Ontario Labour Relations Board

[1989] OLRB Rep. June 594

0191-89-R National Automobile, Aerospace and Agricultural Implement Worker's Union of Canada (C.A.W. Canada), Applicant v. Flo-Con Canada Inc., Respondent v. Group of Employees, Objectors

BEFORE: Robert Herman, Vice-Chair, and Board Members E. G. Theobald and R. W. Pirrie.

APPEARANCES: Tamara Heller, Clare Meneghini and Vince Tucker for the applicant; W. J. Hayter, D. Woodhead and Karen Beuch for the respondent; Jana Sebetdusky for the objectors.

DECISION OF THE BOARD; June 2, 1989

1. The name of the respondent is amended to read: "Ho-Con Canada Inc."

2. 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, and reached agreement on certain matters in dispute between them.

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

4. Having regard to the agreement of the parties, the Board further finds that:

all employees of the respondent at its N.I. Wheel Division in Cambridge, save and except supervisors, persons above the rank of supervisor, office, clerical, technical and sales staff, and students employed during the school vacation period constitutes a unit of employees of the respondent appropriate for collective bargaining.

5. The respondent has filed numerous charges relating to the collection of the membership cards, and the sufficiency and reliability of those cards. In addition, the parties disputed which employees properly fell within the bargaining unit just described, and the Board turned first to a consideration of that issue.

6. As required by the Board's Rules of Practice, the respondent filed schedules listing the employees which the employer claimed fell within the bargaining unit described by the applicant. Schedule C requires that the employer set out the names of employees not at work on the application date, because they were laid off prior to that date. Schedule C filed by the employer in this application named eleven individuals, ten of whom were laid off March 13, 1989, with expected dates of recall ranging from May 3, 1989 to June 5, 1989. Thus the individuals listed on Schedule C were not at work (in the respondent's assertion) within the thirty day period immediately prior to the application date. Ordinarily in such circumstances, the Board would apply what is referred to as the "30-30 rule" and exclude from the bargaining unit all the individuals on Schedule C, as none of them were at work on the day the application was filed or on any day in the 30 days prior to the date of filing. It is the applicability of that rule to the circumstances at hand that forms the basis of the respondent's argument.

7. Section 7(1) of the Labour Relations Act reads as follows:

8. -(1) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j).

9. As can be seen, the Board is charged under this section with ascertaining the number of employees in the bargaining unit "at the time the application was made" (in this case the application was filed on April 18, 1989). The general approach taken by the Board in non-construction industry applications to determining which employees were in the bargaining unit at the time the application was made is as described in Amplifone Canada Ltd. [1967] OLRB Rep. Dec. 840:

14. Although the unit time is determined by the provisions of section 7(1), nothing is said in that section or elsewhere in the Act concerning the method or criteria to be used by the Board in ascertaining the number of employees in the bargaining units at the material time. The determination as to whether a person is or is not to be numbered as an employee on the date of application is, therefore, left entirely to the discretion of the Board. To ensure consistency and order in its proceedings and with a view to the purely practical difficulties involved, the Board has adopted certain practices and rules of thumb applicable to the various situations which commonly arise in the employer-employee relationships.

15. As an assistance to the Board in arriving at a decision with respect to the number of persons in the bargaining unit, the employer is asked to file with the Board schedules listing its employees. The schedules form part of the reply required under section 7 of the Board's Rules of Procedure...

16. It is convenient to deal with the schedules now in reverse order. The rule of thumb applicable to Schedule "D" is that the Board, at the hearing, determines if the persons named thereon have worked within the month immediately preceding the date of application and have either returned to work within the month immediately following the date of application or are expected to so do. If these conditions prevail the employee concerned is considered by the Board to be an employee for the purpose of the unit count. If all are not fulfilled he is not numbered in the unit count.

17. Where an employee is listed on Schedule "C", he is found to be an employee for the purpose of the unit count if he worked at any time during the month immediately preceeding the date of application and is to be recalled or has been recalled within the month immediately following the date of the application. Again, unless both conditions are met, such a person is not counted in the unit (Bertrand & Frere Construction Co. Limited Case, File No. 10347-65-R)..."

9. And in The Board of Education for the City of Toronto [1983] OLRB Rep. Feb. 273, the Board wrote as follows:

24. Thus, to be included as an employee in the bargaining unit for the purpo~ es of the count, a person who was not at work on the date of the application must generally have been at work at some time during the one month period prior to the application date and have returned to work (or have been expected to return to work) within the one month period following the application date. (See also Brewers Nursing Home, [1981] OLRB Rep. July 852; Irwin Toy Limited, [1970] OLRB Rep. Dec. 912; Keynorth Limited, [1970] OLRB Rep. July 477; Mobile Cartage and Distributors Ltd., [19681 OLRB Rep. Nov. 814; and West Elgin District High School Board, [1968] OLRB Rep. July 379.) This longstanding practice of the Board enables the parties to ascertain in advance of the hearing the persons who will be included for purposes of the count (see Sydenham District Hospital, [1967] OLRB Rep. May 135). A further reason for the existence of the practice is that it tends to exclude from the count persons who have not been at work during the trade union's organizing campaign and have not had an opportunity to express their support for or opposition to the trade union (see Bertrand & Frere Construction Co. Limited, [1965] OLRB Rep. July 292). See also Sherman Sand and Gravel Ltd., [1978] OLRB Rep. May 460, in which the Board wrote (at paragraph 24):

