1. society
2. work
3. unions

ONTARIO LABOUR RELATIONS BOARD
Labour Relations Act, 1995
OLRB Case No: 2882-14-R
Termination (Industrial)
Niroshitha Sadyathasan and Frank Brown, Applicant v United Food and
Commercial Workers International Union Canada Local 175, Responding Party v
WHL Management Limited Partnership, Intervenor
COVER LETTER
TO THE PARTIES LISTED ON APPENDIX A:
The Board is attaching the following document(s):
Decision - April 2, 2015
DATED: April 2, 2015
Catherine Gilbert
Registrar
Website: www.olrb.gov.on.ca
Address all communication to:
The Registrar
Ontario Labour Relations Board
505 University Avenue, 2nd Floor
Toronto, Ontario M5G 2P1
Tel: 416-326-7500
Toll-free: 1-877-339-3335
Fax: 416-326-7531
Pg. 1 of 2
ONTARIO LABOUR RELATIONS BOARD
THIS IS AN OFFICIAL NOTICE OF THE BOARD
OFFICIAL NOTICES OF THE BOARD MUST NOT BE REMOVED, DEFACED
OR DESTROYED
ALL NOTICES MUST IMMEDIATELY BE POSTED BY THE EMPLOYER (IN
LOCATIONS WHERE THEY ARE MOST LIKELY TO COME TO THE
ATTENTION OF EMPLOYEES OR OTHER INDIVIDUALS AFFECTED BY THE
APPLICATION) NEXT TO THE APPLICATION, THE BOARD'S NOTICE TO
EMPLOYEES OF APPLICATION, AND/OR THE BOARD'S DECISION
NOTICES MUST REMAIN POSTED FOR 45 BUSINESS DAYS
Pg. 2 of 2
ONTARIO LABOUR RELATIONS BOARD
OLRB Case No: 2882-14-R
Niroshitha Sadyathasan and Frank Brown, Applicants v United Food
and Commercial Workers International Union Canada Local 175,
Responding Party v WHL Management Limited Partnership,
Intervenor
BEFORE:
Matthew R. Wilson, Vice-Chair, and Board Members
R. O’Connor and Carol Phillips
APPEARANCES: Neal Sommer and Niro Sadyathasan appearing for
the applicant; Jesse Kugler, Derik McArthur, John DiFalco and Meemee
Seto appearing for the responding party; Mark Mendl, Andy Weinkove
and Damon Alyea appearing for the intervenor
DECISION OF THE BOARD: April 2, 2015
1.
This is an application for a declaration terminating bargaining
rights filed under subsection 63(2) of the Labour Relations Act, 1995,
S.O. 1995, c.1, as amended (the “Act”).
2.
The only issue before the Board is whether employees hired
after the strike commenced were eligible to cast ballots and have their
votes counted for the purposes of the application.
Background
3.
Niroshitha Sadyathasan, one of the two applicants, applied to
the Board under section 63 of the Act for a declaration that the United
Food and Commercial Workers Union Canada, Local 175 (“UFCW” or
the “responding party”) no longer represents the employees of WHL
Management Limited Partnership (“WHL”) in the bargaining unit for
which it is the bargaining agent employed.
-24.
This application was filed on December 23, 2014. A strike has
been in effect since August 13, 2013 (“strike date”). Some striking
employees have crossed the picket line to return to work. WHL has
retained some agency employees during the course of the strike and
has also hired additional workers. It explains that the hiring of
additional workers is a result of an expansion to its business.
5.
Some of the employees affected by this application were
covered by a collective agreement between the UFCW and WHL, with
an effective date of July 25, 2009, until July 24, 2013. The bargaining
unit description in that collective agreement is as follows:
all employees of WHL Management Limited Partnership
at 50 Torlake Crescent in the City of Toronto, Ontario,
save and except assistant supervisors, persons above
the rank of assistant supervisor, research and
development, administrators/coordinators, production
coordinators, production clerks, office, clerical and
sales staff and students.
6.
It is necessary to set out a brief description of the procedural
history of this application in order to provide some context for dealing
with the issue.
Procedural History
7.
In a decision dated December 30, 2014, the Board (differently
constituted) dealt with an issue raised by the UFCW about whether 40
per cent or more of the employees in the bargaining unit appeared to
express a wish not to be represented by the UFCW at the time the
application was filed.
8.
The UFCW submitted that only those employees who were
represented by the UFCW when they commenced a strike on August
13, 2013 (which is still ongoing), and not the individuals who the WHL
has hired since then constitutes employees in the bargaining unit for
the purpose of this application.
9.
In that decision, the Board directed the WHL to prepare a
fresh Schedule C list of the 212 individuals indicating which employees
were hired after the strike date. The parties were also invited to file
submissions with the Board, which they did in a timely manner.
-310.
In a summary decision dated January 26, 2015, (2015 CanLII
4613) with reasons issued in its decision dated February 13, 2015,
(2015 CanLII 8245) the Board directed that a vote be held on January
29, 2015. The Board in its February 13th decision determined that the
outstanding issues about eligibility to vote would be heard by the
Board following the conduct of the vote.
The Vote
11.
As directed by the Board, the vote was held on January 29,
2015. At the hearing, the UFCW set out the details of the vote. There
was no disagreement from the other parties.
12.
Of the 241 names on the voter’s list, 200 individuals voted.
There were three lists of names:
(i) Schedule A had 107 employees who the parties
believed were employed on the strike date. Of
those employees, 101 voted with 15 of these
ballots being challenged by the UFCW and
WHL. There was 1 spoiled ballot. There were
54 ballots in favour of the UFCW and 31 ballots
cast against it.
(ii) Schedule B had 30 names on the list who the
UFCW sought to add, but were challenged by
the WHL. Of the 30 names on the list, 9
employees had been terminated and are the
subject of an unfair labour practice complaint
under section 96 of the Act that is being heard
by a different panel of the Board. There were
12 votes cast by individuals on the Schedule B
list. The details of who voted and the reasons
for the challenges are not material to the
issues raised before the Panel. These ballots
were segregated and remain sealed.
