[1990] OLRB Rep. March 226
2638-89-R Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 141, Applicant v. Bruce W. Smith Building Materials Ltd., Respondent v. Group of Employee, Objector
BEFORE: Owen V. Gray, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.
APPEARANCES: Linda Huebscher and Don Swait for the applicant; Fred Heerema, Bruce Smith and Robert G. Richter for the respondent; no one appearing for the objector.
DECISION OF THE BOARD; March 7, 1990
The title of this proceeding is amended to describe the respondent as: "Bruce W. Smith Building Materials Ltd.".
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of clause l(l)(p) of the Labour Relations Act ("the Act").
Except for the emphasized words, the parties agree that the following describes the appropriate bargaining unit in this application:
all employees of the respondent in the City of St. Thomas, save and except foremen, persons above the rank of 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.
The applicant takes the position that "sales staff" should be excluded, so that the employees in the unit would be those engaged in yard work and truck driving. The respondent takes the position that "sales staff' should be included with yard workers and truck drivers in a single unit from which office, clerical and part-time employees and students employed during the school vacation period would be excluded.
The union says that the sales staff have a stronger community of interest with the excluded office and clerical workers than they do with the included yard workers and drivers. The respondent takes the position that a unit consisting of only yard workers and drivers is not a viable unit for collective bargaining and that the sales staff share a community of interest with the yard workers and drivers.
The respondent filed a list of the persons whom it says fall within the bargaining unit it describes as appropriate. The report of the Labour Relations Officer on that meeting contains these notations with respect to the applicant's challenges to the list:
The Applicant challenges twelve employees on the list for the Count (See Appendix "B") on the basis of Community of Interest.
In addition, AUSTIN WARD (A 18) is also challenged on the basis that he is a pan-time employee.
It is the Respondents position that all twenty employees at [sic] Appendix 'B" should be members of the bargaining unit and that AUSTIN WARD (A 18) is a full-time employee.
When the parties came before us in the afternoon, we asked whether the twelve individuals referred to were challenged solely because they were "sales staff". The applicant's representative said that that was the sole basis of challenge with respect to nine of the twelve. As for three of the cashiers, Debbie McKnight, Michelle Panter and Tonya Silverthorn, the applicant says they spend part of their time working in the office as office employees and, so, may not be full-time even in the bargaining unit proposed by the respondent. The applicant's representative also said it did not know whether Austin Ward, the thirteenth individual challenged, was engaged in a sales function or an office function.
Counsel for the respondent took issue with what he characterized as enlargement by the applicant of the grounds of challenge which had been asserted by the applicant during the meeting with the Labour Relations Officer. Despite counsel's submissions in that regard, it appeared to us that the vague phrase "on the basis of Community of Interest" used in the report was certainly capable of describing a challenge based on an individual's being in a category (office and clerical) which the parties had agreed should be excluded when, as respondent's counsel conceded, the only rational basis for such an exclusion would be "community of interest". Moreover, the nature of the work performed in the office by the three cashiers in question would be something the Board would have to hear about in any event in assessing whether their community of interest lay more with the office workers than with the yard workers; counsel for the respondent was unable to identify any prejudice it would suffer if the applicant were permitted to pursue the assertions first made before us.
The applicant and respondent could not agree on the process the Board should adopt in order to resolve their disagreement about the composition of the appropriate bargaining unit. The applicant's position was that the Board should appoint a Labour Relations Officer to enquire into and report to the Board on this issue. The respondent took the position that the issue should be dealt with directly by a panel, commencing that afternoon.
The applicant's representative said it did not have enough information about the individuals and positions in dispute to address the dispute in evidence right away. Bearing in mind the way the dispute developed we did not think the trade union could be faulted for this. That is particularly so when, as the applicant would have been aware~ the Board's usual reaction to a community of interest issue is to appoint a Labour Relations Officer to inquire into and report on it.
Hearing time before panels is most productively used when both parties understand what the dispute is about. From the perspective of the panel which must ultimately resolve a bargaining unit composition issue, it is desirable that disputes about the relevant underlying facts be narrowed or resolved. Experience teaches that in these cases such factual disputes will often be narrowed or even resolved before hearing if the trade union party has had an opportunity to hear and investigate in detail the employer's assertions about the nature of its operations and the duties and responsibilities of those in the relevant job categories. The officer inquiry process affords that opportunity. That is one of the reasons for using it. There have been circumstances in which panels have dealt with community of interest issues by hearing the parties' evidence directly, as in the Toronto General Hospital, [1986] OLRB Rep. Jan. 176 and [1986] OLRB Rep. April 566. In that case, the Board directed that the parties exchange "pleadings and productions" with respect to the issue in dispute before the matter came on for hearing before a panel. That exercise can also result in narrowing or elimination of factual disputes (as it did in Toronto General Hospital, supra) and at very least promotes the sort of advance preparation for hearing which expedites the hearing itself. Unless preceded by an officer inquiry or some exchange of pleadings and productions to narrow the issues and both encourage and permit preparation for hearing, a formal hearing before a panel is liable to prove an inefficient use of the resources of all concerned.
Counsel for the respondent took the position that there should not be an exchange of pleadings and productions, as the matter was one which he felt could be elaborated by hearing the three or four witnesses he proposed to call, together with whatever witnesses the union might call. He referred to the Board's decision in Canadian Corporate Management Limited, Board File 0436-88-R (decision dated August 3, 1988, unreported), in which a similar issue was resolved in an oral ruling after a panel of the Board had heard three witnesses. A review of the Board's file in that matter discloses that on the first scheduled hearing date, the applicant and respondent agreed that the matter be adjourned for hearing on two consecutive days approximately six weeks hence. It is not apparent from the file what might have been discussed by the parties in coming to that agreement. We may infer that neither they nor the panel which accepted their agreement thought that an exchange of pleadings and productions was necessary.
In all the circumstances of this case, we are not persuaded that the outstanding issues in this matter should be put before a panel "cold", without benefit either of an officer's inquiry and report or an exchange of pleadings and productions. Accordingly, we direct that a Labour Relations Officer to be named by the Board's Manager of Field Services inquire into and report to the Board on:
(a) the community of interest, if any, between persons employed by the respondent as sales persons and cashiers and
(i) those employed by the respondent as drivers or in its yard, on the one hand
and
(ii) those employed by the respondent in categories which the parties agree are excluded from the appropriate bargaining
unit in this application, on the otherhand,
as of the application date;
and,
(b) the nature of the work performed by Debbie McKnight, Michelle Panter, Tonya Silverthorn and Austin Ward as of the application date.