National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Dowty Canada Electronics Limited

[1988] OLRB Rep. November 1158

1194-88-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Dowty Canada Electronics Limited, Respondent v. Group of Employees, Objectors

BEFORE: Robert D. Howe, Vice-Chair, and Board Members B. L. Armstrong and W. A. Correll.

APPEARANCES: Clare Meneghini, Maureen Kirincic and Elaine Scot: for the applicant; Peter F. Chauvin and David Crook for the respondent; Henk Bowhieson and Gary Prvtchick for the objectors.

DECISION OF THE BOARD; November 30, 1988

1. In a decision dated September 22, 1988, the Board (differently constituted) wrote, in part, as follows:

1. This is an application for certification in which the parties have reached agreement on all matters in dispute, with the exception of the matters described below, and consented to the Board issuing a decision in this matter without a formal hearing before a panel of the Board.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. The parties are in partial agreement concerning the description and composition of the bargaining unit. The language to which they have agreed is:

all employees of the respondent in Peterborough, Ontario, save and except supervisors, persons above the rank of supervisor, and office and sales staff.

The applicant contends that "professional engineers" should also be excluded from the bargaining unit. It is the respondent's position that "professional engineers" should not be excluded from the bargaining unit in that they (allegedly) share a community of interest with the other employees in the bargaining unit.

4. The Board is satisfied that regardless of whether the respondents' professional engineers are included in or excluded from the bargaining unit, not less than forty-five per cent (and not 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 August 30, 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 Act. Accordingly, pursuant to section 7(2) of the Act, the l3oard directs that a representation vote be taken in respect of the following bargaining unit:

all employees of the respondent in Peterborough, Ontario, save and except supervisors, persons above the rank of supervisor, and office and sales staff.

5. All those employed in the bargaining unit on September 9, 1988, who are so employed on the date the vote is taken will be eligible to vote.

6. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.

7. In view of the parties' disagreement with respect to professional engineers, the Board directs that any ballots cast in the representation vote by professional engineers be segregated pending further direction by the Board, unless otherwise agreed by the parties.

8. Section 6(4) of the Act provides as follows:

A bargaining unit consisting solely of professional engineers shall be deemed by the Board to be a unit of employees appropriate for collective bargaining, but, the Board may include professional engineers in a bargaining unit with other employees if the Board is satisfied that a majority of such professional engineers wish to be included in such bargaining unit.

Having regard to that provision and to the agreement of the parties, the Board directs that a vote be conducted, concurrently with the aforementioned representation vote, to determine whether or not a majority of the respondent's professional engineers wish to be included in the aforementioned bargaining unit with other employees of the respondent. The professional engineers concerned will be asked to indicate whether or not they wish to be included in the following bargaining unit with other employees of the respondent:

all employees of the respondent in Peterborough, Ontario, save and except supervisors, persons above the rank of supervisor, and office and sales staff.

2. The votes directed by that decision were taken on September 30, 1988. The two professional engineers who cast ballots in the vote directed by paragraph 9 of that decision both indicated by their ballots that they wished to be included in the aforementioned bargaining unit with other employees of the respondent. The ballots which they cast in the representation vote directed by paragraph 4 of that decision were segregated and not counted, in accordance with the direction contained in paragraph 7. The applicant subsequently notified the Board that it was withdrawing its challenge to the inclusion of those two persons in the bargaining unit. However, their ballots have remained segregated and uncounted as they could not materially affect the outcome of the vote, in which fourteen ballots were marked in favour of the applicant and eleven ballots were marked against the applicant.

3. Following the taking of those votes, the respondent and the objectors filed statements of desire (in accordance with section 70(1) of the Board's Rules of Procedure) requesting that a hearing be held in respect of their request that another representation vote be directed on the basis that Catherine Allison, a vocal proponent of the applicant who may have cast the deciding ballot in the vote, resigned from the employ of the respondent on the working day following the vote. Accordingly, as required by section 70(4) of the Rules, a hearing was held before this panel of the Board on November 22, 1988, for the purpose of hearing evidence and representations concerning the matters raised in those statements of desire. At that hearing, the parties advised the Board that it would be unnecessary to hear any evidence as they were content to argue the matter on the basis of the agreed facts set forth in the next paragraph.

