[1986] OLRB Rep. April 541
3166-85-R Energy and Chemical Workers Union, Applicant, v. Petro-Canada Inc., Respondent, v. Group of Employees, Objectors
BEFORE: Harry Freedman, Vice-Chairman, and Board Members I. M. Stamp and W F. Rutherford.
APPEARANCES: Dan Ublansky and Glenn D. Buchanan for the applicant; Paul Jarvis and Wayne Taylor for the respondent; Claudio DiCamillo for the objectors.
DECISION OF THE BOARD; April 15, 1986
The name of the respondent is amended to read: "Petro-Canada Inc."
This is an application for certification in which the parties met with a Labour Relations Officer prior to the hearing in this matter in an attempt to resolve the issues raised in this application.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, that Board finds that all service station employees employed by the respondent at its Highway 400 service center at Cookstown, Ontario, save and except shift supervisors, persons above the rank of shift supervisor, persons working in restaurant and food services operations, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, hereinafter referred to as bargaining unit #1, and all service station employees employed by the respondent at its Highway 400 service center at Cookstown, Ontario, regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, save and except the shift supervisors, persons above the rank of shift supervisor and persons working in restaurant and food services operations, hereinafter referred to as bargaining unit #2, constitute two units of employees of the respondent appropriate for collective bargaining.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in bargaining unit #1 and bargaining unit #2, at the time the application was made, were members of the applicant on April 7, 1986, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A timely statement of desire expressing opposition to the applicant was filed in this matter. If the Board finds that that statement of desire is a voluntary expression of the employees who signed it, the Board would ordinarily exercise its discretion to order a representation vote under section 7(2) of the Act notwithstanding that more than fifty five percent of the employees in each bargaining unit were members of the applicant at the relevant times, since a sufficient number of the employees who became members of the applicant later signed the statement of desire in opposition to the applicant. If the Board finds that the statement of desire is voluntary, it would cause the Board to doubt whether more than 55% of the employees in each of the two bargaining units who were members of the applicant continue to support the application for certification. A representation vote directed by the Board under section 7(2) of the Act is the process by which the Board resolves its doubt as to whether more than 55% of the employees who are members of the applicant continue to support the applicant's certification application that is caused by a timely voluntary statement of desire. Therefore, the Board commenced hearing evidence relating to the voluntariness of the statement of desire in opposition to the applicant.
The Board made the following oral ruling during the hearing of this matter on April
11, 1986:
During the course of the hearing in which evidence relating to the voluntariness of the statement of desire was being adduced, counsel for the applicant sought to cross-examine the representative of the group of objecting employees, Mr. Claudio DiCamillo, about his duties and responsibilities. Counsel for the applicant submitted that that evidence is relevant to the issue of voluntariness in that the employees' perception, assessed objectively, of Mr. DiCamillo's duties and responsibilities, caused the employees to sign the statement in opposition to the applicant out of concern that their employment may be adversely affected by their failure to sign, rather than out of a genuine change of heart about union representation.
Counsel for the respondent submits that the respondent originally took the position that Mr. DiCamillo was excluded from the bargaining unit on the grounds that he exercised managerial functions, but during discussions prior to the hearing with the Labour Relations Officer, agreed with the applicant that Mr. DiCamillo was an employee within the bargaining unit. Therefore, counsel for the respondent submits that the applicant cannot now argue that Mr. DiCamillo's duties and responsibilities are relevant to the issue of voluntariness of the statement in opposition to the applicant. Counsel also submits that if the applicant can take that position now, the respondent wishes to allege that another employee, employed in precisely the same job, with the same duties and responsibilities as Mr. DiCamillo, was the principal organizer of the applicant among the respondent's employees.
In our opinion, the agreement of the parties with respect to an employee being in the bargaining unit establishes that the employee does not exercise managerial functions and creates a rebuttable presumption that the employee's duties and responsibilities will not affect the voluntariness of the conduct of others responding to that employee's actions. Nevertheless, we are of the view that such an agreement does not preclude either party from eliciting evidence to establish that employees' perception of a person who circulated the statement in opposition to the applicant or who organized the employees for the applicant affected the voluntariness of the employees' conduct in either joining or opposing the applicant.
Therefore, the objection of the respondent is overruled. However, the respondent is free to adduce evidence as to the role played in the applicant's organizing campaign by the person who had the same duties and responsibilities as Mr. DiCamillo. Such evidence would be relevant, in our view, to the exercise of our discretion to order a representation vote since, if such an allegation is established, it may cause us to doubt whether the employees who joined the applicant did so voluntarily.
After delivering the above oral ruling, the Board noted, at the request of the applicant, that no argument was made with respect to the timeliness of the allegation that the respondent wished to make, having regard to Rule 72 of the Board's Rules of Procedure. The Board advised the parties that our oral ruling with respect to the respondent leading evidence on allegations that it wished to file was subject to any further argument that counsel for the applicant might wish to make based on Rule 72 of the Board's Rules of Procedure, and that the Board would deal with those submissions if and when the respondent attempts to adduce evidence with respect to the allegation referred to in the Board's oral ruling.
This matter is referred to the Registrar to be listed for hearing on May 16, 1986, before this panel of the Board.