United Steelworkers of America v. Haley Industries Limited
[1987] OLRB Rep. March 373
2497-86-R United Steelworkers of America, Applicant v. Haley Industries Limited, Respondent v. Group of Employees, Objectors
BEFORE: Patricia Hughes, Vice-Chair, and Board Members W. H. Wightman and R. R. Montague.
APPEARANCES: L. A. Richmond and R. James for the applicant; R. M. Parry and Jack Whitehome for the respondent; Larry Todd and R. Joe for the objectors.
DECISION OF THE BOARD; February 24, 1987
1This is an application for certification in which the applicant and the respondent agreed to the following bargaining unit description:
All office and clerical employees of the respondent in the County of Renfrew, save and except supervisors, persons above the rank of supervisor, and engineering and technical employees.
2Since this description departs from the Board's usual "office, clerical and technical" description, a differently constituted panel of this Board directed that a hearing be scheduled at which the parties could address the Board with respect to the appropriateness of the proposed unit.
3A hearing for that purpose was scheduled for February 20, 1987. At that time the applicant and the respondent provided this panel with an agreed statement of facts and accompanying documents.
4Counsel for the applicant argued that the Board should accept the proposed unit for three reasons: the technical employees were intended to be included in the production unit for which the applicant was certified as the exclusive bargaining agent on September 28, 1951, although the technical employees have not been represented by the applicant at any time since that date; the parties have agreed to the proposed unit and the Board should accept that agreement and, indeed, should not require the parties to justify it; and the proposed unit is an appropriate unit given the nature of the respondent's business and the work performed by the technicians who, counsel argues, have greater community of interest with the production employees than the office and clerical employees.
5Counsel for the respondent candidly admitted that he found himself in a difficult position: the respondent had agreed to the proposed unit in order to expedite matters and now was required to defend that unit at the request of the Board. He disagreed that the technical employees had been encompassed by the 1951 certificate. He also submitted that the technical employees had a greater community of interest with the office and clerical employees than with the production employees. The respondent was, nevertheless, willing to abide by the agreement.
6Counsel for the objecting employees pointed out that those employees had not agreed to the proposed bargaining unit description. He was of the view that the applicant had shown no reason to override the usual "office, clerical and technical" description but made no further submissions on this point.
7We wish to emphasise, as did the first panel hearing this matter, that the Board has the obligation under subsection 6(1) of the Labour Relations Act ("the Act") to determine the unit of employees appropriate for collective bargaining. That obligation remains regardless of any agreement by the parties. The parties are, of course, free to enter into a voluntary recognition agreement without the Board's approval of any bargaining unit of employees thus represented by the union in their relations with the employer. Once the union seeks certification under the Act, however, it becomes subject to the requirements and processes of the Board as established by the Act and the Regulations thereunder. The Board encourages agreement between and among parties and settlement of matters in dispute where appropriate. But the Board will not accord to an agreement of the parties merely because they have agreed. Rather, it always remains to the Board to determine whether such an agreement conforms to its requirements, policies and practices, and whether any departure is justified. The acceptance or non-acceptance of an agreed-upon bargaining unit description which departs from the Board's usual practice can be determined only on the facts of each case.
8In the instant case, we are satisfied that the office and clerical employees constitute an appropriate unit and that there was no evidence that fragmentation would cause undue difficulties. We orally ruled that we would accept the proposed bargaining unit in the circumstances of this case. In considering the two policies, one favouring agreement and one favouring a particular bargaining unit configuration, we are of the view that the proposed unit does not offend the latter to the extent that we are prepared to reject the agreement between the applicant and the respondent.
9We emphasise that our acceptance of the proposed unit does not mean that we conclude that the technical employees are encompassed by the September 28, 1951 certificate.
10The parties are in disagreement about the inclusion in or exclusion from the bargaining unit of certain individuals. The applicant challenges the inclusion of the following individuals under paragraph 1(3)(b) of the Act: Mary Purcell (personnel and payroll clerk) and Bonnie Shean (plant nurse). It also challenges the inclusion of Valerie Beimers (computer supervisor) on the basis that she exercises managerial and confidential functions. The applicant further takes the position that Sandy Campbell (expeditor) should be included in the unit. The respondent contends that Jimmie Church (janitor) should be included in the unit. The Board hereby appoints a Labour Relations Officer to inquire into and report back to the Board on the duties and responsibilities of the above-named individuals.
11This matter is referred to the Registrar.