4. On Monday, September 26, 1988, Catherine Allison dropped off an application for employment at Pebra, another employer in Peterborough. On Wednesday, September 28, Pebra called Ms. Allison's father and set up an interview for Friday, September 30 at 2:00 p.m. On Friday, September 30, Ms. Allison cast her ballot in the aforementioned representation vote between 11:30 and 12:30, and then went to her interview at 2:00 o'clock. Ms. Allison was one of 120 persons who were to be interviewed by Pebra for five openings. At her interview, Ms. Allison was told that Pebra would let her know on the following Monday or Tuesday whether or not she had been

selected to fill one of those openings. Around noon on Monday, October 3, Ms. Allison received a call from Pebra and was advised that she had been hired. She told Pebra that she could start work on Wednesday October 5 at 3:00 p.m. Ms. Allison then went to her supervisor, Vicky Byer, and advised her that she had been hired by Pebra. Ms. Byer congratulated her and told her to turn in her time card. Accordingly, Ms. Allison left around 12.45 p.m. and subsequently commenced employment with Pebra.

5. As indicated above, the respondent and the objectors contend that another representation vote should be directed in the circumstances of this case. It is their position that Ms. Allison should not have been entitled to vote as she did not have a sufficient interest in the future of the Company. The objectors also contend that with Ms. Allison's departure, the respondent's work-force is evenly split on the matter of whether the applicant should be certified, making it "unworkable to come to any kind of agreement in the bargaining unit." The applicant, on the other hand, submits that Ms. Allison was entitled to vote, and opposes the directing of another representation vote.

6. As noted by counsel for the respondent in his able submissions, it is well established that persons on indefinite layoff are not permitted to cast ballots in representation proceedings. See, for example, Canac Kitchens Ltd., 11978] OLRB Rep. Aug. 723, and Custom Aggregates, [1978] OLRB Rep. March 215. Moreover, as indicated in the latter decision, the Board has ordered that a second representation vote be taken where the work force has been artificially built up with a view to influencing the outcome of a representation vote. However, the Board has also held that the departure of an individual from the employment of a respondent following the taking of a representation vote neither disenfranchises that person nor necessitates the taking of another representation vote. In London District Crippled Children's Treatment Centre, [1980] OLRB Rep. April 461, another panel of the Board wrote, in part, as follows in unanimously rejecting a request that a second vote be taken on the basis that one of the voters (Ingrid Cereghini) had given written notice to her employer on the day before the vote that she was terminating her employment at the conclusion of the working day following the vote:

12. We deal firstly with whether Miss Cereghini was entitled to vote. On thit question, given the wording of the Board's order, there can be little doubt. There is an obvious difference between notice of an intention to terminate one's employment and actual termination. On the day of the vote Miss Cereghini was an employee at work in the bargaining unit. She did not terminate her employment until the end of the following day. It cannot be seriously contended that Miss Cereghini was not entitled to vote according to the plain wording of the Board's order. On the day of the vote she was an employee in the bargaining unit as of January 8, 1980 who had neither been discharged nor voluntarily terminated her employment.

13. The more substantial issue is whether in these circumstances the result of the vote should be allowed to stand. Counsel for the respondent made two submissions in this regard. First he maintains that the employee's notice of her intention to terminate her employment is in the nature of an irrevocable document which should foreclose her right to influence the outcome of the representation vote. Secondly, he argues that, apart from her intention, because her interest in the bargaining unit ended on the day after the vote her ballot should not be allowed to influence the outcome.

14. There is, of course, no evidence before the Board to indicate which way Miss Cereghini marked her secret ballot. Nor should this Board give any credence to the assumption implicit in the employees' representations that conducting a second vote without her participation would alter the outcome. The secrecy of the ballot and the clear legislative intention to safeguard the wishes of individual employees enjoins the Board and the parties before it from engaging in that kind of speculation.

