[1994] OLRB Rep. March 208
3470-93-R United Steelworkers of America, Applicant v. CAA Northeastern Ontario Auto Club and Ontario Motor League Worldwide Travel (Sudbury) Inc., Responding Party
BEFORE: M. Kaye Joachim, Vice-Chair, and Board Members G. 0. Shamanski and B. L. Armstrong.
DECISION OF THE BOARD; March 3, 1994
The style of cause is hereby amended to reflect the correct name of the responding party: "CAA Northeastern Ontario Auto Club and Ontario Motor League Worldwide Travel (Sudbury) Inc."
This application for certification was filed on January 12, 1994. The applicant sought certification for the following bargaining unit:
all employees of the responding party in the Province of Ontario save and except Managers and those above the rank of manager.
- The responding party proposed the following bargaining unit:
all employees of the Respondent in Sudbury, Espanola, North Bay, Parry Sound and Timmins save and except managers, persons above the rank of Manager, Executive Secretary and Administrator: Accounting and Compensation.
On January 31, 1994, a Labour Relations Officer contacted the parties to attempt to obtain agreement on all outstanding issues and thereby waive the necessity for a hearing in this matter. The applicant was provided with the respondent's list of employees. There were a total of thirty-one names on the list. The responding party employed four Regional Managers on the application date, none of whom were included on the list.
During the waiver process, the parties were able to partially agree on the bargaining unit description as follows:
all employees of CAA Northeastern Ontario Auto Club and Ontario Motor League Worldwide Travel (Sudbury) Inc. save and except Managers, persons above the rank of Manager, Executive Secretary to the President and Administrator: Accounting and Compensation and pending resolution by the Board the bargaining unit is restricted to the cities of Sudbury, North Bay and Timmins and the Towns of Espanola and Parry Sound.
The applicant's position was that the appropriate geographic scope of the bargaining unit is the Province of Ontario while the responding party's position was that the geographic scope of the bargaining unit should be restricted to the cities of Sudbury, North Bay and Timmins and the Towns of Espanola and Parry Sound.
After reviewing the list, and its membership evidence, the applicant decided that it was in a certifiable position with or without any possible challenges to the list and therefore did not make any challenges to the list. As a result of the partially agreed upon bargaining unit, the names on the list, and the application of the thirty/thirty rule, the applicant lost six cards. The applicant did not challenge the lost cards. Specifically, the applicant did not challenge the fact that the names of the four Regional Managers were missing from the list.
The Officer announced the count. At that time the applicant had seventeen membership cards out of the agreed upon list of twenty-eight employees (sixty-one per cent). Therefore, the applicant was in a certifiable position, regardless of the outcome of the disputed geographic scope of the bargaining unit.
By letter dated February 3, 1994, the applicant advised the Board that the parties had resolved all outstanding issues with respect to the certification application and had agreed to the following bargaining unit description:
all employees of CAA Northeastern Ontario Auto Club and Ontario Motor League Worldwide Travel (Sudbury) Inc. in the Districts of Cochrane, Manitoulin, Nipissing, Parry Sound, Sudbury, Timiskaming and the Regional Municipality of Sudbury save and except Managers, persons above the rank of Manager, Executive Secretary to the President and Administrator: Accounting and Compensation.
In that same letter, the applicant advised that following the agreement reached on the bargaining unit description (the only outstanding issue in dispute) a dispute between the parties emerged as to whether the position currently called Regional Manager is included in the bargaining unit description. The applicant requested that the Board, pursuant to subsection 108(2) of the Act, appoint a Labour Relations Officer to conduct an examination into the duties and responsibilities of Regional Managers and issue a report.
By letter dated February 7, 1994, the responding party objected to the request under section 108(2) as being untimely, prejudicial to the respondent, and an abuse of the waiver and certification procedure. The responding party argues that the names of the four Regional Managers were excluded from the list reviewed by the applicant. The applicant did not challenge the list although they had lost six cards. The responding party asserts that it was incumbent upon the applicant to challenge the exclusion of Regional Managers during the waiver process. Having failed to do so, the responding party asserts that it is no longer open to the applicant to challenge the list either directly in this certification application or indirectly by way of a section 108(2) application. To do so would be an abuse of the Board's certification process. It would also be prejudicial to the respondent. The responding party notes that they had agreed to a geographic description wider than initially contained in its response to the certification and notes that they may not have done so had they known there were four managerial challenges outstanding. Further, the responding party notes that they had not been assured by the Officer that the addition of the four names to the list would not make a difference to the count. The applicant had seventeen cards out of twenty-eight names on the list. Adding four Regional Managers would make a list of thirty-two. (17 out of 32 53%). The applicant would then need at least one more card to be certifiable.
