Great Lakes Fishermen and Allied Workers' Union v. Etna Foods of Windsor Limited, 1987 CanLII 3009

Great Lakes Fishermen and Allied Workers' Union v. Etna Foods of Windsor Limited

[1987] OLRB Rep. February 210

0254-86-R Great Lakes Fishermen and Allied Workers' Union, Applicant, v. Etna Foods of Windsor Limited, Respondent

BEFORE: V. Solomatenko, Vice-Chairman, and Board Members D. A. MacDonald and J. Redshaw.

APPEARANCES: Laurence C. Arnold and Mike Darnell for the applicant; R. G. McLister and Vito Peralta for the respondent.

DECISION OF THE BOARD; February 26, 1987

1This is one of four applications for certification filed by the applicant on April 25, 1986. At the time, the applicant had not been previously found by the Board to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act. All four applications were scheduled for hearing on May 16, 1986, at which time a differently constituted panel of the Board received evidence and argument from all parties to the four applications with respect to the issue whether the applicant was a trade union within the meaning of the Act. By its decision of June 18, 1986, the Board found that the applicant became a trade union within the meaning of section l(l)(p) of the Act as of April 21, 1986: Etna Foods of Windsor Limited, [1986] OLRB Rep. June 710. The same decision referred the four applications to the Registrar to be listed for hearing for purposes of hearing evidence and representations of the parties with respect to all outstanding matters.

2The instant application was scheduled for hearing before this panel. At the outset of the hearing, counsel indicated that the respondent was challenging the Board's constitutional jurisdiction to deal with this application. He also argued that the hearing be adjourned and rescheduled to allow the parties to all four applications to present evidence and make representations in the course of a single proceeding with respect to the issue of constitutional jurisdiction. The respondent's position in this regard was that there was agreement amongst the parties that the question of the Board's constitutional jurisdiction be dealt with in one hearing involving all parties to the four applications. The applicant, on the other hand, denied the existence of any such agreement.

3The respondent had not filed any material prior to the hearing to indicate that it was challenging the Board's constitutional jurisdiction to determine this application. The Board's decision of June 18, 1986 does not indicate the existence of any agreement to have all four applications set down for a single hearing in respect of the outstanding issues. Furthermore, there was nothing riled subsequent to the notice of this hearing to advise the Board that further hearings should be scheduled to include the parties to all four applications. Having regard to the parties' submissions and the materials filed with the Board, we could not find that there existed extenuating circumstances as would cause the Board to exercise its discretion to grant an adjournment in the absence of the parties' agreement thereto.

4The respondent's request for an adjournment was denied and the hearing proceeded for purposes of receiving evidence and representations with respect to all outstanding matters arising out of this application, including any challenge that the respondent wished to raise to the Board's constitutional jurisdiction. The Board heard the evidence of Vito Peralta, president of the respondent company, and Mike Darnell, president of the union local. Instead of oral argument at the hearing, however, the parties agreed to provide the Board with written submissions with respect to the question of constitutional jurisdiction in accordance with time limits mutually determined at the hearing.

5The respondent is a provincially incorporated company which carries on a fish processing business at Leamington, Ontario. It is that location which is subject of this application, but the respondent also operates a retail store in Windsor, which currently employs two persons, as well as a retail and processing outlet in Port Stanley which is non-operational at present. The respondent normally employs approximately 60 to 65 employees. At the relevant time, there were 56 employees located at the Leamington plant, of whom 10 were supervisory and management staff, 32 were filleters, 8 were material handlers and 6 were office staff. Only the filleters and material handlers are subject of this application. The fish processing operation involves the cleaning, weighing and packaging of fish. About 90 to 95 per cent of the respondent's product is exported to the United States. In the past twelve months, the respondent has purchased fish or fish products in total amount of $4 to $4-1/2 million, of which $3 to $3-1/2 million was purchased in Ontario. Approximately $112 million of fish was purchased from outside the county and the rest was purchased from other parts of Canada. Some portion of the fish products that the respondent imports is also re-exported.

