United Steelworkers of America v. Alros Products Limited c.o.b. as Polytarp Products, 1992 CanLII 6736

[1992] OLRB Rep. April 498

3920-91-R United Steelworkers of America, Applicant v. Alros Products Limited c.o.b. as Polytarp Products, Respondent

BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.

DECISION OF VICE-CHAIR M. A. NAIRN AND BOARD MEMBER H. PEACOCK; April 1, 1992

1. This is an application for certification in which the applicant has requested that a pre­hearing representation vote be taken.

2. The applicant filed its application for certification seeking a bargaining unit comprised solely of those employees at the employer's 350 Wildcat Road ("Wildcat Road") location. In its reply, the employer took the position that the appropriate bargaining unit should include its loca­tion at Wildcat and in addition, its Lepage Court and Regis Road ("Lepage Court") locations within the Municipality of Metropolitan Toronto. Consistent with that position, the respondent filed a list of employees in accordance with the Board's Rules of Practice, and identifying employ­ees by their location. On March 20, 1992 the Board directed that copies of the reply and list of employees were to be communicated by a Labour Relations Officer to the applicant as soon as possible.

3. The parties were scheduled to meet with a Labour Relations Officer on Monday March 23, 1992 in accordance with an earlier direction of the Board dated March 12, 1992 for the pur­pose, essentially, of making the necessary arrangements for the conduct of the pre-hearing repre­sentation vote. On consent of the parties that meeting was adjourned to March 24, 1992.

4. As recorded in the report of the Labour Relations Officer, at that time the parties main­tained their positions with respect to the appropriate bargaining unit description. Having set that out, the parties moved to a consideration of the list of employees in the partially agreed to bargain­ing unit and voting constituency. The applicant challenged the inclusion of the respondent's employees at Lepage Court in the bargaining unit. This challenge was based on the assertion that these employees do not share a community of interest with the employees at Wildcat Road and there is no interchange of employees between the locations so as to warrant a bargaining unit more broadly based than Wildcat Road. These challenges simply reflect the parties' dispute concerning the appropriate description of the bargaining unit. The applicant also made challenges with respect to the managerial and/or employee status of certain individuals at the Wildcat Road location. The applicant then sought to reserve its right, pending further investigation, to challenge employees at the other locations with respect to the factors enumerated under section 1(3)(b) of the Act. The parties were directed to file any submissions to the Board with respect to this latter issue no later than 5:00 p.m., March 26, 1992.

5. We have received and reviewed those submissions and the Labour Relations Officer's report. According to the submissions received from the applicant the Officer offered to adjourn her meeting for a few days to permit the applicant to investigate and ascertain which, if any, Lep­age Court employees it sought to challenge pursuant to section 1(3)(b) of the Act. A vote would then be taken of all the employees with the ballots of those employees whose eligibility to vote was in dispute being identified and segregated.

6. The applicant has requested that the Board direct that the voters' list include the names of all the employees and direct that the ballots cast by any employee at the Lepage Court/Regis Road locations each be segregated, and finally, that the applicant be permitted to investigate and raise additional challenges to the inclusion of any of those individuals on the voters' list within a reasonable period of time following the vote.

7. The applicant argues that to delay the Officer's meeting any further, in order for it to make inquiries among a group of employees with which it has no familiarity, would prejudice it. The applicant indicates that its concern is motivated primarily by the effects of delay. In its submis­sions the applicant states, "in taking advantage of the provisions of s. 9 of the Act, [it] was hopeful that the vote would proceed in a speedy fashion as the Act intended, and that any hearing regard­ing eligibility to vote would take place after ballots are cast".

8. A pre-hearing representation vote is a vote taken prior to the hearing of any issue in dis­pute. However the identification of issues in dispute takes place prior to (or in exceptional circum­stances at) the taking of that vote. The applicant indicates that pre-hearing representation vote applications are dealt with expeditiously. We agree. As such, an applicant filing such an applica­tion (and any respondent) ought to be aware that it will be expected to be able to identify its issues expeditiously.

9. The importance of full disclosure by the parties who participate in the meeting with the Officer was referred to in Ontario Hydro, [1987] OLRB Rep. Dec. 1589 at paragraph 6:

10. While we do not resolve such issues at this stage, we do need to know the immediate parties' position 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 direction 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 pre­hearing 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 pre­hearing 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.

11. It was also discussed in Simpsons Limited, (Board File No. 1876-84-R, unreported deci­sion dated October 28, 1985) at paragraph 14:

….It is necessary for the Board to know the positions of the parties and the nature of the dispute between them with respect to the appropriate bargaining unit, 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. One of the important objects of a Labour Relations Officer's prelimi­nary meeting with the parties in these cases is to ascertain their position on the appropriate bar­gaining unit issue and define (and narrow, if possible) the nature of any disagreement on that issue. The pre-hearing vote process would be subverted if a respondent or intervener could advance for the first time at hearing a position or allegation which would, if accepted, render meaningless a pre-hearing vote which could have been conducted in a meaningful way if that position or allegation had been disclosed in an appropriate and timely fashion before the vote was conducted.