(iii) Schedule C is a list of 103 individuals who were
hired after the strike date. Of this list, 85
individuals cast ballots, all of which were
segregated and sealed. The votes of these
individuals are the subject of this decision.
-413.
There were two individuals who cast ballots whose names did
not appear on any list.
14.
There were also a group of 66 individuals who started working
after the strike date and they were described by the parties as
replacement workers who are employed by a temporary agency. The
parties agreed that these 66 individuals had no right to vote. It was
also agreed that replacement workers, in general, had no right to vote
(See: ResCare Premier Canada Inc. (c.o.b. Anagram Premier), [2003]
OLRB Rep. Nov./Dec. 1077.).
The Issue
15.
As noted earlier, the only issue being considered in this
decision is whether employees hired after the strike commenced were
eligible to cast ballots and have their votes counted for the purposes of
the application.
This group of employees will be referred to as
Schedule C employees.
16.
It is important to note that the UFCW did not concede that
Schedule C employees were hired for bona fide business expansion
reasons. To the contrary, the UFCW’s pleadings make it clear that it is
alleging that the WHL hired additional workers after the strike date in
order to flood the vote against the UFCW.
17.
The question before the Board is who is in the bargaining unit
for the purpose of the termination application.
The Arguments
18.
We will briefly set out the thoughtful submissions of the
parties.
19.
The applicants concede that anyone hired into the bargaining
unit before the commencement of the strike can vote in the
application.
They accept that replacement workers – that is
employees hired to replace striking employees – have no entitlement
to vote. However, they take the position that Schedule C employees,
who they believe were hired for bona fide business reasons, are
entitled to vote.
-520.
The applicants assert that the Board’s decisions of January 26,
2015 and February 13, 2015 have already decided that Schedule C
employees are in the bargaining unit and thus entitled to vote.
21.
While they take no issue with the result in Res Care, supra,
they do challenge its premise that the bargaining unit goes on strike
and therefore replacement workers are not part of the bargaining unit.
The applicants assert that the bargaining unit remains in the workplace
and the individual employee who are in that bargaining unit go on
strike. They rely on section 80 of the Act for this distinction and say
that these employees choose not to strike and continue working under
individual terms and conditions of employment. In doing so, these
employees are no different than Schedule C employees who also
continue working during the course of the strike. These two groups of
employees – employees who cross the picket line and Schedule C
employees – are virtually indistinguishable and share a community
interest. Since employees who cross the picket line and enjoy the
protection of section 80 of the Act are permitted to vote, Schedule C
employees should also be able to vote. For these reasons, the
applicant argues that Schedule C employees have a right to vote
alongside the employees who choose to cross the picket line.
22.
The applicants argue that if the UFCW’s argument prevails, the
Schedule C employees are left in a precarious position of not being
represented by the union. The applicants question whether these
employees could form their own bargaining unit.
23.
WHL argues that sections 63(1) and (2) define employees in
the bargaining unit for the purposes of a termination application by
reference to either the certificate or the recognition clause of the
collective agreement. The event of strike does not change how
employees enter into the bargaining unit.
24.
It further submits new hires into the bargaining unit are
automatically swept into the bargaining unit and therefore the
Schedule C employees are automatically in the bargaining unit. In
WHL’s submissions, the relevant period to determine the composition
of the bargaining ought to be the date of the application.
25.
It submits that normal accretion to the bargaining is not
prohibited by the Act. It hired new employees as a result of a
legitimate expansion of its business and those employees ought to
have a vote in the termination application.
-626.
The union argues that employees who have never been
members of the union and have never been represented by the union
should not be allowed to vote in an application to terminate bargaining
rights. It asserts that the employment relationship held between
Schedule C employees and the employer has nothing to do with the
union.
27.
The union argues for a purposive interpretation of s.63 of the
Act. It submits that s. 63 of the Act is a means for employees to
assess the quality of the representation of the union. It says that
Schedule C employees have no basis for which to evaluate the union
and therefore ought not be part of the exercise.
28.
Along this line of argument, the union asserts that the Board
must be concerned with what will promote stable collective bargaining.
It argues that a focus on the community of interest of the employees
is appropriate. It asserts that the employees hired after the strike are
working to allow the company to continue its operations.
This
fundamentally undermines the purpose of a strike, which is to leverage
pressure on the employer.
29.
The union states that its position is more in accordance with
the purposes of the Act, which speaks to the full spectrum of collective
bargaining and dispute resolution.
30.
We were referred to a number of cases by the parties:
Canada Safeway [2002] OLRB Rep. November/
December 996; Zeidler Forest Industries 1993
CarswellAlta 1125 (Alta. L.R.B.); Raymond Albert
Lambert [1978] 1 CLRBR 585; Frank Newbold
[1978] 1 CLRBR 561; ResCare Premier Canada
Inc., supra; Bird Machine Co. of Canada (Re)
[1990] S.L.R.B.D. No. 40; Rizzo & Rizzo Shoes
Ltd. (Re) [1981] 1 S.C.R. 27; The Hospital for Sick
Children [1985] CanLII 899 (ON LRB); U.S.W.,
Local 1-2693 v. Neenah Paper Co. of Canada,
[2006] CanLII 9888 (ON LRB); Kelly v. I.U.P.A.T.,
[2005] CanLII 5221 (ON LRB); Brizzard v.
McIntyre, [1990] CanLII 5713 (ON LRB); Leblanc
v. U.F.C.W., Local 1288P [1999] Carswell NB 153;
McLaughlin v. United Food and Commercial
Workers International Union, Local 1288P [1995]
-7N.B.J. No. 166; T.A. Steadman Marketing
Consultants Limited (Re) [1985] B.C.L.R.B.D. No.