6The respondent owns and operates four pick-up trucks and three larger refrigerated trucks which are used for purposes of delivery and pick-up of fish in connection with its processing business. All trucks are provincially licensed and, where necessary, have the permits required for purposes of transporting between Canada and the United States. Two of the larger refrigerated trucks are regularly used to transport the respondent's fish exports to the United States and also to take delivery of fish products it is importing from the United States. The third refrigerated truck is a back-up vehicle. Although there are several persons, including Mr. Peralta, who on occasion will drive all of the vehicles, there are two drivers who regularly operate the two larger refrigerated trucks. One of these drivers spends approximately 50 to 60 per cent of his working time in driving to the United States and the other driver spends approximately 60 to 75 per cent of his time in this activity. On occasion, these drivers complete the requisite import and export documentation. On a regular basis, however, the import and export documentation is prepared in the respondent's office. There was no evidence that any of these vehicles were used for transporting fish or fish products other than for purposes of the respondent's own processing operation.

7Mr. Peralta's evidence is that virtually all of the applicable government regulation with respect to fish processing is under federal jurisdiction. That regulatory activity relates to such matters as weighing fish, bacteria count, packaging, the freezing and glazing process, coding the packages with respect to quantity of fish, import and export matters, and customs. He notes that he regularly reports the company's sales to Environment Canada and the company is visited by representatives of the federal Ministry of Environment, Revenue Canada, Customs and Excise, and Fisheries and Oceans. Some of the enforcement function under the federal Fisheries Act is delegated to the provincial Ministry of Natural Resources and there is therefore some interaction with provincial government representatives as a result. The respondent also has a licence as a fish processor which is issued under the authority of the federal Ministry of Fisheries and Oceans.

8Mr. Darnell was a commercial fisherman for nine years and has been with the union on the western coast of Canada since 1972. It is his evidence that he has personally been involved with organizing fish processing plants in British Columbia and certification was granted under provincial legislation in all cases. The union has submitted samples of British Columbia certification for canneries, fish camps and plants dating back to 1944. Mr. Darnell states he is not aware of any constitutional challenge to British Columbia's jurisdiction to certify fish processing operations. It is also his evidence that all processing plants he was involved with are similar in operation. He includes the respondent in that category although, as the respondent notes, Mr. Darnell has never been employed by the respondent and thus is not able to give any direct evidence regarding its processing operation. It is also Mr. Darnell's evidence that, as an officer of the union, he meets regularly with the standing committee on fisheries in Ottawa, as well as other industry sources. On the basis of the information so received, it is his understanding that most - and in the case of catches such as hearing, virtually all - of B.C.'s fish catch is exported by various means of transport.

9The general rule of constitutional jurisdiction over labour relations matters has been stated as follows by the Supreme Court of Canada in Four-B Manufacturing Limited v. United Garment Workers of America and Ontario Labour Relations Board, [1981] S.C.R. 1031, at page 1045:

...With respect to labour relations, exclusive provincial legislative competence is the rule, exclusive federal competence is the exception. The exception comprises, in the main, labour relations in undertakings, services and businesses which, having regard to the functional test of the nature of their operations and their normal activities, can be characterized as federal undertakings, services or businesses:...

Thus, the inquiry into whether the Board has constitutional jurisdiction over the labour relations related to the respondent's business must begin with the initial question whether its fish processing operations constitute a federal undertaking, service or business.

10Section 91 of the Constitution Act, 1867 (hereinafter referred to as the "Constitution Act") grants Parliament exclusive legislative authority in respect of certain subject matters. The respondent argues that its fish processing business is a federal undertaking by virtue of sections 91(2) and 91(12) of the Constitution Act which grant Parliament the exclusive authority:

...to make Laws for the Peace, Order, and good Government of Canada, in relations to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, -

2. The Regulation of Trade and Commerce.

3. Sea Coast and Inland Fisheries.

The respondent's main argument is based on the power granted to Parliament under section 91(12) to enact legislation with respect to "inland fisheries". Its argument in the alternative, however, is that even if fish processing by itself does not come within section 91(12), the processing together with the importing and exporting activities bring its marketing of fish under section 91(2) of the Constitution Act which deals with the regulation of trade and commerce.