15. Certification is the primary process in The Labour Relations Act. It is the means by which the wishes of employees for representation are transformed into the affirmative right of a union to bargain collectively on their behalf with their employer. Generally, apart from exceptional cases involving extreme unfair labour practices, certification is accomplished by an application of majoritarian principles. A union can be certified by demonstrating support in excess of 55% of the bargaining unit through membership cards. It can also be certified by obtaining a simple majority of the ballots cast in a representation vote. These are the two normal routes to certification under the Act. Both of these procedures require the application of percentages to a defined number of employees. Because employees may continuously come and go through hiring, lay-offs, leaves of absence, quitting and discharge, the Board has had to devise some general rules to apply in order to fix a clear and stable figure of employees in a given bargaining unit for the purposes of an application for certification.

16. There are a number of ready illustrations of those rules. The Board has devised, for example, a "terminal date" as a cut off point for assessing the number of membership cards filed by a union and statements in opposition to certification filed by employees. The Board refers to the date that an application is filed for assessing the number of employees in the bargaining unit. (See R. v. OLRB, Ex pane Hannigan, 1967 CanLII 205 (ON CA), [1967] 2 OR. 469 (C.A.)). And it has developed a "thirty day rule" to determine whether an employee absent on the date of application is to be counted within the bargaining unit for the purposes of the application (Amplmfone Canada Ltd., [1967] OLRB Rep. Dec. 840). The Board has also evolved "a seven week rule' as a rule of thumb to assess which employees will be viewed as full-time and which as part-time for the purposes of an application. (Sydenham District Hospital, 11967] OLRB Rep. May 135). These are procedural constructs whose application may mean victory or defeat for either party in any particular application. If all of the lines established by these rules were to be redrawn on a case by case basis the certification process would come to a standstill. These established principles are known to the labour relations community and parties coming before the Board can plan on the basis of them. While none of the above rules are entirely inflexible, there is a substantial onus on any party who seeks to have the Board depart from them in a particular case. (Trenton Memorial Hospital, 119801 OLRB Rep. Jan.)

17. The line which the Board has traditionally drawn respecting the eligibility of employees to vote, namely that the employee be in the bargaining unit both on the date that the vote is ordered (or on the terminal date in a pre-hearing vote or as otherwise agreed by the parties) and on the date the vote is taken, is clear and well known through the Board's published decisions, its practice notes (see Practice Note No. 9, August 1964) and its layman's handbook. While originally the Board merely stated that employees in the bargaining unit would be entitled to vote (see e.g., The Borden Co. Ltd., (1946), 46 CLLC ¶16,461) it evolved the two-pronged eligibility rule to give greater clarity and certainty to voter's lists, as well as to eliminate the possibility of an employer influencing the outcome of a vote by hiring new employees. The Board's practice and the principles underlying it were well canvassed in J. McLeod & Sons Ltd., [1970] OLRB Rep. Feb. 1316.

18. In this case the respondent and the objecting employees invite the Board to adopt a different rule. They submit that if an employee has indicated an intention to leave the workplace he or she should not be permitted to influence the outcome of a representation vote. When pressed on the point, however, they are less than clear as to how that principle can be applied in any general way. Is an employee to be deprived of his franchise if, before a representation vote, he indicates an intention to leave his employment within three weeks of the vote? Or three months? Or six months? And is the result of a closely contested vote to be disturbed if an employee who voted is transferred, quits or is discharged within a day or two after the vote? The Board must obviously adhere to a rule that gives some certainty and finality to the granting of bargaining rights and which can be readily understood and applied by the parties.

