[1987] OLRB Rep. October 1336
1588-87-R International Woodworkers of America, Applicant v. Wire Rope Industries Ltd., Respondent v. Lumber and Sawmill Workers' Union, Local 2693, of the United Brotherhood of Carpenters and Joiners of America, Intervener
BEFORE: Patricia Hughes, Vice-Chair, and Board Members R. M. Sloan and D. A. Patterson.
DECISION OF THE BOARD; October 7, 1987
This is an application for certification in which the applicant has requested a pre-hearing representation vote.
The name of the respondent is amended to read "Wire Rope Industries Ltd.". "Lumber and Sawmill Workers' Union, Local 2693, of the United Brotherhood of Carpenters and Joiners of America" ("Local 2693") is added to the style of cause as intervener. Local 2693 is the current bargaining agent for the employees who are the subject of this application. Local 2693 did not file an intervention but its representative was in attendance at the meeting convened by the Labour Relations Officer pursuant to the Board's decision dated September 11, 1987.
The intervener and the respondent are parties to a collective agreement with a termination date of July 31, 1987 but continuing "from year to year thereafter unless either party desires to change or terminate" it. This application was made on September 4, 1987. The respondent raises certain issues relating to this agreement which are set out below.
The parties have agreed that there should be two bargaining units described as follows:
all employees of the company at Thunder Bay, save and except non-working foremen, persons above the rank of non-working foremen and office and sales staff [B.U. #1];
and
all office employees of the company at Thunder Bay, save and except manager, persons above the rank of manager, outside salesmen and persons covered by bargaining unit no. I [B.U. #2].
These are the bargaining units as described by the collective agreement referred to in paragraph 3 above.
Where the parties have agreed to the bargaining unit description(s), the Board usually strikes a voting constituency to reflect that agreement. This is particularly so where there is an existing collective agreement and the agreed-to units are identical to the bargaining units described in the agreement. It is often so even where the Board has concerns about the way in which the bargaining unit is described. The Board normally strikes the voting constituency and then the parties are given the opportunity to address the issue of the bargaining unit description at a hearing held after the vote has been taken.
As indicated, the parties here have agreed on the bargaining unit descriptions which appear in the collective agreement. However, there is only one person in bargaining unit no. 2. (To be clear, this is not a situation in which there are two employees in the unit, only one of whom has signed a membership card, but rather a situation in which the number of employees in the unit is only one.) Subsection 6(1) of the Labour Relations Act ("the Act") states that the Board is to determine the appropriate bargaining unit "but in every case the unit shall consist of more than one employee". The Board will not certify a union to represent a bargaining unit composed of one individual. Depending on the circumstances, that individual would either be "swept into" another unit or would be left without union representation. In this instance, the applicant is seeking certification by virtue of displacing the incumbent union, Local 2693. Local 2693 has represented the single employee in bargaining unit no. 2. There is no evidence before us or submissions made that the unit was ever composed of more than one person. The Board is now being asked by the applicant to certify it as the bargaining agent of the employees currently represented by Local 2693. The Board cannot continue the status quo by certifying the applicant, if successful, as the bargaining agent of the single employee in the proposed bargaining unit no. 2.
Accordingly, there is no point in striking a voting constituency reflecting the description of the agreed-upon bargaining unit no. 2 since the Board would not likely certify bargaining unit no. 2 on the information now before us. However, it is not for us but for the panel hearing submissions of the parties after the vote is taken to decide the appropriate bargaining unit(s) and how that single employee is to be treated. It is therefore necessary to strike a voting constituency which encompasses the broadest unit, reflecting the possible options at issue. It must be possible to reconstruct the eventual bargaining unit(s) from the voting constituency: Scarborough General Hospital, [1984] OLRB Rep. Dec. 1765. In this instance the possible options include the two bargaining units agreed to by the parties (as indicated, while this is not a likely result, this panel does not make a decision on this issue and it remains to be considered by the post-vote panel) or a single unit which would not except the sales staff (the job description of the single employee who appears to be in bargaining unit no. 2 is "inside sales representative"). (We note that the applicant originally applied for a single unit.)
