Ontario Labour Relations Board
[1983] OLRB Rep. November 1932
1500-83-R United Electrical, Radio and Machine Workers of America (UE), Applicant, v. Tektron Equipment Corporation, Respondent, v. Group of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chairman and Board Members W. Gibson and S. Cooke.
APPEARANCES: Arthur E. Jenkyn and Ralph Currie for the applicant; Barbara G. Crosby and Eugene M. Tekatch for the respondent; Kalpha Gokhruwala, Sandy Karnan and Cathy Tekatch for the objectors.
DECISION OF THE BOARD; November 10, 1983
Decision
1This is an application for certification.
2The Board finds that the applicant is a trade union within the meaning of section 1(1 )(p) of the Labour Relations Act.
3October 17, 1983, the terminal date fixed for this application, is the date which the Board determines, under section 103(2)(j), to be the time for ascertaining membership under section 7(1).
4With respect to the appropriate bargaining unit, the parties are in dispute over whether or not persons forming part of what the applicant describes as the "engineering staff" should be included in or excluded from the bargaining unit. The applicant union takes the position that three employees are engaged in what it describes as "engineering technician work": Anthony Tekatch, Cathy Tekatch and Marcus Byjack. It says the community of interest of these employees is with the office and sales staff, and not with the production workers. The parties agree that none of the employees described as part of the "engineering staff" is a professional engineer. The respondent employer takes the position that it does not have "engineering staff" as such, and that the community of interest of the aforementioned employees is with a production unit.
5Subject to the question of an exclusion for "engineering staff", the parties are in agreement that the appropriate bargaining unit consists of all employees of Tektron Equipment Corporation in Stoney Creek, Ontario, save and except supervisors and those above the rank of supervisor, office and sales staff.
6The union examined the employee list and registered a total of 10 challenges. Three of the applicant's challenges related to the three employees it identifies as forming part of the "engineering staff". The Board hereby appoints an officer to meet with the parties and inquire into the issue of composition of the bargaining unit referred to in paragraph 4 of this decision and the question whether the persons referred to in that paragraph are employees of the respondent who fall within either the bargaining unit proposed by the applicant or the bargaining unit proposed by the respondent. The officer is directed to further inquire as to whether or not the following employees are employees of the respondent who fall within the bargaining unit: C. Gauthier, M. Tekatch, B. Martin, M. O'Connor and J. Loomis. The Officer is further directed to inquire into the duties and responsibilities of C. Nelligan and J. Tekatch, whom the applicant claims exercise managerial authority within the meaning of section l(3)(b) of the Act.
7At the hearing of this matter the parties were advised that an Officer would be appointed. They were also advised that the petition filed by the objectors would not affect the outcome of this certification application, regardless of the resolution of the bargaining unit and list issues outstanding. The objectors were advised that they would, nevertheless, receive notice of all further proceedings and an opportunity to participate therein.
8The applicant union took exception to the Board's observations on the continued status of the objectors, and objected to their further participation. The applicant was invited to and did make submissions on its objections, as did the other parties including the objectors.
9The applicant union argued that the objectors had status for only one purpose, and that is to provide the necessary evidence on the validity of the petition. It is only necessary to hear that evidence if the petition is "relevant". The petition is only relevant, of course, if it has been voluntarily signed by one or more persons in respect of whom the applicant union has filed membership evidence and, even then, only if the elimination of that membership evidence from consideration would reduce the union's apparent support within the bargaining unit to fifty-five per cent or less. Once it becomes apparent that the petition cannot have this effect, the union argues, the petition is irrelevant, the continued presence of the objectors serves no further purpose and they should not be accorded status in respect of any other issue in the proceedings. The union argues that employees with evidence relevant to any other issue can arrange to have either the trade union or the employer call them as a witness in the continuing proceedings.
10The granting of an application for certification has a substantial effect on the rights and obligations of the individual employees in the bargaining unit for which the certificate is granted. An employee's right to bargain individually with his or her employer, however real or illusory that right may be, is terminated if the applicant trade union is granted a certificate for a bargaining unit which includes that employee. The terms and conditions of his employment are thereafter subject to the influence of the trade union, which thereafter has the exclusive right to bargain with respect to his terms and conditions of employment and to establish with his employer a collective agreement by which he is bound by virtue of section 50 of the Labour Relations Act. The rules of natural justice require that persons so directly affected by quasi-judicial proceedings be given notice of those proceedings and an opportunity to make representations. Pursuant to the Board's Rules of Practice, notice is given to affected employees of applications for certification (Forms 6, 7 and 78), as well as of applications to terminate bargaining rights (Form 19), applications to declare successor trade union status (Form 24) and applications under Sections 63 and 1(4) (Forms 28 and 33).
11The Board's power to prescribe procedure and control its process is set out in subsection 102(13) of the Act, which provides:
The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Board may, subject to the approval of the Lieutenant Governor in Council, make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.
