[1997] OLRB Rep. September/October 866
4096-96-R; 4328-96-U United Food and Commercial Workers International Union, AFL-CIO-CLC, Applicant v. Hercules Molded Products Inc., Responding Party; United Food and Commercial Workers International Union, Applicant v. Hercules Molded Products Inc., Responding Party
BEFORE: Pamela Chapman, Vice-Chair.
APPEARANCES: John L. Stout, Michael Doyle, Julie Marentette and Katherine Allan for the applicant; Patrick Milloy and Emmanuel Azzopardi for the responding party.
DECISION OF THE BOARD; October 1, 1997
Board file 4096-96-R is an application for certification. Board file 4328-96-U is an application pursuant to section 96 of the Labour Relations Act, 1995 ("the Act") alleging violations of the Act by the responding party employer ("the employer"). At the outset of the hearing in this matter, the parties advised the Board that the section 96 complaint had been resolved. Having regard to the minutes of settlement filed with the Board, the complaint in Board file 4328-96-R is hereby withdrawn by leave of the Board.
In the certification application, a representation vote was held on March 13, 1997, pursuant to the Board's direction of March 11, 1997. The ballot box was sealed. On May 8, 1997, the ballots were counted by the agreement of the parties. There were twenty-two (22) persons on the voters list; twenty-one (21) persons cast ballots. Of those voting, twelve (12) persons cast ballots in favour of the applicant ("the union"), one (I) person voted against the applicant, and eight (8) ballots were segregated due to challenges to the status of the persons voting. Regardless of the way in which the segregated ballots were cast, therefore, the union is in a position to be certified following the vote.
A number of issues remain outstanding, however, and a hearing was convened to hear the parties' evidence and submissions. The parties have been unable to agree on a description of the bargaining unit. The applicant seeks certification of the following bargaining unit:
all employees of Hercules Moulded Products Inc. in the Township of Sandwich South save and except persons above the rank of foreperson, office, clerical and temporary employees.
The employer takes the position that temporary employees should not be excluded, while agreeing that "employees of temporary help agencies" are properly excluded.
The union challenges nine (9) employees as not falling within its proposed unit. Two (2) employees, J. Grover and L. Mower, are challenged as not being employees within the meaning of the Act. The union asserts that seven (7) further employees are temporary employees: A. Abdallah, J. Azzopardi, S. Dutut, V. Fox, G. Leonard, P. Sladic and S. Talley. As noted above, these challenges are not numerically significant.
Finally, the employer takes the position that no representation vote should have been held in this matter, as, according to the employer, the Board ought not to have found that it appeared that not less than forty (40) per cent of the individuals in the bargaining unit proposed by the union were members of the union at the time that the application was made. This argument flows from the employer's position that there were twenty-two (22) individuals in the applicant's proposed bargaining unit on the certification application date. The union filed membership evidence on behalf of eight (8) persons, out of a bargaining unit which they estimated contained thirteen (13) persons on the date the application was filed. The union therefore had more than forty (40) per cent support if their estimate of the number of persons in the bargaining unit was considered, but less than forty (40) per cent on the employer's numbers. The employer argues that the Board ought to have taken into account the number of employees claimed by it to be in the unit, and therefore declined to order a vote.
No representations from employees in the proposed bargaining unit were received during the period following the vote, and no employees attended at the hearing and took any position on these issues.
The Board's decision dated March 11, 1997 contains the following paragraphs relevant to this dispute:
It appears to the Board on an examination of the evidence before it, that not less than forty per cent of the individuals in the bargaining unit proposed in the application for certification were members of the union at the time the application was made.
The Board directs that a representation vote be taken of the individuals in the following voting constituency:
all employees of Hercules Moulded Products Inc. in the Township of Maidstone, save and except persons above the rank of foreman, office and clerical employees and employees of temporary help agencies.
There may be a dispute between the parties as to whether or not "temporary employees" or "employees of temporary help agencies" should be included in the bargaining unit. If any individual holding such a position wishes to cast a ballot, the individual shall identify himself or herself as occupying a disputed position and such individual shall then be entitled to cast a ballot. Any ballot cast by such an individual shall be segregated and not counted until the Board so orders or the parties agree.
