[1988] OLRB Rep. June 537
0458-88-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant v. 502858 Ontario Limited, Respondent
BEFORE: Robert Herman, Vice-Chair, and Board Members R. M. Sloan and R. R. Montague.
DECISION OF THE BOARD; June 30, 1988
The name of the respondent is hereby amended to read: "502858 Ontario Limited".
This is an application for certification in which the parties reached agreement on all matters in dispute between them, except as set out hereunder, and further agreed to waive their right to a formal hearing in the matter.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The parties were agreed that the bargaining unit should be described in terms of all employees of the respondent at its Ottawa Towing Service Division in the Regional Municipality of Ottawa-Carleton, save and except managers, persons above the rank of manager, office staff and dispatchers. The parties remained in disagreement over whether seven individual drivers ought to be included within the bargaining unit so described. The respondent challenges the inclusion of the seven individuals on the grounds that they are not employees, but are independent contractors and therefore ought to be excluded. The applicant takes the contrary position and submits that the seven individuals are employees and therefore are properly included within the bargaining unit. In light of this dispute, a Board Officer is hereby appointed and authorized to inquire into and report back to the Board with respect to this dispute over the inclusion of these seven individuals: Guy Allard, Roland Ayotte, Gregory Georganais, Gilles Proulx, Richard Tennant, Ivan Dorey and Mike O'Connell.
The Board has determined, however, that the applicant's right to certification cannot be affected by the Boards ultimate decision respecting whether any or all of these seven individuals will be included or excluded from the bargaining unit. On the basis of all the evidence before it, the Board is satisfied that regardless of the outcome with respect to any of these individuals, 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 June 2, 1988, 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.
Therefore, pursuant to the Board's discretion under section 6(2) of the Act, Board certifies the applicant for all employees of the respondent at its Ottawa Towing Service Division in the Regional Municipality of Ottawa-Carleton, save and except managers, persons above the rank of manager, office staff and dispatchers. The seven individuals challenged will remain excluded from the bargaining unit until the resolution of their status.
A formal certificate must await the final determination of the bargaining unit.
Although the Board ordinarily issues a final certificate in circumstances where the bargaining unit description is not disputed and where regardless of the resolution of the status of disputed individuals an applicant union would be in a certifiable position (see, Robin Hood Multi-foods [19851 OLRB Rep. July 1159), in this case it is not appropriate to do so, having regard to the provisions of section 6(5) of the Act. It may be that the Board will determine that any or all of the individuals in question are dependent contractors within the meaning of the Act, and in such circumstances the Board might ultimately conclude that the dependent contractors should be represented in a distinct bargaining unit. Issuing an interim certificate will allow the Board the necessary flexibility to fashion two bargaining units, should the circumstances so demand. For these reasons, an interim certificate only has been issued.