[1993] OLRB Rep. November 1157

2586-93-R; 2663-93-U Graphic Communications International Union, Local N-1, Applicant v. Michelin Tires (Canada) Ltd., Responding Party v. Group of Employees, Objectors; Graphic Communications International Union, Local N-1, Applicant v. Michelin Tires (Canada) Ltd. and Ray Krawchuk, Responding Par­ties

BEFORE: G. T. Surdykowski, Vice-Chair.

APPEARANCES: Mark Wright, George Novak, Beth Horton, and Stuart McLean for the applicant; Robert N. Gilmore, George Sutherland, Ray Krawchuk and Jane Richardson for the responding parties; C. J. Abbass and Ron M. Smith for the objectors.

DECISION OF THE BOARD; November 26, 1993

1. Board File No. 2586-93-R is an application for certification. Board File No. 2663-93-U is a related application under section 91 of the Labour Relations Act in which the applicant trade union complains that the Act has been breached.

2. The name of the responding employer is amended to "Michelin Tires (Canada) Ltd.".

3. The application for certification was filed on October 25, 1993. Subsequently, by letter dated and faxed to the Board on October 28, 1993, and subsequently hand delivered to the Board on October 29, 1993, the applicant wrote to the Board that:

"We act for the Graphic Communications International Union, Local N-i (the "Union"), in the above-noted matter.

The Union wishes to amend the bargaining unit applied for, as set out in paragraph 4 of the Application for Certification. The Union wishes the bargaining unit description to read as fol­lows:

"All employees of the Respondent at its facility at 55 West Drive, Brampton, Ontario, save and except foremen, persons above the rank of foreman, and office staff."

Please do not hesitate to contact me should you have any questions concerning this matter."

The applicant filed its section 91 application on October 29, 1993 under cover of a separate letter dated October 28, 1993 and which reads as follows:

"We act for the Graphic Communications International Union, Local N-i, in the above-noted matter.

Enclosed are seven (7) copies of a Form A-35, Application Under Section 91 of the Act, filed on behalf of our client. We request that this matter be scheduled for hearing by the Board on November 22, 1993 along with the Application for Certification (OLRB File No. 2586-93-R) as both this Application and the Application for Certification concern the same parties and events."

In yet a third letter dated October 28, 1993 the applicant wrote to the Board that:

"As you know, we act for the Graphic Communications International Union, Local N-I, in the above-noted matter.

The Union requests that it be certified under the provisions of section 9.2 of the Act in the event that it is not otherwise entitled to automatic certification as the Employer has violated the Act such that the true wishes of the employees in the bargaining unit cannot be ascertained. In sup­port of this request, the Union relies on the particulars and material facts set out in the attached Schedule "B". This schedule also forms Schedule "B" of an Application Under Section 91 of the Act filed on behalf of the Union this day under separate cover. The Union has requested that the Application Under Section 91 of the Act be heard on November 22, 1993 along with this Application for Certification as these matters concern the same parties and the same events."

4. By endorsement dated October 29, 1993 in Board File No. 2586-93-R, the Board, dif­ferently constituted, directed that:

"Having regard to the applicant's request in the letter dated October 28, 1993 to amend the bar­gaining unit description, the Board hereby directs a reprocessing of the application in accor­dance with the amended description."

5. At the hearing on November 22, 1993, the group of employees, objectors submitted that the decision of the Board to "reprocess" the application was made without notice to them and that they were therefore denied the opportunity to make representations with respect to the appli­cant's request, namely that it should be denied. The objectors asserted that the only reason that the applicant sought to amend the bargaining unit description to encompass a smaller group of employees was that it knew that it did not have sufficient support among employees in the larger bargaining unit to succeed in this application for certification. Counsel submitted that the manner in which the Board proceeded gives the appearance of injustice. The responding employer ("Michelin") agreed with the objectors that what had occurred did not pass the "smell test". The applicant submitted that the Board should not reconsider the "reprocessing" decision because it had no effect on any rights of anyone affected by the application.

