Energy and Chemical Workers Union v. MIS (Canada) Holdings Ltd., 1987 CanLII 3293

[1987] OLRB Rep. June 865

0296-87-R Energy and Chemical Workers Union, Applicant v. MIS (Canada) Holdings Ltd., Respondent V. Group of Employees, Objectors

BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. O. Shamanski and R. Montague.

APPEARANCES: Daniel Ublansky and Bryan Van Rassel for the applicant; Leon Paroian, James Renaud and Michael J. Dufraine for the respondent; Paul L. Mullins for the objectors.

DECISION OF THE BOARD; June 19, 1987

1. This is an application under the Labour Relations Act R.S.O. 1980 c. 228, as amended ("the Act"), in which the applicant, a trade union within the meaning of clause l(l)(p) of the Act, seeks certification as exclusive bargaining agent for certain employees of "MIS (Canada) Ltd." in Windsor, Ontario. The respondent's reply to the application indicates that its correct name is MIS (Canada) Holdings Ltd., and the title of this proceeding has been amended accordingly. The respondent will be referred to hereafter as "MIS".

The Jurisdictional Issue

2. MIS says its labour relations are not subject to the jurisdiction of this Board because they fall under federal jurisdiction by virtue of subsection 91(5) of the Constitution Act, 1867, which assigns exclusive jurisdiction over "Postal Service" to the parliament of Canada. The facts which the parties consider necessary to an assessment of this claim are not in dispute.

3. Postal service in Canada is provided by a Crown Corporation: Canada Post. Jurisdiction over its undertaking, including its labour relations, is undoubtedly federal. A customer who wishes to send a number of items by mail need only deliver them, properly addressed, to any post office or post box. Canada Post then sorts the items according to the location of the appropriate post office near the destination address and the postal code which pertains to that address. The items are then transported to the appropriate post offices for distribution by mail carriers. Items received at the destination post office are further sorted in accordance with the routes travelled by the individual mail carriers who deliver items of mail to their ultimate destinations.

4. Second, third and fourth class mail service is available for various kinds of printed matter and products including magazines and advertising materials. A customer wishing to have a large quantity of such items delivered by Canada Post will be charged a lower rate per item if the items have been properly labelled, pre-sorted (according to destination post office and mail carrier route) and bundled or bagged in accordance with Canada Post requirements.

5. MIS is in the business of preparing its customers' materials for mailing in accordance with Canada Post requirements. Ninety-five percent of its customers are U.S. based. Customer material from the U.S. is picked up at Canada Customs by MIS, which pays (and bills its customer for) any customs duties payable on the material. The customer's materials - multiple copies of advertising programs, products or magazines - arrive at MIS in "raw" form. In some cases, MIS then inserts the items in envelopes which it addresses. In other cases, addressing of items is done on their face without insertion into envelopes. In either event, the item or envelope is stamped with an "indicia number" unique to MIS, which enables Canada Post to verify the charges payable by MIS with respect to the mailing of the items. MIS then sorts the items into bags obtained from Canada Post and labels the bags in accordance with Canada Post requirements. These bags are then placed in containers obtained from Canada Post, which are also labelled in accordance with Canada Post requirements. Canada Post trucks pick up these containers at the premises of MIS at a loading dock built to Canada Post's specifications. Canada Post monitors mail received from MIS to assess the degree of compliance with its regulations and requirements and to determine the amounts payable by MIS for the use of the postal service. From time to time, MIS employees attend training programmes established and carried on by Canada Post.

6. Including its executive, office and maintenance employees as well as employees engaged in the actual preparation of mail for mailing, MIS employs about fifty people in this operation. In 1986, MIS prepared 40 million pieces of material for mailing throughout Canada (and to some foreign destinations). Of the $12 million in revenues earned by Canada Post at Windsor in 1984-85, $6.5 million came from MIS. Seventy-five percent or more of the gross revenue received by MIS is paid to Canada Post for postage.

7. MIS acknowledges that the information and material it receives from Canada Post is information and material which could be obtained from Canada Post by any of its customers. The special rates paid by MIS are rates available to any customer whose mailing consists of more than the minimum number of pieces and who is prepared to and does do the required pre-sorting, bagging and labelling.

