Southern Ontario Newspaper Guild, Local 87 v. The Spectator, 1982 CanLII 979

Ontario Labour Relations Board

[1980] OLRB Rep. December 1912

1606-82-R Southern Ontario Newspaper Guild, Local 87, The Newspaper Guild (CLC-AFL--CIO), Applicant, v. The Spectator, A Division of Southam Inc., Respondent, v. Group of Employees, Objectors

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and S. Cooke.

APPEARANCES: C. M. Mitchell and J. Bryant for the applicant; F G. Hamilton, Tom McCarthy, Jack Doherty, Alex Beer and Barrie Williams for the respondent; Michael G. Horan and Tami Nolan for the objectors.

DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER S. COOKE; December 21, 1982

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. Within the editorial department which is the subject of this application there are a number of persons about whom the applicant disputes the respondent's claim of managerial status. The Board accordingly appoints an officer to inquire into and report to the Board on the duties and responsibilities of:

John Flanders Page 1 Editor Phil Gaitens Page 1 Editor Gord Green Assistant Sports Editor Bill Harper Night Metro Editor Dan Kislenko Night Slotman Bill Muir Entertainment Editor Peter Murdock~ Wire Editor Gerald Ormond Sports Editor Michele Steeves Women's Editor Peter Van Harten Burlington Bureau Chief.

5. Whatever be the results of that inquiry, however, the Board has determined that the applicant's entitlement to certification cannot be affected. The condition therefore exists under which the Board may exercise its discretion to certify the applicant on an interim basis, pursuant to the provisions of section 6(2) of the Act. That section states:

Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

6. The respondent submitted that the Board in this case ought not to exercise its discretion in favour of certifying the applicant at this stage. It argues that to do so will be to grant status to the applicant, and collective bargaining will commence. That, the respondent submits, will raise problems for it in two respects. Firstly, the persons in dispute involve a large number of first-line supervisors, some of whom are the respondent's sole representative on the night shift as well as at a second location quite removed from Head Office. The respondent indicates that emotions are running high over the issue of unionization and the respondent wishes to be even-handed in maintaining control. The instructions which the respondent gives to these supervisors as to their obligations and responsibilities will depend on whether they are found to be on the "managerial" side of the line. There may also, the respondent adds, be a reluctance on the part of these supervisors to issue discipline while their status is in dispute. Secondly, with respect to actual bargaining, the respondent indicates that it will be hampered at this stage in the selection of a bargaining committee, as well as in formulating its position with respect to such items as a grievance procedure.

7. The Board does not find this case to be sufficiently distinctive to justify a departure from what appears to be the policy behind section 6(2) of the Act. Similar concerns, in fact, were raised in the first case to be decided under the 1975 amendment which introduced interim certification into the statute. See University of Ottawa, [1975] OLRB Rep. Sept. 694. In that case, the Board expressly recognized that interim certification was likely to cause some problems for the employer, but observed that the problems which would dissuade the Board from invoking section 6(2) would have to be in the nature of "insuperable barriers" to the commencement of bargaining, to the point where it could be said that "no useful purpose is to be served by granting interim certification". Further, in City of Mississauga Public Library Board, [1976] OLRB Rep. Feb. 1, the Board wrote on the subject of section 6(2):

7 This section of the Act allows the Board to certify a trade union pending a resolution of a bargaining unit dispute in those situations where the ultimate determination by the Board cannot affect the right of the union to certification. Prior to its enactment a union which had established the required membership support could not commence to negotiate a first agreement and was required during this critical period of high expectations and uncertainty to await the final bargaining unit determinations. The amendment is designed to neutralize whatever prejudice may be suffered by a trade union and its constituents in these circumstances by confirm­ing its right to certification and by permitting it to serve notice and to commence to bargain pending the resolution of bargaining unit disputes.

8. The bargaining unit dispute before us may be termed typical or normal. It involves a single classification which sits on the line of managerial demarcation. It must be assumed that the Legislature envisaged precisely this situation when it enacted section 6(la) [now 6(2)] and the Board, therefore, must be circumspect in exercising its discretion to withhold interim certification in circum­stances such as these. This is not to infer, however, that if more than one classification was in dispute or if some fixed percentage of the potential bargaining unit was in dispute that the Board would withhold interim certification based on these factors alone. The exercise of the Board's discretion under section 6(la) should never be based solely on the number of classifications in dispute or on the percentage of disputed persons in the proposed bargaining unit. The exercise of the Board's discretion must be on a case to case basis whereby the prime consideration is whether or not meaningful bargaining, on even a restricted number of items, can take place. If meaningful bargaining cannot take place, for reasons related to a genuine bargaining unit dispute, then the Board in the exercise of its discretion must consider the negative effect of placing the parties in a collective bargaining interface at that point in time.

