[1981] OLRB Rep. November 1618
1546-81-R Commercial Workers Union Local 486, Applicant, v. Santa Maria Foods, Respondent, v. Group of Employees, Objectors
BEFORE: M. G. Picher, Vice-Chairman, and Board Members H. J. F. Ade and O. Hodges.
APPEARANCES: Cliff Evans, Jean Claude Legault and Ian Reilly for the applicant; Gary Walker and Italo Rosatti for the respondent; Michael G. Horan and Richard Bone for the objector.
DECISION OF THE BOARD; November 17, 1981
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The Board further finds that all employees of the respondent in Belleville save and except manager, persons above the rank of manager and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
A statement of objection was filed in opposition to the application. Following its normal procedure the Board canvassed the parties on their positions respecting the composition of the bargaining unit. The unit having been established the Board then announced the count of employees in the unit and the union membership count. The numbers disclosed insufficient overlap between the membership evidence and the petition in opposition to the union to cause the Board to conduct a representation vote, as the union was in a certifiable position.
Following a brief recess counsel for the respondent sought leave to amend the list of employees. According to his representation a telephone call to the plant made after the Board announced the membership count disclosed that two employees who were described on the lists filed by the respondent as absent on the date of application and who were excluded by the Board's application of the "thirty day rule" had on the same morning advised the company of their impending return on a date within thirty days of the application date.
The union s representative then requested the Board to reconsider the composition of the bargaining unit to exclude office and clerical staff. Giving effect to the employer's request would have rendered the petition in opposition numerically relevant. Acceding to the union's motion would have again reduced the overlap between the petition and the union membership evidence to the point where the union would have been certifiable without a vote.
The Board's Rules and the certification hearing are ordered precisely to avoid the mischief of either party gerrymandering the employee lists or the structure of the bargaining unit in such a way as to avoid or favour certification, as the case may be. Pursuant to Form 3 of the Board's Regulations an employer is required to provide to the Board, not later than the terminal date, complete lists of employees in the bargaining unit proposed by the union on the date of application. The late filing of lists or the amendment of lists filed can be only by leave of the Board pursuant to its discretion under section 58 of the Rules of Procedure.
At the outset of the hearing the Board will generally allow the employer to amend the lists filed to reflect any new information not previously available or to correct any error. During the hearing the Board does not announce the count of employees or any union membership until the description of the bargaining unit is settled. Similarly it does not announce the membership count until the count of employees in the unit is determined, subject, of course, to such outstanding challenges to the list as may have been made to that point in the hearing. These are rules well known to the parties and articulated in the Board's jurisprudence. (See, Gwell Investments Ltd., [1971] OLRB Rep. Oct. 675; The Corporation of the Township of Kingston. [1975] OLRB Rep. Apr. 370; Inter City Food Services Inc., [1976] OLRB Rep. July 388; Greater Windsor Investments Ltd. Windsor Nursing Home, [1976] OLRB Rep. Sept. 515). Without these general rules certification hearings would be endless meanderings without map or compass, each turn in the journey being dictated by changing perceptions of the parties as to what best serves their own interests. That is why, absent extraordinary circumstances, the Board does not entertain submissions on the structure of bargaining unit or the list of employees in the unit after the point in the hearing when the count has been given.
In this case no circumstances were advanced that would persuade the Board to depart from the general rule. The list of employees first provided to the Board by the respondent was in fact filed on the very day of the hearing. There is no suggestion of the changing situation over an extended period of time. Moreover, even if there were, it would be incumbent on the respondent to amend the lists at the outset of the hearing, when it has the fullest opportunity to do so.
Nor is there any apparent reason to allow the union to reopen the issue of the composition of the bargaining unit to advance its new-found position that office and clerical employees, previously agreed in and indeed included in the union's original proposal for the unit, should now be excluded.
For the foregoing reasons the Board did not depart from its established practice and denied both the request of the union to revise the bargaining unit and the request of the employer to revise the list of employees.
The Board is satisfied on the basis of all the evidence before it that more than fifty-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 November 6, 1981, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.