[1984] OLRB Rep. December 1768
1876-84-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant, v. Simpsons Limited, Respondent, v. Group of Employees, Intervener
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members I. M. Stamp and E. G. Theobald.
DECISION OF THE BOARD; December 7, 1984
- By decision dated November 28, 1984, the Board directed that a pre-hearing representation vote be conducted in the following voting constituency:
VOTING CONSTITUENCY #1:
FULL TIME EMPLOYEES
(EXCLUDING OFFICE AND CLERICAL)
All employees of the respondent at 176 Yonge Street and 31 Richmond Street West, Toronto, save and except Department Supervisors, persons above the rank of Department Supervisor, security staff, management trainees, office and clerical staff, pharmacists, pharmacists student trainees, optometrists, persons covered by the subsisting collective agreement between the respondent and the Canadian Union of Operating Engineers, persons regularly employed for not more than twenty-four (24) hours per week, students employed during the school vacation period and students employed on a co-operative program with a school, college or university.
The Board noted the parties' agreement, for the purpose of clarity, that:
a) "Office and Clerical exclusions include Training and Sales Promotion, who may be employed under Store, Regional or Head Office operations";
b) "Persons engaged in Regional or Head Office operations are excluded"; and
c) "Persons employed by [third party] Concessionaires and Demonstrators employed by [third party] Vendors are excluded".
The Board also directed that:
In view of the various positions taken by the applicant, respondent and by the intervening employees, each ballot cast by an employee in any of the following categories shall be segregated and not counted pending further order of the Board:
a) employees of the respondent at 31 Richmond Street West;
b) employees described by the respondent as "terminated effective November 3, 1984";
c) maintenance employees in Departments 6551 and 8157;
d) switchboard employees;
e) telephone sales employees.
The Board also directed that a Labour Relations Officer confer with the parties on the voters' list and arrangements for the vote.
- Representatives of the applicant, respondent and interveners subsequently met and agreed in writing on the exclusion from the voting constituency of the following groups of employees of the respondent:
a) employees at 31 Richmond Street;
b) switchboard employees; and
c) telephone sales employees.
In paragraphs 3 and 7 of their written agreement, the parties also agreed:
That the employees described by the respondent as "terminated effective November 3, 1984" are not eligible voters.
That in the event that the segregated ballots become relevant the parties are in agreement that the Board appoint a Labour Relations Officer to deal with the segregated ballots and further in the event that the Board includes the segregated ballots in voting constituency #1 that the Board shall count those ballots and not direct the taking of a second representation vote.
Having regard to the terms of the parties' agreement and the voters' list referred to in it, it is apparent that in speaking of "segregated ballots" in paragraph 7 of their agreement, the parties had in mind any ballots cast by maintenance employees in Departments 6551 and 8157, whom the applicant and respondent had throughout said should be included in, and the interveners had throughout said should be excluded from, the bargaining unit to be determined by the Board after the vote is conducted.
- By letter dated December 3, 1984, a lawyer representing the applicant makes these submissions:
We are informed by Mr. Buchanan that the respondent company and the union have completely resolved their bargaining unit difficulties and, further, that a pre-hearing vote has been scheduled for December 14, 1984.
It would therefore appear that the only outstanding objections to the bargaining unit description are those advanced on behalf of a group of interveners.
It is our position that the interveners have no status to raise issues with respect to the scope of the bargaining unit. In any event, there can be no question that the bargaining unit description agreed to by the company and the union is completely consistent with the practice of Labour Relations Board for many years.
We would therefore submit that there is no necessity to segregate the ballots of the challenging employees, particularly where there may be some risk of a repeat vote should the result be close. At the very least we would submit that the interveners should show cause why the Board should proceed further with that objection.
We would ask that the Board address this matter prior to December 14th if that be possible, to avoid any difficulty which might arise after the ballots are counted.
The "Mr. Buchanan" referred to by the lawyer is the union representative who signed the written agreement of November 30th on behalf of the applicant.
We reject the submissions referred to in the next preceding paragraph. Apart altogether from their 11th hour nature and the apparent inconsistency with the applicant's having 3 days earlier acknowledged the need to segregate the ballots in question, we would not ordinarily ignore at this stage positions taken by a party arguably entitled to status, as the interveners arguably are: see Tektron Equipment Corporation, [1983] OLRB Rep. Nov. 1932; particularly paragraph 13, and the cases cited therein. We will not, therefore, revoke the direction in paragraph 5 of our decision of November 28, 1984 as it applies to employees described in subparagraph (c) of that paragraph.
Having regard to the agreement of the parties, we hereby vary the voting constituency described in our decision of November 28th SO as to read:
All employees of the respondent at 176 Yonge Street, Toronto save and except Department Supervisors, persons above the rank of Department Supervisor, security staff, management trainees, office and clerical staff, pharmacists, pharmacists student trainees, optometrists, persons covered by the subsisting collective agreement between the respondent and the Canadian Union of Operating Engineers, persons regularly employed for not more than twenty-four (24) hours per week, students employed during the school vacation period and students employed on a co-operative program with a school, college or university.
For the same reason, we note the parties' agreement on the exclusion from the voting constituency of switchboard and telephone sales employees, and will treat that agreement as if it were a clarity note.
As to the matters referred to in paragraphs 3 and 7 of the parties' agreement of November 30, 1984, we can do no more than note the parties' agreements on those matters. We cannot adopt either paragraph as a ruling of the Board. We are not here determining the appropriate bargaining unit; the statute expressly leaves that question to be determined after the vote is conducted, and after further notice is given to all affected, including employees, of the opportunity to make submissions to the Board with respect to any matter still to be determined in the application. The agreement of the applicant and respondent on the right of an employee to vote is not determinative of that issue. As in any case, if any person attends and requests an opportunity to vote, that person will be permitted to cast a ballot even if that person's entitlement to vote is disputed by one, or even every, of the parties to the application. Such a ballot is segregated as a matter of course, and the eligibility to vote of the person who cast it is determined by the Board after the voting is complete. Similarly, the counting procedure adopted when ballots have been segregated is for the Board to determine after the vote is complete. Whether or not the immediate counting of unsegregated ballots creates a danger that a second vote will be necessary is something to be assessed at the time the Board assesses whether or not to adopt that course.
The matter is referred to the Registrar.