Ontario Labour Relations Board
[1985] OLRB Rep. September 1357
0687-85-R Theresa Lamson, Applicant, v. United Food and Commercial Workers' Union, Local 725, Respondent; (re: Title Distributing Limited carrying on business as Economy Fair)
BEFORE: D. F. Franks, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
APPEARANCES: Teresa Lamson and Brian MacPherson for the applicant; Norman L. Jesin, Frank Kelly and Maui McKay for the respondent; no one appearing for Title Distributing Limited carrying on business as Economy Fair.
DECISION OF THE BOARD; August 21, 1985
- This is an application for a declaration terminating the bargaining rights of the respondent made under section 57 of the Labour Relations Act. The applicant set out the bargaining unit in the application as follows:
First Floor store location known as Economy Fair Drug Mart located next to A & P store at southwest end of Napanee Mall located at 450 Centre St., Napanee, Ontario, K7R 1P8.
The applicant, Theresa Lamson, is a full-time employee of the employer, Title Distributing Limited carrying on business as Economy Fair ("hereinafter referred to as "Title Distributing Limited"). The respondent and Title Distributing Limited in fact have two collective agreements with the following bargaining units:
Bargaining Unit #1
All employees of the company in Napanee, Ontario, save and except the pharmacist, the store manager, persons above the rank of store manager, persons employed for not more than twenty-four (24) hours per week, and students employed in off-school hours and during the school vacation period.
Bargaining Unit #2
All employees of the company in Napanee, Ontario, regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except the pharmacist, the store manager, and persons above the rank of store manager.
The petition filed with the application in this matter contains the names of employees falling within both bargaining units.
- The respondent raised with the Board the issue that the applicant Theresa Lamson is not an employee in the part-time bargaining unit and is therefore not entitled to bring this application given a strict reading of section 57(2):
Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;
(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be;
(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.
- Counsel for the applicant cited a number of decisions where the Board has dealt with the meaning of the phrase "any of the employees in the bargaining unit" in section 57(2) of the Act. The Board has, however, considered this issue in a previous decision, Cara Operations Limited, [19841 OLRB Rep. Oct. 1378 not cited by the applicant. In that case the Board faced a similar situation where certain full-time employees were the nominal applicants. The Board reasoned as follows:
The question to be determined is, on the facts before the Board, who is or are the true applicants and whether they are the employees referred to under section 57(2)? The respondent represents both bargaining units of employees of the intervener in two similar but separate collective agreements. The applicants have defined in the application the two bargaining units. The Board was able to make the preliminary counts at the hearing with respect to both bargaining units so as to cause the Board to inquire into the voluntary signification of the employees in writing in support of this application. The statements of desire have been signed by the employees in both bargaining units. While Mrs. Young and Miss Gattwald are the nominal applicants in this application, in our view, when the formal application in Form 17 and the statements of desire are considered together, the application has been made by employees in both bargaining units and employees in both bargaining units have applied for a declaration that the respondent no longer represents them as their bargaining agent. See St. Michael's Shops of Canada Limited, supra.
We propose to treat the present case in the same way, that is, to consider those employees who are signatory to the petition as applicants as well as Theresa Lamson. Therefore, the respondent's request to dismiss this application as it relates to the part-time unit must fail.
The respondent also contended that Theresa Lamson was not an employee in the bargaining unit in that she exercised managerial functions within the meaning of section 1 (3)(b) of the Act. The evidence before the Board, however, is clear that although Theresa Lamson is described as an assistant manager she is not a store manager so as to be excluded by the language of the bargaining unit. Furthermore, although Ms. Lamson did fill in for the store manager for a period of some six months in 1984, it is clear that at the time of this application and for a considerable time before the making of this application her position was that of assistant store manager. Consequently, we are satisfied that she did not exercise management functions such as would exclude her by reason of section 1(3)(b) of the Act.
At the hearing in this matter, the Board heard the evidence concerning the origination, preparation and circulation of the petition filed in this matter. On the facts before us, we are satisfied that the petition represents the voluntary wishes of the employees. Accordingly, the Board directs that a representation vote be taken. Those eligible to vote are a]l employees of the company in Napanee, Ontario, save and except the pharmacist, the store manager, persons above the rank of store manager, persons employed for not more than twenty-four (24) hours per week, and students employed in off-school hours and during the school vacation period (hereinafter referred to as bargaining unit #1) and all employees of the company in Napanee, Ontario, regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except the pharmacist, the store manager, and persons above the rank of store manager (hereinafter referred to as bargaining unit #2) on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote it taken.
The voters in bargaining unit #1 and in bargaining unit #2 will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Title Distributing Limited carrying on business as Economy Fair.
The matter is referred to the Registrar.