United Steelworkers of America v. Herbie's Drug Warehouse Limited, 1987 CanLII 3126

[1987] OLRB Rep. November 1393

1260-87-R United Steelworkers of America, Applicant v. Herbie's Drug Warehouse Limited, Respondent v. Group of Employees, Objectors

BEFORE: Patricia Hughes, Vice-Chair, and Board Members D. A. MacDonald and C. A. Ballen­tine.

DECISION OF THE BOARD; November 10, 1987

1. In this application for certification, the Board, by decision dated September 4, 1987, appointed a Labour Relations Officer to inquire into and report back to the Board on the duties and responsibilities of a disputed employee, Vicki Campsall, under section 1(3)(b) of the Labour Relations Act ("the Act"). The respondent sought the exclusion of Vicki Campsall on the ground that, as "head cashier", she exercised managerial functions; the applicant took the position she did not exercise managerial functions and therefore she should have been included in the unit. (The parties had agreed that Loraine Ball, also classified as "head cashier", should be excluded from the unit under section 1(3)(b) of the Act.)

2. The Board also directed that votes be held for bargaining unit #1 (full-time unit) and bargaining unit #2 (part-time unit), reflecting the agreement of the parties. On the taking of the vote, more than fifty per cent of the ballots cast by employees in each bargaining unit were cast in Favour of the applicant. In the case of bargaining unit #1, there was one segregated ballot which would change the outcome of the vote.

3. There were no segregated ballots cast by employees in bargaining unit #2. Accordingly, a certificate shall issue to the applicant with respect to bargaining unit #2.

4. The segregated ballot cast in bargaining unit #1 was not cast by Vicki Campsall who tad left the employ of the respondent by the time of the vote. The segregated ballot was cast by (im Malette whose name was on the voters list, but whose right to vote had been challenged by he union when she attended to vote. Accordingly, she was allowed to vote and her ballot segregat­ed.

5. In a letter dated September 15, 1987, counsel to the union informed the Board that the union "concurs with the position of the respondent that the function of head cashier is properly excluded from the bargaining unit" and that, since in its view Kim Malette replaced Vicki Camp­s all as head cashier, she should be excluded from the unit and her ballot not counted. This would result in the union's certification for the full-time unit. The employer's counsel, in a letter dated September 16, 1987, states that Kim Malette was appointed as assistant to the head cashier and that there is only one head cashier, presumably Loraine Ball. Thus the employer contends that Ms. Malette be included in the unit and her ballot be counted. If Ms. Malette's ballot were counted, her voting preference would be revealed; accordingly, should she be found to be included in the unit, the Board would order another vote: SGS Supervision Services Inc., [1981] OLRB Rep. Oct. 1471. The respondent and applicant thus take positions with respect to Ms. Malette in opposition to those they took with respect to Ms. Campsall. The objecting employees' representative also takes the position that Ms. Malette's vote should be counted since he contends she is not manage­ment: he states she reports to the head cashier Loraine Ball and is paid an hourly rate rather than the salaried rate paid Ms. Ball. The parties acknowledged that a new vote was a possibility in the Consent and Waiver form which they signed when the vote was taken and counted on September 11, 1987. Ms. Malette herself has requested (in a letter received October 5, 1987) that her ballot be counted. She states that she merely did "the paper work" when Vicki Campsall left and that she exercised no "management authority (hiring firing)".

6. In its September 4, 1987 decision, the Board noted that the parties had agreed that "the voters list shall be fixed as of August 28, 1987". If the parties were held to that agreement and the list were determinative, Ms. Malette would be included in the unit since she was included on the voters list. Here, however, the union's contention is that she assumed a managerial position between August 28, 1987 and the date the vote was taken. The union contends that, although it took the view that Vicki Campsall did not exercise managerial functions, Kim Malette, who it says has replaced Ms. Campsall, does. The respondent continues to maintain Ms. Malette should be included, consistent with her presence on the agreed-to voters list, because she has not replaced Vicki Campsall. Both parties agree that the position of head cashier is excluded. The question, therefore, is whether Kim Malette was performing the duties of a head cashier at the operative time.

7. Paragraph 12 of the September 4 decision contained the following standard clause:

All employees in each bargaining unit who do not voluntarily terminate their employment or who are not discharged for cause between [September 4, 1987] and [September 11, 1987] will be eligible to vote. ("the eligibility clause')

Ms. Malette's name was on the voters list as an employee in the bargaining unit; she neither volun­tarily terminated her employment nor was she discharged for cause. She may have been "promot­ed", however, and as such would be excluded from the unit by operation of section 1(3)(b) of the Act. It is, of course, fundamental to the scheme of labour relations codified by the Act that employees and employer, as represented by management, maintain an arm's length relationship. We observe that the union's understanding is that Ms. Malette had assumed her managerial duties before the Board directed the vote but, presumably, after August 28, 1987. In that case, she would not be an employee on either of the days referred to in the eligibility clause. Even if she assumed them at a later date, on the union's account of events, she would not have been an employee on both dates in the eligibility clause, as she would have to be in order to be included in the unit. The phrases in the eligibility clause have been interpreted such that persons who assume managerial functions between the date the Board directs the vote and the date the vote is taken will not be eli­gible to vote even though they were on the voters list and did not exercise those functions on the date of application: see Canadian Westinghouse Company Limited, [1966] OLRB Rep. Sept. 372 in which the Board explained at paragraph 6:

6. The Board's standard direction for the taking of a representation vote, as quoted above, cites only two instances in which a person who was an employee in the bargaining unit on the date the vote was directed forfeits his eligibility to vote, namely, where he voluntarily terminates his employment or is discharged for cause before the date the vote is taken. The Board, however, has not attempted in its standard direction to define exhaustively all of the contingencies under which a person who was an employee in the bargaining unit when the vote was directed would cease to be eligible to vote. The Board has consistently interpreted its direction to mean that a person who, between the date of the direction and the date of the vote, has ceased to be a mem­ber of the bargaining unit, is disqualified from participating in the vote, whether because of vol­untary termination of employment, discharge for cause, indefinite lay-off in some circum­stances, or transfer to a position out of the bargaining unit. Stated another way, the policy of the Board is that a person must be an employee in the bargaining unit both on the date the vote is directed and on the date of the taking of the vote in order to be eligible to cast a ballot.

In that case, an individual whose right to vote was challenged at the taking of the vote, was an

employee in the bargaining unit on the date the vote was directed but was subsequently promoted to assistant foreman. The Board ruled that since he was not an employee in the unit at the time the vote was taken, he was not eligible to vote. (Also see The Regional Municipality of Durham, [1980] OLRB Rep. Jan. 90.)

8. In this instance, the policy underlying the statutory deeming of managers not to be employees requires that Ms. Malette be excluded from the unit if she has in fact assumed the posi­tion of head cashier.

9. Accordingly, the appointment of the Officer in the September 4, 1987 decision is amended to repeal the direction to inquire into the duties and responsibilities of Vicki Campsall; instead, the Officer is to inquire into and report back to the Board on the duties and responsibili­ties of Kim Malette under section 1(3)(b) of the Act on the date the vote was taken, September 11, 1987. It will be of assistance to the Board to have evidence before it not only with respect to the new duties and responsibilities of Ms. Malette, but also what the duties and responsibilities of head cashier are.

10. This matter is referred to the Registrar.