Teamsters Local Union No. 879 v. All Type Metal Stamping Limited
[1987] OLRB Rep. February 181
2797-86-R Teamsters Local Union No. 879, affilated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. All Type Metal Stamping Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Robert I. Herman, Vice-Chairman, and Board Members I. M. Stamp and D. A. Patterson.
APPEARANCES: Eric del Junco, Darrell Hunt and Jim O'Donnell for the applicant; Michael Failes, J. Fennema and Helen Donaldson for the respondent; Michael Horan and Theo Nederloff for the objectors.
DECISION OF THE BOARD; February 23, 1987
1This is an application for certification in which the parties met with a Board Officer prior to the hearing scheduled in this matter, reached agreement on all matters in dispute between them and agreed to waive their right to a formal hearing in the matter, except as is noted below.
2The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
3Although at the time of the hearing before the Board, and the meeting with the Board Officer, the parties were not in agreement with respect to the appropriate bargaining unit description, they were subsequently able to reach complete agreement on such bargaining unit description. Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Stoney Creek, save and except supervisors, those above the rank of supervisor, clerical, office and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
4The Board notes that the parties have agreed that Thea Nederloff and Jake Vandellen are excluded from the above described bargaining unit.
5During their meeting with the Board Officer, the membership evidence submitted by the applicant was considered, along with the petition submitted on behalf of the employee objectors. The parties were advised that, if the Board ultimately found the petition to be voluntary, the applicant would still be in a position where over fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, and as of the terminal date, would still have wanted the applicant to represent them. Specifically, the parties were advised that, in the event the petition was voluntary, the applicant still enjoyed membership support of 55.3 per cent of those employees in the described bargaining unit.
6Based on these numbers, a hearing was convened in order to entertain the submission of the employee objectors that 55.3 per cent membership support was not "more than 55 per cent" as described in section 7(2) of the Act. In counsel's submission, in order for the Board to have the jurisdiction to automatically certify an applicant union, the union must enjoy one full percentage point more than 55 per cent. Counsel for the employee objectors was not asking that the Board reconsider the position it took in St. Hubert Bar-B-Q, [1982] OLRB Rep. Jan. 122, where the Board found that, for purposes of automatic certification pursuant to section 7(2) of the Act, it was not necessary that the union demonstrate it had the support of one full employee beyond the number of employees necessary to make up 55 per cent of the bargaining unit in question. Counsel before the panel in instant case submitted only that one full percentage point, or 56 per cent at least, was necessary in order for automatic certification, as was implicit from the wording of section 7(2) of the Act.
7The Board ruled orally at the hearing that 55.3 per cent was sufficient for purposes of automatic certification pursuant to section 7(2) of the Act and the Board declined to read that section as urged upon it by counsel for the employee objectors. "More than 55 per cent" means any fraction of a percentage more, and cannot be read to mean 56 per cent. Apart from the Board's interpretation of section 7(2), the Board indicated that the Board's universal and longstanding practice had been to treat any fraction of a percentage over 55 as sufficient for purposes of section 7(2). The Board felt that such an approach was sensible, in accord with the legislation, past practice, and the promotion of labour relations harmony.
8Counsel for the employee objectors also argued that the Board should exercise its discretion under subsection 7(2) of the Act to direct a representation vote, rather than automatically certifying the applicant, notwithstanding the fact that the Board had found that the applicant enjoyed more than 55 per cent support. Counsel argued that, approximately one week before the instant application was filed, three automobiles had been vandalized in the company parking lot. In turn, this property damage had had an intimidatory effect on employees in the bargaining unit, so that when the petitioner approached employees to sign the petition, some had indicated that they did not want to be involved and they were taking a "hands off" position. In light of the vandalism, and the intimidating effect it might have had on some employees, and in light of how close to 55 per cent the applicant support was, counsel urged that a representation vote be held.
9Assuming the truth of these allegations and that the employee objectors could prove such matters in evidence, the Board nevertheless declined to exercise its discretion to order a representation vote. There was no suggestion as to who might have caused the automobile damage, nor any concrete examples linking such damage to the unwillingness of employees to become involved. In any event, the Board considered the events and any causal relationship between them and the collection of signatures on the petition too remote to be grounds to order a vote, or to substantiate any chilling effect. In the circumstances, the Board declined to direct a representation vote.
10The 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 January 22, 1987, 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.
11A certificate will issue to the applicant.