Ontario Labour Relations Board
[1988] OLRB Rep. January 12
2142-87-R United Steelworkers of America, Applicant v. Caddiford Investments Limited, Respondent
BEFORE: Nimal V. Dissanayake, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
DECISION OF THE BOARD; January 14, 1988
This is an application for certification in which the parties met with a Labour Relations Officer on the day scheduled for hearing of this matter, reached agreement on most matters in dispute between them and further agreed to waive their right to a formal hearing in the matter.
The name of the respondent is amended to read: "Caddiford Investments Limited".
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in its M.B.M. Ceramics Division in the Municipality of Metropolitan Toronto, save and except supervisors and foremen, persons above the rank of supervisor and foreman, office, clerical and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
While the parties were agreed as to the description of the bargaining unit, they were in dispute as to whether certain persons were in the unit so described. While the respondent claimed that these six individuals were employees for the purpose of the Act, the applicant took the position that by virtue of section 1(3)(b) they should be excluded.
The Officer then advised the parties that upon considering all of the possible results of their dispute over whether any of those six persons was an employee in the bargaining unit on which they had agreed, the membership evidence the applicant had filed was sufficient in every case to establish that more than fifty-five per cent of the employees in the unit were members of the applicant at the relevant time.
It was on the basis of this information that the parties agreed to waive the right to a hearing. However, they also agreed that the Board would, while issuing a certificate to the applicant, also appoint a Labour Relations Officer to conduct an examination under section 106(2) of the Act as to the duties and responsibilities of the six persons in dispute.
The Board is not inclined to appoint an Officer under section 106(2) at this point in time. It is clear that the applicant is in these circumstances entitled to a final certificate. (Robin Hood Multifoods Inc., [1985] OLRB Rep. July 1159.) Section 106(2) reads as follows:
106(2) If, in the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee or as to whether a person is a guard, the question may be referred to the Board and the decision of the Board thereon is final and conclusive for all purposes.
It is clear from a reading of that section that an appointment under it is envisaged only where a question as to whether a person is an employee or guard arises "in the course of bargaining for a collective agreement" or "during the period of operation of a collective agreement". These parties are yet to commence bargaining. The appropriate procedure would be for the parties to make an attempt to resolve their dispute with respect to the six persons in negotiations, and if unsuccessful, to make an application under section 106(2) at that time.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on November 20, 1987, the terminal date fixed for this application and the date which the Board determines, 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.
A certificate will issue to the applicant.