55; Nolisair International Inc. (Nationair Canada)
[1992] 90 di 144; Royal Oak Mines Inc. [1993] 92
di 153; Velcan Forest Products Inc. [2014]
O.L.R.D. No. 2580; Greater Essex County District
School Board, [2005] OLRB Rep. March/April 281;
Saskatchewan Federation of Labour, [2015] S.C.J.
No. 4, [2015] 2015 SCC 4; Biggs & Narciso
Construction Services Inc., [2013] OLRB Rep.
July/August 787; Rennie Sheet Metal Limited,
[1984] OLRB Rep. July 1004.
Analysis
31.
The process to terminate a union’s bargaining rights is set out
in s. 63 of the Act, which reads as follows:
63. (1) If a trade union does not make a collective
agreement with the employer within one year after its
certification, any of the employees in the bargaining
unit determined in the certificate may, subject to
section 67, apply to the Board for a declaration that
the trade union no longer represents the employees in
the bargaining unit.
(2)
Any of the employees in the bargaining unit
defined in a collective agreement may, subject to
section 67, apply to the Board for a declaration that
the trade union no longer represents the employees in
the bargaining unit,
(a)
in the case of a collective agreement for a
term of not more than three years, only after
the commencement of the last three months
of its operation;
(b)
in the case of a collective agreement for a
term of more than three years, only after the
commencement of the 34th month of its
operation and before the commencement of
the 37th month of its operation and during
the
three-month
period
immediately
preceding the end of each year that the
agreement continues to operate thereafter or
-8after the commencement of the last three
months of its operation, as the case may be;
(c)
in the case of a collective agreement
referred to in clause (a) or (b) that provides
that it will continue to operate for any
further term or successive terms if either
party fails to give to the other notice of
termination or of its desire to bargain with a
view to the renewal, with or without
modifications, of the agreement or to the
making of a new agreement, only during the
last three months of each year that it so
continues
to
operate
or
after
the
commencement of the last three months of
its operation, as the case may be.
(3)
The applicant shall deliver a copy of the
application to the employer and the trade union by
such time as is required under the rules made by the
Board and, if there is no rule, not later than the day on
which the application is filed with the Board.
(4)
The application filed with the Board shall be
accompanied by a list of the names of the employees in
the bargaining unit who have expressed a wish not to
be represented by the trade union and evidence of the
wishes of those employees, but the applicant shall not
give this information to the employer or trade union.
(5)
If the Board determines that 40 per cent or
more of the employees in the bargaining unit appear to
have expressed a wish not to be represented by the
trade union at the time the application was filed, the
Board shall direct that a representation vote be taken
among the employees in the bargaining unit.
(6)
The number of employees in the bargaining
unit who appear to have expressed a wish not to be
represented by the trade union shall be determined
with reference only to the information provided in the
application and the accompanying information provided
under subsection (4).
(7)
The Board may consider such information as
it considers appropriate to determine the number of
employees in the bargaining unit.
-9-
(8)
The Board shall not hold a hearing when
making a decision under subsection (5).
(9)
Unless the Board directs otherwise, the
representation vote shall be held within five days
(excluding Saturdays, Sundays and holidays) after the
day on which the application is filed with the Board.
(10) The representation vote shall be by ballots
cast in such a manner that individuals expressing their
choice cannot be identified with the choice made.
(11) The Board may direct that one or more
ballots be segregated and that the ballot box
containing the ballots be sealed until such time as the
Board directs.
(12) After the representation vote has been
taken, the Board may hold a hearing if the Board
considers it necessary in order to dispose of the
application.
(13) When disposing of an application, the Board
shall not consider any challenge to the information
provided under subsection (4).
(14) If on the taking of the representation vote
more than 50 per cent of the ballots cast are cast in
opposition to the trade union, the Board shall declare
that the trade union that was certified or that was or is
a party to the collective agreement, as the case may
be, no longer represents the employees in the
bargaining unit.
(15) The Board shall dismiss the application
unless more than 50 per cent of the ballots cast in the
representation vote by the employees in the bargaining
unit are cast in opposition to the trade union.
(16) Despite subsections (5) and (14), the Board
may dismiss the application if the Board is satisfied
that the employer or a person acting on behalf of the
employer initiated the application or engaged in
threats, coercion or intimidation in connection with the
application.
- 10 (17) Upon an application under subsection (1) or
(2), where the trade union concerned informs the
Board that it does not desire to continue to represent
the employees in the bargaining unit, the Board may
declare that the trade union no longer represents the
employees in the bargaining unit.
(18) Upon the Board making a declaration under
subsection (14) or (17), any collective agreement in
operation between the trade union and the employer
that is binding upon the employees in the bargaining
unit ceases to operate forthwith.
32.
Pursuant to s. 63 of the Act, any of the employees in
bargaining unit defined in a collective agreement may apply to
Board for a declaration that the trade union no longer represents
employees in the bargaining unit.
There is no dispute that
applicants are employees in the bargaining unit.
the
the
the
the
33.
In filing the application with the Board, the applicants are
required to submit a list of the names of the employees in the
bargaining unit who have expressed a wish not to be represented by
the trade union and evidence of the wishes of those employees. This
usually takes the form of a list of names, dates and signatures
agreeing with a statement supporting the termination of the union’s
bargaining rights.
34.
The Board is required to direct a vote if it determines that 40
per cent or more of the employees in the bargaining unit appear to
have expressed a wish not to be represented by the trade union at the
time the application is filed. In making this determination, the Board
is to have reference only to the information provided in the application
and the accompanying information provided with the application.
Thus, at this stage of the process, the Board does not look to the
information provided by the trade union or the employer.
In
considering the number of employees, the Board may consider such
information as it considers appropriate. However, the Act precludes
the Board from holding a hearing when making a decision about
whether to direct a vote.
35.
The Act states that a representation vote be taken among the
employees in the bargaining unit. The voting constituency is not
defined.
- 11 36.
At this stage in the process, the Board can only rely on the
information submitted by the parties. It is not evidence that has been
tested by either party.
