United Food and Commercial Workers International Union Local 175 v. Robin Hood Multifoods Inc.

[1985] OLRB Rep. July 1159

0497-85-R United Food and Commercial Workers International Union Local 175, Applicant, v. Robin Hood Multifoods Inc., Respondent

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members R. J. Gallivan and R. Wilson.

DECISION OF THE BOARD; July 29, 1985

1. The parties met with a Labour Relations Officer on the date set for hearing of this certification application. They agreed on a bargaining unit description. They agreed that 29 of the respondent's employees were in that unit on the application date. The applicant claimed five others were also in the unit on that date; the respondent claimed those five exercised managerial functions, and so would be excluded from the unit by reason of section 1 (3)(b) of the Labour Relations Act ("the Act"). The Officer then advised the parties that, upon considering all of the possible results of their dispute over whether any of those five persons was an employee in the bargaining unit on which they had agreed, the membership evidence the applicant had filed was sufficient in every case to establish that more than fifty-five per cent of the employees in the unit were members of the applicant at the relevant time.

2. The parties concluded that in these circumstances the Board would grant the applicant interim certification for the unit on which they had agreed and appoint a Labour Relations Officer to inquire into the duties and responsibilities of the five individuals in dispute. With that expectation, the parties asked the Labour Relations Officer to note in his report their joint request that the application and officer's inquiry be adjourned sine die so that they could attempt to settle their dispute over the status of the five persons in question during negotiation of their first collective agreement. They then executed a consent to the Board's issuing a decision in this matter based on the submissions made and agreements reached before the Labour Relations Officer, without a hearing before a panel of the Board.

3. In our decision dated July 9, 1985, we found that the unit on which the parties had agreed, namely,

all employees of the respondent at its Glassgoods Division, carrying on business as Bicks, in the Town of Dunnville, save and except line foremen, persons above the rank of line foreman, office and sales staff, and seasonal employees

constituted a unit of employees of the respondent appropriate for collective bargaining. We also found, as the Labour Relations Officer had told the parties, that:

7. Regardless of the outcome of a dispute over whether any of the disputed individuals was an employee in the bargaining unit at the time the application was made, on the basis of the membership evidence filed by the applicant we are satisfied that more than fifty-five per cent of employees in the bargaining unit at the time the application was made were members of the applicant trade union on June 7, 1985, the terminal date fixed for this application and the date which the Board determines, pursuant to section 103(2)(j) of the Act, to be the time for ascertaining membership in accordance with subsection 7(1) of that Act.

8. We were not satisfied that the decision anticipated by the parties was appropriate, for reasons set out in paragraph 10 of our decision of July 9, 1985:

9. Our concern is whether this is not a proper case in which to issue a final certificate in which the bargaining unit is defined in the manner in which the parties have agreed, and leave it to the parties to bring their dispute about the status of the five named individuals back before the Board under subsection 106(2) if they find they are unable to resolve that dispute in the course of collective bargaining. This is not a case in which the description of an appropriate bargaining unit is in any way contingent on the outcome of the parties' dispute over the identity of the individuals who fell within the appropriate bargaining unit on the application date. If the individuals in dispute exercise managerial functions within the meaning of section 1 (3)(b) of the Act, then they are excluded from any bargaining unit which we might describe by operation of law. The question of the status of the individuals in question would be no more or less in dispute if we granted a final certificate in these circumstances than if we merely granted interim certification. The ability of the parties to have that issue determined by the Board if they found themselves unable to resolve it would be substantially the same whether we granted a final certificate or interim certification. The differences between the two are only consequential and collateral. One consequence of doing as the parties ask is that the Board would be left with an application which the parties are unwilling to have it process further, but which could not be terminated because the possibility of a certification application being terminated without the granting of a final certificate is entirely inconsistent with the exercise of discretion to grant an interim certification. The other consequence is that if the applicant failed to make a collective agreement, the affected employees would be unable ever to bring a termination application, as the one-year period referred to in subsection 57(1) of the Act does not commence running until a final certificate is issued: Comstock Funeral Home Ltd., [1982] OLRB Rep. Oct. 1436.

We recognized that, apart from the joint request that the inquiry into the duties and responsibilities of the disputed individuals be adjourned immediately upon being directed, the circumstances of this case were similar to those of other cases in which the Board had taken the approach which the parties anticipated here. We were concerned whether this practice reflected an unarticulated conclusion that the Board was without jurisdiction to issue a final certificate in these circumstances. Accordingly, in the concluding paragraph of our decision of July 9, 1985, we invited the parties' written submissions on the existence of that jurisdiction and on the proposed exercise of it in this case.

5. The applicant responded that it had no submissions to make on either question. In its response, the respondent agreed to the issuance of a final certificate, but made no submissions on the question of the Board's jurisdiction to do so.

6. A certification application involves a sequence of questions which always includes these:

What is the unit of employees of the respondent appropriate for collective bargaining?