6. Upon receiving the application for certification on October 25, 1993, the Board pro­cessed it in accordance with its usual procedures. Part of this processing involved giving notice of the application to Michelin and causing notice of it to be given to Michelin's employees in the form of a Form B-4 Notice to Employees of Application for Certification and of Hearing before the Ontario Labour Relations Board to be posted by Michelin in places where it was likely to come to the attention of the employees as affected as follows:

File No. 2586-93-R

Form B-4

LABOUR RELATIONS ACT

NOTICE TO EMPLOYEES OF APPLICATION FOR

CERTIFICATION

AND OF HEARING

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

Between:

Graphic Communications International Union Local N-I,

Applicant,

• and -

Michelin Tire Ltd.,

Responding Party.

TO THE EMPLOYEES OF:

Michelin Tire Ltd.

1. The applicant, applied on OCTOBER 25, 1993 to the Ontario Labour Relations Board for certification as bargaining agent of employees of Michelin Tire Ltd. in the following unit:

"All employees of the Respondent in the city of Brampton, save and except supervision, persons above the rank of supervisor and office staff."

[sic]

Note: The Board may decide that the appropriate bargaining unit is different from the one pro­posed by the applicant.

2. The terminal date set for this application is NOVEMBER 1, 1993.

3. Any evidence of an employee's objection to being represented by a trade union ("pe­tition") or evidence of re-affirmation of a desire to be represented by a trade union must have been filed by the date on which the application was filed, which was OCTOBER 25, 1993. Under s. 8 of the LRA the Board cannot consider any petition or re-affirmation evidence filed after that date.

4. If you have already filed a petition or re-affirmation evidence relevant to this applica­tion by the application date, and you wish the Board to consider it, you must file with the Board by NOVEMBER 1, 1993 a written statement which sets out your name(s), address and phone number, the file number at the top of this notice, the names of the union and employer and the date the evidence was filed, if known. You must also appear at the Board hearing in person ... (as per current para. 5).

5. If you wish to participate in these proceedings with respect to an issue other than a petition or re-affirmation, you must file with the Board by NOVEMBER 1, 1993 a written statement which sets out your name(s), address and phone number, the file number at the top of this notice, the names of the union and the employer, why you want to participate and what you want to say to the Board. If you file such a state­ment, that statement may be sent to the other parties in this case, and your name(s) may be disclosed to them.

6. If you do not file a statement as set out in paragraph 4 or 5, or if the Board deter­mines that your statement will not affect the result of the application, the Board may decide the application without further notice to you.

7. If you file a statement as set out in paragraph 4 or 5, an L.R.O. may contact you to discuss the issues in the application. You must also attend the L.R.O. meeting and the hearing, if any, or the Board may decide the application without further notice to you and without considering any document you may have filed.

8. A meeting with a Labour Relations Officer will take place in the Board Offices, 3rd Floor, 400 University Avenue, Toronto, Ontario, on WEDNESDAY, NOVEMBER 17, 1993, at 9:30 A.M. for the purpose of trying to settle all or part of this case if the case is not already settled by that date.

9. The hearing of the application will take place in the "Board Room", 6th Floor, 400 University Avenue, Toronto, Ontario, on MONDAY, NOVEMBER 22, 1993, at 9:30 AM. If the case is not already settled by that date, and it win continue on consec­utive days from Monday to Thursday, excluding Fridays and holidays until completed or as the Board otherwise directs.

10. THE PURPOSE OF THE HEARING, if a hearing is held, is to hear the evidence and representations of the parties with respect to this application.

DATED October 25, 1993.

T. A. Inniss

Registrar

Ontario Labour Relations Board

NOTE: All communications should be addressed to:

The Registrar

Ontario Labour Relations Board

4th Floor

400 University Avenue

Toronto, Ontario

M7A 1V4

(416) 326-7500

IMPORTANT NOTE

PLEASE CONSULT THE BOARD'S RULES.

COPIES OF THE BOARD'S RULES MAY BE OBTAINED FROM THE BOARD'S OFFICE LOCATED ON THE 4TH FLOOR AT 400 UNIVERSITY AVENUE, TORONTO, ONTARIO (TEL. (416) 326-7500).

