United Electrical, Radio and Machine Workers of America (UE) v. SGS Supervision Services Inc. Qualitest Technical Division
File No.: 0643-81-R Date: October 29, 1981
Before: R. D. Howe, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.
Appearances: Art Jenkyn and John Trufal for the applicant; D. Jane Forbes-Roberts for the respondent.
DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER O. HODGES
1By decision dated July 8,1981, the Board directed that a pre-hearing representation vote be taken in this application for certification. The employees eligible to vote were "[a]ll employees of the respondent in the voting constituency on the 2nd day of July, 1981, who have not voluntarily terminated their employment or who have not been discharged for cause between the 2nd day of July, 1981, and the date the vote is taken". The voting constituency specified in that decision was:
"All employees of the respondent engaged in pipe inspection, working out of the respondent's premises at Welland, Ontario, save and except foremen, those above the rank of foreman, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period."
Pursuant to that direction, a vote was taken on July 24, 1981, in which 20 ballots were marked in favour of the applicant, 20 ballots were marked against the applicant, and 4 ballots were segregated and not counted.
2On August 21, 1981, the Board appointed an Officer "to check the employment records of those persons casting ballots which were segregated by the Returning Officer in the representation election of July 24th, and to report thereon to the Board." A hearing was subsequently scheduled for the purpose of considering the representations of the parties concerning the Officer's report. At that hearing, the Board also heard the submissions of the parties with respect to the appropriate bargaining unit.
3Having regard to the submissions of the parties, the Board finds that all employees of the respondent engaged in pipe inspection, working at or out of the respondent's premises at Welland, Ontario, save and except foremen, those above the rank of foreman, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
4It was submitted on behalf of the applicant that the segregated ballots cast by J. Micheline and 0. McCombs should not be counted because those persons were allegedly at all material times regularly employed for not more than twenty-four hours per week. The applicant further contended that the segregated ballot cast by G. Ozog should not be counted since he was at all material times a student employed during the school vacation period. It was the applicant's position that the segregated ballot cast by J. Guitar should be counted since he was regularly employed for more than twenty-four hours per week at all material times.
5At the hearing of this matter the respondent withdrew its contention that 0. McCombs was regularly employed for more than twenty-four hours per week and conceded that his ballot should not be counted since he was at all material times regularly employed for not more than twenty-four hours per week.
6Counsel for the respondent submitted that the ballot cast by J. Micheline should be counted because he was regularly employed for more than twenty-four hours per week at all material times. She further submitted that G. Ozog's ballot should be counted since, in her submission, he was a regular full-time employee and was not a student employed during the school vacation period. It was the respondent's position that the ballot cast by J. Guitar should not be counted because he was "hired as a part-timer".
7The Board's well established practice with respect to determining whether a particular employee is "regularly employed for not more than twenty-four hours per week" was recently described by the Board as follows in Westgate Nursing Home Inc.. [1981] OLRB Rep. April 503, at paragraph 6:
..... In determining whether an employee is regularly employed for not more than twenty-four hours per week, the Board generally looks to the period of seven weeks immediately prior to the date of the application as a representative period in which to assess the number of hours worked by employees. If during four or more of the seven weeks examined a person works for not more than twenty-four hours per week, the person will generally be found by the Board to be a part-time employee (see Trenton Memorial Hospital, [1980] OLRB Rep. Jan. 116; Ian Douglas Ltd. trading as Dryden Cleaners & Launderers, [1971] OLRB Rep. Mar. 135; and Syndenham District Hospital, [1967] OLRB Rep. May 135). Thus, in disputed cases, the Board generally assigns an officer to examine the records of the employer to determine how many hours each employee in question worked in .each of the seven (weekly) pay periods immediately preceding the date of the application. The use of data concerning hours worked taken from the employer's (weekly) pay records expedites the process by minimizing the calculations necessary to obtain the necessary information (since all employers are required by section 11 of The Employment Standards Act, 1974 S.O. 1974, c. 112, as amended, to make complete and accurate records in respect of each employee showing information including the number of hours worked by the employee in each week). By adopting the seven week rule, the Board has sought to assist the parties appearing before it in reaching agreement on the status of employees as full-time or part-time, and to permit the parties to know in advance with a reasonable degree of certainty which employees will be affected by a particular certification application. The seven week period is a guideline, not a 'hard and fast rule'. Thus, if the seven week period is found to be 'unrepresentative' of the nature of an employee's status (due to circumstances such as illness, accident or leave of absence), the Board may select another period of time that is more representative (see Holiday Inn Yorkdale — Commonwealth Holiday Inns of Canada, [1976] OLRB Rep. Nov. 709). However, as stated in Trenton Memorial Hospital, supra, at para. 7, 'there is a substantial onus on any party requesting that the Board depart from procedures like the seven week guideline that are known, accepted and relied on by union and employers alike'."
The Board applies the "seven week rule" not only to determine bargaining unit membership on the date of the application, but also to determine the eligibility of an employee to cast a ballot in a representation vote. In making the latter determination, the Board applies the seven week rule to each disputed employee on the date the vote was ordered (or on such other date as may be specified in the Board's direction) and on the date the vote was taken, since to be eligible to vote in a representation election involving a full-time bargaining unit such as the one in the present case, an employee must have been regularly employed for more than twenty-four hours per week on both dates (see Trenton Memorial Hospital, [1980] OLRB Rep. May 805).
