Local 2228, International Brotherhood of Electrical Workers v. Filtran Limited, 1983 CanLII 949

Ontario Labour Relations Board

[1983] OLRB Rep. October 1647

File No.: 0870-83-R Date: October 31, 1983

Between: Local 2228, International Brotherhood of Electrical Workers, Applicant, v. Filtran Limited, Respondent.

Before: Richard M. Brown, Vice-Chairman, and Board Members W. H. Wightman and F. S. Cooke.

Appearances: James Shields, John Kearnev, Ray Charron, Paul Jollymore and Susan Kearney for the applicant; Lynn H. Harnden and P. W. White for the respondent.

DECISION OF THE BOARD

1. By decision dated August 23, 1983, another panel of this Board directed a representation vote. The ballots of six employees were segregated at the time of the election and have not been counted. Of the ballots that have been counted, fifty-one were cast in favour of the union and forty-six against. The parties now agree that four of these six employees were entitled to vote and one was not.

2. The only person who cast a segregated ballot and remains in dispute is Nellie Garlough. The parties cannot agree whether or not she is a person regularly employed for not more than twenty-four hours per week. The method by which this issue is to be determined was described in Sydenhain District Hospital, [1967] OLRB Rep. May 135:

6. In order to make this secondary determination, in industries apart from the chain grocery store industry, it is the Board's experience that it would be useful to look at the period of seven weeks immediately preceding the making of an application as being a manageable representative period in the vast majority of cases. Therefore, if such representative period is used and a person was employed for four or more of the seven weeks under consideration for not more than 24 hours per week, the Board would then be in a position to find that the person was regularly employed for not more than 24 hours per week. If, on the other hand, a person was employed for four or more of the seven weeks under con­sideration for more than 24 hours per week, the Board would be able to find that the person properly belongs in the "full-time" bargaining unit. It is, of course, recognized that a person may move from a full-time bar­gaining unit to a part-time bargaining unit depending on what period of employment is considered. The fixing of a reasonable firm period to be considered by the Board in making such a determination had the advantage of consistency which would permit the parties to know in advance what persons are to be considered.

That the seven week period may be varied in appropriate circumstances was recognized in Holiday Inn Yorkdale, [1967] OLRB Rep. Nov. 709:

5. In resolving the issue of the part time employee the Board in accordance with the guideline adopted in The Sydenham District Hospital case (1967) OLRB M.R. May 135 (at p. 137) usually looks to a representative period of seven weeks immediately preceeding the date upon which the application was filed. And once having surveyed the number of hours worked per week over the seven week period the Board makes its finding with respect to the nature of the employee's status. It must be stressed, however, that the seven week period immediately preceeding the application date is only a guideline and not "a hard and fast rule". If that particular period is found to be "unrepresentative" of the nature of employee's status then the Board will simply elect another period of time that is more representative. In short, in instances where within the seven week period an employee is absent from work due to illness, accident, vacation, holiday, 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 those 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.

3. As Nellie Garlough is a homeworker paid at a piece rate, her hours of work are not recorded. In an attempt to assist the parties to agree upon her status, a Board Officer suggested that her income be divided by the minimum wage to determine how many hours work at that rate of pay would have resulted in the income received. The suggestion was to use the number of hours arrived at in this way to determine her status. As Ms. Garlough is paid biweekiy, the formula can only be applied to an even number of weeks. Taking a six week period, the number of hours are as follows:

week 1 20.61 week 2 20.61 week 3 37.695 week 4 37.695 week 5 23.11 week 6 23.11

The number of hours falls below twenty-four in a majority of the weeks in question. Applying the Sydenham Hospital test to these figures, one concludes Nellie Garlough is a person regularly employed for not more than twenty-four hours per week.

4. With one important exception, the employer does not challenge this approach. The employer was content to convert income to hours by means of the minimum wage and also agreed to a six week period. However, we were asked to look to the average number of hours per week over the entire six weeks, rather than to time worked in a majority of individual weeks.

