[1987] OLRB Rep. March 440
2906-86-R; 2907-86-R St. Catharines Typographical Union No. 416, Applicant v. 570662 Ontario Limited, carrying on business as We're Econoprint Fast, Respondent
BEFORE: Judith McCormack, Vice-Chair, and Board Members D. A. MacDonald and H. Peacock.
APPEARANCES: M. Farson, L. Trachuk, Richard Weatherton and B. Halden for the applicant; David Hagarty and Rod Joanisse for the respondent; Richard D. Penner and Allan Roussy for a group of employees.
DECISION OF THE BOARD; March 3, 1987
The name of the respondent is amended to read: "570662 Ontario Limited".
These are two applications for certification in which certain matters have already been addressed by Board decisions dated February 5, 1987 ("the Gray panel decision") and February 16, 1987 ("the Tacon panel decision").
The parties were able to agree on partial descriptions of the bargaining units as follows:
Bargaining Unit #1
All employees of the respondent in St. Catharines, Niagara Falls, and Welland, Ontario, save and except the president, the accountant, the area supervisor, the production supervisor, the art director and persons regularly employed for not more than twenty-four hours per week.
Bargaining Unit #2
All employees of the respondent in St. Catharines, Niagara Falls and Welland, Ontario regularly employed for not more than twenty-four hour per week, save and except the president, the accountant, the area supervisor, the production supervisor and the art director.
The parties had previously identified a number of positions which the respondent claimed should be excluded from the bargaining unit (and recited as excluded in the bargaining unit description) by virtue of section 1(3)(b) of the Labour Relations Act. The applicant disputed this claim.
Rather than appointing a Board Officer to conduct an examination of the disputed positions at that point, the Tacon panel found that this was an appropriate case in which to require the respondent to file a written statement of the duties and responsibilities attached to the disputed positions. A hearing was then scheduled for the following week in which it was anticipated the Board would hear evidence on this dispute directly from the parties.
Subsequent to the Tacon panel hearing, the respondent filed a set of job descriptions in which the duties and responsibilities of the disputed positions were set out in very general terms.
At the commencement of the hearing before us, counsel for the applicant raised two preliminary matters. Firstly, she argued that the material filed by the employer with respect to positions in the accounting and administration area did not disclose a prima facie case that the positions should be excluded from the bargaining unit. Secondly, she took the position that the employer's failure to produce the individuals at the hearing whose positions were disputed should result in a dismissal of its claim with respect to those persons not produced. The only persons whose positions were in dispute who attended the hearing were two store managers who represented a group of objectors.
Given that the onus of proof was on the respondent making the allegations, that the hearing was structured differently than an examination and that the material filed by the respondent was so vague, the Board determined that the most expeditious way of handling the dispute was to reserve on the preliminary matters and proceed to hear all the available evidence. In view of the Board's eventual disposition of the matter described below, we do not find it necessary to rule on the preliminary matters at all.
A group of objectors also appeared at the hearing to request an extension of the terminal date fixed in these matters, so that an untimely statement of desire filed by the objectors in opposition to the union would be accepted by the Board. After hearing the submissions of the parties, the Board declined to extend the terminal date. We advised the parties that our reasons would appear in our written decision. We now provide those reasons.
Richard Penner, who spoke on behalf of the objectors, told the Board that he had seen the Board's Notice to Employees of Application for Certification and of Hearing when it was posted in various locations in the work place. It was not disputed that these forms were posted on January 27, 1987. The terminal date was fixed for February 3,1987, one week later. Mr. Penner admitted that he had read the notices, although he had not read them very carefully as he was under the impression that he would not be part of the bargaining unit. As a result of reading the notices, he was also aware that there would be a hearing in this matter. However, it was only after the hearing before the Tacon panel on February 13, 1987 when the employer advised him that his position was in dispute that he circulated the statement of desire. That statement was filed with the Board on February 19, 1987, almost a week after the first day of hearing and more than two weeks after the terminal date. The Notice to Employees posted by the Board specifically stipulates that a statement of desire must be filed before the terminal date of February 3, 1987 and states that any statement of desire not in compliance will not be accepted by the Board.
Section 73(1) of the Board's Rules of Procedure sets out the following requirements for membership evidence:
Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a declaration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,
(a) is accompanied by,
(i) the return mailing address of the person who files the evidence, objection or signification, and
(ii) the name of the employer; and
(b) is filed not later than the terminal date for the application.
- As the Board commented in Addressograph-Multigraph of Canada Limited, [1968] OLRB Rep. March 1183, the wording of section 73(1) is mandatory and evidence which does not meet its requirements "shall not be accepted by the Board". The Board has consistently required strict compliance with these provisions (see Addressograph-Multigraph, supra). In The Westin Hotel, [1986] OLRB Rep. Oct. 1486, the Board commented as follows:
It is our view that the terminal date, and Rules relating to it, are not technical matters. Furthermore, the need for clear rules and their consistent application requires the Board to make it clear to parties when their documents will be considered filed and when all evidence must reach the Board. The question of the appropriate terminal date is not equivalent to the failure to name an employer on a petition or the failure to designate the section under which a complaint has been made, situations in which amendments are permitted; rather, as pointed out above, it addresses a matter of significance in labour relations: the date at which all parties can be satisfied all evidence must be filed if it is to be considered by the Board.
