[1987] OLRB Rep. July 953
2702-86-R Hakim Samad, Applicant v. Energy and Chemical Workers Union, Respondent v. C. E. Jamieson & Co. (Dominion) Limited, Intervener
BEFORE: Robert J. Herman, Vice-Chair, and Board Members I. M. Stamp and E. G. F. Theobald.
APPEARANCES: George W. King for the applicant; Daniel Ublansky, Brian Van Rassel and Larry Girard for the respondent; D. S. Jovanovic and Amelio Fantin for the intervener.
DECISION OF THE BOARD; June 29, 1987
[1]. This is an application for decertification in which the Board, differently constituted, in a decision dated March 30, 1987, directed that a representation vote be taken as follows:
"5. The Board directs that a representation vote be taken of the employees of the intervener. Those eligible to vote are all employees of the intervener at its Windsor Plant, save and except supervisors and foreman, persons above the rank of supervisor and foreman, office and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken."
[2]. Pursuant to that direction a vote was held on April 15, 1987. Of those persons on the voters' list, 39 cast ballots, with 17 ballots marked in favour of continued representation by the respondent, and 17 ballots marked against the respondent. The remaining 5 ballots were segregated and not counted. The Report of the Returning Officer, setting out the results of the vote, was posted in the workplace and employees were advised of their opportunity to make representations with respect to any matter relating to the representation vote, and their obligation to file such representations with the Board by April 23,1987. The Notice to Employees accompanying the Report of the Returning Officer also indicated that if no such statements of desire to make representations were filed as required, "the Board may dispose of the application upon the material before it without further notice to the parties or the employees."
[3]. In response to written representations received from the intervener employer and the respondent union, a hearing was convened in order to consider the eligibility of the five persons who cast the segregated ballots. None of those five individuals themselves filed written representations with respect to their eligibility or appeared at the hearing into this matter.
[4]. At the commencement of the hearing the parties agreed that Dan Gravel was not eligi~ le to vote and his segregated ballot ought not to be counted. We therefore direct that Gravel's allot be destroyed and not counted.
[5]. The remaining four employees fall within two categories. Juan Cuevas and Manuel Cuevas were both employees at the time this application was filed. As required under the Board's Rules, the employer filed Schedules indicating the employees it submitted fell within the bargaining unit in question (Schedule A), and those employees regularly employed for not more than twenty-four hours per week (Schedule B). Employees on Schedule B would not be within the bargaining unit, which for purposes of this application is set out in the recognition clause of the collective agreement and excludes employees regularly employed for not more than twenty-four hours per week. The intervener employer therefore represented to the Board, by filing Schedule B containing the names of Juan and Manuel Cuevas ,that neither of those individuals was within the bargaining unit subject of this decertification application. Based on that representation, and the fact that no party disputed it, the Board proceeded with the application and determined the number of employees in the bargaining unit, and whether the applicant had obtained the voluntary signatures of over 45 percent of the employees in the unit. The employer now seeks to take the position that its prior representation, upon which the Board conducted its inquiry, was incorrect and that those two individuals were in fact in the bargaining unit at the time the application was filed, and at the time the vote was directed and the time the vote was held.
[6]. As the Board stated in Union of Canadian Transport Employees, [1985] OLRB Rep. Oct. 1541:
"This Board has consistently held that parties should not be permitted to later resile from agreements made in earlier stages of certification proceedings: see, for example, Diasons Press Limited, [1964] OLRB Rep. Aug. 215; Bertie District High School Board, [1964] OLRI3 Rep. Aug. 231, Warner Brothers Distributing (Canada) Limited, [1974] OLRB Rep. Dec. 883; and, I J'5 Restaurants Limited, [1977] OLRB Rep. July 465
For the same reasons that the Board will not allow parties to resile from their representations or agreements made in earlier stages of a certification proceeding, we take the view that the intervener employer cannot now resile from its agreement made at an earlier stage of this decertification proceeding. It would be both inequitable and an abuse of Board proceedings to allow the intervener employer to now assert the eligibility to vote of two employees whom it previously maintained before the Board were not properly within the bargaining unit. Indeed, the Board has acted upon that prior representation. As noted above, neither of these two employees has chosen to participate in this proceeding, and neither of them is asserting that he ought to have been eligible to vote. We are not prepared to conclude that the fact that they voted must mean that they felt they were properly in the bargaining unit. As we will not allow the employer to now assert the eligibility of Juan and Manuel Cuevas to vote, and as neither of them asserts it, they remain ineligible and their ballots shall be destroyed and not counted.