“…[the thirty day] rule applies generally to all applications from outside the construction industry. In order to meet the requirements of this rule an employee must be at work both some time in the period thirty days prior to the date of the filing of the application and be at work, or expected to be at work, some time in the period thirty days after the date of application. These requirements take into account two concerns - that union and employers be able to identify the constituency of employees that will be used by the Board when assessing the degree of membership support enjoyed by an applicant; that some employees who are not at work at the date of the application may still have a sufficiently substantial employment attachment to justify inclusion in the employee constituency and a voice in the selection of the bargaining agent. The application of this rule results in what the Board considers to be the best balance between these two competing concerns. A heavy onus, therefore, rests upon any party seeking an exemption from this rule."

(In that case, which involved an application in respect of certain "dependent contractors", the Board declined to deviate from the thirty day rule.)

27. Board practices such as the "seven week rule" (described in Westgate Nursing Home Inc., [19811 OLRB Rep. April 503), and the "thirty day rule" described above, are guidelines, not "hard and fast" rules. However, since such guidelines are known, accepted and relied on by unions and employers alike, there is a substantial onus on any party requesting the Board to depart from such practices (see Trenton Memorial Hospital, [1980] OLRB Rep. Jan. 116, and Sherman Sand and Gravel Ltd., supra). In the circumstances of the instant case, the Board does not find it appropriate to depart from its normal practice of applying the thirty day rule. Although the employment pattern for at least some of the respondent's occasional teachers is more sporadic than that of other persons employed by the respondent such as its "contract" teachers, we are nevertheless of the view that, in the context of the present case, the thirty day rule provides an appropriate balance between the legitimate interest of employees (not at work on the date of the application but nevertheless having a substantial employment nexus with the respondent) in having a voice in the selection or rejection of the applicant as bargaining agent, and the legitimate interest of the applicant and the other parties in knowing with a reasonable degree of certainty which persons will be included by the Board as employees for purposes of the count. The alternative approaches advocated by Mr. Brady and Mr. Edson would include as employees for purposes of the count a number of persons with little or no connection with the respondent's active work force of occasional teachers. Such persons would not have been identifiable by organizers seeking to contact "bargaining unit" employees in an effort to persaude them to join the applicant and support its certification. Similarly, they could not have been identified or contacted by objectors wishing to organize opposition to this application...

10. The applicant filed a prior application for certification on March 6, 1989, with respect to the same bargaining unit. As noted, the employees listed on Schedule C in the instant application were laid off on March 13, 1989. At the time of lay off no specific return to work date was provided. Thus, the employees listed on Schedule C, who would be excluded from the bargaining unit in this proceeding by the application of the 30-30 rule, would have been included within the bargaining unit in the first application (although we did not have evidence of this, the parties assumed so and the issue was litigated on the basis that the employees in question would have been in the bargaining unit for purposes of the first application). Also in the first application, the respondent employer on March 23, 1989 filed charges with respect to the membership evidence. The applicant union withdrew the first application on March 30, 1989, before the scheduled hearing day.

11. These facts were not in dispute but what was disputed was whether the union knew, before the expiry of thirty days from March 13th (when the employees on Schedule C were laid off), the identity of those employees so laid off. This 30 day period is significant in that employees on lay off more than 30 days immediately before the day the union filed its application would not be considered in the bargaining unit for purposes of the certification count, if the 30-30 rule is applied. Having regard to the viva voce evidence, we are satisfied that no later than April 6 or 7, 1989, the union knew of the names of the employees so laid off and the fact that they had been laid off as of March 13, 1989.

12. Based on these facts, the employer asserted that the 30-30 rule ought not to be applied. The employer noted that the union filed successive certification applications within a relatively short period, and the union knew the names of the laid off employees, within thirty days of the layoffs. These laid off employees had been in the bargaining unit with respect to the first application, and the employer submitted that the union in effect was gerrymandering by intentionally picking ar~ application date for the instant certification more than 30 days after the lay offs. By picking a date that would intentionally exclude employees on short layoff who had been included in the bargaining unit in the application earlier filed, the union was abusing the Board's process and to countenance such abuse was unfair to those employees. Counsel for the employer further submitted that the rationale for the applicability of the 30-30 rule did not apply in the circumstances, as the applicant union was aware of who these laid off employees were, the employees had been part of the organizing campaign with respect to the first application, and the union would in no way be hampered by requiring it to treat these employees as included within the bargaining unit. In essence, counsel argued that the 30-30 rule was never intended to be a vehicle that could be used by a union to intentionally pick a day for filing its application that would exclude people in these circumstances.

