Teamsters Local Union No. 352 v. McDonnell-Ronald Limousine Service Limited, 1985 CanLII 866

Ontario Labour Relations Board

[1985] OLRB Rep. January 1

1489-84-R; 1490-84-R; 1491-84-R; 1492.-84-R; 1549-84-R Teamsters Local Union No. 352, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. McDonnell- Ronald Limousine Service Limited, operating as Airline Limousine, Respondent; Teamsters Local Union No. 352, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Aaroport Limousine Services Ltd. and McIntosh Limousine Services Ltd., Respondents; Teamsters Local Union No. 352, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Airlift Limousine Service Limited, Respondent; Teamsters Local Union No. 352, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant v. Macco Ground Services Limited, operating as Air Cab Limousine, Respondent, v. Group of Employees, Objectors; Teamsters Local Union No. 352, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Classic Livery Service, a division of Airlift Limousine Service Limited, Respondent.

BEFORE: R. 0. MacDowell, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.

APPEARANCES: Ken Petryshen, Mike Peckan, Sam Schou ten and Jim O'Donnell for the applicant; Donald McKillop, Q. C., Barbar Maalouf Y Zahavy, Ernest Weintraub, and M. Altcheh for the respondents; Louise F. Cherevaty and Marion F. Cherevaty for the objectors.

DECISION OF R. O. MacDOWELL, VICE-CHAIRMAN, AND BOARD MEMBER W. F. RUTHERFORD; January 18, 1985

1. The name of one of the respondents is amended to read: Classic Livery Service, a division of Airlift Limousine Service Limited.

2. In these applications for certification, the union seeks to represent the drivers of the airline limousines that carry passengers to and from Toronto International Airport. In each case the union seeks to represent a broadly-based bargaining unit consisting of all drivers and owner-operators employed by the various respondents. There is some considerable dispute between the parties as to how many drivers there are, their status, and precisely who is their employer. In each case counsel for the respondents takes a variety of alternative positions: that there is no appropriate bargaining unit; that the bargaining unit may consist of only a small number of bus drivers; that some or all of the limousine drivers are not employees but rather independent contractors; that some or all of the limousine drivers are ''dependent contractors” (see section l(1)(h) and 6(5) of the Act); that if some of the drivers are employees they are not necessarily employees of the named respondents; and that if there is any bargaining unit of "drivers" it should also include a number of persons with the right or licence to drive who were not actually working as drivers on the day the union filed these certification applications.

3. When these applications first came on for a hearing before the Board, it was apparent that it would be necessary to appoint a Board Officer to inquire into the employee lists and the composition of the proposed bargaining unit. During the course of that inquiry, a question arose as to whether the union should be given an opportunity to review and be provided with copies of the lists of employees whom the various respondents assert are appropriately included in the bargaining unit. The respondents argue that the union should not be given access to these lists. The union argues that it is entitled to them, and that they are necessary in order to fairly deal with the issues raised in these cases. In order to assess these positions, it is necessary to briefly outline the certification procedure and the issues arising in these particular cases. The provisions of the Act to which specific reference will be made are as follows:

4. -(1) In this Act,

(h) "dependent contractors' means a person, whether or not employed under a contract of employment, and whether or not furnishing his own tools, vehicles, equipment, machinery, material, or any other thing, who performs work or services for another person for compensation or reward on such terms and conditions that he is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor.

6. -(l) 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.

(5) A bargaining unit consisting solely of dependent contractors shall be deemed by the Board to be a unit of employees appropriate for collective bargaining but the Board may include dependent contractors in a bargaining unit with other employees if the Board is satisfied that a majority of such dependent contractors wish to be included in such bargaining unit.

111. -(1) The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union.

112. A typical certification application involves a number of related steps. First the Board determines whether the applicant is a trade union within the meaning of the Act, and whether the application is timely. Then the Board determines the unit of employees appropriate for collective bargaining. Next the Board counts the number of employees in the bargaining unit and determines how many of those employees are "members" of the union as defined in section 1(1)(l) of the Act. If more than fifty-five per cent of the employees in the bargaining unit are members of the union, the Board will usually certify the union as the bargaining agent for the employees in that unit. If less than forty-five per cent of the employees are members, the Board will dismiss the application. If the union's membership support among the employees in the bargaining unit is between forty-five per cent and fifty-five per cent, the Board will direct that a representation vote he taken. It will be seen, therefore, that a simple certification is a fairly mundane and mechanical process of counting the number of employees and union members, then comparing the totals.

