Ontario Labour Relations Board
[1991] OLRB Rep. August 1011
2438-90-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Toyota Canada Inc., Respondent
BEFORE: M. A. Naim, Vice-Chair, and Board Members J. A. Ronson and C. McDonald
DECISION OF VICE-CHAIR M. A. NAIRN AND BOARD MEMBER C. MCDONALD: August 30, 1991
This is an application for certification wherein the applicant requested that a pre-hearing representation vote be taken. That vote was held and the ballot box sealed pending the resolution of certain issues in dispute between the parties. Following a hearing the Board issued a decision dated July 15, 1991 wherein (at paragraph 31) it ordered that the ballots cast by employees in the bargaining unit on the application date were to be counted. The parties met with a Labour Relations Officer for the purpose of counting the ballots. At that time the respondent objected to the counting of the ballots. By decision dated July 30th, 1991 the Board directed the parties to file their submissions with respect to why the ballots should not be counted forthwith.
Notwithstanding that the Board's usual practice would be to count the ballots of those employees whose inclusion in the bargaining unit is not in issue in order to determine whether it is necessary to inquire further, we have reviewed and will deal with the submissions of the parties in this matter.
The respondent is of the view that certain employees who were not employed in the bargaining unit on the application date should have their ballots counted because these employees subsequently came within the bargaining unit described in the Board's decision of July 15, 1991. The Board in that decision deals with the question of the description of the appropriate bargaining unit which was the main issue outstanding between the parties and concluded that (essentially) it was to be described as all employees at the Bellamy/Progress location. This excluded from the bargaining unit those employees then employed at a location referred to as Nugget Ave. The respondent now seeks to have the ballots of those employees counted because, as of the date of counting the ballots, they would fall within the bargaining unit (subject to any other exclusion). The respondent asserts that not to count these ballots would be a denial of these employees' rights under section 3 of the Labour Relations Act.
In dealing with any application for certification the Board is required to determine whether the applicant has the requisite support of the employees in the bargaining unit in order to determine whether it is entitled to be certified. Given that workforces (and consequently the employees who fall within any bargaining unit) continually fluctuate (for a whole host of reasons, for example, new hires, lay-offs or re-calls, or transfers) that determination must be made as of a fixed point in time even though subsequently circumstances may change. The Board's decision of July 15th directs that the ballots of those employees in the bargaining unit on the application date be counted. We are not persuaded that we ought to modify or vary that decision. Therefore, we direct the counting of the ballots in accordance with paragraph 31 of the Board's decision of July 15, 1991 forthwith.
This matter is referred to the Manager of Field Services.
DECISION OF BOARD MEMBER J. A. RONSON; August 30, 1991
These are my reasons for dissenting from the decision of my colleagues dated July 15th, 1991, and my comments on the issues that have arisen subsequently.
The union originally applied for certification of all the employees of the employer in the City of Scarborough. It withdrew that application when it learned that the employer carried on business at various locations in that City. The union then applied for a pre-hearing vote at one specific address of the employer in Scarborough ("Bellamy/Progress"). Because of the position taken by the employer, all the employees in the City of Scarborough were allowed to vote and the ballots from the various locations were kept segregated.
We then heard evidence going to the scope of the bargaining unit. Should it be for one address or for the entire City of Scarborough? We learned that the employer's locations in the City were all involved in the activity of receiving new automobiles and new parts from their original place of manufacture and in delivering these products to sales dealerships and repair sites respectively. We learned that some employees were working away from the Bellamy/Progress site on a temporary basis while construction work was completed at Bellamy/Progress. As soon as construction work was complete they would move to the Bellamy/Progress site.
In the circumstances the employer relied on some 40 + years of Board jurisprudence and asked that the scope of the bargaining unit be set as the City of Scarborough. In their lengthy reasons my colleagues told the employer that times have changed and certified the union for the Bellamy/Progress site only. I disagreed on the basis that long established community of interest practice still made good labour relations sense. What has subsequently occurred shows the wisdom of that practice.
When it came time to count the ballots at Bellamy/Progress, the employees temporarily away from the site had returned. Were they now "employees" at the Bellamy/Progress site? Should their ballots be counted or ignored? Given the decision of the majority of 15.July, their wishes with respect to the choice of a bargaining unit are irrelevant. No doubt they may wonder just what meaning the preamble and s.3 of the Labour Relations Act have with respect to their particular situation, but that, too, is irrelevant.