persons for whom any Trade Union held bargaining rights as of December 6, 1994.

Clarity Note:

For purposes of clarity, the Board notes the parties agreement that the Director of Food Services, Administrator, Director of Activation, Director of Resident Care and Assistant Director of Resident Care are persons above the rank of supervisor.

4Employees were asked to signify, by secret ballot, whether or not they wished to be represented by the CAW-Canada or by the SEIU in their collective bargaining relationship with their employer. The majority of employees indicated that they wish to be represented by the CAW-Canada and not the SEIU. Moreover, as we will see later, the CAW-Canada and the SEIU have agreed between themselves, and have submitted this to the Board, that they are content to abide by the wishes of the employees. It is the employer that objects.

5In its response, the employer requested the application be dismissed because, firstly, Local 220 did not comply with its own constitution when it concluded the Agreement with the CAW-Canada, secondly, its office-bearers were not authorized to conclude the Agreement and, thirdly, the statutory preconditions for relief under section 68 had not been met. The employer said the CAW-Canada was not a genuine successor to Local 220 because its successorship was based upon a condition which had not been fulfilled, viz. a representation vote result which had not yet been held. The employer contended that the Board should not have allowed itself to be used to fulfil a condition which should be satisfied before a union makes a successor rights application to the Board under section 68.

6A hearing was held into these matters on October 12, 2001. At the hearing sufficient information concerning the authority of the SEIU (“the International”) and Local 220 to conclude the Agreement was provided to enable the employer to withdraw its contention that the SEIU office-bearers and officials were not authorized to conclude the Agreement. The employer’s argument that the SEIU had not complied with its own constitution (when the Agreement was concluded) was made subject to the SEIU’s counsel providing details of the authority of the SEIU International’s President to act in the manner he did. That information was subsequently provided and I take the employer to have withdrawn any objection to the application on the basis that Local 220 (which is subject to the Canadian constitution of the SEIU) or the International did not comply with their constitutions when they concluded the Agreement.

The Issues

7The issues to be determined are:

• whether this application was properly brought, given the qualified basis upon which Local 220 accepted that it had transferred jurisdiction of the bargaining unit to the CAW-Canada. (Local 220 had said it had not transferred jurisdiction until the CAW-Canada established, by a representation vote, that the employees in the bargaining unit wanted that); and
• whether the CAW-Canada has become the successor of Local 220 in respect of the bargaining unit, pursuant to the provisions of section 68 of the Act.

8Section 68 of the Act reads:

68. (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.

Factual background

9Early in the year 2000 the CAW-Canada assisted various leaders within eight chartered local unions of the International to have those locals, including Local 220, disaffiliate from the International and then merge with the CAW-Canada.

10The planned disaffiliation was blocked when the International imposed a trusteeship on the eight local unions. The International also obtained an injunction from the Superior Court of Justice on March 2, 2000 which prevented a planned merger vote of members of the eight SEIU locals and the CAW-Canada.

11The CAW-Canada then launched a series of certification applications (raids) in which it sought to displace the SEIU as the bargaining agent for employees in a number of SEIU bargaining units. In response to those applications the Board conducted representation votes, in which employees were asked to indicate which union they wished to represent them. Between about March 2000 and May 2001 the CAW-Canada displaced various SEIU local unions as bargaining agent in approximately 180 bargaining units with more than 14,000 employees.

12Both the CAW-Canada and the SEIU Canada are affiliated to the Canadian Labour Congress (CLC). The SEIU filed a complaint against the CAW-Canada for its raiding activities and, following an independent investigation, the CLC found the CAW-Canada to have violated the CLC constitution and it imposed sanctions on the CAW-Canada.