113. But these are not simple certification applications. In each case, there is some considerable dispute as to the identity and number of employees in the bargaining unit, who their employer is, and whether these drivers are (or arguably are) "pure employees”, "independent contractors", or "dependent contractors" as defined in section 1(1 )(h) of the Act. Indeed, counsel for the respondents submits that there are a large number of individuals who, while not currently drivers, should also get notice of these proceedings. Without ruling at this stage on the status of these individuals to take part in these proceedings, it is obvious that the submission raises another area of potential dispute. Finally, it may well be that there are some drivers who are employees or dependent contractors but whose employer is really an independent contractor with a contractual relationship with the named respondent(s).

114. Apart from identifying the status of the drivers affected by this application (i.e. whether they are employees, dependent contractors, or independent contractors), and the identity of their employer, there is an obvious bargaining unit problem — one which the Board has encountered in earlier cases involving drivers of taxis. (See: Niagara Veteran Taxi, [1980] OLRB Rep. March 337; and Blue Line Taxi Co. Limited, [1979] OLRB Rep. Nov. 1056). Pursuant to section 6(5) of the Act, a bargaining unit consisting solely of dependent contractors is deemed to be a unit of employees appropriate for collective bargaining, but the Board may only include dependent contractors in a bargaining unit with other employees if the Board is satisfied that a majority of such dependent contractors wish to be so included. In other words, the Board cannot designate a mixed unit of ''pure employees'' and ''dependent contractors” without some indication from the majority of the dependent contractors that they are content with a mixed unit. The Act is silent as to how the Board should go about ascertaining the wishes of the dependent contractors, however, it is obviously necessary to first determine who they are.

115. In summary then, in each of these cases there is a real question concerning the number of drivers potentially affected by the applications. According to the named respondents, there is also some question concerning the identity of the employer of at least some of these individuals. There are questions concerning the drivers' status (i.e. employee, dependent contractor, or independent contractor), which in turn will affect the way in which the Board is required to structure the bargaining unit and, in the case of persons found to be dependent contractors, establish whose wishes must be canvassed in the event that the union seeks a "mixed unit". And, of course, each of these issues raises a mixed question of fact and law which will have to be addressed in evidence by both parties if these cases proceed. It is against this background that we must assess the respondent's submission that the union should not be entitled to access to the list of drivers said to be potentially affected by these applications.

116. At this point it may also be useful to briefly advert to the Board's practice when faced with disputes concerning the accuracy of the employee list or the composition of the bargaining unit. Such disputes are not at all unusual, because our system does not permit a union to seek representation rights solely for those who have become its members or have indicated an appetite for collective bargaining. A union cannot seek certification solely for those employees who have opted to join it. The union must establish majority support in what this Board determines is the appropriate bargaining unit. That determination may not be easy to predict, as the present case indicates. There will necessarily be some degree of uncertainty.

117. The union does not have access to the list of employees during its organizing campaign. It does not have a right to the employees' addresses or telephone numbers, and does not have an automatic right to approach them on the employers' premises or during work time. A union may not have a complete picture of the configuration and composition of the bargaining unit. For example, it may not be able to readily ascertain whether those employees work full-time or part-time (which, in accordance with the Board's usual practice, might warrant the separation of employees into two bargaining units), or whether some of the individuals may exercise managerial functions within the meaning of section 1(3)(b) of the Act, so that they would not be "employees" at all for labour relations purposes. Employees may work on rotating shifts or have an irregular or uncertain work pattern. Even if employees do work a regularly scheduled shift, they may not perform their duties in a fixed location such as a factory or office, but like truck drivers, work "out of' a depot or terminal to which they will periodically return and from which they are dispatched from time to time. In such circumstances, it may be very difficult for a group of employees wishing to exercise their statutory right to form or join a trade union, to identify the precise group of their fellow employees who must be approached and won over if the objective of collective bargaining is to be realized. Those are the usual difficulties of organizing which, in cases such as these, are exacerbated by the apparent problems associated with determining the status of the drivers, their employer, and the bargaining unit configuration. The Act does not address these practical problems of union organizing, and a union must make out as best it can based upon the information supplied by its supporters. The Act does not purport to guarantee equal access to the employees or to information at various stages of the certification process. That being so, it is hardly surprising that when an application for certification is made, a union may not be in a position to accept, without question, the list of employees that the employer asserts are in the bargaining unit. That is why there is nothing novel about a challenge to, or request to review the employee list.