The responding party requests that the Board direct the applicant to adhere to its position, taken in the waiver process, that there were no managerial challenges to the list, that the bargaining unit consisted of twenty-eight persons on the application date and that the four Regional Managers not included on the list are excluded from the bargaining unit. In the alternative, the responding party appears to be requesting a new count and a chance to reconsider its agreement on the geographic scope.
The applicant was asked to respond to the employer's letter dated February 7. The applicant asserts that the dispute over the Regional Managers arose for the following reasons. On January 10, the responding party circulated a memorandum advising that the title of Office Supervisor had been changed to Regional Manager. The applicant asserts that they learned about this change on January 13 (the day after the application for certification was filed). The applicant questioned why the title of the Office Supervisor had been changed to Regional Manager, what the responding party's position is on whether Office Supervisors/Regional Managers rank above or below Managers, and what the responding party's position is on whether Office Supervisors/Regional Manager perform managerial functions. They also question why Office Supervisors/Regional Managers were left off the list of employees submitted by the employer, if the employer wanted to exclude theme when the positions of Executive Secretary and Administrators: Accounting and Compensation were set out in the list but marked with asterisks indicating that the respondent wished to claim a section 1(b) exclusion.
The recent change of terminology from Office Supervisor to Regional Manager does not explain why the applicant failed to challenge the exclusion of the four Regional Managers from the list. The applicant does not assert that the recent change in job title caused them any confusion. Rather they assert that, having reviewed the list and the membership evidence, they decided that they were in a certifiable position in any event and therefore chose not to challenge the list. Therefore, the Board does not find the fact that the title of Office Supervisor was changed to Regional Manager about the time that the application was filed is a factor to be considered.
The applicant asserts that the list for purposes of the count has never been treated by the Board as an exhaustive and final list of members of the new bargaining unit. They cite the following policy reasons why they should not be bound to the agreed upon list:
"(a) an applicant for certification may not be aware of the existence or non-existence of certain individuals and classifications in a work place and is not obliged to hunt down and identity each and every member of the proposed bargaining unit before it may be certified;
(b) an applicant often avoids making challenges to the effect that certain named individuals are missing from the list because doing so suggests to the employer that the named individual signed cards. If the employer's argument is accepted, the malevolent employers could deliberately leave names and classifications off a list, knowing that the applicant will make challenges to include its supporters and in an effort to identity those supporters, contrary to section 113 of the Act; and
(c) for this reason, an applicant is not obliged to make all possible challenges to the list for purposes of the count. If an applicant finds itself in a certifiable position notwithstanding possible challenges~ it is entitled to agree to the list and proceed to the count."
None of these policy reasons are applicable to the facts of this case. The applicant does not assert nor do the facts of this case suggest that any of the reasons in subparagraphs (a) to (c) above were the reasons that the applicant failed to challenge the list.
The applicant argues that if they are not entitled to challenge the list by way of a section 108(2) application, "it is hard to imagine how any applications pursuant to subsection 108(2) could ever be heard by the Board without "prejudice" to an employer: there would be no need for an inquiry by the Board into "questions as to whether a person is an employee". The list would tell all. Moreover, the employer's argument effectively ousts the Board's jurisdiction to determine all questions which arise in any matter before it, including whether a person is an employee."
What is before the Board at this time is the application for certification, not a section 108(2) application. Therefore, it would be premature and inappropriate to rule in advance whether a section 108(2) application could ever be brought with respect to the above mentioned Regional Managers.
The applicant asserts that the classifications of Manager and Regional Manager are separate and distinct. There are three Managers employed by the responding parties. The applicant asserts that the classification of Regional Manager is clearly subordinate to Manager and therefore is not excluded by virtue of the bargaining unit description. The applicant asserts that the employer is now attempting to resile from its agreement that the line of exclusion is Manager.
Further, the applicant objects to the release of a fresh count in the event that Regional Managers are included in the unit on the grounds that the disclosure of an amended count would reveal to the employer the number of Office Supervisors/Regional Managers who signed cards. If all such employees signed cards, then the employer would learn the specific identities of union supporters, contrary to section 113 of the Act. Although not entirely clear, it appears that the applicant requests the Board to issue a final certificate and reserves its right to make an application pursuant to subsection 108(2) to determine whether Regional Managers are employees within the meaning of the Act.
In a further response dated February 21, 1994, the responding party cited the case of Ivaco Inc., [1987] OLRB Rep. April 511 for the proposition that the list is used by the Board for purpose of ascertaining the number of employees in the bargaining unit and the composition of the bargaining unit including managerial and other exclusions. The responding party also confirmed its position that Regional Managers were excluded from the list because they exercised managerial functions. They further requested a clarity note confirming the exclusion of the four Regional Managers and the other three Managers. In the alternative, they requested a bar prohibiting the applicant from bringing a section 108(2) application with respect to the status of Regional Managers.