YOU HAVE THE RIGHT TO COMMUNICATE WITH, AND RECEIVE AVAILABLE SERVICES FROM, THE BOARD IN EITHER ENGLISH OR FRENCH.

PLEASE INDICATE WHETHER YOU WILL REQUIRE ANY SPECIFIC SERVICES, INCLUDING TRANSLATION SERVICES FOR WITNESSES, OR SERVICES FOR PERSONS WHO ARE HEARING OR VISION IMPAIRED OR OTHER SERVICES. THE BOARD WILL ATTEMPT TO ACCOMMODATE YOU, BUT MAY NOT BE ABLE TO MEET YOUR SPE­CIFIC REQUEST(S).

7. Such notices were posted by the employer at each of its Brampton locations on October 27, 1993.

8. Upon receiving the applicant's request to amend the bargaining unit described in its original application, the Board found it appropriate to give notice of the applicant's request to Michelin and the employees. It appears that the Board panel which reviewed the matter consid­ered it appropriate to reprocess the application in its entirety and directed that this be done. This resulted in a new Notice being sent to Michelin, a new Notice to Employees being sent to Michelin for posting (which posting was done at both of its Brampton locations on November 1, 1993), and a new (later) terminal date being fixed for the application. The second Notice to Employees describes the amended bargaining unit being sought by the applicant and identifies the new termi­nal date. It is otherwise identical to the first Notice to Employees.

9. In effect, all employees of Michelin, including the objectors, received notice of the application for certification, the bargaining unit originally proposed by the applicant, the amended bargaining unit requested by the applicant, that the Board might decide that a bargaining unit other than the one proposed by the applicant is appropriate, what to do and when to do it by if they wish to participate in the proceeding, and the dates of the usual Officer's Meeting and of the Board Hearing with respect to the application for certification. It also requests that they consult the Board's Rules and where these can be obtained. No issues were disposed of by the Board and no rights were determined by the "reprocessing" decision. In effect, it was a decision directing administrative action in order to ensure that everyone was aware of the applicant's request and adjusting the times for dealing with the matter before the Board so that all concerned would have an opportunity to consider whether they wish to participate in the proceeding. Further, "reprocess­ing" the application did not preclude the objectors or anyone else from making any argument they wished with respect to any matter relevant to or arising out of the application, including any issue regarding the bargaining unit description.

10. Finally, it was not apparent what effect reconsidering the "reprocessing" decision would have had when the matter was raised by the objectors on November 22, 1993. What the Board had directed be done had been done and it was not apparent how it could be undone.

11. In the result, I was satisfied that the objectors' request for reconsideration should be dismissed, and I so ruled, orally.

12. The objectors then submitted that the applicant's request to change the description of its proposed bargaining unit constituted a new application which, having regard to the Board's Rules of Procedure, was made when the hard copy was hand delivered to the Board, not when the letter was faxed to the Board. The objectors submitted that a finding by the Board that October 29, 1993 is the certification application date herein would not be contrary to Hemlo Gold Mines Inc., [1993] OLRB Rep. March 158 (application for judicial review dismissed by the Ontario Court of Justice (Divisional Court), [1993] OLRB Rep. May 471) because the Board would be making a finding of the actual certification application date, not "deeming" some other date to be the certifi­cation application date, or determining the applicant's right to certification on a date other than

the certification application date. Counsel argued that it is the trade union applying for certifica­tion which has control over the all important certification application date and that having made its application it should be held to it. Counsel submitted that a trade union should not be permitted to amend an application for certification in the manner the applicant seeks to do herein and that if it wishes to make this kind of change it should be required to withdraw the application and file a new one. Accordingly, submitted the objectors, the application as amended should be found by the Board have been made on October 29, 1993, or, in the alternative the Board should not allow the amendment.

13. Michelin had agreed that the amended bargaining unit sought by the applicant is an appropriate one. However, counsel observed that the request and the subsequent "reprocessing" certainly gave the appearance of the new application, particularly in view of Rule 25 of the Board's rules. Counsel submitted that the amendment sought is not a minor matter particularly when its effect gives the appearance of shutting out the group of employees covered by the larger unit that excluded from the smaller one, and also prevents consideration of the petitions filed on October 29, 1993.

