[1988] OLRB Rep. January 21
1990-87-R International Woodworkers of America, Applicant v. G. W. Martin Veneer Limited, Respondent
BEFORE: Patricia Hughes, Vice-Chair, and Board Members G. O. Shamanski and J. Redshaw.
DECISION OF THE BOARD; January 19, 1988
1In a decision dated December 21, 1987, the Board directed the appointment of a Labour Relations Officer to inquire into the duties and responsibilities of Jean Marc Fortin, whose inclusion in the bargaining unit had been challenged by the union. The respondent had included Mr. Fortin on the employee list it filed with the Board pursuant to Form 5 of the Board's Rules of Procedure. Its position that Mr. Fortin should be included in the unit had been confirmed at the Labour Relations Officer's meeting with the parties on November 9, 1987, held to obtain the necessary information to determine whether a pre-hearing representation vote is appropriate, and further confirmed in a letter to the Board dated December 2, 1987. (Mr. Fortin himself on his own behalf and on behalf of certain other employees filed a statement with the Board opposing the union and seeking a vote. The only effect a petition might have is to lead the Board to order a vote in cases in which the Board would have normally certified without a vote because of the extent of the support enjoyed by the union according to the documentary evidence filed. Since the applicant in this case requested a pre-hearing vote, the petition could not have any effect and therefore it was not considered by the Board.) Mr. Fortin had cast the single segregated ballot in the pre-hearing representation vote directed by the Board by decision dated November 12, 1987. That vote had resulted in a tie and therefore were Mr. Fortin found to be included in the unit, his vote would not be counted and a new vote would be ordered.
2The Labour Relations Officer so appointed arranged to meet with the parties on January 7, 1988. Prior to that meeting (in a telex dated January 5, 1988), the applicant withdrew its challenge to the inclusion of Mr. Fortin in the unit. The Officer cancelled the meeting. By letter dated January 5, 1988, the respondent also changed its position, stating that "on further examination of the lead hand position it was our intention to present information at this meeting which would show that the lead hand position should be excluded from the bargaining unit". There is no record that the respondent had communicated its new belief to the union or that it was aware of the applicant's withdrawal of its challenge; it therefore appears that the respondent anticipated attending a meeting at which both parties intended to present evidence supporting the same position.
3The respondent had the opportunity to state its position, including a challenge to any employee, at the time of the Officer's meeting with the parties prior to the direction that a vote be held. A party may withdraw a challenge to a person's inclusion in the unit, but it may not begin to raise challenges after the vote has been counted. As the Board said in Santa Maria Foods, [1981] OLRB Rep. Nov. 1618, with respect to a party's requesting the Board to reconsider the composition of a bargaining unit after the Board has announced the count of employees in the unit and the union membership count,
- The Board's Rules and the certification hearing are ordered precisely to avoid the mischief of either party gerrymandering the employee lists or the structure of the bargaining unit in such a way as to avoid or favour certification, as the case may be. Pursuant to Form 3 of the Board's Regulations an employer is required to provide to the Board, not later than the terminal date, complete lists of employees in the bargaining unit proposed by the union on the date of application. The late filing of lists or the amendment of lists filed can be only by leave of the Board pursuant to its discretion under sections 82 or 83 of the Rules of Procedure.
8.... Without these general rules certification hearings would be endless meanderings without map or compass, each turn in the journey being dictated by changing perceptions of the parties as to what best serves their own interests. That is why, absent extraordinary circumstances, the Board does not entertain submissions on the structure of the bargaining unit or the list of employees in the unit after the point in the hearing when the count has been given.
(Also see The Corporation of the Township of Kingston, [1975] OLRB Rep. April 370.) Although the comments in Santa Maria Foods, supra, were made in the context of a "regular" certification application, the rationale underlying the refusal to entertain the parties' requests in that case applies equally to applications in which a pre-hearing vote has been requested. While the Board in this case could again appoint a Labour Relations Officer to inquire into the duties and responsibilities of Mr. Fortin, and then either order another vote or dismiss the application, depending on the Board's determination of Mr. Fortin's status, it is our view that the most appropriate approach is the one we have taken. It is both expeditious and reflects the course the proceedings would have taken had the employer not included Mr. Fortin on the list. Once the union withdrew its challenge, Mr. Fortin is therefore included in the unit, just as if there had never been a challenge, as there apparently would not have been had the respondent not initially included Mr. Fortin on the employee list.
4Accordingly, Mr. Fortin is included in the bargaining unit. His vote will not be counted, however, because to do so would reveal his preference. Therefore, the Board directs the taking of a second vote.
5All employees of the respondent in the voting constituency on the date of this decision who are still employed in the voting constituency on the date the vote is taken will be eligible to vote. To be clear, Mr. Fortin is included on the voters list.
6Voters will be asked to indicate whether they wish to be represented by the applicant in their employment relations with the respondent.
7This matter is referred to the Registrar.