8. Counsel for the respondent argues that employees of MIS are in the same position as the employees whose labour relations were found to fall within federal jurisdiction in Letter Carriers' Union of Canada v. Canadian Union of Postal Workers et al. (1973), 1973 CanLII 183 (SCC), 40 D.L.R. (3d) 105, [1975] 1 S.C.R. 178 ("the Letter Carriers' case"). Counsel observes that subsection 91(5) of the Constitution Act, 1867, speaks of "Postal Service", not "The Postal Service." Employing a metaphorical allusion to the truck haulage involved in the Letter Carriers' case, counsel submits that if the "drayage" of mail is "Postal Service", then the sorting and filling of bags with mail is "Postal Service" within the meaning of subsection 91(5) of the Constitution Act, 1867. He argues that the operations of MIS are part of the postal service of Canada Post because the sorting and bagging of mail done by MIS would otherwise have been done by Canada Post and is paid for out of revenues which would otherwise have been revenues of Canada Post. In answer to the observation that the functions performed by MIS employees are functions which could be performed by employees of customers of Canada Post, counsel argues that the labour relations between customers of Canada Post and such of their employees as might be engaged in the sorting and bagging of mail would also fall within the federal jurisdiction by reason of subsection 91(5) of the Constitution Act, 1867.

9. Counsel for the applicant argues that the LetterCarriers' case is distinguishable from this one because the employees involved there were performing part of Canada Post's functions in the postal service under the supervision of Canada Post pursuant to the terms of a contract between Canada Post and their immediate employer which made their immediate employer the agent of Canada Post for the picking up and delivery of mail. Here, counsel observes, there is no contract between Canada Post and MIS whereby MIS acts as agent for Canada Post in the provision of mail service. It is not enough, he argues, to say that the work performed by employees of MIS is analogous to work performed by employees engaged in the work of Canada Post. In that regard, he submits that the position of MIS is analogous to that of the various agents and brokers dealt with in such cases as Kuehne & Nagel International Ltd., [1979] 1 Can. LRBR 156; Otter Freightways Limited, [1975] OLRB Rep. Jan. 1; Airgo Agency Ltd., [1982] OLRB Rep. Sept., 1233 and Re annet Freight Cartage Ltd., and Teamsters Local 419 (1975), 1975 CanLII 2218 (FCA), 60 D.L.R. (3d) 473 (F.C.A.).

10. The basic principles governing constitutional jurisdiction over labour relations were summarized by Mr. Justice Beetz in Montcalm Construction Inc. v. Minimum Wage Commission et al. (1978), 1978 CanLII 18 (SCC), 93 D.L.R. (3d) 641, [1979] 1 S.C.R. 754 at pages 652-653 D.L.R., 768-769 S.C.R.:

...Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule: Toronto Electric Com'rs v. Snider et al., 1925 CanLII 331 (UK JCPC), [1925] 2 D.L.R. 5, [1925] A.C. 396, [1925] 1 W.W.R 785. By way of exception however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject: Reference re Industrial Relations and Disputes Investigations Act, etc., 1955 CanLII 1 (SCC), [1955] 3 D.L.R. 721 [1955] 5.C.R. 529 (the Stevedoring case). It follows that primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence; thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one: Reference Minimum Wage Act of Saskatchewan to an employee of Revenue Post Office, 1948 CanLII 36 (SCC), [1948] 3 D.L.R. 801, 91 CCC. 366, [1948] S.C.R. 248 (the "Revenue Post Office case"); Commission de Salaire Minimum v. The Bell Telephone Co. of Canada, (1966), 1966 CanLII 1 (SCC), 59 D.L.R. (2d) 145, [1966] S.C.R. 767 (the "Bell Telephone Minimum Wage case"); Letter Carriers' Union of Canada v. Canadian Union of Postal Workers et al. (1973), 1973 CanLII 183 (SCC), 40 D.L.R. (3d) 105, [1975] 1 S.C.R. 178, [1974] 1 W.W.R. 452 (the "Letter Carriers' case"). The question whether an undertaking, service or business is a federal one depends on the nature of its operation: Pigeon J. in Canada Labour Relations Board, et al. v. City of Yellowknife, (1977), 1977 CanLII 230 (SCC), 76 D.L.R. (3d) 85 at pp.89-90, [1977] 2 5CR. 729 at p. 736, 14 N.R. 72. But, in order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of "a going concern", (Martland, J. in the Bell Telephone Minimum Wage case at pp. 148-9 D.L.R., p. 772) 5CR. without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity: Agence Maritime Inc. v. Canada Labour Relations Board et al. (1969), 1969 CanLII 109 (CSC), 12 D.L.R. (3d) 722, [1969] S.C.R. 851 (the "Agence Maritime case"); the Letter Carriers' case.