8In the present case, some of the employees were on vacation for one or more of the weeks that would normally be relevant to the determination of the matter in issue in these proceedings. Neither party disputed that the appropriate response to that situation is to eliminate each such week from the determination and substitute therefore the preceding week. This is consistent with the approach described by the Board in Holiday Inn Yorkdale (supra) in which the Board stated (at paragraph 5):
in instances where within the seven week period an employee is absent from work due to illness, accident, vacation, a leave of absence, etc. etc. then that particular week can hardly be considered a relevant period with respect to the application of the guideline. In these instances the Board simply will entertain the parties' representations as to what may constitute a more representative period and as a result thereof will make its computation upon being satisfied of a more accurate reflection of the employee's employment status."
9Accordingly, having regard to the submissions of the parties and to the appropriate representative periods, the Board finds that J. Guitar was at all material times regularly employed for more than twenty-four hours per week and that J. Micheline was not regularly employed for more than twenty-four hours per week on the date the vote was taken.
10G. Ozog who is the son of Michael Ozog, the Manager of the respondent, commenced employment with the respondent in January of 1980 while still attending school. From February of 1981 to the week ending July 17, 1981, he worked at least forty hours per week. The applicant trade union filed this application for certification on June 23, 1981. Mr. Ozog was listed as a "student" on Schedule B filed with the Board by the respondent. At the July 6, 1981 pre-hearing vote meeting, it was agreed between the parties that Mr. Ozog was a student excluded from the bargaining unit. At the record check meeting which the Board Officer held with the parties on August 31, 1981, Michael Ozog agreed that his son was a student who was returning to school in September.
11It is only "students employed during the school vacation period" who are excluded from the bargaining unit (see generally, United Co-operatives of Ontario, Owen Sound Retail Branch, [1970] ORLB Rep. Dec. 954). A student who is employed during a period of time other than the summer vacation period will generally be included in a full-time bargaining unit if he or she is regularly employed for more than twenty-four hours per week (unless he or she is a student on a co-operative training program with a university: see Lely Limited, [1971] OLRB Rep. Aug. 539, and Union Carbide Canada Limited Gas Products, [1971] OLRB Rep. Aug. 464). In Muskoka Board of Education, [1975] OLRB Rep. March 209, at paragraph 7, the Board explained its policy concerning students as follows:
"The Board has been cautious in excluding students from the coverage of bargaining units. In many industries students are employed not only when they are released from their schools during the vacation period but throughout the entire year as well on either a part-time or full-time basis. The latter employment relationship may be continuous or occasional. As a matter of policy the Board has excluded students employed during the vacation period but it has gone no further. Students employed during the vacation period have less in common with other more permanently employed persons and, importantly, have less of an impact on the year long employment opportunities of more permanently employed individuals. This cannot be said for students who are employed through the academic year as the fast-food chain restaurant cases attest. (See MacDonald's Restaurants of Canada Ltd. [1974] OLRB Rep. Oct. 755).
(See also The Regional Municipality of Niagara, Homes for Senior Citizens, [1973] OLRB May 257). However, just as a person who is a part-time employee during one period of time can become a full-time employee during another period of time (see Westgate Nursing Home Inc., supra) , a person who is employed as a student during the school vacation period can cease to be a student employed during the school vacation period if he or she continues to work for the employer beyond the school vacation period. Similarly, a person such as Mr. Ozog, who was not a student employed during the school vacation period at the commencement of his employment with the respondent, can subsequently become a student employed during the school vacation period. Having regard to all of the circumstances of this case, including the agreement of the parties at the pre-hearing vote meeting with respect to Mr. Ozog's status as of the date of this application, the Board finds that Mr. Ozog was at all material times a student employed during the school vacation period.
12For the foregoing reasons the Board rules that J. Guitar was eligible to vote in the July 24, 1981 representation vote and that 0. McCombs, J. Micheline and G. Ozog were not eligible to vote. However, the counting of Mr. Guitar's ballot would, in the circumstances of this case, reveal how he voted. The Board, when faced with a similar situation in Empco Fab Ltd., [1980] OLRB Rep. Oct. 1391, directed that another representation vote be taken in order to preserve the confidentiality of the wishes of the individual in question. As noted in that case, at paragraph 6:
"All employees who participate in a representation election are entitled to a secret ballot vote. The parties before this Board know that when they agree to count the ballots in circumstances such as those in the instant case they run the risk of the Board directing another representation vote in order to protect the secrecy of the wishes of the employees who cast segregated ballots. See Corporation of the Township of Chinguacousy. [1973] OLRB Rep. July 380 and Super City Discount Foods Limitedet al, [1971] OLRB Rep. March 175."
See also Daheim Nursing Home Limited, [1980] OLRB Rep. Nov. 1639, at paragraph 4, in which the Board stated:
"Strong feelings for or against are not uncommon when a union seeks to be certified as the bargaining agent in a particular work place. No matter which way their sympathies may lie the disclosure of the wishes of individual employees during the certification process can subject them to pressure and recrimination at the hands of their employer and to ostracism at the hands of their fellow employees. That is why the right of confidential selection must remain paramount in the certification process whether it be through the secret ballot or through the confidentiality of membership evidence and statements of employee opposition filed with the Board, expressly protected by section 100(1) of The Labour Relations Act. That right must be jealously safeguarded if employees, employers and unions are to retain confidence in the certification process administered by this Board."
13Accordingly, the .Board directs that another representation vote 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. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
14The matter is referred to the Registrar.
DECISION OF BOARD MEMBER J. D. BELL;
I disagree with the decision of the majority that G. Ozog is to be classified as a student employed during the school vacation period and therefore is denied the right to cast a ballot at the representation vote.
Ozog was employed for a continuous period of 23 weeks prior to the voting day, July 24, 1981, as a full-time employee. He should not be changed from full-time status to student status by a statement that he may go to or return to school in the future. An agreement of the parties at the pre-hearing vote meeting should not deprive Ozog of his rights without his consent.
Therefore, I would count his ballot.