11Counsel for the respondent has referred the Board to a number of federal statutes or regulations which contain some reference to fishing and fish processing. For example, section 3(1) of the Fisheries Development Act, R.S.C. 1970 c. F-21 provides:

The Minister may undertake projects

(a) for the more efficient exploitation of fishery resources and for the exploration for and development of new fishery resources and new fisheries;

(b) for the introduction and demonstration to fishermen of new types of fishing vessels and fishing equipment and of new fishing techniques; and

(c) for the development of new fishery products and for the improvement of the handling, processing and distribution of fishery products.

It was also noted that section 5 of the same Act allows the Minister to make payments for the construction and equipment of commercial cold storages and commercial ice-making and ice-storing facilities. The Fisheries Act was amended in 1985 and counsel notes that the following definition of "fishery" becomes effective January 1, 1987:

"fishery" includes

(a) the places in Canadian fisheries waters where, and the times when, fishing and related activities occur, including such packing, transporting and processing operation as are within the jurisdiction of Parliament, and

(b) the persons engaged and the fishing vessels, fishing gear and other equipment used in the activities referred to in paragraph (a).

He argues that the reference to "processing operation" in paragraph (a) must also refer to on-shore processing operations and activities such as engaged in by the respondent.

12The conclusion urged upon us by the respondent is that all regulatory authority regarding fishing resides with the federal government. Essentially, the argument is that these numerous federal statutory references to fish processing support as the proposition that Parliament's power under section 91(12) of the Constitution Act with respect to fisheries includes the exclusive legislative authority over fish processing and by necessity, labour relations related to fish processing. The respondent argues further that provincial jurisdiction of fisheries has been limited to a narrow proprietary interest. In this respect, counsel refers to Attorney General for the Dominion of Canada v. Attorneys-General for the Provinces of Ontario, Quebec and Nova Scotia 1896 CanLII 76 (SCC), [1898] A.C. 700 (P.C.) (The Fisheries Reference), which involved the question of ownership of lake and river beds in the context of Parliament's authority to grant licences to fish in those waters. It was argued that the Fisheries Reference stands for the proposition that only matters of proprietary rights, which are under provincial jurisdiction, are excluded from the fisheries powers under section 81(12) of the Constitution Act.

13The question of Parliament's legislative powers with respect to fisheries and fishing was extensively reviewed in a recent decision of the Board wherein it was held that the Board has constitutional jurisdiction with respect to labour relations matters related to the employment on fishing boats: Omstead Foods Limited et al. and Great Lakes Fishermen Allied Workers Union, [1986] OLRB Rep. Dec. 1691. The respondents in the Omstead Foods case also had argued that the provincial jurisdiction with respect to fisheries was narrowly limited to a matter of proprietary rights, similarly relying upon the Fisheries Reference case. That argument was rejected by the Board, at paragraph 20 of its decision, as follows:

20. However, in our view, while both the Fisheries Reference, supra, and [R. v. Robertson (1982), 6 S.C.R. 52] were concerned with property in the narrow sense, with proprietary rights, we cannot accede to Mr. Nolan's interpretation that those cases stand for the proposition that only proprietary rights are excluded from the fisheries power. The statements cited above indicate clearly that the justices in Robertson, supra, in particular, were addressing themselves not only to the limited question of whether proprietary rights in river beds were transferred to the Dominion by virtue of the grant to the Parliament of the fisheries power, but also to the broader question of the scope of the fisheries power....