[emphasis added]

11. While there may be circumstances where a party has had insufficient time to conduct an appropriate investigation with respect to any challenges to the list of employees this is not that case. The applicant sought the list of employees in advance of the Officer's meeting. It was aware of the respondent's position encompassing a larger bargaining unit. The list was directed to be pro­vided on Friday March 20, 1992 for a meeting the following Tuesday. There are only approxi­mately twenty-five employees at Lepage Court. The respondent in its submissions makes reference to an earlier application for certification by this applicant. On January 23, 1992 (Board File No. 3370-91-R), this applicant made an application for certification. That file discloses that the appli­cant proposed a bargaining unit that included employees at Wildcat Road only. In its reply the employer described the appropriate bargaining unit as all its employees in the Municipality of Met­ropolitan Toronto and filed a list of employees, as it has in this case, reflecting that position. The parties met with a Labour Relations Officer, identified their dispute with respect to the bargaining unit description, reviewed the list of employees supplied by the employer and were provided with a "count". By letter dated February 19, 1992 the applicant requested leave of the Board to withdraw its application. By decision dated February 21, 1992 the Board, having regard to that request, and to the stage of the proceedings at which the request was made, dismissed the application. We note that the list of employees filed in that application is virtually identical to the list filed by the employer in respect of this application. The applicant simply asserts that it has no familiarity with these additional employees. For the applicant to take the position now that it has not had sufficient opportunity to satisfactorily investigate the issue of whether any of the employees at Lepage Court or Regis Road exercise managerial functions or are employed in a confidential capacity in matters relating to labour relations is simply untenable.

12. Trade unions are often vocal about the need for expedition in Board proceedings partic­ularly in certification applications. The Board shares the concern about delay and has for that rea­son over the recent past, for example, enlarged its certification "waiver" program and has empha­sized the importance of the parties' meeting with a Labour Relations Officer where many issues can be resolved quickly and without the need for expensive and time-consuming hearings. That emphasis on the importance of the meeting with the Labour Relations Officer has, in essence, always existed with respect to applications under section 9. The Board's additional concern of course is to ensure the integrity and validity of its processes. The results of the Officer's meeting enable the Board to structure a pre-hearing representation vote with a voting constituency which can anticipate and provide for various possible outcomes based on the ultimate determination of the parties' disputes. The importance of parties' identifying their disputes is self-evident. The Board has not generally limited a party from making challenges following the holding of the Officer's meeting up to and including the time of the actual taking of the vote. After that however it is simply too late. A final consideration in the ability of the Board to maintain the expedited frame­work for applications for certification is the level of the Board's resources. In this case, it seems highly improbable that it would be necessary to challenge (and therefore segregate the ballots of) each of these employees. Absent appropriate challenges being made, we see no basis for directing segregation of all ballots. Nor is there any basis for allowing the applicant to reserve any right to make challenges following the taking of the vote.

13. 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 percent of the employees of the respondent in the voting constituency hereinafter described were members of the applicant at the time the application was made.

14. Having regard to the partial agreement of the parties, the Board directs that a pre-hear­ing representation vote be taken of the employees of the respondent in the following voting con­stituency:

all employees of Alros Products Limited cob. as Polytarp Products in the Municipality of Met­ropolitan Toronto, save and except Assistant Production Manager, persons above the rank of Assistant Production Manager, office, clerical and sales staff and students employed during the school vacation period.

15. Given the parties' dispute with respect to the geographic description of the appropriate bargaining unit we hereby direct that ballots cast by employees at Wildcat Road be segregated from ballots cast by employees at the Lepage Court/Regis Road locations.

16. It is the applicant's position that forepersons exercise managerial functions in accor­dance with section 1(3)(b) of the Labour Relations Act (the "Act") and therefore should be excluded from the bargaining unit. It is the position of the respondent that the assistant production manager classification represents the "first-line" managerial exclusion from the bargaining unit. Having regard to that dispute should John Bieuz, John Brymer, Elvio Cavvichia, Hardip Chhokas, John Gray, Horace McIntyre, Dave Waldman, Frank Giannetti, or Jerry Gillis seek to cast a ballot they will be entitled to do so. However that ballot will be segregated and not counted until the Board so orders or the parties consent.

17. The applicant takes the further position that Gil Van Meeteren is a security guard and therefore not an employee under section 12 of the Act. It is the position of the respondent that this person is not a security guard and is properly included in the bargaining unit. Should Gil Van Meeteren seek to cast a ballot he shall be entitled to do so.. However that ballot will be segregated and not counted until the Board so orders or the parties consent.

18. All those employed in the voting constituency on March 20, 1992 who are employed on the date the vote is taken will be eligible to vote. We hereby direct that the ballot box be sealed and the ballots not counted until the Board so orders or the parties consent.

19. Voters will be asked to indicate whether or not they wish to be represented by the appli­cant in their employment relations with the respondent.

20. This matter is referred to the Registrar.

CONCURRING DECISION OF BOARD MEMBER J. A. RUNDLE; April 1, 1992

1. I concur with the decision. In light of the history of an initial application filed on January 23, 1992 and this subsequent application - it is my observation that this applicant is attempting to manipulate the process to meet their own ends. The allowing of challenges to a voters list after the vote has been taken is a procedure that this Board properly will not entertain for the reasons outlined in the decision.