[1985] OLRB Rep. November 1618
0580-85-R United Steelworkers of America, Applicant, v. Laurent Lamoureux Co. Ltd., Respondent
BEFORE: Owen V. Gray, Vice-Chairman, and l3oard Members R. J. Gallivan and K. V. Rogers.
DECISION OF THE BOARD; November 20, 1985
- This is an application for certification. On the basis of the parties' agreement, in a decision dated July 5, 1985, the Board found that there were three units of employees of the respondent appropriate for collective bargaining, namely:
Unit #1 - Office Employees
All office employees of the respondent at Hawkesbury, save and except
Store Manager and persons above the rank of Store Manager.
Unit #2 - Full-Time Employees Excluding Office
All employees of the respondent at Hawkesbury, save and except Store Manager and persons above the rank of Store Manager, office staff and persons regularly employed for not more than twenty-four (24) hours per week.
Unit #3 - Part-Time Employees Excluding Office
All employees of the respondent at Hawkesbury, working not more than twenty-four (24) hours per week save and except Store Manager and persons above the rank of Store Manager and office staff.
In that decision, the Board certified the applicant with respect to unit #3, directed the conduct of a representation vote in unit #2 and appointed a Labour Relations Officer to inquire into and report to the Board on the duties and responsibilities of two persons whose inclusion in or exclusion from unit #1 was in dispute. The vote in unit #2 was conducted on July 17, 1985. That same day, the parties signed a written agreement resolving their dispute about the identity of the persons who fell within unit #1 on the application date. In a decision dated July 25, 1985, this panel directed that a representation vote be conducted among persons employed by the respondent on July 17, 1985 in unit #1.
The representation vote in unit #1 was taken September 3, 1985. One or other of the parties challenged the eligibility to vote of five of the six persons who attended and cast ballots. All six ballots cast were segregated and have not been counted. The identity of each challenged voter and of the party challenging him or her was set out in the report of the Returning Officer, notice of which was given to the affected employees, the employer and the trade union in Form 70. That notice, and the Board's Rules of Procedure, required persons wishing to make representations concerning the vote to give notice of that desire to the Board by October 15, 1985. Counsel for the applicant has filed submissions by letter dated October 15, 1985. By letter dated October 7, 1985, counsel for the respondent advised that his earlier letter of September 17, 1985 contained the respondent's submissions. Neither party has included in its submissions a request that the Board conduct a hearing in connection with the matters dealt with in the Returning Officer's Report. No employee has filed a statement of desire to make representations with respect to the Returning Officer's Report.
From the submissions of counsel. it appears the parties are now in agreement that three of the six persons who cast ballots on September 3, 1985, were entitled to vote, namely: Veronique Beauchamp, Josee Laflamme, and Gilles Seguin. Voters whose eligibility remains in dispute are: Jean Lamoureux, Lisette Larocque and Chentelle MacAllister.
Chantelle MacAllister
- Chantelle MacAllister was not on the voters' list prepared prior to the vote on the basis of the parties' representations. When she attended to vote on September 3rd, her eligibility was challenged by the applicant but not by the respondent. In his letter of September 17th, counsel for the respondent said this about Ms. MacAllister:
Although the respondent had not proposed to add this person to the voters' list it is understood that she requested the right to vote on the basis that she does several hours of office work each week.
Although they deal in detail with the applicant's challenge to J. Lamoureux and the respondent's challenge to L. Larocque, the applicant's submissions contain no reference to Ms. MacAllister. They offer no reason for the challenge to her eligibility to vote. They do not address the circumstances of her employment. They do not respond to the statement made by counsel for the respondent in his letter of September 17th. They merely assert that if the applicant's request for reconsideration of the voter eligibility date is rejected
In the alternative the applicant submits the only eligible voters for the purpose of the vote held on September 3, 1985 are those persons set out in the respondent's letter of August 13, 1985 being Veronique Beauchamp, Josee Laflamme, Jean Lamoureux, Gilles Seguin and Lisette Larocque.