118. We should also observe that "list problems" (i.e. determining the "employees" in the bargaining unit applied for) do not arise only because of the union's inadequate information. The employer, too, may have problems responding accurately to what may well be an unfamiliar process. Upon receipt of notice of the application for certification, the employer is directed to file a reply indicating the number of employees in the union's proposed bargaining unit and, if there is any dispute about that, the description and number of the employees in the employer's proposed unit. (See Rule 7 and Form 10.) In addition, the employer is required to supply four lists of employees: those working "full-time" (more than 24 hours per week); those working part-time (not more than 24 hours per week); those on layoff, and those not at work on the application date for reasons other than layoff (illness, maternity leave, etc.). In all cases, the employer is expected to list the employees' occupational classification, and for those not at work, the expected date of their return to work. It is required to certify that its lists are accurate. This material must be filed by the terminal date, which will be between five and ten days after the employer is served with notice of the application. Finally, the employer is expected to specifically identify any persons whom it believes should be excluded from or added to the proposed bargaining unit. (See Form 4.)

119. It is obvious that the abbreviated response times mandated by the Rules may sometimes pose problems for an employer — particularly if his own employment records are not up to date, or if he is unfamiliar with the Board's approach in these matters. Where should he put X who usually works on a full-time basis, but at the time of the application was temporarily working part-time? The Board usually (as a "rule of thumb") looks at the seven-week period preceding the application, but will an employer necessarily be familiar with that approach? How much authority must a "supervisor" exercise before being considered by the Board under section 1(3)(b) of the Act not to be an employee at all? Should plant clerical employees be considered part of the plant production unit which a union may be seeking, or part of the office and clerical employees who are typically excluded from a production unit? We need not multiply the examples. We need only note that it is not at all unusual for an employer to discover that certain employees have been inadvertently included or excluded from the lists, and to amend the lists accordingly; nor is it unusual for the parties to have honest differences about the composition of the bargaining unit, even if they are in agreement as to its general description (e.g., whether X should be put in the part-time bargaining unit, or Y is a "foreman" and therefore within the ambit of an agreed exclusion). Either party may well discover that its initial impression was wrong — thereby affecting the arithmetic calculation referred to above, and the statutory consequences that flow from it. These bona fide differences are merely more complicated in a case such as the present one, and it is interesting to note that counsel for the respondents has identified some 28 persons who were not listed on the original replies but who, it is now said, should be included in any bargaining unit of "drivers”. The respondent itself is seeking to amend the lists, which it maintains the applicant union should not see or copy.

120. On an application for certification, when any issue arises concerning the employee list or the composition of the bargaining unit, the Board's longstanding practice is to determine the bargaining unit description, then permit the applicant union to review the list so that it can identify and particularize any challenges. If the union does not request to see the list or question its accuracy, the Board will proceed on the basis of the information contained therein without the necessity of formal proof. But nothing in the Act or the Rules makes that employee list "confidential", nor is it easy to see where the Board would get the authority to withhold information upon which it planned to act, and which was so clearly necessary to its determina­tion. The records of a trade union relating to membership have been accorded specific statutory treatment, as have other documents revealing employee wishes with respect to union representa­tion. (See section 111 of the Act). Section 111 was passed to reverse judicial decisions requiring the production of such documents revealing employee preferences. (See: Globe Printing Co. v. Toronto Newspaper Guild [19511 O.R. 435; 1952 CanLII 59 (ON CA), [1952] 2 D.L.R. 302; 1953 CanLII 10 (SCC), [1953] 3 D.L.R. 561.) Maintaining the confidentiality of a union's membership records helps to protect employees from unlawful reprisals by those employers who do not accept the legitimacy of their right to join a union or engage in collective bargaining. However, there is no similar provision prohibiting or restricting disclosure of the list of employees said to be, or found to be, in the bargaining unit.

121. It is not difficult to understand why the employee list is revealed. It would be a little curious if a trade union were to be granted a certificate because it had established the requisite level of support in the bargaining unit described generally, but left the hearing without a precise understanding of the basis on which its application succeeded. On a more basic level, when even a simple certification case involves a comparison of the union's membership evidence with a list of employees in the bargaining unit, and there are statutorily prescribed consequences flowing from that calculation (a vote, outright certification, or dismissal), the union must be entitled to the employee list if it is to participate in the hearing in a meaningful way. How else can it properly protect and advance the rights of its members? How else can it determine whether the employee list is accurate and correct or whether through error, inadvertence, or improper intent the list of employees said to be in the bargaining unit is inaccurate? Now, of course, there may not be very many cases where an employer intentionally misrepresents the number of employees in the bargaining unit. But, as we have already noted, the speed with which the employer must respond to the certification application, the potential complexity of the issues, and the inevitable exercise of judgment will often result in the production of a list which, at least arguably, is not sufficient for the purpose of making the determinations required under sections 6 and 7 of the Act.

