Ontario Liquor Boards Employees' Union v. Fort Erie Duty Free Shoppe Inc., 1991 CanLII 5999

Ontario Labour Relations Board

Decision

[1991] OLRB Rep. November 1269

1940-91-R Ontario Liquor Boards Employees' Union, Applicant v. Fort Erie Duty Free Shoppe Inc., Respondent

BEFORE: Brain Herlich, Vice-Chair, and Board Members R. W. Pirrie and D. A. Patterson.

DECISION OF THE BOARD; November 14, 1991

1. The name of the respondent is amended to read: "Fort Erie Duty Free Shoppe Inc."

2. This is an application for certification in which the parties met with a Labour Relations Officer, reached agreement on all matters in dispute between them with the exception of the matters described below and further consented to the Board issuing a decision in this matter without a formal hearing before a panel of the Board.

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 finds that:

all employees of the respondent in the Town of Fort Erie regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except supervisors, persons above the rank of supervisor and secretary to the Store Manager,

constitute a unit of employees of the respondent appropriate for collective bargaining.

5. There were 38 individuals whom the employer asserted were properly included on the list of employees for purposes of the count. The union objected to the inclusion of 19 of those individuals on the list of employees on the basis that they were not at work in accordance with the 30/30 rule, were not in an employment relationship with the respondent, or were not in the agreed bargaining unit. The applicant also objected to the Labour Relations Officer's disclosure of the count in the circumstances.

6. Further to that objection the Board received submissions from the parties. Correspondence from the applicant in relation to this objection provides as follows:

1. Although the practice of Board officers on this issue has sadly become less than uniform in the recent past, the jurisprudence of the Board is clear. The "count" is not to be disclosed until after, not only the bargaining unit description is finalized, but until after the list of employees is finalized. The rationale for such a policy is obvious. Once the "count" has been disclosed to an Employer, it is an open invitation not to deal with the merits of any challenges, but merely to gerrymander the challenges in an attempt to avoid certification. The Board has long recognized this and made its policy clear:

"During the hearing the Board does not announce the count of employees or any union membership until the description of the bargaining unit is settled. Similarly it does not announce the membership count until the count of employees in the unit is determined, subject, of course, to such outstanding challenges to the list as may have been to that point in the hearing. These rules are well known to the parties and articulated in the Board's jurisprudence. (See, Gwell Investments Ltd. [1971] OLRB Rep. Oct. 675; The Corporation of the Township of Kingston, [1975] OLRB Rep. Apr. 370; Intercity Food Services Inc. [1976] OLRB Rep. July 388; Greater Windsor Investments Ltd. Windsor Nursing Home, [1976] OLRB Rep. Sept. 515). Without these general rules certification hearings would be endless meanderings without map or compass, each turn in the journey being dictated by changing perceptions of the parties as to what best serves their own interest." (emphasis added).

See Santa Maria Foods, [1981] OLRB Rep. Nov. 1618 at para 8. See also unreported decision, dated March 21, 1989 in Graham Bros. Construction Ltd., OLRB File No. 2242-88-R, at paras. 5-6, a copy of which we enclose. Based on this jurisprudence, the ruling of the Officers is clearly wrong. The Board ought to make clear its jurisprudence to all of its officers or, in the event that the jurisprudence outlined in Santa Maria Foods is no longer the law, the Board ought to make this clear to all the parties (although the Applicant can see no basis for departing from the legitimate rationale of Santa Maria Foods).

7. We observe at the outset that we see nothing inappropriate in the officer having disclosed the count in these circumstances. On the contrary, we see the disclosure of the count as fully consistent with the Board's practice in this regard.

8. Nor do we see any inconsistency between the cases cited by the applicant and the disclosure of the count in the present case. There is no question that parties are intended to deal with issues related to the bargaining unit description and the list of employees prior to the announcement of the count. Nor is there any question that at least part of the rationale for that manner of proceeding is to avoid the possible gerrymandering adverted to by the applicant and certainly to avoid the "endless meanderings without map or compass" referred to in the Santa Maria Foods case, supra.

9. Indeed, the facts in the Santa Maria Foods case are instructive with respect to the kinds of situations the Board seeks to preclude. In that case the Board announced the count thus disclosing that the union was in a certifiable position and that the petition filed was not numerically relevant. The employer then moved to add names to the list of employees which would have made the petition numerically relevant. The union countered by asking that the Board reconsider the bargaining unit description and specifically that it exclude office and clerical staff to again make the petition numerically irrelevant. The Board declined to entertain either motion. As the other cases cited in Santa Maria Foods demonstrate, the Board is extremely reluctant to allow any party to raise new issues or take new positions with respect to bargaining unit or employee list issues once the count has been disclosed.

10. However, all of this does not mean that all issues regarding bargaining unit descriptions and employee lists must be fully resolved and determined prior to any announcement of the count. That requirement would clearly subvert the process in many cases. Positions on these issues may ultimately appear marginal and fully capable of quick resolution in face of the count. To require final determination and possible litigation of these issues before proceeding to the next step in the process hardly seems productive. Indeed, the logical extension of this position might lead one to wonder when, if ever, the Board would be in a position to exercise its discretion under section 6(2) of the Act to grant interim certification, since in those cases there are, by definition, unresolved issues regarding the composition of the bargaining unit.

11. Thus, the practice of the Board is to require the parties to deal with and to finalize their positions with respect to bargaining unit descriptions prior to dealing with employee list issues and to deal with and finalize their positions with respect to employee list issues prior to any announcement of the count. This is precisely what we understand the Board to have said in Santa Maria Foods when it observed that the Board:

"does not announce the membership count until the count of employees in the unit is determined, subject, of course, to such outstanding challenges to the list as may have been to that point in the hearing."

[emphasis added]

12. In formulating its policies and procedures the Board is cognizant of the practical and tactical realities involved in various kinds of proceedings before it. And while the Board's policies and procedures reflect long years of experience and labour relations expertise and have served the community well over the years, they are not carved in stone. There may well be particular or exceptional circumstances which warrant variations. Indeed, the Graham Bros. Construction Ltd., case supra, is an example of just such a variation. Depending on the number of parties, issues, and challenges involved, the complexity of the possible permutations and combinations relating to employee support for certification of an applicant can intensify. This can be particularly true in cases involving petitions and revocations. Thus, in Graham Bros the Board declined to announce the count because

'[t]he Board was concerned in light of the petition and the counter petition that the resolution of the challenges could possibly indicate whether a particular person had supported or not supported the union."

Thus, in cases where the Board may be concerned about maintaining confidentiality as contemplated by section 111(1) of the Act, the Board or an officer conducting a meeting with the parties may decline to release the count. There was no suggestion or submission that section 111(1) concerns arose in the present case.

13. In summary, we see nothing improper in the officer's disclosure of the count. On the contrary, such disclosure was consistent with the Board's longstanding policies and procedures.

14. Having regard to the agreement of the parties, a Labour Relations Officer, to be designated by the Board's Manager of Field Services, is hereby appointed to inquire into and report to the Board with respect to the dispute regarding the list of employees.