This is one reason why the Board is
empowered to seal the ballot box and segregate any ballots before
making a decision on the merits of any objections by the parties. If
there are issues about the application or challenges by the union or
employer, the Board can deal with such issues following the conduct of
the vote. The Act contemplates an expeditious process so that a
representation vote can be held quickly and other issues resolved at a
subsequent hearing, if the Board determines necessary.
37.
We pause here to address the applicant’s argument that the
Board has already decided this issue in its decision dated February 13,
2015. The applicant relies on paragraph 9 of that decision, which
reads as follows:
9. The Board was therefore satisfied that 119
employees expressed a wish not to be represented by
the union. It did not consider, and is by s.63(6)
prevented from considering, submissions or other
evidence regarding who signed the petition.
In
determining if the applicant had met the minimum
statutory threshold of support to warrant a vote, the
Board is not permitted to, and does not, compare the
evidence submitted by the applicant with any list of
employees filed by the employer or the union. And this
is largely what the union’s position amounts to. It
argues that the people who signed the petition, or at
least a significant number of them, are not employees
in the bargaining unit. Whether that is true or not is
not an issue which the Board does or can determine
under the scheme of the Act for the purpose of
directing a vote. That is consistent with the way in
which the Board determines an “appearance” of
support in applications for certification. There is a
detailed discussion about that and the policy reason for
it in City of Toronto, [1996] OLRB Rep. July/August
552, where the Board dealt with the statutory changes
occasioned by the passage of Bill 7. See also Elirpa
Construction and Materials Limited, [1996] OLRB Rep.
January 4 where the Board discussed the new scheme
of the Act with respect to applications for termination
of bargaining rights signalled by Bill 7.
In
representation
matters
since
then,
the
Act
contemplates quick votes at the outset of an
application for certification or an application for
- 12 termination of bargaining rights. If further litigation is
necessary, then it takes place after the vote, once
employees’ wishes have been tested.
38.
The applicant argues that the Board sought submissions from
the parties about the union’s objection to the list of employees who
supported the application and the Board, by directing the vote,
decided that Schedule C employees were employees in the bargaining
unit, and thus entitled to vote.
39.
We reject this argument. The explanation in paragraph 9 of
the Board’s decision dated February 13, 2015 made it clear that it was
not deciding the issue of voter eligibility, when it stated that “Whether
[the union’s argument is] true or not is not an issue which the Board
does or can determine under the scheme of the Act for the purpose of
directing a vote.” The Board explained that the Act only allowed the
Board to consider the material filed by the applicant and precluded it
from comparing “…the evidence submitted by the applicant with any
list of employees filed by the employer or the union”.
40.
Section 63(5) of the Act requires the Board to determine
whether 40 per cent or more of the employees in the bargaining unit
appear to have expressed a wish not to be represented by the trade
union. This is not a legal conclusion about who is an employee in the
bargaining unit since the Act only permits the Board to consider the
material filed by the applicant at the time this determination is made
(s. 63(6)). It facilitates an expedited process holding a representation
vote and then deal with any issues once the employee’s wishes have
been secured.
41.
The Board’s determination that there was enough support to
order a vote does not determine which ballots will be counted in
determining whether the termination application succeeds.
42.
We now return to our analysis of the primary issue before us.
Following the vote and the disposition of any issues, if more than 50
per cent of the ballots cast are cast in opposition to the trade union,
the Board shall declare that the trade union that was certified or that
was or is a party to the collective agreement, as the case may be, no
longer represents the employees in the bargaining unit.
43.
In determining the voting constituency in an application to
terminate bargaining rights careful regard must be given to the
provisions of the Act. As this is an application under ss. 63(2) of the
- 13 Act, it is appropriate to examine the language of this section. In
interpreting the Act, the Board has regard for the oft-cited decision of
the Supreme Court of Canada in Rizzo & Rizzo Shoes, [1998] S.C.J.
No. 2 where the Court stated:
21. Although much has been written about the
interpretation of legislation (see e.g., Ruth Sullivan,
Statutory Interpretation (1997); Ruth Sullivan,
Driedger on the Construction of Statutes (3rd ed.
1994) (hereinafter “Construction of Statutes”); PierreAndré Côté, The Interpretation of Legislation in Canada
(2nd ed. 1991)), Elmer Driedger in Construction of
Statutes (2nd ed. 1983) best encapsulates the
approach upon which I prefer to rely. He recognizes
that statutory interpretation cannot be founded on the
wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach,
namely, the words of an Act are to be read in their
entire context and in their grammatical and
ordinary sense harmoniously with the scheme of
the Act, the object of the Act, and the intention of
Parliament.
Recent cases which have cited the above passage with
approval include: R. v. Hydro-Québec, 1997 CanLII
404 (SCC), [1997] 1 S.C.R. 213; Royal Bank of Canada
v. Sparrow Electric Corp., 1997 CanLII 377 (SCC),
[1997] 1 S.C.R. 411; Verdun v. Toronto-Dominion
Bank, 1996 CanLII 186 (SCC), [1996] 3 S.C.R. 550;
Friesen v. Canada, 1995 CanLII 62 (SCC), [1995] 3
S.C.R. 103.
27. In my opinion, the consequences or effects which
result from the Court of Appeal’s interpretation of ss.
40 and 40a of the ESA are incompatible with both the
object of the Act and with the object of the termination
and severance pay provisions themselves. It is a wellestablished principle of statutory interpretation that the
legislature does not intend to produce absurd
consequences.
According to Côté, supra, an
interpretation can be considered absurd if it leads to
ridiculous or frivolous consequences, if it is extremely
unreasonable or inequitable, if it is illogical or
incoherent, or if it is incompatible with other provisions
or with the object of the legislative enactment (at pp.
378-80). Sullivan echoes these comments noting that
- 14 a label of absurdity can be attached to interpretations
which defeat the purpose of a statute or render some
aspect of it pointless or futile (Sullivan, Construction of
Statutes, supra, at p. 88).
