[1991] OLRB Rep. August 1002
0970-91-R United Food and Commercial Workers International Union, Local 175, Applicant v. Ridge Landfill Corporation, Respondent v. Group of Employees, Objectors
BEFORE: Nimal V. Dissanayake, Vice-Chair, and Board Members R. W. Pirrie and P. V. Grasso.
APPEARANCES: Ian Anderson and Mary Duchesne for the applicant; R. A. Werry and M. Kozlof for the respondent; Greg Templeton for objectors.
DECISION OF THE BOARD; August 30, 1991
The name "Ridge Landfill Corp. Ltd." appearing in the style of cause in this application is amended to read: "Ridge Landfill Corporation".
This is an application for certification. On July 18, 1991, the parties met with a Labour Relations Officer and agreed upon a unit of employees appropriate for collective bargaining. It was determined that more than 55% of the employees in that unit were members of the applicant on the terminal date, July 5, 1991, fixed pursuant to sections 7 and 103(2)(j) of the Labour Relations Act. There was also before the Board a timely petition signed by two employees who objected to the certification of the applicant. However, that had no bearing on the applicant's entitlement to a certificate.
In other words, notwithstanding the petition, the applicant was entitled to be certified without the need for a representation vote under section 7. However, the two employees who had filed the petition, claimed that "the green sheet" (Form 6 - the Notice To Employees Of Application For Certification) - had not been posted for an adequate period and in effect sought an extension of the terminal date. As the parties were unable to resolve this posting issue, they appeared before the Board for a determination.
The Board's records indicate that the document package, including the "green sheets", were mailed to the respondent by the Board on June 26, 1991. The terminal date was fixed at July 5, 1991. Because of the intervention of a long weekend holiday, the respondent did not receive the material until the afternoon of Tuesday, July 2, 1991. The respondent posted the green sheet at approximately 1:30 p.m. on July 3, 1991. Two copies of the green sheet were posted, one in the lunchroom and another in the vicinity of the time clock.
Mr. Greg Templeton, one of the two employees who had signed the petition appeared on behalf of the objecting employees. He claims that since he did not work in the main area where the notices were posted, he did not see the notices until approximately 10:00 a.m. on July 4, 1991. He and the second employee signed a petition opposing the application. They felt that the other employees who were supporting the application had been "misled". They talked to several employees about that but, as Mr. Templeton put it "the other employees didn't fully understand our petition and we couldn't explain it properly".
Mr. Templeton was under the belief that the petition had to be received by the Board by July 5, 1991, the terminal date. Therefore, he sent the petition containing the two signatures to the Board on the same day July 4, by Registered mail. Mr. Templeton points out that since he saw the notice on the 4th of July at 10:00 a.m. and had to mail it by 5:00 p.m. the same day, he only had 6 or 7 hours to circulate a petition. He submits that that is totally inadequate.
The green sheet or From 6 notice in this case contains the following paragraphs:
The Board has fixed Friday, the 5th day of July 1991 as the terminal date for this application.
4(2) A document referred to in subsection (1),
(b) must be,
(i) received by the terminal date if sent other than by registered mail, or
(ii) mailed to the Board by the terminal date shown in paragraph 3 if sent by registered mail.
Despite Mr. Templeton's belief that he had only 6 or 7 hours of notice, it is clear that the green sheets were posted for approximately 2 1/2 days before the expiry of the terminal date. Because Mr. Templeton worked in another area of the employer's premises he had actual notice of only about 1 1/2 days. However, the Board does not extend the terminal date on the basis of individual employees' personal circumstances, if it was otherwise satisfied that there had been adequate posting. The fact that a particular employee had not been scheduled to work, had been away sick or on holidays, during the period of posting has not caused the Board to extend the terminal date. (MacDonell Memorial Hospital, [1979] OLRB Rep. Oct. 996).
Accordingly, what the Board must determine here is whether in the particular circumstances of this case, the posting period of 2 1/2 days was inadequate so as to cause it to exercise its discretion under section 82 (2) of the Rules to extend the terminal date.
The Board has stated that "when it considers a request for an extension of the terminal date the Board must concern itself with balancing the interest of all employees who are entitled to have fair and adequate notice of the proceedings and the interest of the applicant and the employees who have chosen to be represented by the applicant to have the application disposed of without any undue or prejudicial delay". Kilean Lodge Incorporated, [1977] OLRB Rep. April 240 at 243.
Counsel for the respondent relied heavily on the fact that here the request for extension of the terminal date came, not from the employer but from Mr. Templeton, an employee in the bargaining unit. It is true that in Kilean Lodge, supra, the Board stated that one of the things it takes into account is "whether the request for an extension is made by the employer alone or by a group of employees". That makes a lot of sense because if it is the employer alone that makes the request, the indication is that the employees themselves had not been adversely affected by the length of the period of posting. However, the converse is not true that if the request comes from an employee, it necessarily means that the posting has been inadequate. In order to determine the adequacy of the posting all of the circumstances must be examined.
The bargaining unit covered by the application is relatively small consisting of 10 employees. The evidence is that all of the employees except Mr. Templeton work in one location. It is a one shift operation, although one employee works late. The notices were up for 2 1/2 days prior to the expiration of the terminal date. One copy was posted in the lunchroom and another near the time clock.
There is no suggestion that there was any employee who did not see the green sheet in sufficient time to be able to file an objection. It is interesting to note that Mr. Templeton was the most disadvantaged of the employees, because he was the only employee who worked in a different area. Yet he read the notice more than 1 1/2 days in advance of the expiry of the terminal date. He had no difficulty making his objection to the application in a timely fashion. He admitted that he also talked to several employees about joining him in objecting to the certification application but was unable to convince anyone. Therefore he was left with a petition with just the two signatures.
We consider it significant that no employee has made representations to the Board that he or she was adversely affected by the period of posting. Even Mr. Templeton did not suggest that he was aware of some employee who wished to object to the application but was unable to do so because of the length of the posting.
The hearing before the Board took place some 20 days after the expiry of the terminal date. Yet none of the bargaining unit employees appeared before the Board to claim that they were disadvantaged by lack of notice. The only employee who did appear, Mr. Templeton was able to make his objection in a timely manner. Considering that Mr. Templeton probably had the shortest period of notice because of his work location, the fact that he, together with the other employee, was able to file timely objections is a prima facie indication that the other employees were afforded sufficient time to respond to the notice if they so desired.
In these circumstances we see no reason to subject this application and the rights of the affected employees to any further delay. The request for an extension of the terminal date is denied.
we have already noted, the petition containing two signatures, if voluntary, could not cast doubt upon the entitlement of the applicant to certification without the need for a representation. Accordingly, the Board did not enter upon an inquiry into the voluntariness of that petition.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board finds that all employees of the respondent working at the landfill site in the Township of Harwich, save and except supervisors, persons above the rank of supervisor, office and clerical staff, persons employed for not more than 24 hours per week, students employed during the school vacation period and employees in bargaining units for which any trade union held bargaining rights as of June 18, 1991, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied on the basis of all the evidence before it that 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 July 5, 1991, 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 said Act.
A certificate will issue to the applicant.