14Whether an undertaking or business, subject to Parliament's exclusive legislative authority under one of the classes of powers enumerated in section 91 of the Constitution Act, necessarily involves the initial determination of the extent or scope of Parliament's power with respect to that class, the question of the scope of Parliament's legislative powers with respect to inland fisheries was analyzed in some detail by the Board in Omstead Foods (particularly at paragraphs 18 to 26). After reviewing extensively the jurisprudence relative to the issue, including the Fisheries Reference, supra; Robertson, supra, re Fisheries Act, 1914 1928 CanLII 82 (SCC), [1928] 4 D.L.R. 190 (S.C.C.), aff'd 1929 CanLII 439 (UK JCPC), [1930] 1 D.L.R. 194 (P.C.), Mark Fishing Co. Ltd. et al. v. United Fishermen & Allied Workers' Union et al. (1972), 1972 CanLII 1016 (BC CA), 24 D.L.R. (3d) 585 (B.C.C.A.) and Gulf Trollers Association v. Minister of Fisheries and Oceans, [1984] 1984 CanLII 5399 (FC), 6 W.W.R. 220 (F.C.T.D.), the Board concluded as follows, at paragraph 26:

We are satisfied on the basis of the authorities cited above, that while the federal power under section 91(12) of the Constitution Act has not been finally determined or definitely delineated, it has been generally and consistently considered to extend only to the preservation of fisheries as a natural resource. The completely open-ended nature of the term "Sea Coast and Inland Fisheries'' has of necessity invited judicial interpretation; that interpretation has been consistent with the rationale that as a public resource for the benefit of all persons in Canada, Parliament requires the power to control fisheries in order to conserve and improve the fisheries....

15The mere fact that Parliament has enacted legislation which contains some reference to fish processing and processors is neither conclusive nor particularly indicative of whether the business of fish processing falls within Parliament's exclusive powers under section 91(12) of the Constitution Act. Where courts have reviewed legislation related to fishing, the initial question has always been whether the legislation was intended for the preservation or control of fisheries as a public natural resource. Although the respondent has referred us to these various federal statutes which contain some reference to fish processing, it does not allege that any of that legislation has any other purpose, such as the regulation of fish processing as a business. The jurisprudence is quite clear that the threshold issue for the respondent in the instant case is to establish that its business of fish processing is an undertaking which falls within the scope of protection and preservation of fisheries.

16Although counsel for the respondent argues that "processing is integral, essential and intimate to fishing and development of the fisheries of Canada", he concedes that the weight of authority supports the applicant's position that fish processing is not a federal undertaking by virtue of section 91(12) of the Constitution Act. It has been generally accepted that the issue was settled in the Fisheries Act case, supra, which dealt with the constitutionality of federal legislation Intended to regulate licensing of fish canneries and curing establishments in British Columbia. The respondent in the instant case does not contend that there is any material factual distinction between a fish cannery and a fish processing plant. Instead, counsel argues that the Fisheries Act case is distinguishable on several other grounds.

17In the Fisheries Act case, Newcombe J., for the Supreme Court of Canada, stated (at p. 201) that:

...it is undoubted that, in the absence of any restricting consideration, the right to operate a fish cannery for commercial purposes is a civil right in the Province where the operation is carried on, like the right to operate a fruit cannery or a vegetable cannery; and the question, as I see it, is whether the exercise of this right may be restricted or regulated by force of any enumerated Dominion power...

After considering various definitions of "fisheries", Newcombe J. went on to say that neither the business of canning fish nor the operation of a fish canning factory is by any of these decisions comprised in "fisheries" as used in section 91 of the Constitution Act. The Privy Council upheld the Supreme Court of Canada decision. It noted that the Attorney General of Canada sought a definition for the word "fisheries" in section 91(12) of the Constitution Act "of such amplitude that it will include the operations carried out upon the fish when caught for the purpose of converting them into some form of marketable commodity". The Privy Council rejected that argument and held that:

In their Lordship's judgment, trade processes by which fish when caught are converted into a commodity suitable to be placed upon the market cannot upon any reasonable principle of construction be brought within the scope of the subject expressed by the words "Sea Coast and Inland Fisheries."... (p. 199).