13Through the aegis of the CLC, both the CAW-Canada and the SEIU sought to bring about a suitable settlement to their differences. Mr. Andrew Stern, the President of the International, and Ms. Sharleen Stewart, the International’s Vice-President: Canada, authorized Dr. Jennifer Stephen to enter into negotiations with the CAW-Canada for the purpose of concluding an overall agreement to resolve the differences between the two unions. That decision followed full consideration of the matter by the International’s Canadian Executive Committee and the Council of Presidents of the various Canadian local unions. Dr. Stephen is the International’s Director of Research, Policy and Campaigns in Canada. Dr. Stephen was authorized also by the SEIU’s local unions, including Local 220. In authorizing Dr. Stephen, Mr. Stern acted under his substantial powers under the Constitution of the International, particularly Article III, Sections 1 and 2(a); Article VIII, Section 1(c), (d), (f), (g) and (h).

14Those negotiations resulted in the conclusion of a Settlement Agreement on May 23, 2001. Among others who signed that agreement were the following: for the CAW-Canada, Mr. Buzz Hargrove, its President and Mr. Jim O’Neil, its National Secretary/Treasurer; for the International, Mr. Andrew Stern, its President; Ms. Sharleen Stewart, its Canadian Vice-President and Ms. Carol Jean, the President of Local 220. It was ratified by the Canadian Executive Committee of the International, all of the presidents of all of the local unions in Ontario and by all of the executive committees of all of the affected local unions of the SEIU.

15Ms. Jean was authorized to conclude the Settlement Agreement by majority resolution of the Executive Board of Local 220, and she is a signatory.

16The Settlement Agreement provided a comprehensive scheme for resolving all disputes between the International (and its local unions which were party to the Agreement) and the CAW-Canada. The Settlement Agreement resolved all disputes concerning the representation of employees by the affected SEIU locals. It set out a procedure by which employees in certain defined bargaining units (including the bargaining unit affected by this application), then represented by an SEIU local union, could express their wish to be represented instead by the CAW-Canada. The parties to the Settlement Agreement contemplated that the CAW-Canada could gather signed evidence of membership from employees in the affected bargaining units within a prescribed period of time. If the CAW-Canada could demonstrate it had collected membership evidence from at least 40% of the employees in a bargaining unit, the Board would then be asked to conduct a representation vote. In the event of the CAW-Canada being successful in the vote, it would, by agreement between the parties to the Settlement Agreement, be deemed the successor of the SEIU local concerned. Paragraph 5 thereof reads:

5. Where it is obvious to the Arbitrator that the CAW has satisfied the 40% membership threshold, regardless of any disputes or challenges filed by the parties, then the Arbitrator shall so declare and that CAW will be entitled to apply to the OLRB pursuant to Section 68 of the Act to seek a declaration that it is the successor trade union. The SEIU will not oppose any such application and shall advise the Board it is agreeable to a representation vote to determine the wishes of the employees in the applicable bargaining unit. If the employees in the bargaining unit, by a majority vote, agree to the CAW as the successor bargaining agent, the SEIU will not object to the OLRB ordering a transfer of its bargaining rights to the CAW for the bargaining unit in question. If the CAW fails to win the representation vote, it is understood and agreed that the SEIU (and the affected local union) shall retain its bargaining rights.

The Settlement Agreement was a final resolution of the long dispute between the CAW-Canada and the SEIU. This meant that the CAW-Canada’s campaign to displace the SEIU locals as bargaining agent for various bargaining units would cease. Furthermore, if the CAW-Canada was unsuccessful in the Board-supervised representation vote, it would walk away and the SEIU local would remain the bargaining agent of the employees concerned.

17The parties to the Settlement Agreement concluded a further agreement on June 8, 2001, the Supplementary Agreement. It gave some detailed content to the intentions expressed in the Settlement Agreement. It was signed on behalf of the International and the SEIU Locals, including Local 220, by the Canadian Vice-President, Ms. Stewart. It was signed on behalf of the CAW-Canada by Mr. Hargrove.

18The Settlement Agreement and the Supplementary Agreement apply to the bargaining unit in this application. The CAW-Canada established 40% proof of membership before an arbitrator appointed jointly by the SEIU and the CAW-Canada under the Supplementary Agreement; a representation vote was ordered, and conducted by the Board; and the CAW-Canada has established majority support among those in the bargaining unit who voted.

Conclusions of fact

19Local 220 held the bargaining rights for the bargaining unit.

