[1993] OLRB Rep. June 512
3552-92-R International Union of Operating Engineers, Local 793, Applicant v. Grant Paving & Materials Limited, Responding Party v. Group of Employees, Objectors
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.
DECISION OF THE BOARD; June 10, 1993
This is an application for certification in which the parties through a Labour Relations Officer apparently reached agreement on certain matters in dispute between them and agreed to waive the hearing which had been scheduled before the Board. Subsequent to that apparent agreement counsel for the trade union wrote to the Board and requested an amendment to the bargaining unit which the union seeks to represent in this application. It is that request for an amendment with which this decision will deal.
The application was filed on March 4th, 1993. At that time the applicant trade union sought to represent a bargaining unit described in the following terms:
all employees of the Responding Party in the Town of New Liskeard, save and except foreperson, persons above the rank of foreperson, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
In its response filed on March 19th, 1993 the employer indicated that it did not employ any persons at premises located in the Town of New Liskeard. The employer noted that it did operate premises "located at the south part of Lot 8 at Concession 3 in the Township of Dymond. Approximately 33 employees are employed at this location". In its response therefore the employer requested that the application be dismissed as there were no employees in the bargaining unit.
By letter dated March 25th, 1993 the trade union confirmed that the employer's premises were as stated in the response. As a result it requested an amendment to its bargaining unit description. Counsel for the trade union wrote:
Accordingly, the bargaining unit description reads:
all employees of the Responding Party in the Township of Dymond, District of Temiskaming, save and except foreperson, persons above the rank of forepersons, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.
By letter dated March 30th, 1993 counsel for the employer advised the Board that "the parties are in agreement that the bargaining unit described in [the] letter ... dated March 25, 1993 is appropriate.".
On March 30th, 1993 the parties also completed the Board's usual "waiver process With the assistance of the Board officer the parties agreed on a number of matters including the description of the bargaining unit, the waiver of the hearing before the Board, and the appointment of an officer to inquire into and report to the Board on those issues which remained in dispute between them.
The bargaining unit agreed upon as noted in the Board officer's letter dated April 6th,
1993 which confirmed the results of the waiver process was:
all employees of Grant Paving & Materials Limited in the Township of Dymond, District of Temiskaming, save and except forepersons, persons above the rank of foreperson, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period.
- By letter dated March 31st, 1993 counsel for the union wrote as follows:
Pursuant to section 6(2.1) of the Labour Relations Act, R.S.O. 1990 c. L.2. as amended, we request an amendment of our Application to delete the part-time and student exemption from the bargaining unit. Accordingly, the bargaining unit description now reads:
all employees of the Responding Party in the Township of Dymond, District of Temiskaming, save and except foreperson and persons above the rank of foreperson.
- After receipt of the Board officer's letter of April 6th, 1993 and the union's letter of
March 31st, 1993 requesting the amendment to the bargaining unit, the employer wrote to the
Board on April 7th as follows:
Grant Paving submits that the Applicant ought not to be permitted to amend the bargaining unit that was agreed to between the parties. This bargaining unit is set forth in Appendix "A" to Mr. Bowman's letter.
It would appear from Mr. Bowman's letter, that the Board has denied the Applicant's request. Accordingly, we will not make detailed submissions in this regard. Grant Paving would not have agreed to the bargaining unit described in [letter dated March 31st, 1993]. Further, I advised counsel for the Applicant regarding the approximate number of workers that would be on the Schedules filed by Grant Paving ..., prior to the Applicant's request ... to further amend the bargaining unit.
- In response, on April 8th, 1993 counsel for the trade union wrote as follows:
The bargaining unit which the Applicant requested in its letter dated March 31st, 1993 is that deemed appropriate pursuant to Section 6(2.1) of the Labour Relations Act. Separate bargaining units for full-time and part-time employees are only appropriate in the circumstances described in subsections (2.2)-(2.5) of Section 6 of the Act. In order for the Board to determine whether separate full-time and part-time units are appropriate, it must establish the level of membership support for the Applicant in the single unit of both full-time and part-time employees. In order to do so, the Board must have Schedule "B" from the Responding Party. Therefore, we request the Board order the Responding Party to file a Schedule "B" and then deal with the application for certification in accordance with the provisions of subsections (2.1)-(2.5) of Section 6 of the Act.
In a letter dated April 19th, 1993 counsel for the employer again indicated his opposition to any amendment. It was his position that the parties had agreed to a bargaining unit and the trade union ought not to be able to resile from that agreement. He asserted that this matter should now proceed in the fashion agreed upon during the waiver process.
Thereafter, by correspondence from the Board on April 29th, 1993 the parties were advised to make written submissions to the Board on this matter.
The written submissions of the parties which were subsequently filed with the Board did not significantly alter or add to their positions as expressed in this earlier correspondence. The employer continued to take the position that in the circumstances the trade union ought not to be permitted to amend a bargaining unit agreed upon and thereby resile from an agreement reached during the Board's waiver process. Counsel for the employer relied upon Runnymede Development Corporation Limited, [1987] OLRB Rep. Oct. 1305 and the statements therein which refer to the fact that "the Board's policies and procedures are structured in a manner designed to limit the ability of any party to gerrymander the list of employees or the structure of the bargaining unit". The employer noted that the trade union's request came after the employer had submitted the employee lists without the names of part-time employees. The employer reiterated its position that it would not have agreed upon the "all employee" unit now sought and might propose a different bargaining unit if the trade union were allowed to further amend its position.