18The respondent has argued that this portion of the Privy Council's decision is obiter dicta because the case is concerned with licensing powers of Parliament and that portion of the decision does not deal with licensing. It was further argued that the case is distinguishable because the court was concerned with legislative competence with respect to licensing and not with respect to labour relations. Both of those arguments are without merit for similar reasons. Whether the issue is Parliament's power to license or its legislative competence with respect to labour relations, the first question is always the same, that is, what is the scope or nature of the power with respect to the subject or class in question? In the Fisheries Act case, Parliament was attempting to license commercial operations, canneries, on grounds that the matter fell within the subject of Sea Coast and Inland Fisheries. The portion of the Privy Council decision which the respondent refers to as obiter is in fact the very issue in dispute. Counsel also argues that the Fisheries Act case is distinguishable because the definition of "fishery" has been amended (as noted earlier in the decision) and the court in the Fisheries Act case was, according to the respondent, focusing on the definition of fishery as it then was under the Fisheries Act. We do not agree with that reading of the Fisheries Act case. The Privy Council decision (at page 198) does in fact note the definition of "fishery" under the Fisheries Act, 1914. But, it goes on to state that "it may well be that this definition is not an apt one to apply to the words Sea Coast and Inland Fisheries in section 91 of the B.N.A. Act, 1867". It is clear from the Privy Council decision that it was interpreting the words, "Sea Coast and Inland Fisheries", and not the definition of fishery under the Fisheries Act. The interpretation of fishery for purposes of section 91(12) of the Constitution Act in the Supreme Court of Canada decision was similarly not based on the definition of fishery under the Fisheries Act.

19In our view, the respondent's situation is not distinguishable from that in the Fisheries Act case wherein it was held that the trade processes by which fish are converted into a commodity suitable for marketing cannot upon any reasonable principle of construction be brought within the scope of section 91(12) of the Constitution Act. The evidence in this case does not indicate the respondent's fish processing operation to be other than as contemplated by the term "trade processes" in the Fisheries Act case. Fish are bought, cleaned, packaged and marketed. The respondent's fish processing operation certainly relies upon the preservation of fisheries as a natural resource, but, in itself it is not an integral part of or necessary to preserving that resource. The fact that the respondent must comply with Parliament's regulations aimed at the protection and preservation of fisheries does not make it an integral part of or essential to that objective. The respondent's objective is to operate as a profitable commercial undertaking which is in essence local work or undertaking within exclusive provincial jurisdiction under section 92 of the Constitution Act. In summary, the respondent's fish processing business is not a core federal undertaking under section 91(12) of the Constitution Act.

20As to the submissions with respect to Parliament's legislative authority under the class of Trade and Commerce, counsel for the respondent begins with the proposition that once extra-provincial or international trade is involved, the subject matter is federal and therefore under Parliament's exclusive jurisdiction. In support of that proposition, he relies upon the Supreme Court of Canada decision in Re The Farm Products Marketing Act, R.S.O. 1950 1957 CanLII 1 (SCC), [1957] S.C.R. 198. We disagree with the respondent's submissions in that respect and concur with the applicant's contention that the Farm Products Marketing case would only be applicable if there was an issue of the Province attempting to regulate interprovincial trade. The subject matter in this instance, however, is the respondent's business of fish processing which is in essence a local undertaking and we note that portion of Mr. Justice Rand's decision in the Farm Marketing Products case which states (at page 210):

...Processing is one of a number of trade services that may be given products in the course of reaching the consumer: milling (as of grain or lumber), sorting, packing, slaughtering, dressing, storing, transporting, etc. The producer or purchaser may desire to process the product either within or beyond the Province and if he engages for that with a local undertaking (using that expression in a non-technical sense), such as a packing plant - and it would apply to any sort of servicing - he takes that service as he finds it but free from such Provincial impositions as are strictly trade regulations such as prices or the specification of standards, which could no more be imposed than Provincial trade marks....