Parliament's authority over "postal service" is broad enough to exclude provincial jurisdiction over employment and labour relations of Crown employees employed in the public post office: In the matter of a Reference as to the application of the Minimum Wage Act of Saskatchewan to an employee of the Revenue Post Office, 1948 CanLII 36 (SCC), [1948] 3 D.L.R. 801, [1948] S.C.R. 248.

11. The issue in the Letter Carriers' case was whether the Saskatchewan Labour Relations Board had jurisdiction to certify a trade union as collective bargaining representative of a unit of truck drivers employed by M & B Enterprises Ltd. ("M & B"). M & B had seven contracts with the Post Office for delivery and collection of mail. Six of those contracts involved delivery of bags of mail between post offices along a highway route. The other contract covered delivery of mail within the City of Regina. This involved delivery of bags of mail to urban relay boxes, delivery to addressees of special delivery mail, registered letters, parcels and C.O.D.'s (including collection of amounts due on the latter) and pick up of mail from the red letter boxes. All drivers employed by M & B to perform work under these contracts had to be acceptable to Post Office officials; each also had to be fingerprinted and take an oath prescribed by the Post Office. The Post Office gave each driver keys to Post Office facilities, an identification card which he was required to carry at all times and a pamphlet of instructions with respect to his duties as a "carrier." The Supreme Court described the constitutional issue this way:

…it has been established that it is not within the competency of a provincial Legislature to legislate concerning industrial relations of persons employed in a work, business or undertaking coming within the exclusive jurisdiction of the Parliament of Canada. There can be no doubt that the subject-matter of the postal service is expressly assigned to the exclusive legislative authority of Parliament under s. 91(5) of the British North America Act, 1867 (U.K.), c. 3, and that employer and employee relations in that service are correspondingly within that authority. If authority were needed for this latter propostion, it is to be found in Reference re Minimum Wage Act of Saskatchewan, 1948 CanLII 36 (SCC), [1948] 3 D.L.R. 801,91 C.C.C. 366, [1948] 5.C.R. 248, particularly per Rinfret, C.J., at pp. 803-4.

…In any event, it was common ground between the parties in the present case in this Court and in the Court of Appeal that s. 108(1) of the Canada Labour Code was validly enacted by Parliament and that the postal service is a "federal work, undertaking or business" within the meaning of this section, and it follows, in my view, that if the truck drivers employed by M & B Enterprises Ltd. were found to be employees who are employed upon or in connection with the operation of the Post Office, the Saskatchewan Labour Relations Board would be without jurisdiction to entertain the application for certification.

[emphasis added]

The Supreme Court found (at p. 109 DLR) that the work performed by the employees of M & B "... is essential to the function of the postal service and is carried out under the supervision and control of the Post Office authorities" and (at p. 111) that "the work of drivers of M & B Enterprises Ltd. as performed under its contract with the Post Office was an integral part of the effective operation of the Post Office ..".

12. Counsel for MIS also relied on the decision of the Supreme Court of Canada in the Stevedoring case, 1955 CanLII 1 (SCC), [1955] S.C.R. 529. There the question was whether federal labour relations legislation applied to stevedores supplied by Eastern Canada Stevedoring Co. Ltd. to load and unload ships pursuant to contracts between that company and the operators of the ships. The judgments of various members of the court noted that, even when performed by a land based crew of stevedores, by mercantile custom the loading and unloading of a ship was regarded as the responsibility of the shipowner or charterer, rather than of the cargo owner, and was carried on under the direction of the ship's Master. The stevedores in question performed their work under the direct supervision of ship's officers using ship's equipment, and their work was paid for by the shipowners or charterers. Most members of the court found that the work of stevedores was an "integral" or "essential" part of the operation of a shipping line and that the regulation of employment of stevedores was thus an essential part of jurisdiction over "Navigation and Shipping", a federal head of power.

