Court File and Parties
3109-00-R Service Employees International Union Local 528, Applicant v. Service Employees International Union Local 639, Responding Party Trade Union, v. Windsor Raceway Inc., Responding Party Employer.
3128-00-R Service Employees International Union Local 528, Applicant v. Service Employees International Union Local 210, Responding Party Trade Union, v. Windsor Raceway Inc., Responding Party Employer.
3130-00-R Service Employees International Union Local 528, Applicant v. Service Employees International Union Local 204, Responding Party Trade Union, v. The Ontario Jockey Club, Responding Party Employer.
0252-01-R Service Employees International Union – Local 528, Applicant v. Flamboro Downs Holdings Limited, Responding Party
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
DECISION OF THE BOARD; June 11, 2001
Decision
Board File 0252-01-R is an application for certification (“the certification application”). The other three files are applications under section 68 of the Labour Relations Act, 1995, S.O. 1995, c.1 (“the Act”) (“the successorship applications”) for a declaration that the applicant in each has acquired the rights, privileges and duties of a predecessor trade union by reason of a merger, amalgamation or a transfer of jurisdiction. The issue of the applicant’s status as a trade union is common to all four matters. The Board directed the applicant to file submissions in all three of the successorship applications, including submissions concerning the issue of trade union status. A differently constituted panel of the Board directed the applicant in the certification application to file submissions and materials concerning trade union status. The applicant subsequently communicated a request to the Board to extend the time limits for the filing of the submissions in Board Files No. 3128-00-R and 3130-00-R, until such time as the Board deals with the trade union status issue in Board File No. 3109-00-R. It also asked that the same issue be held in abeyance in the certification application until dealt with in Board File No. 3109-00-R. A differently constituted panel of the Board issued a decision on May 15, 2001 granting the applicant in the certification application an extension for the filing of submissions concerning trade union status pending a decision in Board File No. 3109-00-R.
The approach suggested by the applicant in the successorship applications is a sensible one. We propose to deal with the submissions of the applicant in Board File No. 3109-00-R, including the status issue. The determination of the status issue in this file will determine the outcome finally in Board File 3130-00-R, and partially assist in a final determination in Board File 3128-00-R.
Based on the materials and submissions filed by the applicant on May 9, 2001 in respect of Board File No. 3109-00-R, none of which was contested, we are satisfied that the bargaining unit members of the predecessor trade union, Service Employees International Union, Local 639, had proper notice of the subject matter of the November 13, 2000 meeting concerning the merger with the applicant. Based on the filing of the executed Confirmation of Posting on May 8, 2001, we are also satisfied that all affected employees had notice of this application. No representations in opposition to the application have been filed by any employees.
We turn now to a consideration of the issue of trade union status. The applicant provided a history of its existence. The applicant alleges its origins lie in a trade union once known as Mutual Employees’ Association, Local 528, (“MEA”), a chartered local of the Building Service Employees International Union (“BSEIU”) which later became known as the Service Employees International Union (“SEIU”). The MEA was recognized as a trade union within the meaning of section 1(1) of the Act by the Board when it certified the MEA as exclusive bargaining agent for a unit of employees at the Ontario Jockey Club on January 17, 1975. In 1982, the MEA changed its name to the Service Employees’ International Union, Local 528, but there were no concomitant changes to the make-up of the membership or the location of the former MEA organization, and the applicant continued to administer the existing collective agreements to which the MEA had been a named party, and to which the applicant thereafter was the named trade union. The applicant currently has at least 600 members who are employed in six bargaining units for which the applicant has purported to advance bargaining rights. The applicant filed its current constitution which contains as one of its objectives the regulation of the terms and conditions of its members’ employment with their employers.
We are satisfied, based on the applicant’s uncontested submissions and materials in support of same in Board File No. 3109-00-R, as well as the Board jurisprudence cited by the applicant, that the applicant is a trade union within the meaning of section 1(1) of the Act, and we so find.
Having regard to the material before it, and pursuant to section 68 of the Act, the Board hereby declares that the applicant union in Board File No. 3109-00-R has acquired the rights, privileges and duties of its predecessor, Local 639, by reason of a merger, amalgamation, or transfer of jurisdiction.
As the sole remaining issue in Board File No. 3130-00-R is the status of the applicant, and as we have determined that issue in Board File No. 3109-00-R, the Board hereby declares that the applicant union in Board File No. 3130-00-R has acquired the rights, privileges and duties of its predecessor, Service Employees International Union, Local 204, by reason of a merger, amalgamation, or transfer of jurisdiction.
Finally we turn to the submissions of the applicant in Board File No. 3128-00-R. The applicant contends, and it is not disputed, that members of all three bargaining units affected in that matter were mailed notice of a November 14, 2000 meeting, and that the notice identified the merger issue that would be discussed, and possibly endorsed, at that meeting. The applicant contends that members of all three bargaining units (which contain approximately 66 employees in total) attended on November 14, 2000. The applicant conducted a single secret ballot vote, the results of which were ten to one in favour of the merger with the applicant. The Board was concerned that the vote was not segregated on a bargaining unit by bargaining unit basis, thus making it impossible to tell whether a majority of voters in each bargaining unit had expressed their wishes. The Board was also concerned that the applicant’s written confirmation of the vote results referred to a different union predecessor than the predecessor identified in this application.
The applicant indicated in its submissions that the confusion created by its reference to a different predecessor was a clerical error. We accept that explanation. We are satisfied that the applicant intended to refer to the predecessor union named in the application.
The applicant goes on to contend that the vote results of the November 14, 2000 meeting cannot be broken down at this point by bargaining unit, because the ballots cast were not segregated. Furthermore, it contends that it was important for the employees to decide as a group whether they wished to participate in the merger that would result in a single gaming industry local. Finally, the applicant contends that it was not required by the constitution of the Service Employees International Union to conduct a vote, because the consent of the merging locals was sufficient under the constitution, and that consent had been obtained. The vote, the applicant states, was merely an additional measure by which the membership could express their views.
We are somewhat troubled by the applicant’s position concerning the vote it conducted. The Board rejects the applicant’s argument that this was an appropriate case to combine the ballots of all three bargaining units. There were only 11 voters. It is entirely possible that as few as one or two of those voters were from one of the three bargaining units. If there was only one such representative employee, and if that employee cast the only ballot against the merger, that would be a clear expression of dissent in respect of that bargaining unit. Or had there been merely two employees from one of the bargaining units at the vote, one in favour and one against the merger, that would suggest an equivocal view of the proposal.
The question is whether or not the unsatisfactory manner in which the vote was taken and counted should be viewed by the Board as an impediment to a declaration in favour of the applicant. Had there been any objections filed in this matter by any employee, we might have taken a different view of the matter. However, there were no such objections, and we accept that there has been compliance with the constitution governing the responding party trade union. Moreover, given that the application is not contested in substance, and given further that all employees from all three bargaining units had notice of an opportunity to participate in debate concerning the merger, as well as notice of this application, and in the absence of any employee objection to this application, we are prepared to grant the applicant’s requested relief.
The Board hereby declares that the applicant union in Board File 3128-00-R has acquired the rights, privileges and duties of its predecessor, Service Employees International Union, Local 210, by reason of a merger, amalgamation, or transfer of jurisdiction.
The applicant and responding party employers are relieved from filing further submissions in Board Files No. 3128-00-R and 3130-00-R.
The responding party employers in the successorship applications are directed to file copies of this decision in a location or locations in their respective workplaces where it is likely to come to the attention of employees affected by the applications. Those copies are to remain posted for 30 days from the date of this decision.
“Patrick Kelly”
for the Board