[emphasis added]

21The respondent has attempted to characterize its processing operations as two core federal undertakings: the contracting for the exporting and importing of fish, and the processing of fish for the fulfillment of those international contracts. It was argued that the filleters are integral to and supportive of what has been described as the core federal undertaking of trade and commerce. In other words, the respondent contends that 40 fish plant workers are merely supportive of or incidental to the operations conducted by two truck drivers who only spend approximately 50 to 75 per cent of their time driving and incidental to functions performed by the office personnel with respect to filling out import and export documentation. The conclusion to be borne out on the facts pf this case, however, is that the respondent is in the business of fish processing which, in character and function, is not unlike most manufacturing operations. Even if one were to assume for argument's sake that the respondent's trucking operations and import and export activities - both of which are necessary for its commercial viability - fall under federal jurisdiction, it does not change the fundamental nature of its fish processing business. By way of analogy, one might note that the postal service is vital to the commercial viability of a business involved with the advertising and distribution of products through the mails. However, that reliance upon the postal service, which is a federal undertaking, does not change the fundamental character of the mail order business. Similarly, the respondent's dependence on its trucking and import and export activities does not alter the basic fact that it is a commercial undertaking which purchases fish to be processed then sold for profit.

22Anticipating the argument from the applicant that the respondent's filleters are not directly involved in the transport activities or extra-provincial agreements and relationships, counsel relies upon the following cases for the proposition that a direct involvement by employees is not required: Arrow Transfer Company Limited, [1974] 1 C.L.R.B.R. 29 (B.C.) and Letter Carriers Union v. Canadian Union of Postal Workers and M & B Enterprises Ltd. 1973 CanLII 183 (SCC), [1974] 1 W.W.R. 452 (S.C.C.); (1973) 40 D.L.R. (3rd) 105. The governing principles of those cases, however, are not applicable to the respondent's circumstances. In each of those cases there was no question that some federal undertaking was involved. In Arrow Transfer, the federal undertaking was that of an extra-provincial carrier and the question was whether the mechanics employed by the carrier would be subject to federal jurisdiction. It was held that the maintenance operation was an integral part of the trucking operation and, therefore, the maintenance mechanics were also subject to the federal labour legislation. In the Letter Carriers Union case, the employees of an independent trucking company, which handled and collected mail under contract with Canada Post, worked exclusively within the provincial jurisdiction and occasionally performing work for persons other than Canada Post. These employees were held to be subject to federal labour legislation because the main and principle part of the trucking company's business was vital or essential to a federal undertaking. In the respondent's case, however, there is no initial core federal undertaking and, as a result, the principles enunciated in Arrow Transfer and the Letter Carriers Union case simply are inapplicable.

23As for the extra-provincial trucking operations engaged in by the respondent, the Board has, on numerous occasions, dealt with the issue of trucking facilities in connection with a manufacturing or processing operation. In Humpty Dumpty Foods Ltd., [1979] OLRB Rep. April 315 the Board had to deal with the jurisdiction of employees of a wholesale distribution snack food operation which delivered its product from its warehouse in Ottawa into Quebec. The Board in that instance referred to a review of its relevant jurisprudence as set out in Dominion Dairies Limited, [1978] OLRB Rep. Dec. 1083, wherein it was stated:

