National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Caterpillar of Canada Ltd., 1987 CanLII 2984

Ontario Labour Relations Board

[1987] OLRB Rep. January 27

2446-86.R; 2447-86-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant, v. Caterpillar of Canada Ltd., Respondent, v. Group of Employees, Objectors; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant, v. Caterpillar of Canada Ltd., Respondent

BEFORE: Judith McCormack, Vice-Chairman, and Board Members R. J. Gallivan and H. Peacock.

DECISION OF JUDITH McCORMACK, VICE-CHAIRMAN AND BOARD MEMBER H. PEACOCK; January 13, 1987

1. These are two applications for certification which were consolidated for hearing upon the agreement of the parties.

2. The Board finds that the applicant is a trade union within the meaning of section l(1)(p) of the Labour Relations Act.

3. The parties were able to agree on a partial description of the bargaining unit. However, they were in dispute with respect to other aspects of the bargaining unit which could not be resolved without a determination as to whether a number of individuals should be excluded from the bargaining unit either on the basis that they were not employees within the meaning of section 1(3)(b) of the Labour Relations Act, or on the basis that they did not share a community of interest with bargaining unit employees. The Board therefore found the following partial description to be a unit of employees appropriate for collective bargaining, pending the resolution of that dispute:

All office, clerical and technical employees of the respondent in Mississauga and Brampton, save and except supervisors, persons above the rank of supervisor, accountants, staff auditors, students employed during the school vacation period and students engaged in a cooperative learning programme.

4. The Board also notes that the parties have agreed that the secretary to the President, the secretary to the Employment Relations Manager, and the industrial nurses should be excluded from the bargaining unit. They are not so described at this time as each may fall into a broader category of employees whose inclusion or exclusion in the bargaining unit is currently in dispute.

5. In accordance with the Rules of Practice respecting applications for certification, the respondent employer has filed a list of employees in the bargaining unit, together with specimen signatures for the employees on the list. After the parties were given an opportunity to review the list, the Board was advised that the parties were in dispute with respect to the inclusion of the following employees in the bargaining unit:

a) D. Russo, accounting analyst was challenged by the respondent on the basis that s/he is employed in a confidential capacity in matters relating to labour relations;

b) M. M. Hamilton, J. I. Morin and H. Decloe, foremen/planners, were challenged by the respondent on the basis that they exercise managerial functions, were employed in a confidential capacity in matters relating to labour relations and/or they do not share a community of interest with other employees in the bargaining unit;

c) R. J. Povilonis and M. Gorup, designers, were challenged by the respondent on the basis that they were employed in a confidential capacity in matters relating to labour relations and/or they do not share a community of interest with other employees in the bargaining unit;

d) B. Leardi, secretary to the Corporation and controller, was challenged by the respondent on the basis that s/he was employed in a confidential capacity in matters relating to labour relations;

e) J. M. McLearin, secretary to the parts district manager, was challenged by the respondent on the basis that s/he was employed in a confidential capacity in matters relating to labour relations;

f) B. D. Collins, secretary to quality control and engineering, was challenged on the basis that s/he was employed in a confidential capacity in matters relating to labour relations;

g) C.P. Lee, secretary to the manufacturing and technical services manager, was challenged by the respondent on the basis that s/he was employed in a confidential capacity in matters relating to labour relations;

h) F. Mancini, secretary to the materials and purchasing manager, was challenged by the respondent on the basis that s/he was employed in a confidential capacity in matters relating to labour relations;

i) C.D. Stafford, D.J. Arnold, R.E. Bristow, J.J. Christie and J. Sato, material engineers, were challenged by the respondent on the basis that they exercise managerial functions, were employed in a confidential capacity in matters relating to labour relations and/or they did not share a community of interest with other bargaining unit employees;

j) W.H. Twaddle and D.S. Rihal, senior quality engineers, were challenged by the respondent on the basis that they exercise managerial functions, were employed in a confidential capacity in matters relating to labour relations and/or they did not share a community of interest with other bargaining unit employees;