20By proper resolution of the Executive Board of Local 220, the bargaining rights in respect of the bargaining unit were transferred to the CAW-Canada, subject to the condition that the CAW-Canada establish its representativeness and its support among the affected employees of the bargaining unit. That was to be done in two stages: the CAW-Canada had to establish, firstly, to the satisfaction of an agreed arbitrator, that it had secured membership applications from at least 40% of the employees in the bargaining unit; and, secondly, it had to obtain a majority of the votes cast in a representation vote supervised by the Board.

21Both those conditions have been met and Local 220 accepts that its bargaining rights have been transferred to the CAW-Canada, pursuant to the Agreement.

22To the extent that the approval of the International is necessary, such approval has been granted.

Argument and Consideration

23Although the requirement of constitutional compliance to effect a merger, amalgamation or transfer of jurisdiction is a less stringent requirement than it once was, and that substantial compliance is sufficient (The Great Atlantic & Pacific Company of Canada, Limited [1993] OLRB Rep. Sept. 885, at ¶¶50-63), there is no longer an issue of non-compliance by Local 220 with the provisions of its constitution because the employer did not pursue that issue. Hence the matters dealt with in L.M.L. Foods Inc. [1985] OLRB Rep. July 1252, particularly at ¶¶27-30, are not directly germane to this application.

24Under section 68 the Board is dealing with statutorily created bargaining rights, not property or assets of trade unions. It is not union constitutions which create or define bargaining rights. The Act does that. The Board’s principal consideration when determining whether bargaining rights should be created, transferred or terminated is the freely expressed wishes of the employees concerned.

25The employer, as a non-party to an organizational arrangement reached between two trade unions, seeks to prevent the realization of that arrangement in circumstances which would thwart the wishes expressed by the employees who are affected by it. This endeavour should be considered in the context of a statute which now gives paramount importance to the wishes of employees in the selection of their bargaining agent.

26The employer’s argument may be summarized as one of timing. It says that the CAW-Canada may now have established it is the successor of Local 220 in respect of the bargaining unit, but that is only because of the representation vote which the Board conducted. At the time the application was brought the CAW-Canada had not yet established the jurisdictional basis to obtain relief under section 68. The application was therefore premature. At that stage the CAW-Canada had not established that there had been a transfer of jurisdiction from Local 220. It had a contingent entitlement, not a perfected right. The employer says the claim to relief under section 68 cannot be subject to a suspensive condition. It must be unconditional to succeed.

27The employer concedes that, arguably, if this application is dismissed and the CAW-Canada applies again for the relief it seeks it will be in a position to obtain it. That is because the precondition for the CAW-Canada’s entitlement to relief will have been met. The preferred solution though for the employer would be for the CAW-Canada to await the open period at the end of the current collective agreement between the employer and Local 220 at which time the employer suggests the CAW-Canada could seek to displace Local 220 as the employees’ bargaining agent.

28Local 220’s counsel says that the union honours its agreements and accordingly, as a result of the outcome of the representation vote, the CAW-Canada is entitled to the relief sought in the application.

29The CAW-Canada’s counsel argues, in my view correctly, that the provisions of section 68(2) suggest that it is sufficient for a union to simply file a claim of an entitlement to successor status for the Board to consider the matter. In this case the CAW-Canada alleged that it had acquired the rights, privileges and duties of Local 220 by reason of a transfer of jurisdiction. It is that claim which the Board had to adjudicate. If the Board has some doubt as to whether a successorship has actually occurred, it may make inquiries as contemplated in section 68(2). In this case the parties to the Agreement set out a democratic procedure by which the wishes of the affected employees could be determined. Section 68(2) of the Act anticipates that a representation vote may be held after a successorship application is made in order to determine the wishes of the affected employees. That, in counsel’s submission, is precisely what Local 220 and the CAW-Canada decided should be the procedure to resolve the matter. For both of them the wishes of the affected employees was the decisive consideration. In the CAW-Canada’s submission, the CAW-Canada and Local 220 merely put in motion a procedure which the Board was likely itself to follow.