It appears from this decision that the Board had regard to the estimate of the number of persons in the bargaining unit provided by the union in the application, and not to the number of persons claimed by the employer to be in the unit, in reaching its decision to order a representation vote. Indeed, the Board's practice in that regard is discussed at some length in The Corporation of the City of Toronto, [1996] OLRB Rep. July/August 552.
The employer in this case admitted candidly that it wished to make the same arguments concerning the assessment by the Board of an appearance of forty (40) per cent support as were made by counsel for the employer, and rejected by the majority, in the City of Toronto case. It relied as well upon the dissent of Board Member Rundle in that case. The employer acknowledged that the decision of the majority was upheld on judicial review, but relied upon the fact that the Court had not explicitly found the decision of the Board to be correct, but only not patently unreasonable (reported at [1997] OLRB Rep. Jan./Feb. 169). Counsel for the employer urged us not to adopt the reasoning of the majority in City of Toronto, arguing that while it may not be patently unreasonable, it is nonetheless wrong, and submitted that the interpretation of the dissenting Board member in that case is correct.
Having had the opportunity to review the reasoning of the Chair of the Board in the decision in City of Toronto, both before the hearing in this matter and during argument, I am satisfied that the decision of the majority is not only not patently unreasonable, but is correct. At the conclusion of oral argument in this matter, I gave an oral ruling to that effect, and undertook to provide a written decision to follow.
I will not reproduce in this decision an excerpt from the City of Toronto decision, as it is a very lengthy and thorough exploration of the arguments both for and against the proposition the employer seeks to advance in the present matter: that the Board must consider the employer's calculation of the number of employees in the bargaining unit before deciding whether or not there is an appearance of forty (40) per cent support so as to require the holding of a representation vote. As noted above, the employer in this matter adopted the arguments of counsel for the employer in the earlier case, so for the same reason I will not outline at length the arguments made before me. However, I will review in this decision any arguments made by the employer which are not well canvassed in the City of Toronto decision, and will also comment on the specific facts of the case before me as they relate to the forty (40) per cent issue.
Section 8(2) of the Act reads as follows:
(2) If the Board determines that 40 per cent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the union at the time the application was filed, the Board shall direct that a representation vote be taken among the individuals in the voting constituency.
This section of the Act is the centrepiece of the employer's argument in this case, as it was in the City of Toronto case. Counsel for the employer argued that the issue of how the Board determines whether or not to order a representation vote pursuant to this section is simply a matter of statutory interpretation, on a question which he characterized as jurisdictional. According to the employer, the Board must be correct in its interpretation of section 8(2) as it is the beginning question, the threshold issue, and if the Board doesn't get it right it taints the whole certification process. Counsel urged the Board not to consider what he called "administrative convenience" (in respect of the Board's stated intent to hold votes quickly), in determining this issue.
The argument concerning the correct interpretation of section 8(2) is that the term "appear" in this section applies only to the Board's assessment of the number of employees who are members of the union, and not to the assessment of the number of employees who are in the bargaining unit, against which number the number of members must be compared in order to determine whether or not the level of forty (40) per cent support has been met. The contrary position, and the one which has been consistently adopted in Board decisions since November of 1995, is that "appear" applies generally to the Board's assessment under the section. On that analysis, the Board need not determine the actual number of employees in the proposed bargaining unit prior to determining whether or not there is sufficient support to order a representation vote. In practice, the Board looks only to the estimate of employees provided by the union in its application and assesses the appearance of support by comparing the number of members established by the filing of membership evidence against that estimate.