k) W.A. Graham, A.B. Keatt, F. Leonard and J. Young, planning staff engineers, were challenged by the respondent on the basis that they exercise managerial functions, were employed in a confidential capacity in matters relating to labour relations and/or they did not share a community of interest with other bargaining unit employees;

l) D. King and G. Newman, staff engineers, were challenged by the respondent on the basis that they exercise managerial functons, were employed in a confidential capacity in matters relating to labour relations and/or they did not share a community of interest with other bargaining unit employees;

m) Z. Kobariak, manufacturing project engineer, was challenged by the respondent on the basis that s/he exercises managerial functions, was employed in a confidential capacity in matters relating to labour relations and/or s/he did not share a community of interest with other bargaining unit employees;

n) G.R. Lindley and M. Pantaleo, manufacturing system engineers, were challenged by the respondent on the basis that they exercise managerial functions, were employed in a confidential capacity in matters relating to labour relations and/or they did not share a community of interest with other employees;

o) W.M. Parker, senior manufacturing and system engineer, was challenged by the respondent on the basis that s/he exercises managerial functions, was employed in a confidential capacity in matters relating to labour relations and/or s/he did not share a community of interest with other bargaining unit employees;

p) G.W. Draper, E.L. Gabriel, F. H. Ietswaard, D.J. Payne and A.M. Ross, systems analysts, were challenged by the respondent on the basis that they were employed in a confidential capacity in matters relating to labour relations and/or they did not share a community of interest with other bargaining unit employees;

q) S.J. Gill and J.M. Psaila, programme analysts, were challenged by the respondent on the basis that they were employed in a confidential capacity in matters relating to labour relations and/or they did not share a community of interest with other bargaining unit employees;

r) C.A. Bunn, systems programmer, was challenged by the respondent on the basis that s/he was employed in a confidential capacity in matters relating to labour relations;

s) S.F. LaFord, B. McCaluey and L. Speziale, computer systems operators, were challenged by the respondent on the basis that they were employed in a confidential capacity in matters relating to labour relations;

t) D.M. Serjeant, secretary to the data processing manager, was challenged by the respondent on the basis that s/he was employed in a confidential capacity in matters relating to labour relations;

u) E.T. Spalding, computer schedule clerk, was challenged by the respondent on the basis that s/he was employed in a confidential capacity in matters relating to labour relations;

v) J. Monardo and E.I. Whyte, data entry operators, were challenged by the respondent on the basis that they were employed in a confidential capacity in matters relating to labour relations;

w) J. Renco, safety inspector, was challenged by the respondent on the basis that s/he was employed in a confidential capacity in matters relating to labour relations;

x) J.M. Boles, G.W. Caines and E. Antidorni, production account clerks, were challenged by the respondent on the basis that they were employed in a confidential capacity in matters relating to labour relations;

y) D. Fraser, payroll account clerk, was challenged by the respondent on the basis that s/he was employed in a confidential capacity in matters relating to labour relations;

z) M. Haines, payroll control analyst, was challenged by the respondent on the basis that s/he was employed in a confidential capacity in matters relating to labour relations;

aa) J. Reid, factory reporting analyst, was challenged by the respondent on the basis that s/he was employed in a confidential capacity in matters relating to labour relations;

bb) P.R. Davis and J.C. Pitfield, buyers, were challenged by the respondent on the basis that they exercised managerial functions, were employed in a capacity confidential to labour relations, and/or they did not share a community of interest with other bargaining unit employees;

cc) D.J. D'Cruz, assistant buyer, was challenged by the respondent on the basis that s/he exercised managerial functions, was employed in a capacity confidential to labour relations and/or did not share a community of interest with other bargaining unit employees.

6. Both parties requested that a Board Officer be appointed to inquire into and report back to the Board on these matters.

