Canadian Paperworkers Union v. Grant Industries Corp., 1990 CanLII 5721

[1990] OLRB Rep. January 45

2352-89-R Canadian Paperworkers Union, Applicant v. Grant Industries Corp. and Grant Forest Products Corp. c.o.b. as Grant Forest Products, Respondent v. Grant Forest Products Employee's Association, Intervener

BEFORE: Owen V. Gray, Vice-Chair, and Board Members R. M. Sloan and C. McDonald.

DECISION OF THE BOARD; January 26, 1990

1. The title of this proceeding is amended to describe the respondent as: "Grant Industries Corp. and Grant Forest Products Corp. c.o.b. as Grant Forest Products".

2. This is an application for certification in which the applicant has requested that a pre-hearing representation vote be taken.

3. In the most recent collective agreement between the respondent and the intervener, the respondent recognizes the intervener as the sole collective bargaining agent of

all employees engaged in the plants and yard of the Company's operations at Englehart, save and except foremen, those above the rank of foremen, office, clerical, sales staff, students, or any salaried, part-time or temporary employees.

4. In accordance with the usual practice, a Labour Relations Officer was authorized to and did confer with the applicant, the respondent and the intervener ("the participants") with respect to the issues in this application. As a result of her conference with them, the Labour Relations Officer reports that the participants agree that the appropriate bargaining unit ("the proposed unit") for the purpose of this application should be described as:

all employees of the respondent in the Town of Englehart, save and except foremen, persons above the rank of foreman, office, clerical & sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.

They say this is the unit for which the applicant should be certified if it succeeds in a pre-hearing vote. This unit differs from that described in the intervener's agreement with the respondent in that "salaried" and "temporary" employees are not excluded. The participants agree that on the application date there were no "salaried" employees who would not otherwise be excluded by the description purposed. As of the application date, there were, however, six "temporary" employees not covered by the intervener's agreement with the respondent who would fall within the bargaining unit description on which the participants have agreed. "Temporary" employee is defined this way in Article 6.03 of the most recent collective agreement:

6.03 . . .

(c) Temporary: Employees up to a maximum of three months. This is subject to review and approval by Management and Association Committee for extension of time. If an extension of time is requested by the Company, the Association may grant up to a maximum of 30 days at which point the employees status will again be subject to review.

5. When determining the bargaining unit appropriate for collective bargaining, the Board is loath to draw distinctions between employees based on the method by which they are paid: Duplate Canada Ltd., 60 CLLC ¶16,169; Kraft Foods Limited, [1967] OLRB Rep. Oct. 680; and, University of Ottawa, [1986] OLRB Rep. Mar. 353. For that reason, the elimination of the "salaried" distinction is a desirable goal. The exclusion of employees defined as "temporary" by Article 6.03 of the collective agreement is not something the Board would ordinarily do in fashioning a bargaining unit in an unorganized workplace, but probably would be accepted in a displacement situation where, as here, that exclusion has developed through collective bargaining between the employer and an incumbent trade union.

6. .As the Board observed in Taiga Trucking (Ontario) 1980 Inc., [1987] OLRB Rep. Nov. 1433:

7. Our function at this stage is to make the determinations contemplated by subsection 9(2) of the Act. We do not determine the appropriate bargaining unit or assess the weight to be given

to the applicant's membership evidence. As appears from subsection 9(4) of the Act, those matters are only decided after the vote is conducted, when all interested persons will be notified in Form 71 of the contents of the Returning Officer's report and of their opportunity to make representations and have a hearing before the Board with respect to any issue affecting the certification application or the pre-hearing representation vote. Indeed, at this stage the Board does not attempt to resolve any dispute about its constitutional jurisdiction (Kenting Earth Sciences Limited, [1985] OLRB Rep. Feb. 293) or the applicant's "trade union status" (Emery Industries Limited, supra) or the identity of persons employed in any proposed bargaining unit at any relevant time (The Board of Education for the City of North York, [1984] OLRB Rep. July 989), or the application of subsection 1(4) of the Act (Satin Finish Hardwood Flooring (Ontario) Limited, [1984] OLRB Rep. Nov. 1062). These and any other issues affecting whether and how the results of a pre-hearing vote should affect the disposition of the application for certification are only resolved after any such vote is conducted.