13. As the quotes from the prior cases set out above indicate, there are several rationales for the development and application of the 30-30 rule, a rule which has been applied for a great number of years. With the application of this rule, and the parties' awareness that the Board is extremely likely to apply it, at least in non-specialized sectors (for example, the construction sector is treated differently), the parties are able to predict with some reasonable degree of certainty which individuals are likely to be included within the bargaining unit. This enables the union to conduct its organizing campaign with attention only to those employees who are likely to be found by the Board to be within the bargaining unit, and similarly allows those who wish to object to the choice of bargaining agent to approach only those employees who will be given a say in this issue by the Board. But as the quoted passages also note, an additional reason for this practice springs from the very wording of section 7(1) of the Act, which dictates that the Board determine the employees in the bargaining unit as of "the time the application was made." Thus, a major concern for the Board in developing and applying this rule is to ensure that those employees who do not have a sufficient link with the employer as of the relevant time, the time the application was made, are not included in the bargaining unit for purposes of determining the success of the application. There are numerous and varied circumstances in which employees might not be at work within the thirty days prior to the application date and the thirty days subsequent thereto, such as vacation, absences because of illness, plant shut downs, and so on. The 30-30 rule is designed to provide some necessary degree of certainty in assisting parties in determining in advance which employees the Board will likely consider to have a sufficient link to the work place as at the time the application is made. Were the Board to lightly depart from the applicability of this rule, the ensuing litigation and delays would undercut the very purpose of the rule. There is no question that the 30-30 rule represents an arbitrary line which the Board has generally applied to determine who ought to be treated as falling within the bargaining unit. But it is an arbitrary line that has served the labour relations community and its constituencies well for a lengthy period of time. It is a rule of which the community is well aware. We were not directed to a single decision where the Board has declined to apply the 30-30 rule in circumstances where the nature of the work place is a fixed geographical location to which employees in the ordinary course would daily report for work.

14. Having regard to the rationale for the rule and the circumstances in the instant case, and assuming that the union intentionally chose an application date that would fall at least thirty days beyond the time at which the employees were laid off by the employer, we are satisfied that there is no reason in the instant case to decline to apply the 30-30 rule. It is neither gerrymandering nor an abuse of process for a union to be aware of the Board's rules of thumb and pick a time for filing its application that would take advantage of one of those rules. It was reasonable for the union to rely upon the 30-30 rule and the Board's applicability of it, and the union might well be prejudiced with respect to its organizing campaign should the Board now decline to apply the 30-30 rule and thereby include the employees in Schedule C in the bargaining unit. Further, and of greater import, is the fact that the individuals in Schedule C do not have a sufficient nexus with the work place as of the relevant time, the time the application was made, to cause the Board to include them in the bargaining unit. The employer chose to lay these employees off, and by the time the second application was filed, these employees had not been at work for over five weeks. There was no evidence that any of them had in fact been recalled as at the time of the hearing on May 19, 1989. To include them in the bargaining unit now would be to give a say to these employees that would not seem justified in all the circumstances. This type of work place is one where employees report daily for work, and therefore the typical employee would expect to work regularly in the thirty days prior to the application date. That the union consciously and calculatedly picked a day for filing its second application that was more than thirty days from when the employees in Schedule C were laid off in no way detracts from the fact that those employees do not have a sufficient link with the work place as of the time the certification application was made to entitle them to a say in that application.

15. Accordingly, the Board will apply the provisions of the 30-30 rule and all the individuals on Schedule C will be excluded from the bargaining unit.

16. It was not disputed that if the individuals in Schedule C were excluded from the bargaining unit, the union would be in an automatic certifiable position, and it would be unnecessary to enquire into the voluntariness of either the revocations or the petitions filed. However, because of the charges with respect to the membership cards, the manner in which they were collected and their sufficiency and reliability, no certificate will issue at this stage.

17. This matter is to be re-scheduled for a hearing to deal with those allegations of the respondent. We note that these allegations are identical to the allegations filed in the first certification application, and deal with concerns over the collection of cards submitted for the first application, none of which has been filed in the instant application nor sought to be relied upon by the applicant. It is not apparent therefore of the relevance of these charges, but this matter can be dealt with at the next hearing date, if the parties are unable to resolve it between themselves before then.

18. In light of the parties' assessment of the number of days needed to enquire into the charges filed by the employer, the Board hereby directs that five further days of hearing be set for this matter. As the instant panel dealt only with the composition of the bargaining unit, and whether the Schedule C employees ought to be so included, this panel is not seized with respect to the consideration of the charges filed by the employer, or any other remaining matter.

19. This matter is referred to the Registrar.