30The employer suggests the CAW-Canada and Local 220 should have conducted a representation vote of the employees in the bargaining unit prior to their approaching the Board for a declaration under section 68. That is not a necessity. The Board has the power to investigate a claim of successorship and to conduct a representation vote to assist it in making a determination as to whether there has been a successorship. The procedure adopted by the CAW-Canada and Local 220 in this case is an appropriate method to determine a transfer of jurisdiction.

31The employer suggests there must be stability during the currency of a collective agreement. That is why it recommends the CAW-Canada should wait until the open period before advancing its collective bargaining claims. The transfer of jurisdiction does not alter the collective agreement. The successor trade union steps into the shoes of the incumbent trade union and assumes all of its obligations. The collective agreement remains unchanged. There is no reason why labour relations stability should be disturbed by a transfer of jurisdiction.

32As the CAW-Canada’s counsel argues, it makes no labour relations sense, and there is much artificiality, in pursuing the employer’s suggestion that the application be dismissed, with the expectation of it forthwith being re-filed and having the relief then granted. There is a further labour relations consideration. The Agreement brought an end to a long period of acrimony and enmity between two established trade unions. Their conflict created much disruption for a large number of employees and employers in Ontario. The cooperative resolution of the differences, upon the basis of employee wishes, should, as far as possible, be given effect to by the Board, which, as contemplated in section 2 of the Act, ought to facilitate the expeditious resolution of workplace disputes.

33Collective bargaining rights can be acquired in various ways under the Act. They can be created by voluntary recognition and by certification, each of which is founded on the majority wishes of the employees concerned. Certification of a new bargaining agent may involve the displacement of an existing bargaining agent during an open period. That too requires an expression of majority support from the affected employees. In this case the employer is seeking to restrict the acquisition of bargaining rights to a certification application. It wants the CAW-Canada to wait until the open period in the SEIU’s collective agreement when, it suggests, the CAW-Canada may bring its certification application. But bargaining rights may also be transferred by agreement, if confirmed by majority employee support (including by a representation vote), under section 68. That section stands separate and independent from the certification provisions of the Act. It governs a transaction between trade unions, in which an employer is only indirectly involved. The possibility of a displacement application in due course by the CAW-Canada does not preclude the CAW-Canada and the SEIU from making use of the mechanism in section 68 of the Act, as they have done.

34In my view it would be sufficient to obtain relief under section 68 if two trade unions were to approach the Board and seek a consent order for the transfer of bargaining rights from one to the other, provided that the employees affected by the agreement between them voted in a Board-supervised vote in favour of the transfer. That is what has occurred here.

35In this case it is undisputed that there is actual compliance with the constitutions of the trade unions which effected the transfer of jurisdictions; the SEIU has done all that it needs to do to transfer its bargaining rights and the CAW-Canada has done all that it needs to do to receive those bargaining rights; there has been adequate notice to the employees affected by the conditional agreement to transfer jurisdiction; the employees have expressed their views on the matter through a Board-supervised representation vote. Therefore the CAW-Canada has clearly acquired the transfer of jurisdiction of the bargaining unit from Local 220. In these circumstances the relief sought in the application should be granted.

Disposition

36The CAW-Canada is declared to be the successor of Local 220, pursuant to the provisions of section 68(1) in respect of the following bargaining unit:

all retirement home employees of Winston Park Retirement Home, carrying on business as the Village of Winston Park, in the City of Kitchener, save and except supervisors, persons above the rank of supervisor, graduate and registered nurses, office and clerical staff, and persons for whom any Trade Union held bargaining rights as of December 6, 1994.

Clarity Note:

For purposes of clarity, the Board notes the parties agreement that the Director of Food Services, Administrator, Director of Activation, Director of Resident Care and Assistant Director of Resident Care are persons above the rank of supervisor.

37Local 220’s bargaining rights in respect of the bargaining unit have ceased.

38A copy of this decision is to be posted forthwith by the responding party employer in prominent places in the workplace where it is likely to come to the attention of employees in the bargaining unit. The posting is to last for a period of 30 days.

“Christopher J. Albertyn”

for the Board