United Steelworkers of America v. Sling-Choker Manufacturing Limited

[1981] OLRB Rep. January 116

1190-80-R United Steelworkers of America, Applicant, v. Sling-Choker Manufacturing Limited, Respondent, v. Group of Employees, Objectors

BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and M. A. Ross.

APPEARANCES: Norman Carriere for the applicant; Lloyd J. Valin. Q. C. and Paul Villgren for the respondent; Steve D. Horton for the objectors.

DECISION OF THE BOARD; January 9, 1981

1. By decision dated October 10, 1980, another panel of this Board directed that a representation vote be taken of the employees of the respondent in the following bargaining unit:

"All employees of the respondent company in Sudbury, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period."

In ordering the representation vote, the Board made its normal direction respecting voter eligibility:

"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.”

2. Pursuant to that direction, a vote was conducted by Returning Officer J. Bright on November 18, 1980 at the respondent's plant in Sudbury. Of the eight ballots cast, three were segregated as a result of challenges with respect to eligibility to vote and the ballot box was sealed at the direction of the Returning Officer.

3. By decision dated November 28, 1980, the aforementioned panel of the Board directed "that this matter be set down for continuation of hearing in order to hear the evidence and representations of the parties as to whether the segregated ballots cast by Rheal Laverdiere, Stanley Terava and Roger Perreault in the representation vote taken on November 18, 1980 should be counted".

4. Pursuant to that direction, a hearing was held by this panel of the Board in Sudbury on December 15, 1980. At the commencement at that hearing, the parties advised the Board that they had agreed that the ballot of Rheal Laverdiere should be counted. Having regard to the agreement of the parties, the Board rules that the segregated ballot cast by Rheal Layer­diere is to be counted.

5. By decision dated January 9, 1981 in Board File No. 1524-80-U, the Board found that the respondent had refused to continue to employ Roger Perreault contrary to The Labour Relations Act and directed the respondent to reinstate Mr. Perrault with full compen­sation for all lost wages and benefits. Where an employer is found by the Board to have refused to continue to employ an employee contrary to the Act and is directed to reinstate that employee with full compensation, that employee is entitled on reinstatement to all accrued benefits, including the right to participate in a representation vote concerning the bargaining unit of which he is a part (see Brarshaws Steel Limited, [1970] OLRB Rep. June 278). Accordingly, the Board rules that the segregated ballot cast by Roger Perrault is to be counted.

6. Stanley Terava, who had been employed by the respondent at its Sudbury plant (to which the instant application pertains) as a splicer and relief shipper-receiver since January of 1980, was transferred to the respondent's plant in Elliot Lake on September 7, 1980. He was transferred back to the Sudbury plant on September 28, 1980 and continued to work there until October 27, 1980 when he was again transferred to the Elliot Lake plant where he was employed on the date of the vote. He was still working at the Elliot Lake plant on the date of the continuation of hearing (December 15, 1980). Counsel for the respondent indicated that his client plans to keep Mr. Terava in Elliot Lake indefinitely but would transfer him back to Sudbury "if eventually [it] can hire a splicer for Elliot Lake".

7. The manner in which the Board has consistently interpreted its standard direction concerning eligibility to vote is set forth in Canadian Westinghouse Company. Limited, [1966] OLRB Rep. Sept. 372 at paragraph 6:

"The Board's standard direction for the taking of a representation vote, as quoted above, cites only two instances in which a person who was an employee in the bargaining unit on the date the vote was directed forfeits his eligibility to vote, namely, where he voluntarily terminates his employment or is discharged for cause before the date the vote is taken. The Board, however, has not attempted in its standard direction to define exhaustively all of the contingencies under which a person who was an employee in the bargaining unit when the vote was directed would cease to be eligible to vote. The Board has consistently interpreted its direction to mean that a person who. between the date of the direction and the date of the vote, has (eased to be a member of the bargaining unit, is disqualified from participating in the vote, whether because of voluntary termination of employment, discharge for cause, indefinite lay-off in some circumstances, or transfer to a position out of the bargaining unit. Stated another way, the policy of the Board is that a person must be an employee in the bargaining unit both on the date the vote is directed and on the date of the taking of the vote in order to be eligible to cast a ballot;. . . ." [emphasis added]

Accordingly, the Board held in that case that a person who had been an employee in the bargaining unit on the date the vote was directed but who had been transferred out of the bargaining unit prior to the taking of the vote, was ineligible to vote. (See also The Regional Municipality of Durham, [1980] OLRB Rep. Jan. 90 and Success Display Limited, [1971] OLRB Rep. Oct. 636.)

8. Thus, to be eligible to vote under the Board's direction respecting voter eligibility quoted above, a person must have been employed in the bargaining unit both on the date the vote was ordered and on the date the vote was taken. One of the reasons for this two pronged-rule is to ensure that insofar as possible, the vote will reflect the wishes of the employees with the most direct interest in its outcome — namely, the employees who are in the bargaining unit at the time the vote is taken (see Trenton Memorial Hospital, [1980] OLRB Rep. May 805, at paragraph 8).

9. Although Mr. Terava was employed in the bargaining unit on the date the vote was directed (October 10, 1980) he was not employed in the bargaining unit on the date the vote was taken (November 18, 1980) as, prior to the latter date, he had been transferred out of the bargaining unit for an indefinite period. Accordingly, the Board rules that the segregated ballot cast by Stanley Terava is not to be counted.

10. The Board therefore directs that all of the ballots cast at the representation vote be counted, with the exception of that cast by Stanley Terava which is not to be counted.

11. The matter is referred to the Registrar.