In short, the applicant has made no attempt to explain or justify its challenge.
- If a party challenges a voter's eligibility, that party must set out the basis for the challenge in the written submissions it files with the Board in response to the Returning Officer's Report. If it fails to do so, the Board will treat the challenge as having been abandoned by that party. A ballot segregated by reason only of a subsequently abandoned challenge will be counted, unless from the material before the Board when the period for filing representations expires there appears some obvious reason why the challenged individual was ineligible to vote. There is no such reason here. Ms. MacAllister's ballot will be counted.
Lisette Larocque
When this application first came on for hearing, the respondent took the position that Ms. Larocque was employed in a confidential capacity with respect to labour relations and so would not be an employee in the bargaining unit by operation of subparagraph 1 (3)(b) of the Labour Relations Act. The Board appointed an officer to inquire into that and other matters. On July 17th the respondent agreed with the applicant that Lisette Larocque was an employee in the bargaining unit who would have been eligible to vote in a representation vote in that unit if one had been conducted that day. However, the respondent challenged her eligibility in its written submissions of August 13th on the voters' list and when Ms. Larocque attended to vote on September 3rd and in its submissions of September 17th. The respondent has not suggested that there has been any change itt Ms. Larocque' s duties and responsibilities since July 17th. The only ground the respondent offers for excluding Lisette Larocque is that at some point between July 17 and August 13, 1985, Ms. Larocque told the respondent that she felt she was employed in a confidential capacity with respect to labour relations matters and requested that she be excluded from the bargaining unit on that ground.
This Board has consistently held that parties will not be permitted to unilaterally withdraw from agreements made in earlier stages of certification proceedings: see, for example, Diasons Press Limited, [1964] OLRB Rep. Aug. 215; Bertie District High School Board, [1964] OLRB Rep. Aug. 231; Warner Brothers Distributing (Canada) Limited, [1974] OLRB Rep. Dec. 883; J. J,s Restaurants Limited, [1977] OLRB Rep. July 465. It would be inconsistent with the approach exemplified by the decisions in those cases to now permit the respondent to challenge Ms. Larocque's status as an employee in the bargaining unit in the relevant time period. It is not necessary for us to determine whether Ms. Larocque could have challenged her own eligibility to vote despite the earlier agreement between the applicant and the respondent. Ms. Larocque has not sought to make any such representation to the Board at any time before or after the date of the vote in which, we note, she sought to participate despite whatever she may earlier have said to the respondent. We are satisfied that her ballot should be counted.
Jean Lamoureux
Jean Lamoureux was not in the subject bargaining unit on the application date; he was then in unit #2. In his August 13th submissions on the voters' list for the vote now under consideration, counsel for the respondent wrote that Mr. Lamoureux was "working in the office as of July 17 and continuously since that date". The applicant challenged Mr. Lamoureux's eligibility both before and at the vote.
In its submissions on this challenge, the applicant asks that we reconsider our earlier decision that July 17, 1985 would be the date as of which voter eligibility would be determined. It argues that we should substitute June 28, 1985, which was the date on which this application was originally scheduled to be heard. Its submissions in support of this request are these:
Establishing the potential voters list as of June 28, 1985 avoids the possibility of any stacking of voting lists by the respondent. It also avoids the possibility that persons who were or had been determined to be employees in bargaining unit no. 2 or bargaining unit no. 3 as of June 28, 1985 could subsequently be considered a member of bargaining unit no. 1 for the purpose of the September 3 vote, and thus allow them to become part of the certification process of a second bargaining unit.
The applicant does not expressly accuse the respondent of moving Mr. Lamoureux into the office unit in order to influence the result of the vote.
