Ontario Labour Relations Board
[1987] OLRB Rep. March 340
File No.: 3042-86-R
National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Can-Eng Metal Treating Ltd., Respondent v. Group of Employees, Objectors
BEFORE: V. Solomatenko, Vice-Chair, and Board Members G. 0. Shamanski and D. A. Patterson.
APPEARANCES: Wayne McKay, Clare Meneghini and Robert Savard for the applicant; Brian P. Smeenk, C. Cancilla, A. R. Neufeld and R. Ott for the respondent; Gary Prattis, Ron Prattis and John Adams for the group of employees.
DECISION OF THE BOARD; March 20, 1987
The name of the respondent is amended to read: "Can-Eng Metal Treating Ltd.".
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
On the day of the hearing, the parties met with a Board Officer and reached partial agreement with respect to the description of the bargaining unit. The parties are in agreement that the unit should be described as all employees of the respondent at Kitchener, save and except "managerial personnel", office, sales and technical staff and employees regularly employed for not more than twenty-four hours per week and students employed during the school vacation period. However, the parties are not agreed as to who should be excluded as "managerial personnel" and whether there should be a clarity note regarding the exclusion for technical staff.
The respondent contends that the managerial exclusion should be restricted to the plant manager and persons above the rank of plant manager because the plant manager is its first or lowest level of management. The applicant's position is that the managerial exclusion should begin with foremen and persons above the rank of foreman. The respondent employs two individuals whom it classifies as "working foremen", William Fulton and Erwin Vogel. It is the respondent's position that Fulton and Vogel should be included within the bargaining unit because they are in fact working foremen, akin to lead hands, and do not exercise managerial functions. In view of this dispute, we appoint a Labour Relations Officer to inquire into and report to the Board on the duties and responsibilities of these two individuals classified by the respondent as working foremen.
Counsel for the respondent further submits that, if the applicant succeeds in its claim that Fulton and Vogel are in fact the lowest level of management, the exclusion should be described as "working" foremen and persons above the rank of "working" foreman, not simply foremen as proposed by the applicant. The respondent's position is that it, in fact, classifies these individuals as "working foremen" and counsel relies on the Board's policy of not excluding non-existing classifications. We reserved on that issue at the hearing and note at this time that the expressions "working" and "non-working" foremen are usually found in the construction industry, whereas "lead hand" and "foreman" are prevalent in the industrial setting. If the parties are unable to reach agreement on the issue, however, it is more appropriate in these circumstances to defer its final determination until after the Board Officer's inquiry and report with respect to the duties and responsibilities of Vogel and Fulton.
Although the applicant agrees to an exclusion for technical staff, at the same time, it requests that the Board issue a clarity note that the exclusion for technical staff means only the two classifications of metallurgical engineer and technologist, which are the only classifications in the technical group at the time of application. We confirm our oral ruling at the hearing that such a "clarity" note is not appropriate. The Board's policy is to certify in terms of classes or generic groups of employees and that policy is conversely reflected in describing the exclusions from a standard unit. A standard office unit is described in terms of "all office, clerical and technical" employees. On the other hand, a production unit normally excludes office, clerical and technical employees if there were any employees in those categories at the time of application. Where necessary, a clarity note is used to express the parties' understanding whether specific individuals are included or excluded in respect of one of these categories. In the instant case, however, there is no dispute whether the two classifications fall within the category of technical employees. The sole purpose and effect of the "clarity" note requested by the applicant is to circumscribe the generic exclusion for technical staff to these two job classifications only. When the Board grants certification with respect to a group of employees such as "office" employees, it does not limit certification only to those classifications within the category of office employees existing at the time of certification. Similarly, where it excludes a generic group of employees from the bargaining unit, it does not normally limit the exclusion to those classifications existing at the time of certification.
