[1985] OLRB Rep. February 293
2913-84-R Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 91, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Kenting Earth Sciences Limited, Respondent
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members F. W. Murray and W. F. Rutherford.
DECISION OF THE BOARD; February 20, 1985
This is an application for certification in which the applicant has requested that a pre-hearing vote be taken.
In accordance with its usual practice, the Board by order dated January 30, 1985, appointed a Labour Relations Officer to examine the records of the applicant and of the respondent and to confer with the parties as to the description and composition of an appropriate bargaining unit, the description and composition of the voting constituency, the list of employees as of the terminal date for the purposes of any vote which might be directed and other matters relating to entitlement to and arrangements for such a vote. The Officer so appointed met with representatives of the parties on February 15, 1985.
The applicant seeks certification with respect to certain employees of the respondent working at Ottawa, Ontario. In addition to its "head office" in Ottawa, the respondent has employees at facilities in the Township of Glouchester, just outside Ottawa, in Toronto, Ontario, and in other centres outside Ontario. If this Board has jurisdiction over its labour relations, a matter the respondent challenges as we note later, the respondent takes the position that the appropriate unit of employees on this application would be all of its employees in the Province of Ontario. In the alternative, it takes the position that the appropriate unit would include both the employees at its head office in Ottawa and at its premises in Glouchester Township. The applicant would have us to find the appropriate units to encompass only the employees working at and out of the head office. The applicant does not have membership support sufficient to permit testing employee wishes in a voting constituency broader than the bargaining unit for which it seeks certification. Without prejudice to the respondent's position with respect to jurisdiction and the appropriateness of a unit consisting of employees at a single location at Ottawa, the parties have agreed that that unit, if appropriate, would be defined as follows:
All employees of the respondent working at or out of its head office at Ottawa, save and except supervisors, persons above the rank of supervisor, office, clerical, and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
Having regard to that agreement, the Board determines that all employees in the unit described shall constitute the voting constituency for the purpose of the request for a pre-hearing representation vote.
- The parties disagree on the composition of the voting constituency. Of the employees named by the respondent in the lists submitted with its Reply, the applicant challenges:
(a) Jerome Chyurlia, Gerald M. Grace, Edwin Hall and Jan Zonneveld, on the ground that they exercise managerial functions within the meaning of clause l(3)(b) of the Labour Relations Act'
(b) Mebdi Kazemzaden on the ground that he/she is an office employee and/or exercises managerial functions within the meaning of clause l(3)(b) of the Act; and,
(c) Vladimir Beloblavek, on the ground that he is an office employee excluded by a definition from the voting constituency.
Whether these persons are or are not employees in the voting constituency, it appears to the Board on an examination of the records of the applicant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent in the voting constituency herein before described were members of the applicant at the time the application was made.
The respondent takes the position that this Board is without jurisdiction to regulate its labour relations because, it submits, the regulation of those labour relations falls within the exclusive jurisdiction of Parliament. The grounds for that claim are not expressly asserted in the respondent's Reply, nor in its counsel's letter to the Board of February 19, 1985, in which the claim is reasserted. The respondent describes its business as "Aerial surveys, Mapping, Airborne Geophysics, Resources Development, Hydrography", and it advised the officer that it bases its challenge to the Board's jurisdiction on the fact that it employs aircraft in the performance of its business. In their meeting with the officer, the parties agreed that the ballot box should be sealed pending determination of that issue.
One of the matters the Labour Relations Officer was to and did confer with the parties on was the arrangements for any vote which might be directed by the Board. In that connection, the respondent advised the officer that it was possible that persons eligible to vote might be out of the country on any given day on which any vote might be held. The respondent did not offer any suggestions on vote arrangements which might be responsive to this concern; it merely advised the officer that it would be "making representations to the Board on the eligible voters' opportunity to vote". In that context, the vote arrangements proposed by the officer as a result of his meeting of February 1 5th with the parties involve the conduct of a vote on either February 28 or March 7, 1985, with polls open in the lunchroom at the respondent's head office in Ottawa between the hours of 6:15 to 6:30 a.m. and 3:30 to 4:30 p.m.
On February 19, 1985, counsel for the respondent wrote to the Board. After noting again the respondent's challenge to the Board's jurisdiction and the dispute over the geographic scope of the appropriate bargaining unit, counsel says:
Furthermore, within the bargaining unit sought by the Applicant, there are a number of employees who are presently on assignment in both Thailand, Nigeria and Nepal. While these employees are not expected back by February 28th, the date scheduled for the vote, they will be returning to their duties at the Respondent's I—lead Office when their assignments conclude and therefore have a significant interest in the outcome of the application.
The Respondent therefore requests that the Board schedule this matter for a hearing as soon as possible in order that the Board may address the following issues:
(i) whether, in the circumstances of this case, the Board ought to determine its jurisdiction to entertain the application and the scope of the appropriate bargaining unit prior to conducting the vote;
(ii) should the Board determine to assume jurisdiction and conduct a representation vote, the manner in which those employees falling within the bargaining unit proposed by the Applicant on overseas assignment at the date of the vote may cast their ballots.
These submissions betray a fundamental misconception of the nature of these proceedings. A "pre-hearing representation vote" is precisely that: a vote conducted before any hearing is held to determine whether and to what extent the result of that vote should affect the rights of the parties. The Board has repeatedly noted that the expedition contemplated and intended by section 9 of the Labour Relations Act would be lost if the vote had to await formal adjudication of some contested issue in the guise of a preliminary matter: The Board of Education for the City of North York, [1984] OLRB Rep. July 989; Satin Finish Hardwood Flooring (Ontario) Limited, [1984] OLRB Rep. Nov. 1602, and the decisions cited therein. A hearing is conducted after the vote to determine whether effect should be given to the result. It is at that time that matters going to jurisdiction are addressed, as where the applicant's status as a trade union is in doubt: Emery Industries Limited, [1980] OLRB Rep. March 316. We do not consider it appropriate to hear the respondent's jurisdictional challenge before conducting a representation vote.
As for the matter of the vote arrangements, these will be determined in this case, as in every case in which a pre-hearing vote is requested, on the basis of the material filed prior to the terminal date and officer's meeting with the parties, the submissions made to the officer appointed by the Board to confer with the parties on that and other matters affecting the application, and any subsequent written submissions to the Board which the officer may have invited (as in this case) or directed. The respondent has not provided information on the number of employees who may be unable to vote on February 28th or any other potential vote date. It has not proposed any other time or method of conducting a vote. Instead, it has asked that we schedule a hearing to receive unspecified submissions which it has declined to make either to the officer appointed by the Board or in its letter to the Board. We see no reason to make pre-hearing representation vote arrangements the subject of a pre-vote hearing and thereby delay what is intended to be an expeditious process. The adequacy of the vote is a matter which can be addressed, after the vote is conducted, on any ground which may fairly be raised at that time, bearing in mind the opportunity the parties have already had to make representations both through the Board's Labour Relations Officer and otherwise.
The Board therefore directs that a pre-hearing representation vote be taken of the employees of the respondent in the aforesaid voting constituency. All employees of the respondent in the voting constituency on the 7th day of February, 1985, who have not voluntarily terminated their employment or who have not been discharged for cause between that date and the date the vote is taken will be eligible to vote.
The employees named in paragraph 5 of this decision as having been challenged by the applicant shall be entitled to cast segregated ballots. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their relations with the respondent. The ballot box is to be sealed and the ballots not counted, unless on agreement of the parties, without further order of the Board.
The matter is referred to the Registrar pursuant to section 68 of the Board's Rules of Procedure, and he is directed to list this application for hearing after the vote directed herein is conducted.