The Board's approach to determining eligibility to vote in a representation vote was reviewed at length in London District Crippled Children's Treatment Centre, [1980] OLRB Rep. Apr. 461, in which the Board made these observations:
The line which the Board has traditionally drawn respecting the eligibility of employees to vote, namely that the employee be in the bargaining unit both on the date that the vote is ordered (or on the terminal date in a pre-hearing vote or as otherwise agreed by the parties) and on the date the vote is taken, is clear as well known through the Board's published decisions, its practice notes (see Practice Note No. 9, August 1964) and its layman's handbook. While originally the Board merely stated that employees in the bargaining unit would be entitled to vote (see e.g., The Borden Co. Ltd., (1946), 46 CLLC 16,461) it evolved the two-pronged eligibility rule to give greater clarity and certainty to voter's lists, as well as to eliminate the possibility of an employer influencing the outcome of a vote by hiring new employees. The Board's practice and the principles underlying it were well canvassed in J. McLeod & Sons Ltd., [1970] OLRB Rep. Feb. 1316.
The Board's rule respecting eligibility to vote has sought to strike a balance. On the one hand the Board recognizes the interest of employees with a stake in future collective bargaining having a controlling voice in the choice of a bargaining agent. On the other hand it faces the necessity of establishing a democratic process with some finality in situations where employees are subject to varying degrees of turnover ....
The Board's voter eligibility rules are not intended and do not purport to achieve a standard of perfect decimal point democracy, assuming such a standard can ever be achieved. The rules seek nothing more than to establish a substantially representative group of employees with a minimum of employment continuity for the purposes of certification. Any deliberate attempt to manipulate the eligibility rules and temporarily "pack" the voting constituency to influence the outcome of the vote can be dealt with through the Board's remedial authority in unfair labour practices (see, e.g. Custom Aggregates, [1978] OLRB Rep. Mar. 215). Any distortion in the selection process caused by a planned and bona fide substantial increase in the size of the bargaining unit in the near future can be accommodated by the application of the Board's build-up principles (Emil Frant 57 CLLC 18,057; McCord Corporation, [1965] OLRB Rep. June 203; Domco Foodservices Limited, [19801 OLRB Rep. Jan. 33....
(emphasis added)
We would add one refinement to those observations.
As of April 1980, except in the construction industry every order directing a vote was made at or following a hearing in which the parties attended before the panel which made the order. Often the order was pronounced orally at the hearing, and in those cases the parties normally met together right after the hearing to make vote arrangements and strike a voters' list. While the Board's written decision might issue several days later, it would be dated the day the order was pronounced, so that "the date the vote is ordered" in this context was usually the day it became clear there would be a vote and often the day the parties established the voters' list.
Since the introduction in May 1980 of the waiver program described in Practice Note 12, an ever increasing percentage of orders directing votes come about as a result of operation of that program, or meetings of the parties with a labour relations officer on the initial hearing date or, as in this case, the settlement of issues after the scheduled hearing date in the course of an inquiry by a labour relations officer. The parties do not require a hearing, and none is held. Having seen that the direction of a vote is the necessary consequence of the facts on which they have agreed, the parties will often make vote arrangements at the conclusion of their settlement meeting. A few days later, a panel of the Board will review the officer's report on his or her meeting, and it will make the order the participants predicted if the agreements and filings are in order. The date of that order will be the date that panel makes that decision, which will necessarily be later than the date the parties settle the issues from which the vote results. If that later date were used as the voter eligibility date, the parties could never settle a voters' list at the meeting at which they resolved the issues which led to the vote. Accordingly, when a vote direction is based on a resolution of issues by the parties without the necessity of a formal hearing, the Board uses the date of the parties' agreement as the voter eligibility date, rather than the date of the subsequent order.
We see no reason to vary our original determination that voter eligibility would be determined as of July 17, 1985, which was the date of the document which records the parties' agreement on the identity of employees in the unit as of the application date. That was the one issue which had to be resolved before we could determine that a representation vote should be directed. The applicant's argument about possible stacking of voters' lists is answered in the passage quoted from London District Crippled Children 's Treatment Centre, supra. As for the other submission, it is not unusual for the wishes of persons in two or more units of employees of the same employer to be tested at different times. We are not troubled by the resulting possibility that an employee's wishes may be relevant at one time while he or she is employed in an affected bargaining unit, and again at another time with respect to another bargaining unit to which he or she has, in the meantime, been transferred. The applicant's request that we reconsider the voter eligibility date is denied. That, however, does not put to rest the question of Mr. Lamoureux's eligibility to vote.