44.
The Board must read s. 63 in its entire context and in the
grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.
45.
The application is for a declaration that the trade union no
longer represents the employees in the bargaining unit (ss. 63(2) of
the Act). Pursuant to ss. 63(14) of the Act, if more than 50 per cent
of the ballots cast are cast in opposition to the trade union, the Board
shall declare that the trade union that was certified or that was or is a
party to the collective agreement, as the case may be, no longer
represents the employees in the bargaining unit.
46.
The common language in these two subsections – ss. 63(2)
and ss. 63(14) - describe the type of declaration being sought. That
being, a declaration that the trade union no longer represents the
employees in the bargaining unit.
47.
How should these provisions be read harmoniously with ss.
63(5), which requires the Board to direct that a representation vote be
taken among the employees in the bargaining unit? In our view, the
effect of ss. 63(2) and 63(14) is to limit the bargaining unit for the
purpose of a termination application to the employees in the
bargaining unit who have been represented by the trade union. This is
the only way to give effect to the common phrase: no longer
represents the employees in the bargaining unit.
48.
In this application, there are several groups of individuals.
There is a group of employees who are on strike. There is no dispute
that they are represented by the union and are entitled to vote. There
is a group of employees who crossed the picket line pursuant to the
right under s. 80 of the Act. Since those employees were represented
by the union before they decided to exercise their right to come back
to work and will continue to be represented by the union when the
strike comes to an end, there is no dispute that they are entitled to
vote. There is a group of individuals who are performing work as
replacement workers. There is no dispute that the union does not
represent these individuals and that these individuals are not entitled
to vote. The parties all relied on Res Care, supra.
- 15 49.
Then there is a group of employees – the Schedule C
employees - who were hired after the commencement of the strike
who continue to work. It was not disputed that these individuals are
working under terms and conditions negotiated directly with the
employer. They have never worked under the terms and conditions of
the expired collective agreement. There was no assertion that the
individuals had a relationship with the union in any capacity or at any
time.
The union asserts that it has never represented these
individuals. They did not seek advice or assistance from the union.
They did not seek representation from the union. Conversely, there
was no assertion that the union had sought a relationship with these
individuals. The union was not in the workplace when they were hired
and was not involved in negotiating their terms and conditions of
employment.
50.
In their submissions, the union made it clear that, in its view,
it has no legal relationship with the Schedule C employees.
It
acknowledges that the collective agreement will likely apply to
employees working in the bargaining unit when the strike concludes.
But this is a prospective relationship. It does not exist at the time the
application is filed.
51.
This brings us back to the declaration that comes from ss.
63(2) and 63(14) of the Act. It is a declaration that the trade union
no longer represents the employees in the Act. The Schedule C
employees have never been and were not, at the time the application
was filed, represented by the union. Thus, the declaration that is
made under s. 63 of the Act is not for employees that the trade union
does not represent. In this case, the employees hired after the
commencement of the strike are not represented by the trade union
and therefore are not part of the application filed under s. 63(2) of the
Act. Thus, they are not entitled to have their ballots counted.
52.
This interpretation is buttressed
considerations and the objectives of the Act.
by
labour
relations
53.
The Board accepts the UFCW’s submission that one purpose of
the termination application is to evaluate the representational efforts
and performance of the union. It not only holds the trade union
accountable to the workers it represents, but it also enables the
employees who have been subject to the union’s representation a
chance to evaluate the union through a secret ballot vote.
- 16 54.
This evaluative tool could be considerably watered down if
employees who have never been represented by the union and have
no relationship with the union are able to vote. In the window of time
when the strike is occurring and the new employees are hired, the
union is not representing the new employees, yet these employees
would be evaluating and deciding whether the union is entitled to
continue to hold bargaining rights. This result would be contrary to
the purpose of s. 63 of the Act.
55.
This purpose was recognized by the Board in Res Care, supra,
when it said:
11. It is the Board’s view that the decision as to
whether a trade union ought to continue to represent
the members of the bargaining unit ought to be made
only by those employees of the employer that the
trade union represents. The terms and conditions of
the employment of the replacement workers are not
negotiated by the trade union. The decision as to
whether the trade union should continue to hold their
exclusive rights may not be made by persons, such as
replacement workers, whom the trade union does not
represent.
56.
While ResCare, supra, dealt only with replacement workers,
the Board’s observation about who is eligible to vote in a termination
application during the course of a strike is applicable.
57.
The Board must also be cognizant of the purposes of the Act
as set out in s. 2 of the Act. One of these purposes is to facilitate
collective bargaining between employers and trade unions that are the
freely-designated representatives of the employees. In Mounted Police
Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the
Supreme Court of Canada described the purpose of collective
bargaining:
82. Collective bargaining constitutes a fundamental
aspect of Canadian society which “enhances the human
dignity, liberty and autonomy of workers by giving
them the opportunity to influence the establishment of
workplace rules and thereby gain some control over a
major aspect of their lives, namely their work” (Health
Services, at para. 82). Put simply, its purpose is to
preserve collective employee autonomy against the
superior power of management and to maintain
- 17 equilibrium between the parties. This equilibrium is
embodied in the degree of choice and independence
afforded to the employees in the labour relations
process.
58.
The collective bargaining model in Ontario contemplates a
negotiation process, with a duty of bargaining in good faith. In the
event of an impasse, either party may (after satisfying some
requirements under the Act), either engage in a strike or lock-out.
This allows either side (or both) to place economic leverage on the
other side in support of their position. This process must be free from
interference in order for collective bargaining to occur by the freelydesignated representative of the employee.
59.