[7]. With respect to the other two employees Carlos Duran and Iasc Hector Juarez, there is no prior representation before the Board that these two individuals are outside the bargaining unit and ineligible to vote. The employer is therefore free to raise and argue their eligibility. Duran and Juarez were hired by the intervener subsequent to the filing of the application and the Schedules and on the evidence would fall within the bargaining unit. We are satisfied they were employed in the bargaining unit as of the date the vote was directed and as of the date the vote was held. They would accordingly meet the eligibility requirements set by the Board in directing the representation vote. The respondent union argues that neither ballot should be counted as the employer represented to the union, outside these proceedings, that neither Duran nor Juarez was within the bargaining unit. Although the union concedes that the language of the recognition clause in the collective agreement would include these individuals, it argues that the conduct of the employer, in representing to the union that these employees were part-time and not covered by the collective agreement, indicates the intention of the parties that these individuals are not part of the bargaining unit. Counsel submits that the parties' treatment of these individuals as excluded, before the vote was ordered, gives content to the recognition clause in the collective agreement. Interpreting the clause in light of the parties' behaviour indicates that these individuals are not covered by the scope clause of the collective agreement, and they are therefore not within the bargaining unit and
not eligible to vote. The union submits in effect that the employer is estopped from now arguing that these people are in the bargaining unit, given its behaviour in treating these people as excluded from such coverage. In support of this position the union relies on a previous decision of this Board, Kilgoran Hotels Limited carrying on business as Ye Olde Brunswick Tavern, [1975] OLRB Rep. May 431.
[8]. We are not persuaded by this submission. As we noted, Duran and Juarez meet the eligibility requirements set by the Board and their ballots would therefore ordinarily be counted. The employer has not in these proceedings made representations or conducted itself in such a fashion that we would preclude the employer from raising concerns about the eligibility of these individixals. Rather, the only reason suggested for either estopping the employer from arguing that Duran and Juarez are eligible, or for holding that they are ineligible to vote, is the conduct of the employer in the workplace in its interaction with the union. Whatever complaint or grievance the union may have with respect to that conduct, it cannot in these circumstances effect the eligibility to vote of the two individuals in question. In Kilgoran Hotels (supra), it is unclear whether the positions taken therein by the respondent union, from which that panel of the Board would not 4llow the respondent to resile, were positions taken in a proceeding before the Board. Given the chronology of events in that case, it is likely that the representations were made during the Board's proceedings and relied upon in some way by the Board. That decision would therefore be consistent with the decision we have reached in this proceeding with respect to Juan and Manuel Cuevas in not allowing the employer to resile from its prior agreement. Even if the representations by the respondent in Kilgoran Hotels did not form part of the Board proceeding and the Board therein estopped the respondent union from challenging the eligibility of the employees in question (and assuming we adopt the view that conduct extraneous to a Board proceeding can estoppe a party from arguing the eligibility of an employee to vote), there is insufficient evidence before us on which to conclude that the employer ought to be estopped. We have no evidence of detrimental reliance by or prejudice to the union.
[9]. Accordingly, for the reasons given above, we hereby direct that the ballots of Duran and Juarez both be counted and the results disclosed to the parties.
[10]. This matter is referred to the Registrar.