14. The applicant relied upon the Board's decisions in Precision Alarms and Signal Systems Limited, [1993] OLRB Rep. April 381 and Hemlo Gold Mines, supra, Rules 8 and 43 of the Board's Rules of Procedure, and section 6 of the Labour Relations Act. It submitted that there was no reason to refuse to allow the amendment and that if the Board did so the Board was not pre­cluded from finding a bargaining unit other than the amended one the applicant proposed, includ­ing the larger unit it originally proposed, was appropriate.

15. Upon considering the representations of the parties, I ruled, orally, that the certifica­tion application date herein is the date on which the original application was made; that is, Octo­ber 25, 1993. I further ruled that I would allow the amendment sought by the applicant and that I would hear the representations of the parties with respect to whether the amended bargaining unit is a unit of employees appropriate for collective bargaining.

16. The applicant could have withdrawn this application for certification and filed another (as, for example, in General Signal Limited, [1993] OLRB Rep. June 509). That is not what it did. Instead, the applicant sought to amend the bargaining unit for which it seeks to be certified herein. There is nothing in the Labour Relations Act which precludes this and the Board's Rules contem­plate the possibility that applications to the Board may be amended. Further, I agree with the Board's decision in Precision Alarms, supra, which dealt with circumstances which, if anything, were more compelling than those in this case. In Precision Alarms, supra, the Board held that con­verting an application for certification from one which relates to the construction industry, and comes under those provisions of the Act which deal specifically with applications for certification in the construction industry, to one which does not and which resulted in an amendment to the bar­gaining unit applied for and a reprocessing of the application did not make it a new application or change the certification application date:

17. This application was filed on December 21, 1992. It was originally described as an application pertaining to the construction industry because (it was said) the employer's business involved the installation and maintenance of alarm systems. Subsequently, the union sought to amend the bargaining unit description when the employer took the position (and it became apparent) that it was not a business in the construction industry. As a result of this request, the Board extended the terminal date and directed a re-posting to ensure that any employees potentially affected by this application would have notice. It should be noted, however, that regardless of this dispute about the description of the bargaining unit, it has been clear from the outset that the applica­tion relates to employees servicing alarm systems in the London area.

18. The employer contends that the "application date" should not be December 21 when the application was filed, but rather the date on which the union acknowledged that it did not per­tain to the construction industry and requested the change in the bargaining unit description so that it conforms to the actual nature of the employer's business. In effect, the employer urges the Board to treat the situation as if a new application had been made at that time - with the result that the number of employees actively at work on the application date is smaller and the identity of those employees is different than on December 21, 1992 when the application was filed with the Board.

19. In Gallant Painting, [1987] OLRB Rep. Mar. 372, the Board held, in part:

2.... in circumstances where an application for certification has been brought under the construction industry provisions and those provisions have subsequently been found not to be applicable, it has been the Board's practice to treat the application as though it had been made under the general provisions (see, for example, JA. Wilson Display Ltd., [1983] OLRB Rep. July 1080; Township of Loughborough, [1975] OLRB Rep. Feb. 122)....

That is what has happened here. There has been no "news' application for certification after December 21, 1992, but rather a refinement of the parties' positions in an existing application; moreover, the union's characterization of this proceeding as one to which the construction industry provisions of the Act relate is, at most, a technical error or irregularity. The fact that there was a change in the bargaining unit description to more precisely reflect the nature of the employer's operations and a consequent new notice to employees and extension of the terminal date, does not alter the fact that the application date was and remains December 21, 1992. Whether or not the Board has jurisdiction to declare the application date to be something else, the Board sees no reason why it should do so here, or depart from the approach enunciated in the cases mentioned above.

17. Further, the Board does not have the discretion to change a certification application date. The application for certification herein, though amended, was made on October 25, 1993. That date is fixed by the conduct of the applicant and cannot be changed by the Board. This may put employees at a relative disadvantage or affect their substantive rights. However, this is the effect of section 8 of the Labour Relations Act. The Ontario Court of Justice (Divisional Court) has confirmed that Boards' conclusion that this is so and that a statutory denial of substantive right by section 8 does not amount to a denial of natural justice (see Hemlo Globe Mines, supra).