In considering the purpose of the Act, it is appropriate to look
at the interests of the employees during the course of the strike. The
Board considered the interests of replacement workers in Res Care,
supra, when it said the following:
10. I agree with that reasoning. The bargaining unit is
the unit of employees created by statute for the
purposes of collective bargaining. In a legal strike, the
members of that bargaining unit have decided to
collectively withdraw their labour. The bargaining unit
goes out on strike. The trade union holds the exclusive
bargaining rights for the members of the bargaining
unit. It does not bargain on behalf of the replacement
workers. The interests of the replacement workers and
the trade union are “at odds” with one another. The
trade union does not represent the replacement
workers. The replacement workers are not in the
bargaining unit that is on strike. The replacement
workers “replace” the workers in the bargaining unit
that have gone out on strike. It is not appropriate for
collective bargaining to include those replacement
workers in the same bargaining unit as those whom
they have replaced.
60.
One of the purposes of the strike is to leverage pressure on
the employer by withdrawing the employee’s services. The objective
is to slow down production, shut down the operations or have some
impact on the employer’s ability to continue its business unimpeded.
These issues are fundamental to the striking employees.
- 18 61.
The Schedule C employees do not share that same interest.
Their interest is to continue operations during the course of the strike.
They were not part of the collective bargaining process – submitting
and voting on proposals for collective bargaining, voting to strike,
making the decision to strike when the union called for it. If Schedule
C employees are entitled to vote in the termination application, they
would be approaching the vote with competing interests. In fact, the
interests of the Schedule C employees are more aligned with the
employer than the union.
62.
In response to this argument, the applicant and intervenor
argued that there was little difference between an employee who
chooses to cross the picket line under the protection of s. 80 of the Act
and a Schedule C employee. We are cognizant that some employees
have crossed the picket line and continue to work pursuant to their
right under s. 80 of the Act. Putting aside the motivations of these
employees (which have no relevance to the issue in this case), the
result of their efforts is to continue the employer’s operations during
the strike. This group of employees is distinguishable from Schedule C
employees because they have had a relationship with the union, were
represented by the union while they were employed in the bargaining
unit prior to the strike and have participated in the collective
bargaining process. These employees can ask themselves – using the
language of s. 63 of the Act - whether it is their wish that the trade
union no longer represents the employees in the bargaining unit
because they have, at some point, been represented by the trade
union.
63.
The interests of the employees has been a factor considered
by various labour boards across the country albeit most often when
considering whether replacement workers ought to be permitted to
vote. In Brandon Packers Limited (1960) 33 WWR 58, Bastin J. set
aside a decision of the Manitoba Labour Relations Board that gave
replacement workers the same status as striking employees in
decertification proceedings. Bastin J. stated:
It seems clear that it is for the Board to decide what
group of employees at any given moment is a unit
appropriate for collective bargaining.
The words
appropriate for collective bargaining embody the idea
of a group of employees having common economic
interests so that it is just and equitable that they
should be represented by one bargaining agent. It
must be assumed that immediately prior to the strike,
- 19 Local 255 of United Packinghouse Workers of America
represented the majority of the employees in the unit
which had been designated as a unit appropriate for
collective bargaining. A strike is a means taken by
employees to induce the employer to agree to their
demands and if it is successful it must lead to further
collective bargaining. It would appear to be consistent
with the purpose of the Act that there should be
continuity of representation during the negotiations
following the calling of strike. From the standpoint of
their economic interests, the striking employees remain
a group quite distinct from workmen who have been
hired to replace them.... The Board would therefore
only consider revoking the certification of the
bargaining agent of the strikers if it formed the opinion
that it no longer represented a majority of the striking
employees. In forming this opinion, it would not be
influenced by the views of workmen who had been
hired to replace the strikers. If it had the power to
take a vote, the Board should have confined the vote
to the striking employees.
See also Arthur T. Ecclestone [1978] 2 CLRBR 306; C.J.M.S. Radio
Montreal Limitee 1 Can LRBR 426; Bird Machine Co. of Canada, supra.
64.
In T.A. Steadman Marketing Consultants Limited, supra, the
B.C. Labour Relations Board, after determining that statutory
amendments did not fetter the Board’s discretion in determining
whether employees hired after a strike commenced could be
considered, the Board stated:
For that reason, we conclude that employees hired
after the date of the strike do not share a community
of interest with the employees hired prior to the
commencement of a strike. As a result and, in keeping
with the line of authority established by this Board, we
determine that only those employees who were
employed at the time the strike began and who may
reasonably be regarded as having a continuing interest
in the outcome of the dispute are the employees whose
wishes are determinative in this application for
cancellation.
65.
The recent decision by the Supreme Court of Canada in
Saskatchewan Federation of Labour v. Saskatchewan, supra, is also
relevant to this analysis. In that case, the Court held that the right of
- 20 employees to strike was vital to protecting the meaningful process of
collective bargaining within s. 2(d) of the Charter of Rights and
Freedoms.
66.
It has already been determined that a meaningful collective
bargaining process includes employees’ rights to join together to
collectively
pursue
workplace
goals
and
make
collective
representations to the employer. Such representations were to be
considered in good faith by the employer (See Health Services, Ontario
(Attorney General) v. Fraser, [2011] 2 S.C.R. 3).
67.
In Saskatchewan Federation, supra, the Court went further
than it had in previous decisions and concluded that the right to strike
was protected by the Charter. Abella J. stated:
75. This historical, international, and jurisprudential
landscape suggests compellingly to me that s. 2(d) has
arrived at the destination sought by Dickson C.J. in the
Alberta Reference, namely, the conclusion that a
meaningful process of collective bargaining requires
the ability of employees to participate in the collective
withdrawal of services for the purpose of pursuing the
terms and conditions of their employment through a
collective agreement. Where good faith negotiations
break down, the ability to engage in the collective
withdrawal of services is a necessary component of the
process through which workers can continue to
participate meaningfully in the pursuit of their
collective workplace goals.
In this case, the
suppression of the right to strike amounts to a
substantial interference with the right to a meaningful
process of collective bargaining.
68.