What persons were employed by the respondent in that unit on the application date?

What percentage of those persons were members of the applicant at a particular point in time (ordinarily the terminal date)?

Is that percentage sufficient to entitle the applicant to a representation vote or permit certification without a vote?

Obviously, an answer to any of these questions requires that each of the preceding questions be answered first.

7. Section 6 of the Act speaks to the appropriate bargaining unit. Subsection (1) provides:

Subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

The bargaining unit is an abstraction, a generic description of an employee group, the composition of which is defined in terms of the inclusion or exclusion of employees according to the nature of the work each performs. The bargaining unit is defined without reference to the identity of any particular employee. Bargaining rights are not restricted to persons employed at the time those rights are acquired; at any given time bargaining rights will extend to all persons then employed at jobs which fall within the scope of the bargaining unit description.

8. A question of bargaining unit composition is concerned with identifying the sorts of employees who will be included in or excluded from the unit, and not with determining which persons are employees of the included sort at a given time. The latter question is addressed by section 7 of the Act:

7.-(l) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j).

(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.

(3) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union, and in other cases, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit.

Read literally and in isolation from the balance of the section, subsection (1) might be interpreted to require that the Board determine the precise number of persons in the unit on the application date and the precise number of those persons who were members of the applicant at the relevant time. However, the purpose of the directions in subsection (1) is made clear by subsections (2) and (3): the object is to determine only whether the number of members among bargaining unit employees exceeds one or other of the relevant percentages. From that perspective, it is apparent that a literal interpretation of subsection (1) could require the Board to determine questions of fact which are of no consequence to the outcome of the application, as where the only outstanding question is whether the number of members among twenty bargaining unit employees was ten or eleven at the relevant time. It should not be supposed that the Legislature intended that the final disposition of certification applications be delayed by litigation of issues whose resolution could in no event affect that disposition in any way. In our view, the obligation imposed on the Board by subsection 7(1) is discharged when the Board can say with certainty either that the percentage of members among bargaining unit employees is more than 55 per cent or that it is not less than 45 per cent and not more than 55 per cent. But for the provisions of subsection 6(2), however, the Board cannot resolve the questions posed by section 7 without first settling on a description of the appropriate bargaining unit.

9. Subsection 6(2) of the Act provides:

Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

It is important to note that this provision appears in section 6, which deals in the abstract with identification of the sort of employees who will be included in a bargaining unit, rather than in section 7, which deals with the identity and numbers of persons employed in a unit at a particular time. Subsection 6(2) is an exception to the requirement of subsection 6(1) that the definition of the appropriate bargaining unit be fully settled before an applicant can be given the right to act as exclusive bargaining agent for any employees of the respondent. A "dispute as to the composition of the bargaining unit", as those words are used in subsection 6(2), is a dispute over bargaining unit definition or description, a dispute over the sorts of employees who will fall within the bargaining unit, not a dispute over whether any particular individual is an employee of the requisite sort, nor a dispute whether a particular individual is an employee at all.

10. Subsections l(3)(b) and 106(2) of the Act provide:

1 -(3) Subject to section 90, for the purposes of this Act, no person shall be deemed to be an employee,

(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity inmatters relating to labour relations.

106.-(2) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.

As a person who exercises managerial functions is not an "employee" as that term is used in the Act, there can be no question whether such a person is the sort of employee who should be included in or excluded from the "unit of employees that is appropriate for collective bargaining." The kind of question contemplated by subsection 106(2) is not, strictly speaking, a ''dispute as to the composition of the bargaining unit.'' Such a question can affect ''the number of employees in the bargaining unit at the time the application was made" but, like any other "numbers" question, need not be dealt with in a certification application if its answer would in no event affect the result.

11. We are satisfied that where, as here, the description of the appropriate bargaining unit has been settled and the Board can say with certainty that more than 55 per cent of the employees in that unit on the application date were members of the applicant at the relevant time, the Board does have the jurisdiction to grant the applicant a final certificate, notwithstanding the existence of questions which could be dealt with in an application under subsection 106(2). Although the parties to this application agreed to attempt settlement of those questions before asking the Board to answer them, their agreement played no part in our conclusion on the jurisdictional question. The Board would have jurisdiction to grant a final certificate in these circumstances even if there were no such agreement.

12. There was no suggestion in this case that the bargaining unit description would be affected by a determination of the employee status of the disputed individuals. We need not deal here with the question whether and to what extent the Board must or ought to continue to resolve questions of the application of subsection I (3)(b) in the fine tuning of a bargaining-unit description when those questions do not otherwise affect the result.

13. Having concluded that we have the jurisdiction to grant a final certificate in the circumstances of this case, we are satisfied that we should do so. Accordingly, a final certificate will issue to the applicant with respect to the bargaining unit described in paragraph 3 of this decision.