Ontario Labour Relations Board
Citation: [1984] OLRB Rep. October 1520 File No.: 1630-84-R Date: October 18, 1984
Between: Retail, Wholesale and Department Store Union, CFL:CIO:CLC:, Applicant, v. Simpsons Limited, Respondent, v. Canadian Union of Operating Engineers and General Workers, Intervener, v. Group of Employees, Objectors
Before: Harry Freedman, Vice-Chairman, and Board Members W. H. Wightman and B. Armstrong.
Appearances: Hugh Buchanan and Carole Currie for the applicant T. Stone and P. Reid for the respondent No one appearing for the intervener or objectors.
DECISION OF THE BOARD
1This is an application for certification which came before the Board with two other applications filed by the applicant in respect of two other locations of the respondent. (See Board File Nos. 1650-84-R and 1670-84-R.)
2At the opening of the hearing, counsel for the respondent raised by way of a preliminary motion, an objection to the Board counting as employees in the bargaining unit, any employees who had received termination notices and were scheduled, as of the date of hearing, to have their employment terminated on November 3, 1984.
3The majority of the Board, after hearing the submissions from all parties, delivered the following oral ruling. Board Member W. H. Wightman reserved his decision on the preliminary issue raised by the respondent.
RULING
The Board has before it three applications for certification filed by the Retail, Wholesale and Department Store Union in respect of three different groups of employees of the respondent, Simpsons Limited. Although the applications have been and are being treated separately, counsel for the respondent has raised an argument based on the application in Board File 1630-84-R that applies to all three proceedings. The Board, therefore, heard argument on the issue and its ruling will apply to all three proceedings.
The respondent gave notice of termination of employment, to be effective on November 3, 1984 to several hundred employees on July 11, 1984 in accordance with a national policy implemented by it. That policy resulted in approximately 280 employees in the group for which the union seeks bargaining rights in Board File 1630-84-R, the downtown store, receiving the notice of termination.
Counsel advised the Board that the employees who received this notice of termination would also receive severance pay, provided the employees continued to work until November 3, 1984, unless the company waived that requirement. The Board was also advised that a small number in that group of 280 would be transferred to vacant positions and if the transfer took place, they would not receive severance pay.
Counsel for the company argues that the employees who received notice of termination and who will terminate on November 3, 1984 are no longer employees for purposes of the application for certification, and therefore cannot be considered in determining the level of membership enjoyed by the union. Additionally, counsel submits that even if these persons are technically employees, the Board should deem them not to be employees since those employees, as of receiving notice of termination, no longer have a continuing interest in their employment relationship with the respondent. Counsel further argues that the same policy considerations which prompt the Board to defer processing a certification application and direct the taking of a representation vote in build-up situations (see F. Lepper & Son Ltd., [1977] OLRB Rep. Dec. 246) should also guide the Board here in determining whether the persons receiving the notice should have any bearing on applicant's right to obtain certification.
The union's response to the respondent's argument is brief. It argues that the persons in question were employees as of the date of application and therefore must be included for purposes of the count to determine the union's level of membership.
We agree with the union's submission. Section 7(1) of the Act requires the Board to determine the number of employees in the unit as of the date of application. The Board applies various criteria to make that determination. See Amplifone Canada Ltd., [1967] OLRB Rep. Dec. 840 where the Board stated at paragraph 14:
Although the unit time is determined by the provisions of section 7(1), nothing is said in that section or elsewhere in the act concerning the method or criteria to be used by the Board in ascertaining the number of employees in the bargaining unit at the material time. The determination as to whether a person is or is not to be numbered as an employee on the date of application is, therefore, left entirely to the discretion of the Board. To ensure consistency and order in its proceedings and with a view to the purely practical difficulties involved, the Board has adopted certain practices and rules of thumb applicable to the various situations which commonly arise in the employer-employee relationship.
The issue of whether a person is an employees for purposes of the count generally arises when that person is not at work on the date of the application. Thus, the Board adopts the 30-day rule or seven week rule, for example to assist in making this determination. We agree with counsel's submission that these rules are flexible, but in our opinion, flexibility in applying these rules cannot cause the Board to ignore the facts before it. The people in question were at work in the employ of the respondent on the day the application was filed.
A similar, though not identical problem has arisen before the Board where an employee's eligibility to vote was questioned because the employee had given notice of intention to quit before the vote, to be effective the day after the vote. The Board, in that case, held that as she was employed on the date of the vote, she was eligible to vote (see London District Crippled Children Treatment Center, [1980] OLRB Rep. April 461). In our view, the principles outlined therein apply here to these facts. The persons in question were at work in the employ of respondent on the application date. The Board cannot change that fact. See paragraph 11 of the Amplifone case, supra. Therefore, the Board dismisses the respondent's argument. For these same reasons, the Board is not inclined, even if we could, to deem that those persons are not employees.
Counsel for the respondent argued that his submissions would also be relevant to the Board's exercise of discretion to order a vote under section 7(2) of the Act. The Board advised the parties that it would not deal with that related but separate issue until a determination was made with respect to the level of support enjoyed by the union. We wish to make it clear that the question of the Board's exercise of its discretion to order a vote remains open and although the submissions may be similar, the issue of the exercise the Board's discretion is clearly different from the issue upon which we have ruled.
4Following the oral ruling, the parties met with a Labour Relations Officer to review the remaining issues in the proceeding.
5Following the meeting, the applicant requested leave to withdraw the application. Having regard to the stage of the proceedings when the request was made, the Board denies the application for leave to withdraw and hereby dismisses the application.