[1985] OLRB Rep. October 1541
0530-85-R Alliance Employees' Union, Applicant, v. Union of Canadian Transport Employees, Respondent
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members F. W. Murray and R. Wilson.
APPEARANCES: James B. McCullough for the applicant; Robert G. Cox for the respondent.
DECISION OF THE BOARD; October 18, 1985
This application for certification was filed May 30, 1985. The respondent employer is a trade union. The applicant seeks exclusive bargaining rights for the respondent's office support staff, for whom the Canadian Union of Staff Officers held bargaining rights at the time the application was filed.
On June 27, 1985, one of this Board's Labour Relations Officers spoke by telephone to Mr. Cox, the President of the respondent, who provided the officer with the names of six persons employed by the respondent, and took the position that two of these - Fred Holloway, Financial Administrator and Jan Baskin, Secretary to the President - should be excluded from the unit. Joan Connerty was one of four employees whom Mr. Cox identified as falling within the proposed bargaining unit, which he agreed was appropriate for collective bargaining. As a result of this discussion and telephone discussions between the Labour Relations Officer and a representative of the applicant, the parties came to agreement on all matters in dispute between them and further agreed to waive their right to a formal hearing, as was noted in the Board's decision herein dated June 28, 1985. That decision directed that a representation vote be taken among employees in the bargaining unit, and that vote was conducted July 11, 1985, in accordance with arrangements agreed upon in the June 27th discussions between the Board's Labour Relations Officer, Mr. Cox for the respondent and Mr. Yaremko for the applicant. All four persons on the agreed-upon list of eligible voters, including Joan Connerty, attended and cast ballots. No one was in attendance as scrutineer for the respondent. No challenge was made to the eligibility of any of the voters. The ballots were counted after the poll closed. All four ballots cast were marked in favour of the applicant. The Returning Officer set out the results of the vote in his report dated July 11, 1985. Notice of that report was given to all parties, and to bargaining unit employees, in Form 70, which invites representations "as to any matter relating to the representation vote, or as to the accuracy of the report, or as to the conclusions the Board should reach in view of the report ...
Mr. Cox then wrote this letter of July 18, 1985 to the Board:
I am writing in regard to a recent vote by the employees of the Union of Canadian Transport Employees held on July 11, 1984.
I wish to have a hearing before the Board in light of the fact that Mrs. Joan Connerty voted. I was not present and would have challenged her right to vote based on the attached letter, we very strongly feel that due to Mrs. Connerty's job, (description attached), that she is in fact a confidential exclusion.
Attached to this letter is a copy of a "Personal and Confidential" letter dated July 10, 1985 from Mr. Cox to Mr. Ray Carriere, President of the incumbent Canadian Union of Staff Officers. That letter reads:
Enclosed please find job description for Account Clerk - Pay and Benefits. You will notice that the job description has been signed by Management and the incumbent in the position.
It is the unanimous decision of the Management Committee of UCTE, after careful review, that this position, by the duties contained in the job description is of a confidential nature. To this end the position will be classified as a confidential exclusion, effective July 10, 1985.
Attached to the copy of the letter from Cox to Carriere is a photocopy of a job description apparently signed by Ms. Connerty and Mr. Cox and dated by each of them as of March 22, 1984.
As a result of the letter Mr. Cox wrote to the Board, this matter was scheduled for further hearing on August 29, 1985. That hearing was adjourned, on consent of the parties, to September 30, 1985. At that hearing, in answer to questions from the Board, Mr. Cox acknowledged that Ms. Connerty had been named by him as an employee in the bargaining unit during his conversation with the Board's Labour Relations Officer. He acknowledged Ms. Connerty had been named on the list of eligible voters posted in accordance with the Board's direction. He acknowledged that no challenge had been made to Ms. Connerty 's status on the day of the vote; he explained that both he and Wayne Elliot, the designated scrutineer, had been detained elsewhere that day.
This Board has consistently held that parties should not be permitted to later resile from agreements made in earlier stages of certification proceedings: see, for example, Daisons Press Limited, [19641 OLRB Rep. Aug. 215; Bertie District High School Board, [19641 OLRB Rep. Aug. 231; Warner Brothers Distributing (Canada) Limited, [1974] OLRB Rep. Dec. 883; and, J J's Restaurants Limited, [1977] OLRB Rep. July 465. Mr. Cox said Joan Connerty was in the bargaining unit on June 27, 1985. The applicant agreed. The voters' list was settled on the basis of that agreement. Nothing has been filed or said that would suggest her duties and responsibilities changed in any way after June 27th. The claim that she should be excluded is based on a job description in existence long before that date. Even if Ms. Connerty's job duties had changed after the voters' lists were finalized, if the respondent proposed to challenge her eligibility to vote, it had an obligation to raise that challenge in a timely fashion at the time of the vote, not afterwards when Ms. Connerty's ballot had been counted along with those of the other employees in the bargaining unit. In any event, it is apparent, as Mr. Cox acknowledged at hearing, that the effect to be given to the vote would have been the same whether or not Ms. Connerty had been permitted to vote, since the applicant would have received the vote of every eligible voter in either event.
Our function at this stage of these certification proceedings is to determine what effect, if any, should be given to the results of the vote conducted July 11, 1985. In these circumstances, having regard to the outcome of that vote, we are satisfied that the applicant is entitled to be certified, and a certificate will issue to the applicant with respect to the bargaining unit described in paragraph 3 of the Board's decision of June 28, 1985.