Ontario Labour Relations Board
[1984] OLRB Rep. September 1192
0618-84-R United Steelworkers of America, Applicant, v. Ebel Quarries Limited, Respondent
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and J. F. Kennedy.
DECISION OF THE BOARD; September 4, 1984
This is the continuation of an application for certification, in which the Board directed the taking of a representation vote. Three of the ballots cast were segregated by the Board on the basis of the employer's position that each of those three individuals exercised managerial functions within the meaning of section l(3)(b) of the Act. The non-segregated ballots have been counted, disclosing that eight ballots were cast in favour of the applicant and five against.
The applicant has now written to the Board conceding that one of the individuals whom it previously had disputed, and whose ballot had been segregated, Mr. Brad Dawson, in fact exercises managerial functions as alleged by the respondent employer. The employer takes the position that all three of the individuals in dispute exercise the same duties and responsibilities, and further that the applicant ought not to be permitted to change its position once the result of the vote is known. On the latter point, the respondent relies upon the decision of the Board in Greater Windsor Investments Limited, [1976] OLRB Rep. Sept. 515.
The case cited by the respondent has to do with a party seeking to raise new issues pertaining to the bargaining unit after the membership position of an applicant trade union has been disclosed. There is nothing to prevent a party, where an issue has already been joined, from agreeing in whole or in part at any stage with the position being put forward by the party opposite. That is what has occurred in the present case. The applicant is at the same time entitled to maintain its position that the other two individuals in dispute fall short of the level of managerial responsibility, and that question will be determined on the evidence, including any evidence as to the overall structure of the respondent's organization.
As the applicant has indicated, its agreement with the respondent that Mr. Dawson is not properly included within the bargaining unit means that the applicant's right to certification can no longer be affected by the Board's determination of the status of the remaining two individuals in dispute. The Board accordingly certifies the applicant, pursuant to the provisions of section 6(2) of the Labour Relations Act, on an interim basis as bargaining agent for all employees of the respondent in the Township of Amabel, County of Bruce, Ontario, save and except foreman, persons above the rank of foreman, office and sales staff, students employed during the school vacation period, and, for the time being, persons regularly employed for not more than 24 hours per week.
The parties had agreed between themselves that the issue with respect to the respondent's history of employing persons on a part-time basis would be deferred until the application reached this stage. The Board is not prepared to now deal with that issue in any but the normal way, and appoints an officer to inquire into and report to the Board on that matter as well as the duties and responsibilities of the two individuals remaining in dispute.
The issuance of a formal certificate must await a determination of the final description of the bargaining unit.