Therefore, the Board determines that the voting constituency will be
all employees of the respondent at Thunder Bay, save and except non-working foremen, persons above the rank of non-working foremen, and outside salesmen.
CLARITY NOTE:
The Board notes that for purposes determining which employees are in the voting constituency, managers and persons above the rank of manager are excluded.
This description encompasses the employees who are covered by the two bargaining units described in the collective agreement. In order to ensure that the various options are left open by this voting constituency, each ballot will be segregated. The parties may address the issue of the appropriate bargaining unit(s) at a hearing after the vote has been taken (or may make written submissions relating thereto).
It appears to the Board, on an examination of the records of both the applicant and the respondent, that not less than thirty-five per cent of the employees of the respondent in the voting constituency described above were members of the applicant at the time the application was made. We note in this regard that the applicant has sufficient appearance of support regardless of whether we determine the voting constituency as above or whether we strike two voting constituencies mirroring the two bargaining units agreed to by the parties and described in the collective agreement.
In its reply, the respondent raises two objections to the applicant's application; although it does not request that a vote not be taken, one of these objections has the potential of postponing the vote until the matter has been resolved. In an "Annex" to its Reply, the respondent states:
Lumber and Sawmill Workers Union, Local 2693, of the United Brotherhood of Carpenters and Joiners of America (the Union) served Wire Rope Industries (the respondent) with notice to bargain on April 23rd, 1987 in accordance with the provisions of the collective agreement and Sections 53(1) and (2) of the Labour Relations Act (the Act). Since the Union did not commence to bargain within the sixty days following the giving of the notice the respondent's position is that the Labour Relations Board (the Board) should declare that the Union no longer represents the employees in the bargaining unit in accordance with Section 59(2) of the Act. Therefore, should the International Woodworkers of America (the applicant) otherwise meet the requirements of the Act, the ballot should be worded to provide employees simply with the choice of whether they wish the applicant to represent them or not.
In the alternative, should the Board not make such a declaration then the failure to bargain should be deemed to have the effect of continuing the collective agreement in effect until July 31, 1988, in which case the application by the applicant is not timely as required by Section 5(4) of the Act.
With respect to the first of these objections, that Local 2693 no longer represents the employees in the unit, although the respondent did not request that the vote be postponed, the Board would normally not hold the vote until the names to be placed on the ballot were established. It would not be desirable to complicate the matter by requiring employees to fill out more than one ballot in order to accommodate various combinations of eligible parties. There has been no application under subsection 59(2) of the Act filed with the Board. In any case, Local 2693 would not cease to represent the employees until a declaration to that effect had been made by the Board: no such declaration was made by the date of application and therefore at the time of application Local 2693 was still the bargaining agent of the affected employees. Accordingly, the name of Local 2693 properly belongs on the ballot. Under the circumstances, it is not necessary to hold a hearing to determine that matter prior to directing the vote. It is not sufficient to raise an issue which may have the effect of postponing the vote; the objection must also make out a prima facie case. In this instance, since there was no application under subsection 59(2) of the Act by the date of the application, the issue of whether Local 2693 continues to represent these employees is not before the Board.
The second objection made by the respondent is that the application is not timely. This is a matter that can be determined after the taking of a vote. At the Officer's meeting, the parties indicated that they are prepared to make written submissions to the Board on the respondent's objections. They may still choose to do so. If, however, they prefer to make oral argument on the matter of the bargaining unit, they may make oral submissions on timeliness at the same time.
Therefore, the Board directs the taking of a pre-hearing representation vote in this application.
All employees in the voting constituency on September 21, 1987 who have not voluntarily terminated their employment or who have not been discharged for cause between September 21, 1987 and the date the vote is taken will be eligible to vote.
The ballot of each employee who votes is to be segregated; further, the ballot box is to be sealed and the votes not counted until further order of the Board.
Voters will be asked whether they wish to be represented by the applicant or by the intervener in their employment relations with the respondent.
This matter is referred to the Registrar to make vote arrangements and to schedule a hearing at which the parties may address all outstanding issues, including the timeliness of the application and whether there should be one or two bargaining units and the description of such unit(s) and, in the event the Board determines that two units are appropriate and that there is only one employee in one of those units, the appropriate treatment of that employee.