13. In Northern Telecom Ltd. v. Communications Workers of Canada et al. (1979), 1979 CanLII 3 (SCC), 98 D.L.R. (3d) 1, the Supreme Court of Canada made this observation about the method of analysis necessary in determining constitutional jurisdiction in labour matters:

A recent decision of the British Columbia Labour Relations Board, Re Arrow Transfer Co. Ltd., [1974] 1 Can. L.R.B.R. 20, provides a useful statement of the method adopted by the Courts in determining constitutional jurisdiction in labour matters. First, one must begin with the operation which is at the core of the federal undertaking. Then the Courts look at the particular subsidiary operation engaged in by the employees in question. The Court must then arrive at a judgment as to the relationship of that operation to the core federal undertaking, the necessary relationship being variously characterized as "vital", "essential" or "integral". As the chairman of the Board phrased it, at pp. 34-5:

In each case the judgment is a functional, practical one about the factual character of the ongoing undertaking and does not turn on technical, legal niceties of the corporate structure or the employment relationship.

In both the Letter Carriers' case and the Stevedoring case, the work performed by the employees in question was work performed for the benefit of the core federal undertaking at its request and under its supervision pursuant to a contract between it and the direct employer of those employees. The existence and terms of such contracts were important characteristics of the relationship between the core federal undertaking and the operation in which the employees were engaged, and in both cases the court found that relationship "vital", "essential" or "integral."

14. The core federal undertaking in this case is the postal service operated by Canada Post. MIS is a user of Canada Post's services, not a performer of those services. It is a customer of Canada Post, albeit a very large and very sophisticated customer. Functionally, it is interposed between Canada Post's postal service and its customers, who might otherwise have been direct customers of Canada Post. It performs work for the benefit of those customers pursuant to contracts with those customers. It is, in effect, a mail service broker.

15. The relationship between Canada Post and MIS is analogous to that between a federally regulated carrier and a freight forwarder who solicits freight from customers and arranges with the carrier for the delivery of freight in volume. In Re Cannet Freight Cartage Ltd., and Teamsters Local 419, supra, the employees of such a freight forwarder worked in premises leased from the Canadian National Railway ("CN"), where they loaded the freight collected by their employer into freight cars provided by CN. The Federal Court of Appeal rejected the argument that this brought those employees within the ambit of the Canada Labour Code:

In my view, whether or not employees whose work is physically upon or in connection with a railway may be said to be employed "upon or in connection with" the railway within s. 108 read with s. 2 of the Canada Labour Code must be determined, keeping in mind the constitutional limitations on Parliament's powers in the labour field, having regard to the circumstances in which the work takes place. Clearly a person employed by the railway company to carry out a part of the transportation services provided to its customers falls within those words even though he does not physically come in touch with the right of way or rolling stock. Just as clearly, a person working for a local businessman in a Province does not fall within those words even though his work, in connection with that man's purely local operation, requires that he perform a large part or all of his services physically on the railway's right of way or rolling stock.

For example, if the railway has pick-up service in a city as a part of its overall transportation service, I should have thought that the employees concerned would be regarded as employed in connection with the railway. If, on the other hand, the railway merely supplies railway cars to its customers to be loaded by them and unloaded by consignees, I should have thought that the employee of the consignor, while loading the car for their employer, would continue, from a constitutional point of view, to be working upon or in connection with their employer's business and would not pro tem become railway workers.

When the problem in this case is so approached, in my view, it is clear that the employees in question were not employed upon or in connection with the Canadian National Railway. They were employees of the applicant loading freight on a railway car under arrangements whereby the car was to be loaded by the shipper and not by railway employees.