This subsection expressly recognizes that the Board's discretion with respect to practice and procedure is circumscribed by the rules of natural justice. The application of these rules to the interests of employee objectors was dealt with by Laskin, J . A. (as he then was) in R.v.O.L.R.B., exparte Nick Masnev Hotels Ltd., 1970 CanLII 478 (ON CA), [1970] 3 OR. 461 (Ont. C.A.) at pp. 466 and 467 in the following terms:
However, to allay any doubts on the matter so far as this Court is concerned, we wish to make it clear that persons who intervene properly in proceedings before the Baord and who have an interest in accordance with the Board's own prescriptions made in performance of its statutory duty are entitled to be treated as to notice and otherwise as parties to the proceedings in the same way as those who initiated those proceedings and those who were originally brought into them. Audi alteram partem is a principle for their protection no less than for others who are parties.
12One of the major issues before the Board in a certification application is the degree of support for the applicant trade union among the affected employees. It is to that issue that employee objectors most often address themselves. In that respect, section 73 of the Board's Rules of Procedure requires the timely filing of a written statement of desire in prescribed form in respect of which supporting evidnce must be lead by the objectors at the hearing of the application. It is on this issue of representativeness that the board's jurisprudence with respect to "petitions" and their effect on membership evidence comes into play.
13Sufficiency of membership support is not the only issue with which the Board must deal in a certification application. The Board must also determine the composition of the appropriate bargaining unit and the employee status of persons alleged to be or not be in that unit. As the resolution of those issues can be determinative in individual cases of the effect of the certification application on employees, employees are equally entitled to make representations on those and, indeed, any other issuespertinent to the disposition of the application: Ilsco of Canada Limited, [1973] OLRB Rep. May 221. Examples of cases in which objectors' representations have been entertained with respect to the bargaining unit include Tamco Limited, [1974] OLRB Rep. Nov. 764, Mason Windows Limited, [1981] OLRB Rep. March 302 and Windsor Western Hospital Centre Inc., [1979] OLRB Rep. May 462. Indeed, in the last mentioned case the position taken by the objectors was at odds with the terms of an agreement between the applicant employer and the respondent union. The status of individual employees or their representatives to make representations with respect to issues other than membership support is not dependent on the timely filing of a statement of desire: Jim Davidson Motors Ltd. [1968] OLRB Rep. June 268; Strathmere Lodge, Middlesex County Home for Aged, [1973] OLRB Rep. Aug. 425 (and see Lorain Products (Canada) Ltd. [1977] OLRB Rep. Nov. 734 where a group of employees was granted status to intervene after a pre-hearing vote had been conducted, when applicant trade union had at that point invoked section 8 of the Act.) As the status of an employee or group of employees to make such representations is not dc-pendant on having filed a statement of desire, their status for those purposes cannot be adversely affected by the fact that they have filed a statement of desire which is determined to be irrelevant in the sense described in paragraph 9 above.
14While the interests of individual employees may often parallel those either of the employer or the union, that does not diminish the employees' right to have notice of and participate in certification hearings. A concerned employee is not limited to offering himself or herself as a witness to one or other of the employer or union, in the hope that by doing so his or her point of view will be represented. Indeed, this Board has made it plain that the employer has no standing as spokesman for its employees except with respect to a narrow range of issues: Federated Building and Maintenance Co. Ltd., [1979] OLRB Rep. Oct. 974.
15Entitlement to notice and to participate in the manner contemplated in section 102(13) is not, of course, license to make a "mockery" of the Board's proceedings, as the applicant's representative suggested it must necessarily be if objectors are given status on issues other than the voluntariness of a relevant petition. The Board can control its proceedings so as to avoid abuse: Jordan v. Ontario Labour Relations Board et al, (1978) 1977 CanLII 1837 (ON HCJDC), 84 D.L.R. (3d) 557, 78 CLLC 14,132 (Ont. Div. Ct.). Obedience to the rules of natural justice does not require that the Board entertain evidence or submissions which are irrelevant or repetitive. The Board remains entitled to control the conduct of its hearings and keep all parties within proper bounds in the presentation of evidence and argument and in the cross-examination of witnesses: Statutory Powers Procedure Act R.S.O. 1980 c. 484, esp. ss. 10 and 23; Re Henderson and Ontario Securities Commission, (1977) 1976 CanLII 596 (ON HCJ), 14 O.R. (2d) 498 (Ont. Div. Ct.) per Osler, I. at p. 502; Re Stone and Law Society of Upper Canada, (1980) 1979 CanLII 1949 (ON HCJ), 26 O.R. (2d) 166 (Ont. Div. Ct.).
16The Board therefore confirms the ruling challenged by the applicant union, and reiterates its direction that the objectors herein shall continue to receive notice of proceedings and be entitled to participate therein unless and to the extent that they may choose to waive such rights.