Although applicant's counsel did not challenge the assertion that Jean Lamoureux was employed in the subject unit, unit #1, on July 17, 1985, his reference to multiple bargaining units prompted a review of this file which led, in turn, to the following letter from the Registrar to counsel for the respondent:
In your letter of September 17, 1985, and an earlier letter of August 13th, you represented to the Board that an employee named Jean Lamoureux fell within bargaining unit #1 (as defined in the Board's decision of July 5, 1985) as of July 17, 1985, so as to be eligible to cast a ballot in the representation vote in that unit directed in the Board's decision of July 25th and conducted September 3rd.
A representation vote was conducted in another unit, unit ,#2, on July 17, 1985. Only those employed in that unit on June 28th who remained employed therein on July 17th were eligible to vote. Our records indicate that Jean Lamoureux was named on the voters list prepared for that vote, that she voted and that she was not challenged. Moreover, our records include a Consent and Waiver dated July 17, 1985, apparently signed by you on behalf of the respondent, by which the parties expressly agreed that Jean Lamoureux was eligible for inclusion in unit #2 on July 17, 1985. A copy of that document is enclosed.
I have been directed to request your explanation of the apparent inconsistency, inquire whether you still take the position that Jean Lamoureux was employed in bargaining unit #1 on July 17th and ask you to ensure that your reply reaches the Board by the close of business on Tuesday, November 12, 1985.
Counsel replied as follows:
I am advised by the Respondent that Mr. Jean Lamoureux was working more than 24 hours per week in bargaining unit #2 as of July 17 and was also regularly employed within bargaining unit #1 as of that same date while filling in for office persons on vacation and performing other office work. Under that circumstance it is our submission that he is properly included in both of those bargaining units.
Before dealing with the effect to be given to this novel position, we wish to make two observations. The first is that in a labour relations context, a categorical representation that an employee is in one of several units on a given day is quite different from an assertion that an employee should be treated as being in both of two units on the same day. In the circumstances described in the Registrar's letter to counsel, we would have expected counsel to disclose the respondent's full position at an earlier date. The second observation is that the circumstances described are inconsistent with unit #1 being an appropriate unit severable from units 2 and 3. Had those circumstances obtained as of the application date and been brought to the attention of the Board before it determined the scope of appropriate bargaining units, it is unlikely the parties' agreement on that issue would have been accepted without further inquiry.
At this point, the position the respondent now takes must be assessed against the background of the findings and agreements which have already been made on the appropriateness of bargaining units and the identity of persons in those units at relevant times. The three bargaining units are mutually exclusive. The description of unit #2 expressly excludes the "office staff" in unit #1; likewise, those in unit #2 are, by necessary implication, excluded from unit #1. An employee cannot be in both units at the same time. For the purpose of determining eligibility to vote in a representation vote, "at the same time" means "on the same date", since eligibility is established by showing that the employee is employed in the subject unit both "on the date" established in the order directing the vote and "on the date" the vote is taken.
On July 17, 1985, the parties agreed that Jean Lamoureux was eligible to vote that day as an employee in unit #2. By necessary implication, they had agreed that he was employed in unit #2 on July 17, 1985. He could not be in unit #2 on July 17th if he was "office staff" on July 17th. The parties must be taken as having agreed on July 17th that Jean Lamoureux was not "office staff", and hence not in unit #1, on July 17th. The respondent will not now be permitted to adopt a position inconsistent with its earlier agreement. An employee not employed in unit #1 on July 17, 1985, was not eligible to vote on September 3, 1985. The ballot of Jean Lamoureux will not be counted.
Accordingly, we direct that all ballots cast except that of Jean Lamoureux be counted, and that arrangement to do so be made expeditiously in view of the delays which have occurred to date in this matter.