The Ontario Divisional Court came to the same conclusion about a similar freight forwarding business in Re The Queen and Cottrell Forwarding Co. Ltd., (1981), 1981 CanLII 1896 (ON HCJ), 33 O.R. (2d) 486, in which the court said, referring to the decision in Cannet:

… While the decision of the Federal Court of Appeal is not binding upon this Court it is certainly persuasive. In any event, I agree with the decision with certain amplifications. The railway company is the only body carrying on the interprovincial undertaking and it has the physical works as well. Clearly, if an individual customer of Cottrell wished to ship goods to the west, it could contract with the railway company to ship such goods. The mere fact that by contract Cottrell agrees with that individual customer to enter into the contract with the railway company and become the shipper itself, does not make Cottrell anything other than a shipper. The shipment is merely part of an over-all contract and a person who has no tangible or physical property under its control to operate an undertaking cannot, by contract, make himself a person carrying on an undertaking within the meaning of s. 92(10)(a) of the British North America Act, 1867. Cottrell is not carrying on an undertaking or operation but is merely providing a service by contract. To hold otherwise would mean that any travel broker or other person engaged in general commerce could, by contract, provide interprovincial undertakings, even though he had no facilities whatsoever, and thereby claim that he was not subject to provincial jurisdiction. This would be unreasonable interpretation of the section in question.

See also Airgo Agency Limited, [1982] OLRB Rep. Sept. 1233 and Otter Freightways Limited, [1975] OLRB Rep. Jan. 1 in which this Board (differently constituted) observed, with reference to the Letter Carriers' case, that "had the arrangement been one of numerous customers asking the trucking firm to deliver mail to the Post Office the relationship with the Post Office would have been quite collateral or secondary."

16. Customs brokers are similarly interposed between a federal undertaking (Canada Customs) and the customers (importers) who would otherwise deal directly with that federal undertaking. In Kuehne & Na gel International Ltd., [1979] 1 Can LRBR 156, the British Columbia Labour Relations Board rejected the argument that labour relations between customs brokers and their employees fell within federal jurisdiction, observing (at p. 167) that:

it is a mistake to assume that because a service offered by an employer relates to or is somehow connected with a branch of the Federal Government, the employment relations of that employer lose their independent constitutional value. If that were so, then an employer whose employees offer counsel or advise in relation to Federal income tax laws and, to carry the analysis to its absurd extreme, a lawyer offering advice and legal services to clients in relation to all manner of federal agencies and programs, would be subject in their employment relations to the Canada Labour Code. The point is that the services offered by such employers, like the services offered by a custom-house broker, are extended and provided to the public. The services are not conceived nor made available for the purpose of becoming or being an indispensable cog in the great wheel of the Federal Government; the Federal Government is quite capable of carrying on its functions in the absence of the employers and their employees who may earn a livelihood by assisting members of the public in their relations with the Government."

The British Columbia Supreme Court came to the same conclusion in Pacific Customs Brokers Ltd., v. Office & Technical Employees' Union et al., 1980 CanLII 508 (BC SC), [1980] 4 W.W.R. 587, in which it said:

Customs brokers in my view do not perform any function essential to the maintenance or continuance of the customs service. Undoubtedly they simplify the collector's task because they are experts in the same way as income tax consultants are experts but they are not essential. The customs service could deal directly with the public and vice versa, if the customs broker did not exist. Albeit the process would be more cumbersome for both sides.

17. It is not in any way essential or necessarily incidental to Parliament's exercise of exclusive jurisdiction over "Postal Service" that it have jurisdiction over labour relations between customers who make direct use of Canada Post's services and those of the customers' employees who handle items destined for the post office. We reject the respondent's argument that Parliament has such jurisdiction. If the term "mail" as used in counsel's argument includes mailable material destined for but not yet received by Canada Post (or perhaps some other entity operating an analogous "postal service" undertaking), then we reject the argument that the decision in the Letter Carriers' case stands for the broad proposition that the transportation of "mail" itself constitutes "Postal Service" and we reject counsel's elaboration thereon that the sorting and filing of bags with "mail" constitutes "Postal Service." Employees of a customer of Canada Post would not pro tem become postal workers while transporting, sorting or bagging "mail" for their employer. MIS does not become a "Postal Service" within the meaning of Section 91(5) of the Constitution Act, 1867, nor an integral or essential part of Canada Post's "Postal Service" while preparing its customers' materials for mailing.

18. After hearing and considering the submissions of counsel, for the foregoing reasons we concluded that the labour relations between MIS and the employees for whom the applicant seeks certification do not fall within federal jurisdiction. We ruled orally at hearing that, for reasons which would later be (and have now been) delivered, this Board did have jurisdiction to and would proceed to deal with the application on its merits. Thereafter, only Mr. Renaud remained for the respondent and, apart from his filing lists of the names of persons whom the respondent claimed were employed in the bargaining unit on the application date, through Mr. Renaud the respondent declined the opportunity to participate in the hearing of the application on its merits.