The importance of employees to launch a meaningful strike, as
articulated by Abella J., causes this Panel to heavily favour a result
that maintains the employees’ collective ability to choose whether it
wishes for the trade union to continue to represent its interests or not
during the course of a strike. To hand over that decision – or the vote
on that decision – to a group of employees who have never been
represented by the trade union and who’s interests are not congruent
with the employees who were in the bargaining unit at the
commencement of the strike, would fundamentally reduce the
effectiveness of the collective action to engage in the strike.
- 21 69.
The effect of the Board’s ruling in this case is to limit the
growth of the bargaining unit during the course of a strike as it
pertains to an application to terminate bargaining rights. This has not
been an impediment for other labour boards across the country. In
Leblanc, supra, the New Brunswick Labour and Employment Board had
to deal with the issue of whether new hires – replacement workers and
bona fide expansion workers – were eligible to support a termination
application. The Board limited eligibility to the date the application
was made based on the specific wording of the statute. However, it
recognized that the result was to limit the growth of the bargaining
unit during the course of the strike. It reasoned:
8. This Board sees that its task in the resolution of
this Application is to determine who are the employees
in the bargaining unit as contemplated by section 23(1)
and to determine whether, as further stated in the
union counsel’s brief, “...the application is supported by
a threshold of 40% of such employees to require a
representation vote as contemplated by section 23 of
the Act”.
9. In Dairytown (supra) the Industrial Relations Board
followed the principle in Brunswick Bottling (supra) that
in a decertification matter the wishes to be sought out
are those of the members of the bargaining unit (“the
originals”) at the time of the strike or lockout who
continue to be employed as members of the bargaining
unit at the time of the decertification application. In
accordance with that principle, employees hired after
the strike or lockout would not be counted as valid
signatories on the petition nor as voters in a
representation vote. In other words, only the “original”
employees who are employed at the time of the
application for decertification should decide a matter of
decertification. The practical result of the principle is
found in the following statement in the reconsideration
decision in Royal Oak Mines Inc. and C.A.F.W.: Local 4
[1993] 21 C.L.R.B.R. (2nd) 55 (decision no. 1028):
“Consequently, the number of employees included in
the unit during a strike or lockout may decrease but
cannot increase.”
10. This Board has considered the facts, arguments
and precedents presented to it and continues to be of
the opinion that the principles followed in the
Dairytown decision, upheld by the New Brunswick
- 22 Court of Queen’s Bench (see McLaughlin v. U.F.C.W.
Int’l Union, Local 1288P et al, 1994, 138 N.B.R. (2nd),
359 and the New Brunswick Court of Appeal [1996] 61
N.B.R. (2nd) 81, are applicable here.
70.
The decision in T.A Steadman Marketing Consultants, supra, is
another example where the wishes of employees hired after the strike
were not considered in a termination application. The British Columbia
Labour Relations Board, after determining that it had discretion to limit
the voting constituency, stated the following:
At any given time this Board may be required to
determine whether an employee shares the community
of interest in the appropriate bargaining unit. The unit
in a decertification application is the appropriate unit
for which the trade union is certified. The Board is
required to determine who is in that unit.
The
amendments to the Code do not lead us to the
conclusion that we are required to change the
approach taken by this Board on the question as to
whether employees hired after the strike share the
community of interest in the bargaining unit. In fact,
that was not even suggested by counsel either for the
Employer or the Applicants.
For that reason, we conclude that employees hired
after the date of the strike do not share a community
of interest with the employees hired prior to the
commencement of a strike. As a result and, in keeping
with the line of authority established by this Board, we
determine that only those employees who were
employed at the time the strike began and who may
reasonably be regarded as having a continuing interest
in the outcome of the dispute are the employees whose
wishes are determinative in this application for
cancellation.
See also Muckamuck Restaurant Ltd., BCLRB No. 63/79, [1979] 3 Can
LRBR 301; and Adams Laboratories Limited, BCLRB No. 20/80, [1980]
2 Can LRBR 101.
71.
There is a decision from Alberta that the Panel was must
address.
The decision in Zeidler Forest Industries, supra, was
referenced by all of the parties. In that decision, the Alberta Labour
Relations Board determined that replacement workers were not
- 23 entitled to vote in a termination application, but new employees hired
after the strike (who were not replacement workers) could vote.
72.
The Board framed the issue – based on the statutory language
in place at the time – as whether the disputed individuals were
“employees within the unit”. The union argued that anyone hired after
the date of the strike was a replacement worker and had no
entitlement to vote.
The Board was required to interpret the
provisions of the Alberta Labour Relations Code dealing with revocation
of bargaining rights. Section 51(1) of the Code stated as follows:
56. (1) A representation vote shall be decided on
the basis of a majority of the ballots case by
employees in the bargaining unit.
(2)
For the purposes of conducting any
representation vote, the Board may deem a person to
be an employee or not to be an employee on a given
date where in the Board’s opinion it is appropriate to
do so.
73.
The Board concluded as follows:
Having considered all these cases and arguments, the
Board has come to a conclusion about which
employees are entitled to be polled because they are in
the bargaining unit. The bargaining unit is the unit for
which the union is collectively bargaining. That means
the persons who will be covered by a collective
agreement if and when one is successfully concluded.
It includes strikers returning upon a settlement and
excludes only those who would be displaced.
We think this approach is sound in policy as well as
law. It includes all those persons who, to use the B.C.
Board's words, have "a sufficient, continuing interest in
the fate of the bargaining unit." See: Emergency
Health Services Commission v. C.U.P.E. Local 873,
(supra).
This approach leads us to adopt the following principles
over the entitlement to vote in this case. We believe
this flows directly from the various statutory sections,
in particular, sections 51(1)(b) and 56(1). If not, the
policy reasons underlying our decision are, in any
- 24 event, convincing. We would exercise our discretion
under s. 56(2) to achieve this same result.
74.
There are several distinguishing features about Zeidler Forest
Industries Ltd., supra.
75.