In a further response dated February 28, 1994, the applicant sought to distinguish the Ivaco Inc. decision and opposed both the request for a clarity note and the imposition of a bar to a section 108(2) application.
Decision
There are two possible options. First, the Board could hold the parties to their agreements made during the certification waiver process and certify the applicant on the basis of those agreements. Alternatively, the Board could direct the parties to return to negotiations with respect to any disputed issues. On the one hand, the Board's certification waiver procedure depends significantly on agreements made by parties. The Board is reluctant to permit parties to resile from those agreements. If parties were permitted to change their minds at will, the waiver procedure would grind to a halt and the number of hearings would increase dramatically. On the other hand, to hold the applicant to their agreement has the effect of potentially excluding individuals from the protection of the Act.
The Board has discussed the importance of obtaining parties' positions with respect to
bargaining unit descriptions and employees on the list prior to the announcement of the count. In Fort Erie Duty Free Shoppe Inc., [1991] OLRB Rep. Nov. 1268, the Board stated:
8.... There is no question that parties are intended to deal with issues related to the bargaining unit description and the list of employees prior to the announcement of the count. Nor is there any question that at least part of the rationale for that manner of proceeding is to avoid the possible gerrymandering adverted to by the applicant and certainly to avoid the “endless meanderings without map or compass" referred to in the Santa Maria Foods case, supra.
... As the other cases cited in Santa Maria Foods demonstrate, the Board is extremely reluctant to allow any party to raise new issues or take new positions with respect to bargaining unit or employee list issues once the count has been disclosed. (my emphasis).
However, all of this does not mean that all issues regarding bargaining unit descriptions and employee lists must be fully resolved and determined prior to any announcement of the count. That requirement would clearly subvert the process in many cases. Positions on these issues may ultimately appear marginal and fully capable of quick resolution in face of the count. To require final determination and possible litigation of these issues before proceeding to the next step in the process hardly seems productive. Indeed, the logical extension of this position might lead one to wonder when, if ever, the Board would be in a position to exercise its discretion under section 6(2) of the Act to grant interim certification, since in those cases there are, by definition, unresolved issues regarding the composition of the bargaining unit.
Thus, the practice of the Board is to require the parties to deal with and to finalize their positions with respect to bargaining unit descriptions prior to dealing with employee list issues and to deal with and finalize their positions with respect to employee list issues prior to any announcement of the count. This is precisely what we understand the Board to have said in Santa Maria Foods when it observed that the Board:
"does not announce the membership count until the count of employees in the unit is determined, subject, of course, to such outstanding challenges to the list as may have been to that point in the hearing."
[emphasis added]
The Board concludes that the importance of the waiver procedure requires that parties be held to agreements made during that procedure, in the absence of extraordinary circumstances. On the facts of this particular case, the applicant does not assert any extraordinary circumstances which would cause us to permit them to resile from their failure to challenge the list. The applicant, having considered the list and its membership evidence, made a decision not to challenge the omission of the Regional Managers from the list. Since they were in a certifiable position whether or not they challenged the list, it was open to them to make their challenges, obtain a count and be certified on an interim basis. They did not so. They are bound by their agreement on the list of employees.
The Board further declines to permit the responding party to resile from their agreement with respect to the geographic scope of the bargaining unit and declines to add a clarity note to such agreed upon description. In the result, there are no outstanding issues in dispute with respect to this certification application.
The Board finds that the applicant is a trade union within the meaning of section 1(l) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board finds that:
all employees of CAA Northeastern Ontario Auto Club and Ontario Motor League Worldwide Travel (Sudbury) Inc. in the Districts of Cochrane, Manitoulin, Nipissing, Parry Sound, Sudbury, Timiskaming and the Regional Municipality of Sudbury, save and except managers, persons above the rank of manager, Executive Secretary to the President and Administrator: Accounting and Compensation,
constitute a unit of employees appropriate for collective bargaining.
In accordance with the Rules of Procedure respecting applications for certification, the named employer has filed a list of employees in the bargaining unit, together with sample signatures for the employees on that list.
In support of its application for certification, the applicant union filed documentary evidence in the form of membership application cards. The cards are signed by each employee concerned, are dated within the six-month period immediately preceding the certification application date, and are supported by a duly completed Declaration Verifying Membership Evidence.
The Board is satisfied, on the basis of all of the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on January 12, 1994, the certification application date, had applied to become members of the applicant on or before that date.
A certificate will issue to the applicant.
As stated previously, this is an application for certification, not an application pursuant to section 108(2) of the Act. The Board declines to impose any bar on the applicant's filing of such an application. The panel hearing such application, if any, can determine whether to permit such application to proceed. We do note, however, that the Board has declined to inquire into a section 108(2) application where the parties had agreed to exclude the disputed employees from the list for the purpose of the count. (Ivaco Inc., supra).