7. The Board expressed some concern to the parties that the exclusions asserted by the respondent were unusually broad in relation to the Board's jurisprudence, and that the normal examination process would be very costly and time-consuming as a result. Rather than appointing a Board Officer at this time, we advised the parties that a Board Officer would be made available to them on January 16, 1987, to assist them in attempting to reduce the number of individuals whose inclusion in the bargaining unit was in dispute. The Board will then consider what further steps are appropriate at that time.

8. Whether or not the disputed employees are included in the bargaining unit, 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 the bargaining unit at the time the application was made were members of the applicant on December 10, 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. As a result, we are satisfied that this dispute cannot affect the applicant's right to certification. In these circumstances, the Board would normally issue an interim certificate to the applicant.

9. However, counsel for the respondent took the position that an interim certificate should not issue because the breadth and nature of the challenges raised by the respondent meant that collective bargaining would be artificial and meaningless until those disputes were resolved. He suggested a number of ways in which he anticipated the outstanding dispute would complicate the bargaining process, with the main thrust of these examples being the extent to which the respondent's negotiating strategy on monetary issues would be hindered by not knowing the full range of the bargaining unit. He argued vigorously that the alleged lack of community of interest between those in dispute and those currently agreed upon as included in the bargaining unit significantly changed the complexion of negotiations.

10. The applicant argued that an interim certificate should issue in the usual manner because the process of resolving the disputed positions was likely to be lengthy, and there were a large number of areas in collective bargaining which could be fruitfully addressed by the parties as they were unaffected by the dispute. Mr. Meneghini provided a number of examples of substantive subjects normally dealt with in collective bargaining which would be unaffected by the bargaining unit dispute including holidays, vacations, seniority, job posting, layoffs, training programmes, and so forth. The Board was asked not to penalize employees whose inclusion in the bargaining unit was undisputed by indefinitely postponing the bargaining process. The applicant also suggested that the respondent's request was part of a strategy to delay the onset of collective bargaining by creating an extensive dispute about the composition of the unit and then opposing an interim certificate on the basis of that dispute.

11. The respondent's counsel denied such a strategy existed and described how the bargaining unit problem might affect some of the non-monetary areas of negotiations raised by the applicant.

12. The majority of the Board gave the following oral ruling:

The majority of the Board (Board Member Gallivan dissenting) is of the view that subject to the Board's second check, an interim certificate should issue. We therefore so order. Our reasons will follow.

We now provide our reasons.

13. Section 6(2) of the Labour Relations Act provides as follows:

Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

14. As the Board noted in City of Mississauga Public Library Board, [1976] OLRB Rep. Feb. 1, this section was established to reduce or eliminate the mischief which may be caused by the delay attendant on a bargaining unit dispute during the critical post-certification period:

This section of the Act allows the Board to certify a trade union pending a resolution of a bargaining unit dispute in those situations where the ultimate determination by the Board cannot affect the right of the union to certification. Prior to its enactment a union which had established the required membership support could not commence to negotiate a first agreement and was required during the critical period of high expectations and uncertainty to await the final bargaining unit determinations. The amendment is designed to neutralize whatever prejudice may be suffered by a trade union and its constituents in these circumstances by confirming its right to certification and by permitting it to serve notice and to commence to bargain pending the resolution of bargaining unit disputes.

15. In this case, approximately one-third of the total number of possible bargaining unit employees are in dispute. Although this is a substantial number, the Board has commented that the prime consideration in the exercise of the Board's discretion under section 6(2) is whether meaningful bargaining can take place, rather than any particular formula based solely on the size of the dispute:

The bargaining unit dispute before us may be termed typical or normal. It involves a single classification which sits on the line of managerial demarcation. It must be assumed that the Legislature envisaged precisely this situation when it enacted section 6(la) [now section 6(2)1 and the Board, therefore, must be circumspect in exercising its discretion to withhold interim certification in circumstances such as these. This is not to infer, however, that if more than one classification was in dispute or if some fixed percentage of the potential bargaining unit was in dispute that the Board would withhold interim certification based on these factors alone. The exercise of the Board's discretion under section 6(la) [now section 6(2)1 should never be based solely on the number of classifications in dispute or on the percentage of disputed persons in the proposed bargaining unit. The exercise of the Board's discretion must be on a case to case basis whereby the prime consideration is whether or not meaningful bargaining, on even a restricted number of items, can take place. If meaningful bargaining cannot take place, for reasons related to a genuine bargaining unit dispute, then the Board in the exercise of its discretion must consider the negative effect of placing the parties in a collective bargaining interface at that point in time.