In this case, Mr. Penner's submissions can be reduced to the proposition that because he believed he was not in the bargaining unit, he did not take the appropriate action until it was too late.
The Board's Notice to Employees also sets out a description of the bargaining unit applied for by the applicant. In this case, the notices included a description of full-time and part-time bargaining units as follows:
All employees of the Respondent in St. Catharines, Ontario, Niagara Falls, Ontario, Welland, Ontario save and except President, Accountant, Supervisor, and persons above such ranks and employees employed less than 24 hours per week.
All part-time employees of the Respondent in St. Catharines, Ontario, Niagara Falls, Ontario and Welland, Ontario employed less than 24 hours per week.
Mr. Penner maintains that he considered that his position of store manager was above the rank of a supervisor and thus he concluded that he was not in the bargaining unit. This is inconsistent with the job descriptions filed by the respondent which describe store managers as reporting to supervisors, and set out the store managers in a subordinate position to supervisors in a promotion schematic. The respondent also assured the Tacon panel that store managers ranked below supervisors at the hearing on February 13, 1987. However, Mr. Hagarty suggested that the employer may have misled Mr. Penner in this regard.
On the basis of the representations and material before us, we are satisfied that employees had reasonable notice of these proceedings. This is not a case where the description of the bargaining units posted in the Notice to Employees was amended or expanded subsequent to the posting. Nor will the dispute with respect to the composition of the bargaining unit have the effect of expanding that description, regardless of how it is finally resolved. Moreover, the terms of the Notice to Employees and the bargaining units described therein should have alerted Mr. Penner to the possibility that his position might be included in the bargaining unit.
Even assuming, without finding, that the employer did mislead Mr. Penner in the manner Mr. Hagarty described, we would not consider that sufficient grounds for extending the terminal date. As the Board pointed out in Nick Masney Hotels Limited, [1968] OLRB Rep. Dec. 961, employees rely on the advice of their employer with respect to this kind of issue at their peril. There were a number of options available to Mr. Penner if he wished to clarify his legal position. If he chose not to pursue them, the Board cannot now salvage his case for him without doing some damage to the integrity of the terminal date system. As a result, we declined to extend the terminal date. Consequently, we were not prepared to accept the statement of desire in accordance with Rule 73(1).
We note that the Gray panel contemplated the possibility that an extension of the terminal date might be requested as a result of the possibility of amendments to the applicant's applications, which were subsequently granted by the Tacon panel. There was no suggestion or allegation that the objectors' request before us was made on the basis of any of the matters canvassed by the Gray panel.
As a result of our ruling on this point, and a change in the applicant's position with respect to one of the disputed positions, it became clear that the dispute with respect to the composition of the bargaining units could not affect the applicant's right to certification in either application. On the basis of the evidence before us, we determined that more than fifty-five per cent of the employees of the respondent in each of bargaining unit #1 and bargaining unit #2 at the time the applications were made were members of the applicant on February 3, 1987, the terminal date fixed for this application and the date which the Board determined, 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. We therefore decided that interim certificates would issue for each of the bargaining units described above and advised the parties accordingly. Formal certificates must await the resolution of the bargaining unit dispute.
We note that in arriving at this determination, we reviewed the form of membership evidence carefully with the concerns raised by the Gray panel in mind, and we were satisfied that the membership evidence conformed to the Labour Relations Act, the Board's Rules of Procedure, and the jurisprudence thereunder.
By this time, it was late in the day and the circumstances of the case had changed significantly from those the Tacon panel had addressed. We therefore appointed a Board Officer to inquire into and report back to the Board on the dispute with respect to positions occupied by the following individuals:
Allan Roussey, store manager, was challenged by the respondent on the basis that he exercised managerial functions within the meaning of section 1(3)(b) of the Act.
Nancy Green, store manager, was challenged by the respondent on the basis that she exercised managerial functions within the meaning of section 1(3)(b) of the Act.
Lyn Larson, store manager, was challenged by the respondent on the basis that she exercised managerial functions within the meaning of section 1(3)(b) of the Act.
Julie Cullen, accounting and administration, was challenged by the respondent on the basis that she was employed in a confidential capacity in matters relating to labour relations.
Tracy Kimpel, accounting and administration, was challenged by the respondent on the basis that she was employed in a confidential capacity in matters relating to labour relations.
Paul Woodward, sales executive, was challenged by the respondent on the basis that he was employed in a confidential capacity in matters relating to labour relations.
Lynn Kapkey, sales, was challenged by the respondent on the basis that she was an employee of another company and also on the basis that she exercised managerial functions within the meaning of section 1(3)(b) of the Act.
Gary Bowering, maintenance, was challenged by the respondent on the basis that he was not an employee of the respondent.
- This matter is referred to the Registrar.