[1985] OLRB Rep. July 1007
0730-85-R United Steelworkers of America, Applicant, v. Canadian Textiles Screen Prints Limited, Respondent
BEFORE: Robert D. Howe, Vice-Chairman, and Board Members F. W Murray and J. Kennedy.
APPEARANCES: Brian Shell, Phil Falbo and Doug Hart for the applicant; James E. Bowden, William Milton, Chris Milton and Rick Matsui for the respondent.
DECISION OF THE BOARD; July 23, 1985
This is an application for certification.
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 in the City of Mississauga, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
For the purposes of clarity, the Board notes the agreement of the parties that Adele Milton and Violet Mokerracher are office employees.
With respect to the composition of the bargaining unit, the respondent contends that the following persons should be excluded from the bargaining unit on the ground that they exercise managerial functions within the meaning of section 1 (3)(b), while the applicant submits that they should be added to the list of employees filed by the respondent and included in the bargaining unit: Emmanuelle Fusca and Frank Grande, who are each classified by the respondent as Head Printer-Foremen; Metro Kozak, who is classified by the respondent as Artist-Foreman; and Joanne Sloane, who is classified by the respondent as Shipper-Foreman.
It is the respondent's position that in accordance with its normal practice the Board should appoint a Board Officer to enquire into and report to the Board concerning the duties and responsibilities of those four persons. Counsel for the applicant, on the other hand, requests the Board to expedite the resolution of that matter by receiving directly the evidence and submissions of the parties, after directing them to each prepare and file a statement of all material facts upon which they intend to rely at the hearing. In support of that request, counsel for the applicant noted that the Board adopted that procedure in Canadian Timken, Limited (Board File No. 0343-85-R, decision dated June 11, 1985, unreported) in which the Board wrote, in part, as follows:
The parties, while agreeing over the description of the bargaining unit, disagreed over the composition of the unit. They agreed that four persons classified as stock attendant and chief stock attendant were in the bargaining unit. The applicant submitted that John Desmier and Gilbert Clement, classified as order analysts, Lynn Caron, an order data entry clerk and Mary Gaskin, a clerk typist were employees in the bargaining unit while the respondent submitted that they ought [to] be excluded on the basis of the office and sales exclusion in the bargaining unit description. The parties did agree that the resolution of the issue of those employees' inclusion in or exclusion from the bargaining unit depended upon the determination of whether there is a community of interest between them and the employees whom the parties agree are in the bargaining unit.
while the Board's normal practice in the past was to appoint a Labour Relations Officer to conduct a community of interest examination and report back to the Board, the Board was of the opinion in this case, based upon the submissions of the parties, that it should receive directly the evidence and submissions of the parties, rather than appoint a Labour Relations Officer. In order to narrow the issues in dispute and minimize the length of the hearing, the Board adopted the following procedure in this case. The respondent and the applicant were directed to prepare a statement of all material facts upon which they intend to rely at the hearing of this matter and to attach to the statement all documents that may be relevant to the issues in this matter. The parties were advised that the Board, at the hearing of this matter, would not permit either party to adduce evidence to establish any material fact not included in their statements except with leave of the Board. (The Board advised counsel for the respondent that it would be inclined to grant its leave to the respondent to adduce evidence of material facts properly in reply which were not in its statement.)
The Board directed the respondent to file three copies of its statement with the Board and deliver one copy of its statement to counsel for the applicant on or before June 20, 1985. The Board directed the applicant to file three copies of its statement with the Board and deliver one copy of its statement to counsel for the respondent on or before July 3, 1985.
The Registrar is directed to list this matter for continuation of hearing before this panel of the Board on July 5 and July 12, 1985.
While we are by no means insensitive to the applicant's desire to expedite the resolution of the matters remaining in dispute between the parties, and while we recognize that the procedure adopted by the Board in Canadian Timken, Limited may be appropriate in some circumstances, such as cases involving community of interest determinations, we are not prepared to depart from the Board's normal practice in the circumstances of the present case. That practice, which is permitted by section 103(2)(g) of the Act, facilitates settlement of such disputes, and minimizes the amount of Board hearing time required to resolve such matters, thereby permitting the Board to adjudicate with greater expedition other pressing matters, such as certification applications in which the applicant cannot be certified on an interim basis under section 6(2) pending the final resolution of the composition of the bargaining unit; section 89 complaints involving matters such as discharges, ]Lay-offs, and allegations of bargaining in bad faith; applications under sections 92, 93, and 135 concerning unlawful strikes and lock-outs; and section 124 grievance referrals.
Accordingly, a Board Officer is hereby appointed to enquire into and report to the Board on the duties and responsibilities of Emmanuelle Fusca, Frank Grande, Metro Kozak, and Joanne Sloane.
The Board has determined that the applicant's right to certification cannot be affected by the Board's ultimate decision concerning the composition of the bargaining unit. On the basis of all the evidence before it, the Board is satisfied 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 July 4, 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.
Pursuant to its discretion under section 6(2) of the Act and pending the final resolution of the composition of the bargaining unit, the Board hereby certifies the applicant as bargaining agent for all employees of the respondent in the City of Mississauga, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, and pending the final resolution of the matters in dispute, excluding as well Head Printer-Foremen Emmanuelle Fusca and Frank Grande, Artist Foreman Metro Kozak, and Shipper-Foreman Joanne Sloane.
The issuance of a formal certificate in this matter will await the final determination of the composition of the bargaining unit.