122. In our view, there is no sound basis for denying a trade union the opportunity to review the employee list and, in practice, the union has always been given that opportunity. If a question arises concerning the list the union has never been denied an opportunity to review it. Nor is there any good reason why it should not make a copy or take notes, so that it can pursue its inquiries, on its own time. We do not think that it makes sense to draw a distinction between reviewing the list and taking a copy, simply because the latter might assist a union in preparing its case or gathering information which could well result in a withdrawal of a challenge. It would he odd to structure a system in such a way as to reward union officials with a good memory, and multiply the difficulties in large bargaining units where there is the greatest potential for error or misjudgement; and we can only speculate about how a court would respond to this "hide and seek" approach to litigation, in which critical assertions of fact may be revealed or reviewed, but not copied, lest the party asserting those facts lose some tactical advantage attributable to the other's ignorance. Adversarial attitudes are prevalent enough in our collective bargaining system, without elevating them to the status of principles governing the process by which employees acquire the right to bargain collectively through a union of their choice. If, in the course of a certification application, a union is entitled to review the list — as we find that it is — it is our view that the union should be entitled to make a copy, and, again as a practical matter, a union has always been accorded the right to make a list of all unfamiliar names for the purpose of challenge and investigation.

123. It might be said that providing the union with a list of employees gives it an advantage not only in the particular application under review, but also in some later application. It might be said that a union should not have the "tactical advantage" of knowing the parameters of the bargaining unit, or the identity of the employees in it, for the purposes of approaching them at some later time to see whether or not they wish to be represented by a trade union. The list might be "abused"; moreover, a calculating union might apply for certification simply to obtain the list for a future campaign. If an employer knew that a union would receive a copy of the employee list, the employer might be tempted not to respond to the certification application, or to make an incomplete response. Finally, it might be said that it is "unfair" that a union be permitted to know who the employees are, and the employer is not permitted to know precisely which of those employees have opted to support the union.

124. No doubt there is some basis for these concerns, but in our view they are overstated. First, from a practical point of view, some two-thirds of all bargaining units have less than forty employees so that a mere perusal will be sufficient to generate an accurate list. It is only in larger bargaining units where a copy of the list gives the union the opportunity for future advantage, but it is precisely in those larger bargaining units that there is greater margin for error by one party or both, and a greater need for a list to identify and investigate the areas of dispute. Employers who believe they may benefit from filing an inaccurate or incomplete reply can do so now, and that fact in itself suggests that a union should have a copy of the list so it can evaluate its position. But the fact is that employers do not usually certify as accurate what they know is not, and unions do not usually file frivolous applications merely for discovery purposes. What does happen quite frequently are innocent errors by the employer, or an innocent miscalculation by the union as to the contours of the bargaining unit and the number of employees in it. Should the Board's process be abused, it has ample authority to deal with the problem.

125. In the instant case, a substantial number of employees have indicated support for trade union representation; and, in the circumstances, it is not surprising that there may be some question as to the identity of the employees in the appropriate bargaining units, their employers, and the definition of the bargaining units themselves. The only thing at all unusual about this case is that the union is seeking to review the list before the bargaining unit description has been finalized. But that request is being made because of the questions raised by the respondent concerning the number and status of the persons in the union's proposed bargaining unit, and in order to address those questions those persons must be identified. In our view, in the circumstances of this case, the union is entitled to a list of the employees potentially included in the bargaining unit, and a copy of such list will be provided.

126. A Board officer is hereby appointed to enquire into the employee lists and the composition of the bargaining unit. Upon identification of the names and addresses of the 28 persons mentioned by the respondent(s), the Board will direct that notice be given to them.

DECISION OF BOARD MEMBER JAMES A. RONSON;

1. I disagree with my colleagues. If the applicant wishes to examine lists of employee names then it should be done in the presence of a Labour Relations Officer. That is the only way that abuse of the Board's procedure can be prevented and is the only way that employers can be assured that their lists will not be used by the union for organizing purposes.

2. The reasons for my dissent have been the reasons for the Board's policy concerning these lists since the creation of the Board. They remain as valid now, as they were then.