The parties also disagree as to the inclusion of Clarke Eady on the list of bargaining unit employees. The applicant takes the position that this individual is not employed for more than twenty-four (24) hours per week on a regular basis and is therefore excluded from the bargaining unit. The respondent's position, on the other hand, is that Mr. Eady is regularly employed for more than twenty-four hours per week. The Board hereby authorizes a Labour Relations Officer to inquire into and report to the Board whether Clarke Eady is regularly employed by the respondent for more than twenty-four hours per week.
Regardless of the outcome of the previously noted challenges with respect to these three disputed individuals, we are satisfied that the membership evidence filed by the applicant demonstrates a level of support amongst the bargaining unit employees in excess of that required under the Act for certification without having a representation vote taken. However, there was also filed with the Board three undated handwritten documents bearing the signatures of 18 persons, and 8 further documents each bearing a single signature. Six of the latter eight signatures are repetitious. These documents purport to be statements of desire to oppose the union's application (hereinafter referred to collectively as the "petition") which in total contain 20 different signatures. The Board is satisfied that the petition is relevant because there is sufficient overlap of signatures of employees who had signed both the petition and union membership cards as would cause the Board to exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote, if satisfied that the petition is voluntary.
The applicant has also filed three documents dated February 14, 16 and 17, 1987, respectively, each bearing a single signature. These documents (hereinafter referred to collectively as the "counter-petition") purport to be reaffirmations of membership in the applicant union and repudiation of their signatures on the petition. All three individuals who signed the counter-petition had also signed the petition. Nevertheless, the overlap of these three signatures is not sufficient to reduce the number of signatures of employees who had signed both the petition and union membership cards to the level that the petition would no longer be relevant. In the circumstances, it is not necessary to inquire into the origination and circulation of the counter-petition and the Board will therefore inquire into the voluntariness of the petition only.
At this stage of the proceedings, counsel indicated that the respondent wished to raise two further matters of a preliminary nature. Counsel indicated that he had just learned on the day of the hearing of certain misconduct on the part of the applicant. Specifically, he referred to allegations of threats and misrepresentation by the applicant to the employees in the course of obtaining membership evidence. Counsel submits that these allegations, if proven, could invalidate the membership evidence such as to make even the petition irrelevant regardless of its voluntariness. He advised that the respondent would be filing charges promptly in this regard and submits that the same panel of the Board should deal with those charges as well as the other outstanding issues in this case.
Counsel for the respondent then raised an objection with respect to the applicant's letter dated February 23, 1987 which was filed with the Board prior to the hearing and which alleges misconduct on the part of the respondent and certain named employees. Counsel argues that the applicant should be precluded from adducing evidence with respect to the matters alleged in the letter of February 23, 1987 because those allegations are vague, lack particularity and, more importantly, were not filed in a timely matter. The letter of February 23rd refers to conduct on the part of the respondent on February 6th and February 9th. The applicant advises that it first became aware of the alleged misconduct on February 19th and took prompt action thereafter.
We confirm our oral ruling at the hearing that we do not agree that this is a case wherein the union should be precluded from leading evidence with respect to its allegations set forth in its letter of February 23, 1987. However, we agree that this is a proper case wherein the same panel hear the evidence and representations with respect to both parties' allegations of misconduct as well as matters related to the voluntariness of the petition. The matter is therefore adjourned and we direct that the respondent file its charges promptly. If the charges are filed in the form of a complaint under section 89 of the Act those proceedings are to be consolidated with this application. Should the respondent proceed by way of a section 89 complaint it is directed to advise the Registrar at the time of filing that it is in conjunction with the proceedings herein. Should the respondent require further particularity with respect to the applicant's allegations set forth in the letter of February 23rd, it is directed to request them prior to the next hearing date in this matter. The applicant is directed to provide the petitioners with a copy of its letter of February 23, 1987.
The matter is referred to the Registrar to be set down for hearing in Kitchener to receive the parties' evidence and representations with respect to the voluntariness of the petition, the allegations of misconduct filed with the Board and all issues arising out of and incidental to those matters.