It cannot really be argued that the interpretation of the language of the section offered by the employer is the only clear meaning; it is at least as likely that the word "appear" applies generally to the Board's task as described in the section. Given, then, that the language of section 8(2) is at best ambiguous on this question, it is appropriate that in determining its approach to the section the Board have regard to the language of other related sections of the Act, to the goals of the certification sections of the Act and of the Act more generally. These considerations are outlined exhaustively in the earlier decision in City of Toronto, and I will not discuss them fully in these reasons. However, I will say that it seems important in considering what interpretation of the language the Board should adopt to have regard to the following:
(i) that an application for certification must include or be accompanied by an estimate of the number of individuals in the unit [section 7(12)] (emphasis added);
(ii) that the statute does not require that the employer file a response to the application nor any other material, except for its proposed bargaining unit description where it disagrees with that proposed by the applicant. In particular, the employer is not directed to file its calculation of the number of individuals in the unit [section 7(14)];
(iii) that the "number of individuals in the proposed bargaining unit who appear to be members of the trade union" must be determined "with reference only to the information provided in the application for certification and the accompanying information provided under subsection 7(13) (a list of names of union members in the proposed bargaining unit and evidence of their status as union members) [section 8(3)];
(iv) that the statute absolutely prohibits the Board from holding a hearing when making a decision regarding the voting constituency or determining the appearance of forty (40) per cent support [section 8(4)]; and,
(v) that a secret ballot representation vote, if it is directed, must be held within five days, unless the Board orders otherwise [section 8(5)].
As noted, the statute does not require that the employer provide its calculation of the number of employees in the applicant's proposed bargaining unit, which might suggest that the Board is not required to consider the employer's calculation in determining whether or not to hold a representation vote. However, the employer argues that the Board itself has decided to request this information, and having done so, it must consider the information pursuant to section 8(2). It is not accurate to say that the Board has asked the employer for such a calculation in a way which suggests that it will give it some consideration in determining whether or not to order a vote. In fact, Form TA-2, the response form, does not request that the employer calculate or advise the Board of the number of employees in the applicant's proposed bargaining unit. Section 3 of the form asks for the "total number of employees of the responding party at the location(s) described in the applicant's proposed bargaining unit" (emphasis added), which number includes all of the employees of the employer, in and out of the proposed unit. Section 6 of the response form asks for "the number of employees in the unit proposed by the responding party on the date the application was made", broken down by location (emphasis added). The employer is not asked whether or not it agrees with the estimate of the number of employees in the proposed bargaining unit provided by the applicant, or for its own calculation of that number. In contrast, it is asked explicitly for its description of the appropriate bargaining unit, and whether or not it asserts that a vote should be held on the fifth day following the application filing date.
The only place where the employer discloses its view of the number of employees in the bargaining unit proposed by the applicant is on Schedule A to the response, which together with Schedule B should form a list of all of the employees of the employer who might be in the voting constituency, together with information about their job classification, last day worked, reason for absence and expected date of return. These schedules also disclose whether or not employees are full-time, part-time or student employees. Schedule A is meant to include all of the employees which would be included in the bargaining unit proposed by the applicant; to Schedule B the employer adds any employees who would not be in the applicant's proposed unit but would be in the unit proposed by the employer.
These employee lists form the basis for the negotiation between the parties with the assistance of a Labour Relations Officer, during the days between the application filing date and the date of the vote, of a voters' list. They also disclose in a very helpful way the dimensions of any dispute between the parties about the appropriate bargaining unit, which can assist the Board in crafting an appropriate voting constituency, in making directions concerning the taking of votes such as the segregation of ballots, and which will facilitate negotiation between the parties during the "pre" and "post" vote periods of an agreement on the appropriate bargaining unit. The lists are used by the Labour Relations Officer to register any challenges to individuals' inclusion in the bargaining unit, which may result in the segregation of ballots and/or agreements to exclude individuals or to count their ballots. In short, the employee lists contained in Schedules A and B are an important working document which facilitate the expeditious processing of certification applications, the quick holding of votes, and the reaching of agreements by the parties.
Should the Board's determination to require the filing of this information in a timely fashion compel a particular interpretation of section 8(2) of the Act? I cannot agree that the Board's exercise of its general administrative power to determine its own procedure and to make rules and create forms pursuant to sections 110(16) and (17) of the Act, should govern statutory interpretation in the manner suggested by the employer. The fact that the Board utilizes information from the employer about the number of employees in a proposed bargaining unit for a number of purposes unrelated to its mandate under section 8(2) (and for purposes which are all subject to the agreement of the parties and/or ultimate adjudication, after the vote is held) does not mean that it is required to consider that information to determine whether or not there is forty (40) per cent support. Certainly its failure to do so is not an error of jurisdiction, as suggested by the employer.