18. Counsel for the objectors then raised a question regarding the sufficiency of the Notice to Employees with respect to those employees who would not be included in the bargaining unit if the Board accepted as appropriate the amended unit proposed by the applicant. I was satisfied that the Board's Notices sufficiently described the application to all Michelin employees and indicated to them how they can participate in this proceeding such that any reasonable employee would have had adequate information upon which to act or at least attend before the Board in that respect. The employees were advised of when the application was made, the original and amended bargain­ing unit proposed by the applicant, that the Board could decide that the appropriate bargaining unit is something other than the one proposed by the applicant, of the provisions of section 8 of the Labour Relations Act, of what they must do and by when they must do it if they have filed a peti­tion or reaffirmation evidence by the application date, of what and by when they must do if they wish to participate in a proceeding, of what could happen if they did not do so, and of the time, date and place of the Officer's Meeting and Board Hearing scheduled in the matter. The Board received no communication from any employee who would be excluded from the amended bar­gaining unit until November 23, 1993 when what can best be described as an untimely petition was delivered to the Board. I saw no reason to think that the Board's Notices were in any way deficient and I so ruled, orally.

19. I then heard the submissions of the parties with respect to whether the bargaining unit

applied for by the applicant (that is, as amended) is an appropriate one. The objectors submitted that the original larger municipal-wide bargaining unit is the appropriate one for this application. Michelin stuck by its agreement that the amended bargaining unit is appropriate. In considering the representations of the parties, I assumed the various assertions of fact by the objectors with respect to the relationship between Michelin's two plants in Brampton, the terms and conditions of employment of the employees, and the skills and abilities of those employees at the two locations to be true. I also assumed, for purposes of my ruling, that the bargaining unit proposed by the objectors would be the most appropriate one.

20. Upon considering the representations of the parties, and having regard to the Board's approach to bargaining unit issues of this kind since Hospital for Sick Children, [1985] OLRB Rep. Feb. 266, I ruled, again orally, in favour of the applicant (see also, National Trust, [19861 OLRB Rep. Feb. 250; [1987] OLRB Rep. Jan. 108; [1988] OLRB Rep. Feb. 168, and the developing line of cases beginning with The Mississauga Hospital, [1991] OLRB Rep. Dec. 1380 most recently reviewed in Englehart & District Hospital Inc., [1993] OLRB Rep. Sept. 827 and Wingham and District Hospital, [1993] OLRB Rep. Sept. 914).

21. In the Board's experience in certification proceedings, there will often be a variety of bargaining units of varying degrees of appropriateness which will accommodate the collective bar­gaining process. While the biggest or "most comprehensive" bargaining unit available may carry with it labour relations advantages, this does not mean that a smaller grouping cannot be found by the Board to be appropriate for collective bargaining for purposes of an application for certifica­tion. The Labour Relations Act has long given the Board a very broad discretion to "determine the unit of employees that is appropriate for collective bargaining" upon an application for certifica­tion being made to the Board. There is nothing in the present legislation which changes this. Accordingly, in an application for certification, the Board's task is not to determine which is the best or most appropriate bargaining unit, but whether the bargaining unit applied for is an appro­priate one (and if it is not, what bargaining unit, having regard to the particular application, is).

22. In this application, there was no assertion that the applicant's proposed bargaining unit as amended is not appropriate. It was asserted only that it is not the most appropriate one. Fur­ther, the employer and the applicant trade union, which are the parties to the collective bargaining relationship and which must function within it, agree that the amended unit is appropriate; that is, they foresee no labour relations problems with it. Finally, though the objectors do not agree, they would like the larger unit they proposed because, as counsel candidly conceded in argument, what they really want is a representation vote and a finding in their favour on the bargaining unit issue would give them one.

23. In the result, I was satisfied that the amended bargaining unit proposed by the applicant is an appropriate one and I found that:

all employees of Michelin Tires (Canada) Ltd. at its facility at 55 West Drive, Brampton, save and except foremen and persons above the rank of foreman and office staff

constitute a unit of employees appropriate for collective bargaining.