First and foremost, an application to terminate bargaining
rights in Ontario is for a declaration that the union no longer
represents the employees in the bargaining unit. The words no longer
represents were not used in the Alberta legislation. Thus, the Board
did not have to consider, at the time, the impact of never having been
represented by the trade union when the application was filed. In our
view, an interpretation of s. 63 requires the Board give meaning to
these words which appear multiple times in s. 63 of the Act. Chair
Sims in Zeidler Forest Industries Ltd., supra. was not faced with the
same language.
76.
Second, the risks of allowing employees with incongruent
interests to vote in a termination application during the course of a
strike must be given greater weight in light of the Supreme Court of
Canada decision in Saskatchewan Federation of Labour, supra. In this
regard, the Court described the importance of a meaningful strike:
3. The conclusion that the right to strike is an
essential part of a meaningful collective bargaining
process in our system of labour relations is supported
by history, by jurisprudence, and by Canada's
international obligations. As Otto Kahn-Freund and Bob
Hepple recognized:
The power to withdraw their labour is for the
workers what for management is its power to shut
down production, to switch it to different purposes,
to transfer it to different places. A legal system
which suppresses that freedom to strike puts the
workers at the mercy of their employers. This -- in
all its simplicity -- is the essence of the matter.
(Laws Against Strikes (1972), at p. 8)
The right to strike is not merely derivative of collective
bargaining, it is an indispensable component of that
right. It seems to me to be the time to give this
conclusion constitutional benediction.
- 25 77.
Third, it is trite that the Board is not bound by a decision from
Alberta. Even if the principles set forth by Chair Sims are persuasive,
it is open to the Board to apply the labour relations considerations as
they have developed in the two decades after the Alberta Board issued
that decision, particularly the legal developments in Saskatchewan
Federation of Labour, supra, and the application of the Act.
78.
For a union’s bargaining rights to be at risk by new employees
it has never represented directly hired during a lawful strike by the
employer determining those employees’
individual terms and
conditions of employment would adversely impact the collective
bargaining strength of the union and impede the employees’ collective
ability to launch and maintain an effective strike. While we are
cognizant of the Board’s powers to regulate employer conduct through
the unfair labour practice provisions (as the point was made by Chair
Sims in Zeidler Forest Industries Ltd., supra), we are also of the view
that the employees who are represented by the union do not share the
same interests as the employees hired by the employer following the
commencement of the strike.
For these reasons, the Board
determines that Zeidler Forest Industries Ltd., supra, is distinguishable
and is therefore not applicable to the situation before the Board in this
case.
79.
Having carefully considered the matter, we are of the view
that both statutory and broader labour relations considerations militate
strongly in favour of concluding that only those employees who were
represented by the UFCW on the strike date are employees in the
bargaining unit for the purpose of a termination application.
Disposition
80.
There does not appear to be any further issues in this
application.
81.
On the taking of the representation vote directed by the
Board, not more than 50% of the ballots cast by the employees in the
bargaining unit who were eligible to vote were cast in opposition to the
responding party.
82.
The application is therefore dismissed.
83.
The Registrar will destroy the ballots cast in the representation
vote taken in this matter following the expiration of 30 days from the
- 26 date of this decision unless a statement requesting that the ballots
should not be destroyed is received by the Board from one of the
parties before then.
84.
The employer is directed to post copies of this decision
immediately, adjacent to all copies of the “Notice of Vote” posted
previously. These copies must remain posted for 60 days from the
date of this decision.
“Matthew R. Wilson”
for the Board
APPENDIX A
Neal B. Sommer LL.B
199 Bay Street
Commerce Court, Suite 4410
P.O. Box 372
Toronto ON M5L 1G2
Attention: Neal B. Sommer
Tel: 416-515-9675
Fax: 416-515-9677
Email: [email protected]
Frank Brown
1581 Weston Road
North York ON M9N 1T4
Tel: 647-718-8419
Niroshitha Sadyathasan
33 Elm Drive W, Suite 205
Mississauga ON L5B 4M2
Tel: 647-269-1447
Email: [email protected]
CaleyWray, Labour/Employment Lawyers
65 Queen Street W, Suite 1600
Toronto ON M5H 2M5
Attention: Jesse B. Kugler
Counsel
Tel: 416-775-4677
Fax: 416-366-3293
Email: [email protected]; [email protected]
United Food & Commercial Workers Canada
2200 Argentia Road
Mississauga ON L5N 2K7
Attention: MeeMee Seto
Business Representative
Tel: 905-821-8329
Fax: 905-821-7144
Email: [email protected]
United Food & Commercial Workers Canada Local 175
2200 Argentia Road
Mississauga ON L5N 2K7
Attention: John DiFalco
Business Representative
Tel: 905-821-8329
Fax: 905-821-7144
Email: [email protected]
Pg. 1 of 2
United Food & Commercial Workers Canada Local 175
2200 Argentia Road
Mississauga ON L5N 2K7
Attention: Shawn Haggerty
President
Tel: 905-821-8329
Fax: 905-821-7144
Email: [email protected]
United Food & Commercial Workers Local 175
2200 Argentia Road
Mississauga ON L5N 2K7
Attention: Fernando Reis
Legal Department Coordinator
Tel: 905-821-8329 Ext 2256
Fax: 905-821-7144
Email: [email protected]
United Food & Commercial Workers Locals 175 & 633
2200 Argentia Road
Mississauga ON L5N 2K7
Attention: Derik J. McArthur
Director
Tel: 905-821-8329
Email: [email protected]
Baker & McKenzie LLP
181 Bay Street, Suite 2100
Toronto ON M5J 2T3
Attention: Mark Mendl
Tel: 416-865-6948
Fax: 416-863-6275
Email: [email protected]; [email protected]
WHL Management Limited Partnership
50 Torlake Crescent
Toronto ON M8Z 1B8
Attention: Neal Lee
President
Tel: 416-259-2662
Fax: 416-259-3414
Email: [email protected]
Pg. 2 of 2