In the past this Board has been required to determine whether a manufacturing operation with trucking facilities would be held to be one undertaking and, if so, whether it would be subject to provincial or federal regulation. When a company operates as a common carrier and its business takes it beyond provincial boundaries its labour relations are exclusively under federal jurisdiction. (Re Tank Truck Transport Ltd. (1960), 1960 CanLII 120 (ON HCJ), 25 D.L.R. (2d) 161 (Ont. H. Ct.)). Where, however, a company is not a common carrier and the essence of its business is manufacturing or processing, the undertaking is within the constitutional jurisdiction of the province for the purposes of regulating its labour relations, notwithstanding that the goods manufactured or processed by the company are sometimes sold outside the province and that the company's delivery facilities extend that far. In other words, where the activity is essentially one of manufacturing and where the manufacture and delivery of goods are integrated activities which are part and parcel of the company's total undertaking, the labour relations of all employees of the company fall within provincial jurisdiction. (Win. R. Barnes Company, Ltd. [1967] OLRB Rep. Sept. 566; Domtar Limited Trucking Division [1970] OLRB Rep. July 495; Crane Carrier Canada Limited [1970] OLRB Rep. Sept. 665; Compagnie Miron Ltee. [1972] OLRB Rep. Dec. 1034 and [1973] OLRB Rep. Jan. 61; Mason Windows Limited [1973] OLRB Rep. Oct. 547; F.B.I. Foods Ltd. [1975] OLRB Rep. June 522; Catalano Produce Ltd. [1975] OLRB Rep. Oct. 743).

In the instant case, the essence of the respondent's activity is that of processing; it is not a common carrier. By its own submissions, the respondent's delivery of fish products extra-provincially is very much a part and parcel of its total undertaking. The respondent's circumstances fall squarely within the Board's previous jurisprudence on the issue.

24In summary, the respondent's main business is that of fish processing which is subject to provincial jurisdiction as a local work or undertaking. Furthermore, its activity as a fish processor is not an integral part of or essential to some federal undertaking, business or service. We therefore find that the Board has constitutional jurisdiction in this application for certification.

25The respondent's reply to the application contains a number of allegations and statements set out in Schedule "A" attached thereto. The first two paragraphs of Schedule "A" contain several allegations of obtaining membership evidence by trickery and deceit and by intimidating and coercing workers to join the union. At the hearing, counsel advised that the respondent was withdrawing the allegations set out in the first two paragraphs of Schedule "A". In the third paragraph, the respondent challenged the applicant's status as a trade union within the meaning of section l(l)(p) of the Act. As previously noted, the Board has found the applicant to be a trade union within the meaning of the Act in its decision of June 18, 1986. The last allegation in Schedule "A" is that the respondent believes that "some of the alleged signatures are not the true signatures of the respective workers voluntarily given, and requires a determination thereof'. The Board hereby confirms that it has reviewed the membership evidence in accordance with its usual practices and procedures and is satisfied that the signatures on the membership evidence are in order.

26Having regard to the agreement of the parties, the Board finds that all employees of the respondent in Leamington, Ontario, save and except forepersons, those above the rank of foreperson, office and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.

27The parties have requested the appointment of a Board Officer to inquire into the duties and responsibilities of Herminia B'or d'Aqua, Tom Carr, Agusta Matias, Maria Murracus, Victor Verissimo and Fatima Zarro. The applicant claims these individuals should be included in the bargaining unit. However, the respondent's claim is that they are forepersons who exercise managerial functions and should be excluded from the bargaining unit by reason of section 1(3)(b) 9f the Act. There is no dispute as to the exclusion of forepersons and those above the rank of fore-person from the unit. The question is simply whether these six individuals are so excluded. However, whether they are included or excluded does not affect the description of the bargaining unit. It only affects the number of employees in the unit for purposes of the count.

28We confirm that regardless whether these six individuals are included in or excluded from 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 May 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.

29Where neither the determination of whether the level of membership support is in excess of fifty-five per cent of the employees in the bargaining unit nor the description of the appropriate bargaining unit is contingent on the resolution of the dispute of an individual's status, the Board has exercised its discretion to issue a final certificate: Robin Hood Multifoods Inc., [1985] OLRB Rep. July 1159. In the circumstances of the instant application, we exercise the Board's discretion to issue a final certificate. The question of the status of the six individuals previously named is left to the parties to resolve, either through collective bargaining or by bringing the dispute back to the Board under section 106(2) of the Act which provides:

If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.

If the parties are unable to resolve the question of the status of those six individuals, the Board's assistance in the resolution of that dispute is available under section 106(2) of the Act.

30A certificate will issue to the applicant.