United Steelworkers of America v. Oryx Fixtures Inc.
[1995] OLRB Rep. January 57
3024-94-R United Steelworkers of America, Applicant v. Oryx Fixtures Inc., Responding Party
BEFORE: Louisa M. Davie, Vice-Chair.
APPEARANCES: Mark Rowlinson and Gord Gow for the applicant; Scott T. Williams for the responding party.
DECISION OF THE BOARD; January 10, 1995
1This application for certification came on for hearing on January 9, 1994. Prior to the hearing the parties reached agreement on all matters in dispute between them save for the single issue noted herein. For ease of reference the applicant United Steelworkers of America will be referred to either as "Steelworkers" or "the Union" and the responding party will be referred to simply as "the Employer" or "Oryx".
2The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
3Having regard to the agreement of the parties, the Board further finds that all office, clerical and technical employees of Oryx Fixtures Inc. in the City of Barrie, save and except Managers, persons above the rank of Manager, Accountant and persons for whom any trade union held bargaining rights prior to November 23, 1994, constitute a unit of employees of the responding party appropriate for collective bargaining.
4In 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.
5In support of its application for certification, the applicant union filed documentary evidence of membership in the form of cards. The cards are signed by each employee concerned and indicate a date within the six-month period immediately preceding the application date. The membership evidence is supported by a duly completed Declaration Verifying Membership Evidence.
6The parties disagreed whether James Deacon should be included on the list of employees for purposes of determining the count. The parties filed an agreed statement of facts with the Board with respect to that issue. The facts relevant to the Board's determination can be briefly summarized.
7Mr. Deacon has been in the employ of the responding party for approximately one year. He is employed in the engineering department. It is not disputed that he is normally employed in the bargaining unit.
8On or about September 20, 1994, at the suggestion of the employer, Mr. Deacon enrolled in an autoCAD introductory course at Georgian College in the City of Barrie. Although Mr. Deacon's enrolment in the course was voluntary and not mandatory, it is not disputed that the course was either integral to the duties performed by Mr. Deacon for the employer (the employer's position), or at the very least was related and relevant to his job duties (the trade union's assertion). It is agreed that there is a nexus between his job duties and the course taken. The skills acquired by Mr. Deacon as a result of taking the course made him a more useful employee to Oryx.
9On November 18, 1994 Mr. Deacon (together with two other employees in the bargaining unit) was laid off. It is anticipated that each of these employees will be recalled to work in February 1995.
10The applicant union filed its application for certification on November 23, 1994. On that date Mr. Deacon was in attendance at the course (the course was scheduled for two evenings per week for three hours each evening).
11Oryx reimbursed Mr. Deacon for the cost of the course. It also remunerated him for the time he spent attending the course.
12Mr. Deacon's employment status is not in dispute insofar as he is clearly an employee of Oryx and it is agreed that he is in the bargaining unit. The real issue in this case however is whether he was employed in the bargaining unit on the application date and should therefore be included on the list for purposes of the count.
13Having carefully considered the able submissions of both counsel, I am of the view that Mr. Deacon is properly on the list of employees for purposes of the count. Mr. Deacon's attendance at the course on November 23, 1994 had been prearranged and predetermined prior to his lay-off of November 18, 1994. In this regard I accept that although Mr. Deacon had been laid-off from his regular duties on November 18, 1994, at the time of his lay-off it was agreed that he would continue with his predetermined attendance at the course. Mr. Deacon was paid by Oryx for the time he spent attending the course. There is an nexus between the course and Mr. Deacon's job duties on behalf of Oryx.
14If, on the date of application, Mr. Deacon had attended a three hour course related to his job duties at the employer's premises and had been paid for that attendance, there would be little doubt that he would be included in the bargaining unit. The fact that this course was at Georgian College in the City of Barrie rather than the employer's own premises in the City of Barrie does not alter the fact that he was "at work" on behalf of the employer when attending a course related to his job duties for which attendance he was paid.
15Mr. Deacon's "lay-off' on November 18, 1994 also does not alter the fact that after that date, for three hours an evening two days a week, he continued to be "at work" for the employer performing, in essence, preassigned duties (attendance at the course) for which he was remunerated by the employer.
16In all of the circumstances I find that Mr. Deacon is properly on the list of employees. On the basis of all the evidence before me I am satisfied that not less than forty-five per cent of the employees of the responding party in the bargaining unit on November 23, 1994, the certification application date, had applied to become members of the applicant on or before that date.
17A representation vote will be taken of the employees of the responding party in the bargaining unit. All those employed in the bargaining unit on November 23, 1994, who are so employed on the date the vote is taken will be eligible to vote.
18Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
19The matter is referred to the Registrar.