The Merits of the Application

19. Counsel for the objecting employees requested that the Board extend the terminal date herein so as to permit them to rely on evidence of objection to certification filed after May 12, 1987, the terminal date originally fixed for this application. Counsel did not dispute the fact that Notices to Employees in Form 6 were posted in the workplace on May 6, 1987. Those notices informed all employees of the terminal date and of the requirement of section 73 of the Board's Rules of Procedure that evidence of objection by employees to certification of the applicant be filed on or before that terminal date. Counsel said his unavailability at the time was the only reason for the late filing. We ruled that the terminal date would not be extended for that reason and, accordingly, that the documents filed would not be entertained as evidence of objection to certification of the applicant. Apart from this limitation on the evidence which could be presented, the objecting employees remained entitled to and did (through their counsel) participate in the hearing of the application.

20. We find that the unit of employees of the respondent appropriate for collective bargaining in this application is:

all employees of the respondent at Windsor, Ontario, save and except supervisors and those above the rank of supervisor.

In this description, "supervisor" means a person who would be excluded by operation of clause I (3)(b) of the Act by reason of his or her exercise of managerial functions. We note that this description was agreed to by the objectors, whose counsel conceded that their inclusion in or exclusion from the unit would turn on whether they are "supervisors" in the sense just described. But hr its geographic scope and the substitution of "supervisor" for "manager", this is the unit described as appropriate by the respondent in its reply. The geographic scope of the unit described in the application for certification was limited to 3215 Jefferson Blvd., Windsor. No one opposed the applicant's request at hearing that the unit have municipal scope, in accordance with the Board's usual practice. The applicant's representation that the only employees in the bargaining unit on the application date were those employed at 3215 Jefferson Blvd. was uncontradicted.

21. The lists filed by the respondent name 23 persons at work in the bargaining unit on the application date and 6 not at work on that date: 4 by reason of indefinite layoff, 1 on pregnancy leave and one absent on workers' compensation. The last mentioned individual had last worked April 2, 1987 and was expected to return May 11, 1987 and was the only one of the 6 who would be regarded as an employee in the bargaining unit on the application date for the purpose of the count, having regard to the Board's "30-30" rule. In addition to the 24 persons thus identified by the respondent's lists as employees in the bargaining unit on the application date for the purpose of the count, the applicant named eight others whom it said were also employees in the unit on the application date. With respect to two of the eight - Terry Dugdale and Wayne Jenkins - the applicant's representation that they were employed in the unit on the application date was unchallenged at hearing. The remaining six are the objectors, who challenge their inclusion in the unit as of that or any other date on the ground that they were and are "supervisors" in the sense described in the preceding paragraph.

22. Thus, there were between 26 and 32 employees in the unit on the application date, depending on whether any one or more of the objectors was a "supervisor" on that date. On the basis of membership evidence filed by the applicant, we are satisfied that 21 of the 26 persons whose employment in the unit on the application date is not in dispute were members of the applicant on May 12, 1987, the terminal date fixed for this application and the date ("the assessment date") which we determine under clause 103(2)(j) of the Act to be the time for ascertaining membership for the purposes of subsection 7(1) of the Act. No matter how many of the six objectors were employees in the bargaining unit on the application date, and even if none of them was a member of the applicant on the assessment date, it is clear that over fifty-five percent of the employees in the bargaining unit on the application date were members of the applicant on the assessment date in any event. Accordingly, it is not necessary for the disposition of this application to determine whether any or all of the objectors is a "supervisor": Robin Hood Multifoods Limited, [1985] OLRB Rep. July 1159. (It also follows that the objectors' statements of desire would not have affected the outcome of this application even if they had been treated as evidence of opposition by their signatories to certification of the applicant, because they were not numerically relevant: see Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138.) The status of any or all of the six objectors may be the subject of an application to the Board under subsection 106(2) of the Act by either the employer or the trade union if they are unable to resolve those questions in collective bargaining.

23. None of the parties having suggested there is any reason to exercise our discretion under subsection 7(2) to order a vote, a certificate shall issue to the applicant with respect to the bargaining unit described in paragraph 20.