[1985] OLRB Rep. February 304
2619-84-U; 2620-84-R Graphic Communications International Union, Local 500-M, Complainant, v. Mundet Industries Ltd., Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members F. W. Murray and C. A. Ballentine.
DECISION OF THE BOARD; February 5, 1985
This is an application for certification which was scheduled for hearing together with an unfair labour practice complaint involving the same parties. The hearing was to begin on January 31, 1985, and continue on the following day and such further days as might be scheduled. However, on January 31, 1985, the parties met with a Labour Relations Officer and after protracted discussions were able to reach an amicable resolution of all matters in dispute between them. We might note that although notice of the certification application was posted, in Form 6, in conspicuous places where it would most likely come to the attention of employees affected by the application, no employees have filed any written statement in opposition to the application, nor did any employee objectors appear on January 31, 1985, when the matter was scheduled to come on for a hearing.
It is unnecessary to set out the details of the parties' settlement, save to note that it was a comprehensive one, including the terms for an agreed notice to employees attached hereto as Appendix "A". It suffices to say that both parties were in agreement that this application should properly be treated with all necessary amendments as a "pre-hearing" application for certification. The Board sees no reason why it should not accept the parties' agreement in this regard.
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 hereinafter described were members of the applicant at the time the application was made.
Having regard to the agreement of the parties, the Board directs that a pre-hearing representation vote be taken of the employees of the respondent in the following voting constituency:
All employees of the respondent in Metropolitan Toronto, save and except foreman, persons above the rank of foreman, office, sales and clerical staff, and persons regularly employed for not more than 24 hours per week.
While described as a "voting constituency" in accordance with the required practice for pre-hearing certification votes, the Board notes the parties' agreement that this description would also define the unit of employees appropriate for collective bargaining.
All employees of the respondent in the voting constituency on January 16, 1985, who have not voluntarily terminated their employment or who have not been discharged for cause between the 16th of January, 1985, and the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether they wish to be represented by the applicant union in their employment relations with the respondent.
The parties were not in agreement on whether Kevin Norris and Hermant Singh were properly included in the voting constituency and entitled to vote. The employer's position is that both of these individuals exercise managerial functions within the meaning of section l(3)(b) of the Act, and, therefore, cannot be included in the voting constituency or any bargaining unit. The union takes the position that neither individual exercises managerial functions. Accordingly, the Board notes that, in the event that either Kevin Norris or Hermant Singh present themselves at the polling station they shall receive and be entitled to cast segregated ballots.
The parties have agreed on voting arrangements which, again, need not be set out in detail here.
The matter is referred to the Registrar.
In view of the above-mentioned settlement, leave is hereby given to the union to withdraw its section 89 complaint (Board File No. 2619-84-U) and its request for certification pursuant to section 8 of the Labour Relations Act.
Appendix
The Labour Relations Act
NOTICE TO EMPLOYEES
Posted by AUTHORITY of the Ontario Labour Relations Board
WE HAVE POSTED THIS NOTICE IN ACCOROMCE WITH AN AGREEMENT REACHED BETWEEN THE UNION AND THE COMPANY.
THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:
TO ORGANIZE THEMSELVES.
TO FORM, JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION.
TO ACT TOGETHER FOR COLLECTIVE BARGAINING.
TO REFUSE TO DO ANY AND ALL OF THESE THINGS,
IF THEY WISH.
WE ASSURE ALL OF OUR EMPLOYEES THAT WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.
THE LABOUR RELATIONS BOARD HAS DIRECTED THAT A
REPRESENTATION VOTE BE HELO AMONG THE EMPLOYEES
SOUGHT TO BE REPRESENTED BY LOCAL 500-M. PRIOR
TO THE TAKING OF THE VOTE WE WILL ENSURE THAT
REPRESENTATIVES OF THE UNION WILL BE ABLE TO
MEET WITH EMPLOYEES DURING WORKING HOURS, IN THE
ABSENCE OF MANAGEMENT, WITHOUT LOSS OF PAY.
MUNDET INDUSTRIES LTD.
This is an official notice of the Board and must not be removed or defaced.
DATED this 5TH day of FEBRUARY 1985