19. The Board's past decisions give considerable guidance in the application of the rules regarding the eligibility of employees to vote in the selection of a bargaining agent. Employees on layoff without a definite date of recall have been held ineligible to vote (Rix Athabasca Uranium Mines Limited, [1961] OLRB Rep. July 127.) The Board has found that a person who was an employee in the bargaining unit on the date the vote was ordered and was promoted to acting foreman on the date the vote was taken was ineligible to cast a ballot, notwithstanding that he later returned to the bargaining unit (Success Display Limited, [1971] OLRB Rep. Oct. 636). An employee who was absent on Workmen's Compensation on the date the vote was ordered and on the date the vote was taken, but who had neither quit nor been terminated was found eligible to vote (Alex's Plumbing and Heating limited, [l970j OLRB Feb. 1321). Where, on the other hand, an employee who was absent due to illness had been treated in all respects as terminated and had no real prospect of returning to work, the Board concluded that he was not eligible to vote (Canac Kitchens Ltd., [1978] OLRB Rep. Aug. 723).

20. The Board's rule respecting eligibility to vote has sought to strike a balance. On the one hand the Board recognizes the interest of employees with a stake in future collective bargaining having a controlling voice in the choice of a bargaining agent. On the other hand it faces the necessity of establishing a democratic process with some finality in situations where employees are subject to varying degrees of turnover. From the Board's earliest days employees were not removed from the voter's list unless they had left their employment before the taking of the vote. The only recorded exception to this appears to have been in wartime: under P.C. 1003, the Wartime Labour Relations Regulations, the Board's practice was to exclude from voting eligibility an employee who prior to the taking of the vote had obtained a separation notice pursuant to Selective Service regulations. An employee subject to that irrevocable step was viewed as no longer sufficiently interested in employment relations in the plant to be entitled to influence the outcome. (Packard Electric Co. Ltd. (1944), 46 CLLC ¶16,424). There appears to be no other recorded variation from the Board's rules.

21. The Board's voter eligibility rules are not intended and do not purport to achieve a standard of perfect decimal point democracy, assuming such a standard can ever be achieved. The rules seek nothing more than to establish a substantially representative group of employees with a minimum of employment continuity for the purposes of certification. Any deliberate attempt to manipulate the eligibility rules and temporarily "pack" the voting constituency to influence the outcome of the vote can be dealt with through the Board's remedial authority in unfair labour practices (see, e.g. Custom Aggregates, [1978] OLRB Rep. Mar. 215). Any distortion in the selection process caused by a planned and bona flde substantial increase in the size of the bargaining unit in the near future can be accommodated by the application of the Board's build-up principles (Emil Frant 57 CLLC ¶18,057; McCord Corporation, [1965] OLRB Rep. June 203; Domco Foodservices Limited, [1980] OLRB Rep. Jan. While the Board deals with these kinds of substantial changes in the bargaining unit, it cannot concern itself with the inevitable fact that some employees who are eligible to vote may have a more temporary or transitory interest in their jobs than others.

22. The Board has long recognized the right to vote of employees who are transitory, so long as they conform to the minimum requirement of the Board's two pronged eligibility rule. If they are employed on the date the vote is ordered and continue to be employed to the date the vote is taken, they are entitled to vote. In J. McLeod & Sons, [1969] OLRB Rep. Dec. 1100, the Board confirmed the eligibility to vote of a group of employees who fell within the eligibility dates but who in fact had been hired temporarily. They were strikers from a. nearby plant who expected to return to their normal employment at some indefinite future date, And in University of Toronto, [19741 OLRB Rep. May 267, the Board confirmed the right to vote of all teaching assistants and research assistants employed by the University even though the vote was conducted in May, at the end of the academic year, and a turnover rate of 25 per cent to 35 per cent of the bargaining unit was projected for the next academic year.

23. The selection of a bargaining agent under the Act cannot be conducted on the basis of an ongoing referendum geared to the daily, weekly or monthly changes in the people who make up a bargaining unit. But bargaining rights are not necessarily permanent, and the Act allows for shifts in the wishes of employees whether through the turnover of personnel or otherwise. Any changes in the sentiment of a majority of the employees about union representation over time can be dealt with through the provisions of the Act for the termination of bargaining rights.

