[1985] OLRB Rep. July 1088
0566-85-R International Woodworkers of America, Applicant, v. Lajambe Forest Products Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Robert D. Howe, Vice-Chairman, and Board Members L M. Stamp and S. O 'Flynn.
APPEARANCES: Bernie Hanson and Harold Sachs for the applicant; Richard Nixon, Frank Lajambe Sr., and Mark Lajambe for the respondent; no one appearing for the objectors.
DECISION OF THE BOARD; July 15, 1985
This is an application for certification in which representatives of the applicant and the respondent met with a Board Officer prior to the hearing scheduled in this matter and reached agreement on all matters in dispute between them with the exception of the issue described below with respect to whether or not certain persons listed on Schedule D of the employer's list should be included or excluded for purposes of the count.
No one appeared on behalf of the objectors at the hearing of this matter. Therefore, the Board, pursuant to section 73(5) of its Rules of Procedure, will dispose of this application without considering the statement of desire filed by the objectors.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent at Garden River Indian Reserve, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than 24 hours per week, and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
As indicated above, the applicant and the respondent were unable to reach agreement on the issue of whether certain individuals on Schedule D of the employer's list should be included or excluded for purposes of the count. They were, however, able to agree that the Board should decide that issue on the basis of the following agreed statement of facts. The employees in question are the first sixteen on Schedule D. A decision was made by the respondent on June 5, 1985 to lay off those sixteen employees. Records of Employment (in the form required by Employment and Immigration Canada for unemployment insurance purposes) were prepared for all of those employees on June 5, 1985. (A sample consisting of one of those Records of Employment was filed with the Board as Exhibit #1.) Those Records of Employment indicated the employees' last day worked to be June 5, 1985, and gave "shortage of work" as the reason for issuing the Record of Employment. Termination notices were also prepared on June 5, 1985. (A sample termination notice was filed with the Board as Exhibit #2.) Those notices also indicated the employees' last day worked to be June 5, 1985, and gave "shortage of work due to market conditions" as the reason for leaving. At the time those documents were prepared, the respondent had no idea when the applicant was going to file its certification application. The employees involved work on the day shift which begins at 7:30 a.m. Since they had no prior notice before the morning of June 6 that they would not be scheduled for work, they came to the plant on the morning of June 6, 1985. They received their first indication that a layoff was imminent when they checked their time cards in order to punch in and found that the time cards were not there. They were then told to go to the office where they were given their termination notices. None of the employees punched in for work. All of them were given their termination notices prior to 7:30 a.m. The respondent's employees are not paid for travel time to and from the plant, or for expenses incurred in going to and from work. None of the sixteen individuals worked on June 6, 1985, and no wages were paid to them in respect of that day.
On the basis of that agreed statement of facts, counsel for the applicant submitted that the Board should find the employees in question to be included for purposes of the count. In support of that position, he referred the Board to Bond Place Hotel, [1982] OLRB Rep. Aug. 1135; Amplifone Canada Ltd., [1967] OLRB Rep. Dec. 840; and Holiday Juice Ltd., [1984] OLRB Rep. Feb. 277. Counsel for the respondent, on the other hand, submitted that the employees in question should be excluded for purposes of the count. He attempted to distinguish the Bond Place Hotel case, but conceded that the present case is indistinguishable from Amplifone Canada Ltd.
After recessing to consider the submissions of counsel, the Board made the following oral ruling, which is hereby confirmed:
Having considered the able submissions of counsel, we are unanimously of the view that the sixteen employees in question should be included for purposes of the count. As Mr. Nixon candidly conceded in his submissions, the present case is indistinguishable from Amplifone Canada Ltd., [1967] OLRB Rep. Dec. 840, in which the Board wrote as follows at paragraph 20:
It is our opinion that the persons who, not having been forewarned by the respondent, presented themselves at their place of work in the reasonable expectation of carrying on their normal employment must be found to be employees in the bargaining unit on the date they so reported and should have been shown on Schedule "A" and not on Schedule "C", notwithstanding the fact that they were laid off indefinitely without performing any work on that same date.
That case has been consistently followed by the Board over the years, most recently in Holiday Juice Ltd., [1984] OLRB Rep. Feb. 277, in which the Board wrote as follows at paragraph 9:
The vast majority of employees either work on the application day or are scheduled in advance not to work that day. But occasionally an employee who is scheduled, when the day of the application arrives to work that day does not actually work [sic]. The Board has held a person who reports to the employer's premises on the application day with an expectation of working and is laid off indefinitely before doing any work is an employee on that date. See Amplifone Canada Ltd., [1967] OLRB Rep. Dec. 840 and Bond Place Hotel, [1982] OLRB Rep. Aug. 1135. This legal result has been reconciled with the wording of the schedules by interpreting the phrase "actually at work" to refer to attendance at the workplace with an expectation of working.
We see no valid reason to depart from that well-established guideline, which provides a sharply drawn, "bright line" test that generally enables employers to place names on the correct schedule, and minimizes subsequent disputes as to who was or was not an employee for purposes of the count.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made, were members of the applicant on June 18, 1985, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act.
A certificate will issue to the applicant.