For its part the trade union reiterated its position that the bargaining unit description "must conform to section 6(2.1)" of the Act and that this is "required" by the Act. The trade union asserted that there was "no issue of resiling from an agreed bargaining unit description in the circumstances" and that Runnymede Development Corporation Limited did not apply because there had not been a disclosure of the list of employees nor had there been any challenges to that list prior to the amendment request. Accordingly, the request to amend the bargaining unit was not made as a result of information received from either counsel for the employer or the Labour Relations Officer. Having not received any list of employees, and in particular no Schedule "B", the trade union indicated that it was unaware as to what effect, if any, its proposed amendment would have.
In response counsel for the employer disputed the trade union's assertion of facts and indicated that the employer had discussed the "approximate number of workers on the employee schedules before the applicant sought to amend the unit".
In the circumstances of this case the dispute between counsel as to whether information had or had not been disclosed is not relevant to resolving the primary conflict in their respective positions. In our view that conflict may be summarized by asking whether the statute compels the Board to determine a bargaining unit consisting of both full-time and part-time employees to be appropriate notwithstanding the parties' agreement upon a bargaining unit consisting of full-time employees only.
We have phrased the issue in this case in this manner for two reasons. First, the applicant has not disputed that on March 30th, 1993 during the Board's usual waiver process the parties reached agreement on the bargaining unit description. Secondly, in the face of that agreement, and in the circumstances of this case, the Board would not generally permit either party to resile from an agreed upon bargaining unit description. To put it another way, the agreed upon bargaining unit description would not on its face cause the Board any concerns but for the argument implicit in counsel for the trade union's submission that as a result of the newly enacted statutory provisions the Board is without jurisdiction to find as appropriate a separate full-time employees only bargaining unit in these circumstances. For many years the Board has consistently accepted the agreement of the parties with respect to the description of the bargaining unit. The circumstances in which the Board does not accept a bargaining unit description agreed upon by the parties are generally extraordinary and unusual.
In the present circumstances, we would not have entertained the applicant's request to amend the agreed upon bargaining unit description but for the argument of counsel for the trade union which suggests that by reason of the statutory amendments the Board can no longer accept such agreements (at least where the agreement relates to a separation of full-time and part-time bargaining units). The principles enunciated by the Board in Runnymede with respect to the attempts by a party to resile from agreements reached on the list of employees in the bargaining unit apply equally to the situation before us. This is particularly true when it is remembered that the agreement in this instance was reached during the Board's usual "waiver" process. That process has been developed and encouraged by the Board (in response to the concerns of the labour relations community) to expedite certification applications, reduce litigation, encourage settlement and generally make more efficient use of the time and resources of both the Board and the parties appearing before it. The integrity of that waiver process may be undermined if the Board were to permit parties to resile from agreements reached during that process in the absence of any compelling reasons to do so.
In this instance (and leaving aside for a moment the issue as to whether the bargaining unit applied for must conform with section 6(2.1)) the applicant has not provided any reasons why it should be permitted to "change its mind" about the description of the full-time only bargaining unit for which it first sought certification (on March 4, 1993) which it subsequently affirmed when it sought the first amendment relating to the geographic scope of the unit (on March 25th, 1993), and which it further affirmed during the waiver process with the Labour Relations Officer (on March 30th, 1993).
We turn then to the applicant's assertion that the amendment requested should be granted because the bargaining unit must conform to the new statutory provisions found in section 6(2.1) of the Act. In our view the language of the statute does not clearly compel such a result. The applicant in its written submissions has not provided any legal authority, analysis or submissions which support the assertion that the bargaining unit amendment requested is "required" by the Act. In our view if the Legislature had intended the result suggested by the trade union it could have simply said so in clear, simple and precise language.
We have determined that as presently framed the language of the statute viewed in its entirety should be viewed in a permissive and not exclusive fashion. Thus, where an applicant trade union applies for a bargaining unit which includes both full-time and part-time employees it will be deemed to be appropriate by the Board pursuant to section 6(2.1) of the Act. However, where the applicant has not applied for such a unit (and the respondent has also not requested such a unit) the statutory language does not compel the Board to nevertheless initially determine a full-time and part-time employee bargaining unit to be appropriate with the consequent result that a separate full-time bargaining unit will only be certified where the requisite level of support is not found in such an all inclusive unit. The statutory language does not unequivocally point to such a conclusion. Aside from the assertion that the language compels such a course of conduct by the Board the applicant has not articulated any labour relations reasons nor has it provided an analysis or interpretation of the statutory language to support that result.
Moreover, it may be that sound labour relations between the parties supports a less interventionist approach by the Board. Such an approach would certainly be more consistent with the Board's general approach that it will not interfere with a description of the bargaining unit agreed upon by the parties unless there are extraordinary or compelling reasons to do so. Nothing in the material before us and none of the submissions of the parties suggest that such reasons are present in this case.
For all of these reasons we have determined to dismiss the applicant's request to amend the description of the bargaining unit it had previously agreed upon. A Labour Relations Officer is hereby appointed to inquire into and report to the Board on the issues which remain in dispute between the parties.