24. On the basis of the foregoing policy considerations, the Board is not persuaded that it should depart from its normal practice in this case to disturb the results of the representation vote. Moreover, the Board cannot agree, even given that Miss Cereghini did leave her job the day after the vote, that she had no interest in its outcome. (In this regard, it is doubtful whether the Board would again apply the narrow wartime rule in the Packard Electric Co. Ltd. case, sup ra). When the parties go to the bargaining table much is negotiable, including the possibility that the union will obtain wage increases and other benefits that are retroactive to the period of her employment. They might also negotiate a seniority formula that would give her credit for her past employment in the event of her return. An employee in the position of Miss Cereghini does have a genuine interest in the outcome of a representation vote.

We respectfully agree with and adopt that reasoning. Furthermore, we are of the view that an employee in the position of Ms. Allison has an even greater interest in the outcome of a representation vote than a person in the position of Ms. Cereghini. The agreed facts set forth above indicate that at the time Ms. Allison cast her ballot, she did not know whether or not she would be hired by Pebra. She was merely one of the 120 persons who had been interviewed in respect of five openings. It was not until the following Monday that she was advised by Pebra that she had been hired.

7. For the foregoing reasons, we have concluded that Ms. Allison, who was an employee of the respondent on September 9, 1988 (when the voters' list was agreed to by the applicant and the respondent) and on September 30, 1988 (when the representation vote was taken), was entitled to cast a ballot in the representation vote. We have also concluded that her subsequent resignation from the employ of the respondent does not warrant the taking of another representation vote.

8. At the November 22 hearing, the objectors also requested the Board to redefine the bargaining unit so as to exclude from it the employees in the respondent's engineering department. In support of that request, the objectors' spokesperson asserted that it is only the respondent's shop employees who want union representation. The objectors' request was supported by the respondent but opposed by the applicant.

9. Having duly considered the submissions of the parties, we are not prepared to redefine the bargaining unit at this belated juncture. With the exception of the issue of whether "professional engineers" should be excluded from the bargaining unit, the applicant and the respondent agreed to a bargaining unit which includes employees in the respondent's engineering department. Counsel for the respondent advised the Board that this agreement was based upon Board decisions (such as Lu,nonics inc., [1985] OLRB Rep. March 442; Resco Chemicals & Colours Ltd., [1986] OLRB Rep. Apr. 544; and Fildebrandt Precision Industries Limited, [1983] OLRB Rep. March 361) which have found production and technical employees to share a community of interest in the "high tech" field. Although counsel for the respondent now suggests that this approach may not be appropriate in respect of the respondent's operations, no such suggestion was made prior to the Board's aforementioned decision dated September 22, 1988, in which the Board adopted the bargaining unit description agreed to by the applicant and the respondent. Moreover, the representation vote was directed on the basis of the level of membership support which the applicant enjoyed in that bargaining unit at the pertinent time. To permit the respondent to resile from that agreement now that it knows the results of the representation vote would be inimical to sound labour relations and prejudicial to the applicant. It would also be inappropriate to redefine the bargaining unit at this point on the basis of representations which could have been made by the objectors prior to the representation vote, had they availed themselves of the opportunity to attend the hearing of which they were notified by the Board's Form 6, Notice to Employees of Application for Certification and of Hearing.

10. For the foregoing reasons, the Board declines to direct that another representation vote be taken in respect of this application, and further declines to redefine the bargaining unit.

11. As indicated above, on the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast were marked in favour of the applicant.

12. A certificate will issue to the applicant in respect of the following bargaining unit:

all employees of the respondent in Peterborough, Ontario, save and except supervisors, persons above the rank of supervisor, and office and sales staff.

For the purposes of clarity, the Board notes that professional engineers and other employees in the respondent's engineering department are included in the bargaining unit.

13. The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of thirty days from the date of this decision unless a statement requesting that the ballots not be destroyed is received by the Board from one of the parties before the expiration of such thirty day period.