Local Union 636 of the International Brotherhood of Electrical Workers v. Wackenhut of Canada Limited, Alarm Division, 1984 CanLII 1134

[1986] OLRB Rep. February 292

0813-84-R Local Union 636 of the International Brotherhood of Electrical Workers, Applicant, v. Wackenhut of Canada Limited, Alarm Division, Respondent, v. Group of Employees, Objectors

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and J. F. Kennedy.

APPEARANCES: B. Fishbein and R. Riopel for the applicant; Stewart D. Saxe and Lou Spoucer for the respondent; George R. Hall for the objectors.

DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER J.

A. RONSON; July 16, 1984

1. This is an application for certification.

2. The name of the respondent is amended to read: "Wackenhut of Canada Limited, Alarm Division".

3. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the labour Relations Act.

4. The application as drafted sought certification for a bargaining unit described as:

AU employees of the respondent save and except the manager, those above the rank of manager, and sales representatives.

This description drew the line of management exclusion, in other words, at "the manager" and above. There are, below that however, persons occupying the specific positions of "supervisor", and the application on its face left no doubt that these persons were included in the bargaining unit being sought.

5. Prior to the hearing of the application, the Board as usual held a meeting of the parties chaired by a Board officer. The applicant at that meeting requested certain amendments to the bargaining unit it was seeking, including the exclusion of "supervisor". That exclusion coincided with the position of the respondent, and the description of the agreed-upon unit was accordingly amended. As a result, the names of the two supervisors were removed from the list of employees in the unit.

6. One of the individuals so excluded as a Mr. George Hall. That placed Mr. Hall in an immediate predicament, since he was appearing at the officer's meeting as the sole representative of the group of objecting employees who had filed a relevant and timely statement in opposition to the union's application. As the consequent submissions of the parties unravelled in the hearing before the Board, Mr. Hall candidly acknowledged with respect to the "petition" on which he was appearing, that, after reading the Board's Notice, and having been upset at the prospect of being included in the bargaining unit, he and the other supervisor for their own reasons together took the responsibility for launching the instant petition. He stated to the Board that he doubted whether either supervisor would have gotten involved in a petition had the union not sought to include them in the bargaining unit, and, it now having been agreed that he was a person who ought to be excluded, he indicated that he no longer felt comfortable in performing any further role on behalf of the employees who made up the bargaining unit.

7. It was apparent to all that the statement in opposition circulated by the two supervisors, agreed to be "managerial", could not be given weight to as a voluntary expression of employee wishes. The parties therefore addressed the question whether, in light of the amendment to the unit as posted having occurred only at the hearing, it would be appropriate to re-post the application, with a new terminal date, to reflect what the applicant's intention had actually been. Counsel for the applicant explained that the bargaining-unit description set out in the application had been prepared by his client, and that the inclusion on its face of the two supervisors was simply an error in drafting. Be that as it may, counsel submitted, all that had happened in this case was that some persons whom everyone knew to be managerial had improperly involved themselves in the petition. The sole consequence of that, counsel argued, as in all other cases of management "taint", was that the Board should reject the petition. The Board, counsel pointed out, had not in such circumstances taken the additional step of re-posting for an "untainted" petition notwithstanding the fact that the initial petition had been rejected for reasons wholly beyond the control of innocent employees. Even in the cases of I. M. Pastechuk, [1980] OLRB Rep. July 979, and Carter-Horwood, Board File No. 082 1-80-R released July 10, 1980, where virtually the identical circumstances arose before the Board, the relevant petitions were simply rejected by the Board as failing to meet the test of voluntariness, without any mention of the possibility of re-posting the application to reflect the newly-defined line of managerial exclusion.

8. The Board is wholly in agreement with counsel for the applicant's characterization of the Board's jurisprudence. Where persons who are "managerial", or perceived as "managerial", act on their own initiative to take on a representative role in a "petition", the "petition" fails to meet the test of voluntariness, and that is the end of the matter. In this case, however, the Board itself, in adopting the very specific language provided in error by the applicant, left no doubt whom it was inviting in its Notice to respond to the application and appear at the hearing if they chose. The Form 6, Notice to Employees of Application for Certification, sets out in paragraph one the bargaining unit being sought in the application, and then in paragraph 4 provides:

9. Any employee or group of employees affected by the application and desiring to make representations to the Board in opposition to this application must send to the Board a statement in writing of such desire, which shall,

(a) contain the return mailing address of the employee or representative of a group of employees;

(b) contain the name of the employer concerned; and

(c) be signed by the employee of each member of a group of employees.

Further, in paragraph 7, the Form provides:

7. Any employee, or group of employees, who has informed the Board in writing of his or their desire in accordance with paragraphs 4 and 5 may attend and be heard at the hearing in person or by a representative. Any employee or representative who appears at the hearing will be required to testify, or produce a witness or witnesses who will be able to testify from his or their personal knowledge and observation, as to (a) the circumstances concerning the origination of the material filed, and (b) the manner in which each of the signatures was obtained.

We agree with counsel for the respondent that an individual reading that Form would fairly take the instructions in paragraphs 4 and 7 to refer to "employees" as defined in paragraph 1. The result here has been that "objecting" employees have been left with no one at the hearing willing to represent them. Beyond that, we accept that the actions of the supervisors in involving themselves were in large part prompted in this case by the express representation in the Board's Notice that they were sought to be included in the unit. The Board declines to speculate on what may have taken place in the absence of the intervention of the supervisors. The confusion in this case could have been readily avoided by the applicant on the basis of the information that it originally had. As a result, the Board has concluded, as indicated orally at the hearing, that it is appropriate in the unique circumstances of this case to order a re-posting of the application in its amended form, and the fixing of a new terminal date. The only cases cited by the applicant of a truly analogous context were I. M. Pastechuk, and Carter-Horwood, supra. Those cases, however, do not involve all of the unusual factors present here, and it is apparent from the face of them that the issue of re-posting never came up.

9. The Registrar is accordingly directed to have the application re-posted in its amended form, along with a copy of this decision, and to set a new terminal date. The Registrar is further directed to set another hearing date for the application. However, if no additional relevant material is filed with the Board by the new terminal date, the hearing will be cancelled, and the Board will dispose of the application on the material before it.

10. With respect to the parties' dispute over an exclusion for part-time employees, the Board appoints an officer to inquire into and report to the Board on the respondent's history of hiring part-time employees outside of the the school vacation periods.

11. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER J. F. KENNEDY;

1. I dissent.