24. The parties then addressed certain membership evidence issues. Before I ruled on those issues, the parties entered into and filed with the Board a written agreement, dated November 24, 1993, as follows:

File #2586-93-R 2663-93-U

Between:

Graphic Communications International Union Local N-i

Applicant

• and -

Michelin Tire Ltd.

Responding Party

(Employer)

• and -

Group of Employees

Responding Party

(Objectors)

Agreement of the Parties

1. The parties agree that the bargaining unit and voting constituency will be described as follows:

"All employees of Michelin Tires (Canada) Ltd. at its facility 55 West Drive, Bramp­ton save and except foremen and persons above the rank of foreman and office staff."

2. The parties further agree that the Board shall order a representation vote as of the date of this agreement.

3. A list of employee for the purpose of the vote is attached to this agreement.

4. Vote arrangements are as follows:

Date of vote - December 9, 1993

Alternate date - December 10, 1993

Location of the Poll - Cafeteria

Hours of the Poll - 2:30 pm to 3:30 pm

of Notices - 3

Form of the Ballott - one way (yes or no)

Scrutineers at the Poll

For the Applicant - George Novak

For the Employer - Ray Krawchuk

For the Group

of Employees - Ron Smith

Agents at Count

For the Applicant - George Novak

For the Employer - Ray Krawchuk

For the Group

of Employees - Ron Smith

Contact person at the vote location - Ray Krawchuk (416) 451-2669

5. The applicant withdraws its challenge to the inclusion of Wayne Hogan #17 on Schedule A in the bargaining unit.

6. The applicant hereby requests leave of the Board to withdraw its application pursuant to section 91, Board file #2663-93-U.

7. The applicant agrees that it is estopped from filing any further actions and or com­plaints based upon the particulars set out in Board file #2663-93-U.

8. The parties agree that the attached "Notice to Employees" advising the employees of the informal meetings will be posted immediately by the employer.

9. The applicant withdraws its request for certification pursuant to section 9.2 of the Act.

Dated at Toronto this 24th day of November, 1993.

"George Novak" "Robert N. Gilmore"

For the Applicant For the Responding Party

GEORGE NOVAK (Employer) ROBERT N. GILMORE

"RON M. SMITH”'

For the Responding Party

(Group of Employees)

[SIC]

ONTARIO LABOUR RELATIONS BOARD

NOTICE TO EMPLOYEES

PLEASE BE ADVISED INFORMAL MEETINGS CONCERNING THE REPRESENTA­TION VOTE SCHEDULED BY THE ONTARIO LABOUR RELATIONS BOARD, TO BE HELD ON DECEMBER 9,1993, WILL TAKE PLACE IN THE COMPANY'S CAFETE­RIA BETWEEN 2:30 P.M. AND 3:30 P.M. ON THE FOLLOWING DAYS:

1. DECEMBER 6, 1993 - GROUP OF OBJECTING EMPLOYEES 2. DECEMBER 7, 1993 - REPRESENTATIVES OF THE UNION 3. DECEMBER 8, 1993 - REPRESENTATIVES OF THE COMPANY

EMPLOYEES ARE FREE TO ATTEND OR NOT TO ATTEND ANY OF THESE MEET­INGS. ATTENDANCE AT ANY OF THESE MEETINGS WILL NOT RESULT IN THE LOSS OF ANY PAY.

DATED this 24th day of NOVEMBER, 1993.

A voters list was attached as an appendix to the above agreement but is not reproduced here.

25. I can see no reason why this agreement of the parties should not be accepted. This agreement also eliminates the need to rule on the membership evidence issues.

26. Having regarding to the agreement of the parties as aforesaid, the materials filed, and the Board's rulings as aforesaid:

(a) The application in Board File No. 2663-93-U is withdrawn with leave of the Board;

(b) The application herein under section 9.2 of the Labour Relations Act is withdrawn with leave of the Board; and

(c) The Board directs that a representation vote be taken in the voting constituency agreed to by the parties and in accordance with the agreement and arrangements made between them in that respect.