9. The respondent has argued that in the circumstances before us it would not be possible to negotiate a grievance procedure. In certain situations the nature of the bargaining unit dispute might restrict the ability of the parties to formulate specific contract language. It may well be that in this case the parties could not negotiate a grievance procedure if interim certification were granted. Nevertheless, there are many non-monetary items which are unaffected by bargaining unit disputes and which can be negotiated during the interim period. Furthermore, although it is common bargaining strategy to resolve language items before mone­tary matters are negotiated, certain monetary items can also be discussed in the interim without prejudice to either party. The legislative intent of section 6(la) is to permit the parties to proceed with those aspects of bargaining which are not dependent on a final resolution of bargaining unit disputes so as not to delay the onset of the already lengthy bargaining process. The Board ought not to withhold interim certification on the grounds that the bargaining unit dispute precludes the negotiation of certain items or precludes a conclusion to negotiations.

10. The respondent has also argued that it would be hindered in the selection of a bargaining committee and in its ability to communicate with those in the disputed classifications. Those below the rank of chief librarian would not normally formulate proposals or make decisions at the bargaining table although they might be a useful resource as regards departmental practices and procedures. An interim certification, however, does not preclude the employer from making information requests of the department/branch heads just as it could this classification were to be ultimately included within the bargaining unit. Although interim certification may result in a somewhat altered bargaining committee, the Board does not accept that the respondent would be handicapped in the conduct of its negotiations to a degree which would warrant withholding interim certification and thereby causing delay which, in the normal course, the amendment was designed to circumvent.

8. The respondent's concern over discipline once again is a real one, but one that, as the applicant points out, will exist so long as the supervisor's status is unclear, whether or not the Board sees fit to grant interim certification. The Board does not see the commencement of collective bargaining itself as a circumstance which will significantly magnify the disciplinary problem. Nor is the additional factor here of remoteness or night-time supervision, while understandably a further problem for the respondent, sufficient, in the Board's view, to override the policy concerns implicit in the section. As the earlier cases indicate, the Legislature appears to have weighed the elements of inconvenience or prejudice to both sides and in enacting section 6(2) to have come down on the side of eliminating delay in collective bargaining, except in cases where the matters in dispute are so extensive as to make collective bargaining artificial or meaningless, or totally impractical.

9. The Board accordingly exercises its discretion under section 6(2) of the Act to certify the applicant on an interim basis for all employees in the Editorial Department of the respondent in the Province of Ontario, save and except the Editor, Managing Editor, Assistant Managing Editor, Associate Editor, Metro Editor, District Editor, Chief of Photography, Head Librarian, Editor — Editorial Page, Systems and Development Editor, Secretary to the Managing Editor, Secretary to the Editor, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, (unit #1) and, pending the resolution of their status, excluding as well, the Night Metro Editor, Burlington Bureau Chief, Sports Editor, Assistant Sports Editor, Wire Editor, Night Slotman, Women's Editor, Entertainment Editor and Page 1 Editor. In doing so, the Board has followed its usual practice in editorial bargaining units of spelling out each of the managerial exclusions, as requested by the applicant. The Board notes that any editorial positions which are created subsequently and which in fact are managerial would be excluded by section 1(3)(b) of the Act.

10. A formal certificate must await a final resolution of the composition of bargaining unit #1.

11. With respect to the part-time unit, the Board, on the basis of the material before it, finds that more than fifty-five per cent of the employees of the respondent in bargaining unit #2, at the time the application was made, were members of the applicant on December 1, 1982, the terminal date fixed for this application and the date 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 timely statement in opposition was filed by employees in this matter, but the objectors elected not to call evidence in support of their statement. The Board accordingly discounts that statement.

12. The Board further exercises its discretion under section 6(2) of the Act to certify the applicant as exclusive bargaining agent for all employees in the Editorial Department of the respondent in the Province of Ontario employed for not more than twenty-four hours per week and students employed during the school vacation period (hereinafter referred to as bargaining unit #2). The exclusions for this unit will parallel those of unit #1 when the latter have been finally determined. A formal certificate for bargaining unit #2 will accordingly have to await the final resolution of bargaining unit #1 as well.

DECISION OF BOARD MEMBER W. H. WIGHTMAN;

1. Counsel for the applicant, in citing the University of Ottawa case, Board File No. 0674—75—R, emphasized that it has been "much more complicated than what (we) have before us". He adumbrated position classifications which, by title, appeared to range through the University hierarchy.

2. I would have thought the University of Ottawa case is supportive of the argument advanced by counsel for the respondent in support of resolving the status of the ten employees before issuance of the certificate.

3. In City of Mississauga Public Library Board, [1976] OLRB Rep. Feb. 1, my then colleague, J. E. C. Robinson, Q.C., disassociated himself from much of the obiter in that case which counsel for the applicant relied upon in the case before us. While sharing my former colleague's concerns regarding the interpretation of section 6(2), I think it important to emphasize my support for the proposition that, wherever possible, the process not be delayed if bargaining can begin even on a restricted number of issues.

4. In this case I feel the point has been made that even the composition of a bargaining committee could not be determined until the status determination has been made and I would have delayed issuance for what I am confident would have been a short period of time.