[1987] OLRB Rep. February 297
2452-85-R United Food and Commercial Workers Union, Local 409 chartered by United Food & Commercial Workers International Union, C-L-C, A-F-L, C-I-O, Applicant, v. Worker's Co-operative of Consumers (Fort William) Limited, Respondent, v. Group of Employees, Objectors
PEFORE: Robert D. Howe, Vice-Chairman, and Board Members J. A. Ronson and L. Collins.
APPEARANCES: W. Dubinsky, Cheryl Cheppenko and Michael Fraser for the applicant; O. L. Firnan, Doug Demeo and William J. Furioso for the respondent; William G. Shanks and Della Banliera for the objectors.
DECISION OF THE BOARD; February 4, 1987
The following decision was given orally at the conclusion of the hearing of this matter on January 30, 1987.
This is an application for certification.
In a decision dated February 17, 1986, another panel of the Board authorized a Labour Relations Officer "to enquire into and report to the Board on (a) the duties and responsibilities of the person classified by the respondent as assistant manager and (b) the list of employees filed by the respondent." Pursuant to that appointment, Labour Relations Officer B. Dresner convened meetings of the parties on March 4 and 5, 1986 at the premises of the respondent (also referred to in this decision as the "Company"). During the course of those meetings, the parties resolved the position in dispute, agreed upon an amended list of employees, and executed the following Minutes of Settlement:
The parties agree to the following bargaining unit description:
All employees of the respondent in the City of Thunder Bay, save and except assistant manager and persons above the rank of assistant manager.
The parties further agree that Enzo Benvenuto, assistant manager, is excluded from the bargaining unit on the basis that he exercises managerial authority pursuant to section 1(3)B of the Act.
The applicant requests the Board hear evidence on the voluntariness of the petition, file #2452-85-R.
The applicant requests leave of the Board to withdraw the section 8 complaint filed with the Board on January 7, 1986, file #2452-85-R.
A formal labour relations report is not required.
Dated at Thunder Bay the 5th day of March, 1986.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act. (For ease of exposition, the applicant is also referred to in this decision as the "Union".)
Having regard to the agreement of the parties, the Board finds that all employees of the respondent in the City of Thunder Bay, save and except assistant manager and persons above the rank of assistant manager, constitute a unit of employees of the respondent appropriate for collective bargaining.
The amended list indicates that there were fifteen employees in the bargaining unit at the time the application was made. The applicant has filed valid membership evidence (in the form of membership cards consisting of combination applications for membership and receipts) in respect of nine of those fifteen employees. The objectors have filed a statement of desire (also referred to in this decision as the "petition") in opposition to union representation. That document, which was filed with the Board in a timely manner, contains twelve signatures, including the signatures of five employees who earlier signed membership cards. Thus, the Board found the petition to be of potential relevance to the exercise of its discretion under section 7(2) of the Act, because if it were proven to be voluntary, it would raise sufficient doubt concerning the continued support for certification of the applicant by a sufficient number of employees who also signed membership cards that the Board would generally exercise its discretion under section 7(2) to direct that a representation vote be taken despite the fact that more than fifty-five percent of the employees in the bargaining unit were members of the applicant at the relevant time. Accordingly, we found it appropriate to hear evidence (and argument) as to the circumstances concerning the origination of the petition and the manner in which each signature on the petition was obtained, for the purpose of determining whether the petition represented a voluntary expression of its signatories' wishes. Before doing so, we heard the submissions of the parties concerning the matter of whether the parties' agreement that Assistant Manager Enzo Benvenuto is excluded from the bargaining unit (on the basis that he exercises managerial authority) should result in the extension of the terminal date and the posting of a revised (Form 6) Notice to Employees of Application for Certification and of Hearing, in view of the fact that the position of assistant manager was included in the bargaining unit initially claimed by the applicant to be appropriate for collective bargaining (i.e., "all employees of the Respondent in the City of Thunder Bay, save and except Manager and persons above the rank of Manager"). However, we have determined that no such extension or reposting is necessary or appropriate in the circumstances of this case. Counsel for the applicant advised the Board during the course of his opening submissions that his client would not be relying on anything said or done by the assistant manager concerning the petition, in support of its contention that the petition was not voluntary. Accordingly, no evidence was presented concerning that matter, which has become a non-issue in the circumstances of this case.
[Remainder of decision omitted: Editor]