5. One reason advanced in support of the employer's position was that the output of homeworkers is sporadic. Although this observation is true, it is wide of the mark. The variation in hours worked by part-time employees — homeworkers or not — is the rationale for formulating a seven-week rule in the first place. In other words, the very purpose of this rule is to establish a trend in a situation that is constantly changing. To find a pattern, the Board's general practice is to look to the hours worked in four out of seven weeks, rather than a weekly average over seven weeks. The reason for considering the majority of weeks is that this is a better indicia of a pattern than an average which can be badly skewed by one or two extraordinary weeks. Consequently, the sporadic nature of homework is not a sufficient reason for applying an average hours per week approach.

6. The employer's second ground for advancing an average hours approach is that the amount paid to Ms. Garlough for a two week period does not accurately reflect the amount of work performed by her over that time. Ms. Garlough lives eighty kilometres from the plant. Mr. Philip White, the president of Filtran Ltd., testified that shipments of finished products from her home to the plant are intermittent. However, Mr. White could offer no details to elaborate upon this general assertion; in particular, no shipment dates were provided. In these circumstances, we are not prepared to depart from the Board's general practice.

7. Over the six week period preceding the application, Ms. Garlough worked less than twenty-four hours in four weeks — converting income to hours by means of the minimum wage. She is, therefore, not a member of the bargaining unit. As only four segregated ballots were properly cast, the union's five vote margin on the counted ballots is unassailable. In other words, the union won the election.

8. However, we were asked to direct a fresh vote with a new voters' list expanded to include four foremen whom the employer contends are employees within the meaning of section l(3)(b) of the Act. Prior to the election, the parties agreed that foremen were to be excluded from the bargaining unit and also from the voting constituency. The employer cannot be allowed to renege upon this agreement after losing an election: the danger of gerrymandering is obvious; in addition, overturning a vote drags out the certification process to the detriment of all concerned.

9. Finally, the employer contended that propaganda issued by the union during the late afternoon on the day before the vote invalidated the election. Two statements relating to a deferred profit sharing plan were contested:

It is one in name only — It is a pension plan.

Full vesting occurs only after 5 years (i.e. your guarantee of benefits).

As to the first statement, the employer conceded that benefits are not normally paid until an employee reaches age sixty-five. In addition, a brochure distributed to all employees by management, entitled "Your Deferred Profit Sharing Plan", begins by saying: "This bookiet gives the details of a pension plan developed especially for Filtran employees" (emphasis added). Nonetheless, Mr. White claimed the union seriously misrepresented the profit sharing aspect of the plan. As to vesting, Mr. White explained that twenty per cent of the employer's contributions vest after one year, forty per cent after two years, and so on, until contributions are fully vested after five years. The union's failure to explain that partial vesting occurs before five years was attacked as misleading.

10. The Board's approach to campaign propaganda was briefly described in McMaster University, [1979] OLRB Rep. July 685:

11. The Board, in general, does not consider that it should monitor campaigns preceding a representation election which are designed to persuade members of the voting constituency to exercise their franchise one way or another. It is fundamental to our society that proponents of varying views will each put forward the most persuasive arguments in favor of their position and that the electorate is competent to evaluate and decide. Despite its general position, the Board does not close its eyes entirely to the conduct of the campaign if, in its judgment the campaign has been so waged by one party to preclude the other party from a meaningful opportunity of reply and thus to impair the employees' freedom of choice and thereby call into question the weight to be accorded to the results. It is not every unanswerable claim which will cause the Board to intervene. However, in those instances in which a claim is made, which is in fact false and which relates to a significant factor which would be in­volved in the voter's final evaluation of the issue on which he is voting, and which the other party has not had adequate opportunity to dispute, the Board will act by ordering a new representation vote. See Joseph Gould and Sons Limited, 52 CLLC ¶17,039:

(emphasis added)

In our view, the representations made by the union are better described as incomplete or ambiguous than as false. As the employees had already received from management a full description of the plan, the union's propaganda is not likely to have influenced their votes. We decline to order another election.

11. A certificate will issue to the applicant.