(emphasis in original]

16. The Board also described its approach in University of Ottawa, [1975] OLRB Rep.Sept. 694 as follows:

It may well be that problems of the sort suggested by the respondent will to some indeterminate extent restrict or inhibit bargaining. However, none of the problems to which the respondent has alluded are, in our view, insuperable barriers to the commencement of bargaining and it cannot therefore be said that no useful purpose is to be served by granting interim certification. Accordingly, we are prepared to grant the applicant's request, pursuant to the provisions of section 6(la) [now section 6(2)) of the Act.

17. Although we recognize that bargaining will be more restricted as a result of the dispute, there are many aspects of the normal collective bargaining process that can be meaningfully addressed by the parties prior to the resolution of the bargaining unit dispute. While we agree with the respondent's counsel that some of the non-monetary issues will also be touched by the dispute, they are affected so peripherally that there is considerable room for productive and effective negotiations to take place in the interim.

18. We note that it is precisely when a bargaining unit dispute is so extensive and thus the delay involved much greater that the applicant is in the most serious danger of suffering the prejudice which section 6(2) was designed to prevent. While this dispute may mean that both parties will have to employ more flexibility and creativity in the actual process of collective bargaining than they might otherwise have had to do, on balance, we find that the problems raised by the respondent are not insuperable barriers to the commencement of bargaining, and that meaningful collective bargaining can take place.

19. Accordingly, an interim certificate will issue in the terms described in paragraph 3. A formal certificate must await the final determination of the bargaining unit.

DECISION OF BOARD MEMBER R. J. GALLIVAN;

1. As mentioned by the majority, I dissented when it gave its oral ruling in favour of granting interim certification. I did so for the following reasons.

2. The Board's interpretation of section 6(2) of the Labour Relations Act supports interim certification where meaningful bargaining can take place pending resolution of the bargaining unit description dispute. I do not believe that this case meets such a test, not so much because of the large number of disputed job classifications (although that too must be weighed) but primarily because of the very nature of many of the jobs in dispute.

3. It is apparent from the argument both of respondent's counsel and of the spokesman for the group of objectors that the evidence to be put during examination before a Board Officer will show that there are at least two different types of employees in the company's offices - those essentially doing routine clerical, stenographic and technician work on the one hand, and on the other those doing work of a more highly professional, technical and managerial nature. The two types of employees have differing terms and conditions of employment, are paid under differing salary systems, and are covered by separate and different benefit plans, incentive and profit-sharing programmes.

4. It seems obvious in such circumstances that bargaining of substance cannot occur until the parties know who they are bargaining about. As a Board whose members are appointed for their putative expertness in labour relations, we may reasonably take note that the applicant and respondent in this case have wide collective bargaining experience and likely have many standard contract clauses to cover routine matters which would easily and quickly be agreed upon. To expect them to go beyond that is unrealistic in the circumstances. Thus nothing of use to these particular parties is to be gained by forcing them into premature bargaining.

5. The Board should grant interim certification only where it is evidence that the inclusion or exclusion of one or more disputed classifications cannot reasonably be a major consideration in the determination of either party's bargaining strategy. In this case, the number and nature of the disputed classifications is such that the bargaining strategy of both parties cannot help but be significantly affected. Meaningful bargaining thus cannot take place and so the Board should not require the parties to engage in the sham of surface bargaining which it condemns in other circumstances.