[1981] OLRB Rep. August 1134
0722-81-R Service Employees Union, Local 204 affiliated with AF. of L., C.I.O., C.L.C., Applicant, v. Extendicare Diagnostic Services Division of Extendicare Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members M.J. Fenwick and L. Hemsworth.
APPEARANCES: H. Goldblatt, Joe Aggimenti, Ron Davidson and Jeff Keshen for the applicant; M. Rhienlander, D. Jeffrey, D. J. McKillop, Q. C. and James Baldwin for the respondent; Sandra MacLennan for the objectors.
DECISION OF THE BOARD; August 17, 1981
The name "Extendicare Limited Laboratory Centres" appearing in the style of cause of this application as the name of the respondent is amended to read: "Extendicare Diagnostic Services Division of Extendicare Limited."
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.
Having regard to the agreement of the parties the Board further finds that all employees of the respondent in Metropolitan Toronto save and except supervisors, person above the rank of supervisor, office and clerical employees and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
An issue arose at the hearing with respect to the union's access to the employee lists filed by the respondent. In every certification proceeding the respondent employer is required to file a list of the names of all the employees falling within the bargaining unit proposed by the trade union as of the date of application, and specimen signatures from each person whose name appears on the list. The Board uses the list and the specimen signatures to determine the number of union membership cards signed by persons in the bargaining unit and to determine the percentage of employees in the bargaining unit who are members of the trade union as of the date of application. The Board is required to make these determinations under section 7 of the Act.
The union is not shown the employee lists submitted by the employer prior to the hearing. However, after the Board has ascertained the disagreement, if any, with respect to the description of the appropriate bargaining unit the union is given an opportunity to challenge the accuracy of the employee list before the Board makes a determination as to the number of employees in the bargaining unit and the extent of union membership support within the bargaining unit. It is open to the union to challenge a name shown on the list as:
— not an employee as of the date of application (i.e. was never employed or left employment prior to the date of application).
— not an employee who is within the bargaining unit.
The practice of the Board is to have a Labour Relations Officer sit with the union while the list is reviewed and challenges identified. A Labour Relations Officer then meets with both parties and attempts to resolve the differences between them. If agreement is not possible, the Board will usually appoint a Labour Relations Officer to conduct a formal inquiry, which may require an examination of company records and the calling of evidence, and to report to the Board.
Counsel for the respondent in this matter objected to the union being given an opportunity to review the employee list submitted by it. Counsel for the respondent argues that if the union is given the opportunity to study the names of the employees falling within the bargaining unit it can use this information to assist it in conducting a fresh organizing campaign if unsuccessful in the instant application. Counsel for the respondent argues that many of the employees whose names appear on the list may wish to remain anonymous and that the list should be treated in the same manner as signed membership evidence or a signed petition. At the very least, the respondent argues, employees whose names are going to be revealed should be served with notice of this possibility by the Board. Counsel for the respondent suggests that any investigation required to check the accuracy of the employee list submitted by the respondent be undertaken by a Labour Relations Officer.
In every application for certification brought before it, the Board is required under the statute to ascertain the extent of union support within the bargaining unit. The Board's determination in this regard, which is made on the basis of the list of employee names and specimen signatures filed by the respondent employer, directly affects the legal rights of the trade union under the Act. In these circumstances, and given the often negative reaction of employers to unionization, it would be an unusual administrative practice for the Board to deny the union access to the employee list. In the absence of any direction in the statute to protect the names of those in the bargaining unit, as there is with respect to employee choice, and in the face of the requirements of natural justice the Board is under an obligation to provide the applicant union with access to the information upon which it is about to make a determination affecting its legal rights.