6. While we do not resolve such issues at this stage, we do need to know the immediate parties' positions on any issue which could affect the use to which the results of a pre-hearing representation vote may later be put. This is so that a meaningful voting constituency or constituencies can be struck and appropriate directions made concerning segregation of ballots cast by individuals or groups whose inclusion in or exclusion from the appropriate unit or units is in dispute. A pre-hearing vote is of little use unless one can later reconstruct from it a vote of the employees in the unit ultimately found appropriate by the Board. Accordingly, when an applicant requests a pre-hearing vote, the Board's practice is to authorize one of its Labour Relations Officers to examine the records of the applicant and of the respondent and to confer with the parties as to the description and composition of the appropriate bargaining unit, the description and composition of the voting constituency or constituencies, the list of employees as of the terminal date for the purposes of any vote which might be directed and all other matters relating to entitlement to and arrangements for such a vote, and to report to the Board thereon.

7. Where an applicant requesting a pre-hearing vote has applied for a unit which includes but is broader than the unit represented by the incumbent, the Board's usual practice is as described in paragraphs 9 and 10 of its decision in Toronto East General and Orthopaedic Hospital Inc., [1981] OLRB Rep. Feb. 225:

8. Where there is a request for a pre-hearing representation vote on a displacement application, the Board's standard practice is to require the applicant to accept as a voting constituency the bargaining unit represented by the incumbent union. (See, for example, Ethyl Canada Inc., [1979] OLRB Rep. Oct. 985; The Wellesley Hospital, [19761 OLRB Rep. Feb. 45; Roland Lefebvre Lathing Limited, [1966] OLRB Rep. May 140.) If the applicant seeks to enlarge the bargaining unit the Board will establish two voting constituencies, the incumbent unit as one and the add-on segment as the other. To be entitled to a vote in each, the applicant must demonstrate membership support of 35 per cent in each voting constituency. (See Ethyl Canada Inc., supra).

9. After a pre-hearing representation vote has been taken the Board determines the appropriate bargaining unit. Normally the bargaining unit found to be appropriate in a displacement situation is the incumbent's bargaining unit. The Board may amend the unit, however, in the event the applicant wins [the] vote~ or votes if more than one voting constituency has been established. (See Roland Lefebvre Lathing Limited, supra.) In Wellesley Hospital, supra, however, the Board refused the company's request to carve out of the incumbent's unit a group of employees. The Board expressed the view that when an applicant wins a displacement vote it is at least entitled to the same unit as was represented by the incumbent union.

It is fundamental, of course, that all those employed at the relevant time in a bargaining unit for which certification may be granted be given the opportunity to participate in a representation vote if that is the means by which that application is to be determined.

8. The participants told the Labour Relations Officer that the voting constituency for the purpose of a pre-hearing representation vote should correspond with the unit described in the most recent collective agreement between the respondent and the intervener. They contemplate a ballot in which voters are asked whether they wish to be represented by the applicant or the intervener in their employment relations with the respondent. The difficulty with that is that the respondent did employ temporary employees on the application date. We do not know whether there will be any eligible to vote. If there are, their wishes must be considered in a vote if there is to be any prospect of certification for a unit which includes such employees.

9. Accordingly, we determine that there should be two voting constituencies:

Voting constituency #1

all employees engaged in the plants and yard of the Company's operations at Englehart, save and except foremen, those above the rank of foremen, office, clerical, sales staff, students, or any salaried, part-time or temporary employees.

Voting constituency #2

all employees of the respondent in the Town of Englehart, save and except foremen, persons above the rank of foreman, office, clerical & sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period and those employed in voting constituency #1.

10. It appears to the Board on an examination of the records of the applicant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent in each of the voting constituencies were members of the applicant at the time the application was made. We therefore direct that a pre-hearing representation vote be conducted in each of those constituencies.

11. All those employed in voting constituency #1 on January 11, 1990 who are so employed on the date the vote is taken will be eligible to vote in that voting constituency. Voters in voting constituency #1 will be asked to indicate whether they wish to be represented by the applicant or by the intervener in their employment relations with the respondent.

12. All those employed in voting constituency #2 on January 11, 1990 who are so employed on the date the vote is taken will be eligible to vote in voting constituency #2. Voters in voting constituency #2 will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.

13. If there is a dispute about whether an employee should vote in voting constituency #1 or voting constituency #2, he or she shall be permitted to mark a ballot in each vote and both ballots shall be segregated and not counted.

14. The matter is referred to the Registrar.