Even if the Board could deny access, there is no practical alternative. It has been suggested that the Board officer make the inquiry where the list is challenged. If the union is denied access there can be no specificity to the challenge. The Board officer would be required to investigate every name in every application where there is a challenge; an undertaking which would strain the resources of the Board. More fundamentally, however, the Board officer, in contrast to union supporters, has no firsthand knowledge of who was or was not an employee as of the date of application or who is or is not in any given classification. The Board officer is unable to make the objective assessments required to satisfy the Board as to the accuracy of the employee lists.
The persons whose names appear on the list are, or should be, persons working within the bargaining unit. Their names are known to their fellow workers including fellow workers who are union supporters. In these circumstances the respondent's submissions with respect to the need to preserve the anonymity of these persons is without merit as is the submission that these persons be served with individual notice. The notice of hearing which is posted in the workplace in every application for certification is sufficient.
Signed membership cards and signed petitions or statements of desire evidence employee choice with respect to membership in or opposition to a trade union. A list of the names of the employees who fall within the bargaining unit does not evidence employee choice and, therefore, is not subject to the statutory direction contained in section 100(1) of the Act to maintain the secrecy of employee choice. Indeed, as is noted, it is essential to the processing of any application for certification that the union be given the opportunity to review the employee list.
In the unlikely event an application is filed with the Board for the purpose of obtaining the employee list in order to assist with future organizing, the Board can find an abuse of process and respond accordingly. This is not such a case. In any event, it is the current Board practice to have a Board officer sit with the union during the review of the list and ensure that the list is not utilized in any way unrelated to the case at hand.
In response to the ruling of the Board that the union was to be given access to the employee list, counsel for the respondent asked to be allowed to be present during the review of the list by the union. Counsel for the union took strong objection.
The Board ruled at the hearing that the union was entitled to review the list without representatives of management present. The Board hereby affirms its oral ruling in this regard. Section 100(1) of the Act provides:
The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union.
Because of the nature of the inquiry and the need for counsel for the union to converse with his employee advisors the Board is of the view that the presence of a management representative could jeopardize the secrecy of union membership and impinge upon the privacy of the solicitor client relationship. In the absence of a credible reason for allowing management to be present during the union s examination of the list the Board ruled that the examination could be made without a representative of management present.
The union examined the employee list and registered 19 challenges. The parties resolved one of these with the result that the status of 18 of the 81 persons who are shown on the list of employees prepared by the employer as falling within the bargaining unit is at issue.
Having regard to the foregoing, the Board hereby appoints a Board Officer to meet with the parties and inquire into whether or not the following persons shown on Schedule A are employees of the respondent who fall within the bargaining unit:
M. Cardosa
J. Garces
C. Martyres
C. Matheson
C. Rosello
J. Verwey
M. Welsh
The officer is directed to further inquire as to whether or not the following employees shown on Schedule B are employees of the respondent who fall within the bargaining unit:
V. Kumar
A. Vagners
B. Murgatroyd
W. Gay
M. Kalushner
A. Watts
M. Wrong
The officer is further directed to inquire into the duties and responsibilities of D. Jacobs and K. Tozman who the applicant claims are office and clerical employees.
The officer is further directed to inquire into the duties and responsibilities of A. Gokool and A. Morris who the applicant claims exercise managerial authority within the meaning of section l(3)(b) of the Act.
Subsequent to the hearing in this matter the union advised the Board that it is prepared to forego its possible entitlement to certification without a vote. The Board is satisfied that whatever its ultimate determination with respect to the status of those who have been challenged, with respect to the status of those who have been challenged, not less than forty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on July 9,1981, the terminal date fixed for this application and the date which the Board determines, under section 92(2)6) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
The best that the objectors could achieve in the circumstances of this case is a vote. Having regard to all of the foregoing a representation vote will be taken of the employees of the respondent in the bargaining unit. All employees of the respondent in the bargaining unit on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote. Those whose status has been challenged are eligible to vote. However, the ballots cast by these persons will be segregated pending a final determination as to their status.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent. The returning officer is directed to count those ballots which have not been segregated and to announce the results of the count to the parties.
The matter is referred to the Registrar.