The fact that section 8(4) of the Act provides that the Board shall not hold a hearing when making a decision as to whether or not there is an appearance of forty (40) per cent support requiring the holding of a vote, or when determining the voting constituency, is also a significant impediment to the Board adopting the interpretation of section 8(2) urged upon us by the employer. If the Board were to consider the information concerning the number of persons in the proposed bargaining unit provided by both parties, how would it resolve a difference between the union's estimate and the employer's calculation? Without a hearing at which the parties might call evidence and the Board make factual findings, it is not clear how the Board would ever he able to resolve a factual dispute about the number of persons in the bargaining unit, much less resolve it in a timely fashion in order to proceed to a quick vote.
Counsel for the employer submitted that alternatives to a hearing, recognizing the limit in section 8(4), include an inquiry by a Labour Relations Officer and/or written submissions by the parties. Neither of these approaches would eliminate the need for a hearing, however, where the parties disagreed on facts. Conceding that there may be no way to determine the actual number of employees in the bargaining unit without holding a hearing, the employer suggested that the Board would therefore be better advised in the face of a factual dispute to accept the employer's calculation of the number of persons in the unit, rather than the union's estimate, on the basis that the employer possesses the best information and is required to provide a sworn statement in the form of Schedules A and B to the response.
The present case provides a perfect example of the problem with this approach. The difference between the union's and the employer's numbers in this case are represented by the nine persons challenged by the union. Had the Board accepted at face value the employer's assertion that there were twenty-two (22) employees in the unit, no vote would have been ordered and the application would have been dismissed, even though the resolution of the dispute over the union's challenges could well result in a confirmation of the union's estimate and therefore its entitlement to a vote. A dismissal in these circumstances would also frustrate entirely the expression of employee wishes through a secret ballot vote, which in this case resulted in a clear demonstration of majority support for the union, regardless of the level of support it was able to demonstrate at the time of filing, and regardless of the outcome of the challenges. Such an approach seems entirely inconsistent with the statutory framework and with the goals of the Act.
Having regard to the factors outlined above, and to all of the matters canvassed in the decision of the majority in City of Toronto, I ruled at the hearing that the Board's approach to the interpretation of section 8(2), which has regard only to the membership evidence filed by the union and its estimate of the number of persons in its proposed bargaining unit in order to determine whether or not there is an appearance of forty (40) per cent support, is the most supportable interpretation of the statutory language.
Finally, it is of some significance that there is no allegation in this case that the union deliberately misrepresented the number of employees in the bargaining unit when it provided its estimate to the Board. In cases following the decision in City of Toronto this allegation has been made, and the Board has considered such claims as possible fraud allegations pursuant to section 64 of the Act (see for example R-Theta Inc., [1997] OLRB Rep. Jan./Feb. 116). However, the instant case is one where the union has maintained its position on the size of the bargaining unit, through the negotiation of a voters' list, the holding of the vote, and to the present time, when the challenges remain unresolved. It cannot be said, therefore, that the union deliberately underestimated the size of the bargaining unit in order to gain some strategic advantage; rather, this is a case where there is a true disagreement about the scope of the unit which may ultimately have to be heard by the Board if it cannot be resolved in bargaining.
The parties have agreed that they will attempt to resolve in bargaining the outstanding disputes concerning the description of the bargaining unit and the status of nine individuals which are outlined in paragraphs three (3) through five (5) above, and that this matter be adjourned sine die pending these efforts.
The Board has determined, however, that the applicant's right to certification cannot be affected by the Board's ultimate decision as to the inclusion or exclusion of the disputed classifications.
On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant, regardless of the outcome of the dispute over the bargaining unit.
- Accordingly, the Board pursuant to its discretion under section 9(2) of the Act, having regard to the agreement of the parties and pending the final resolution of the composition of the bargaining unit, certifies the applicant as the bargaining agent for:
all employees of Hercules Moulded Products Inc. in the Township of Sandwich South, save and except persons above the rank of foreperson, office and clerical employees and pending resolution by the Board excluding as well temporary employees, John Grover and Lindsay Mower.
A final certificate must await the final determination of the appropriate bargaining unit.
The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
Meeting and hearing dates set previously are hereby cancelled.
The responding party is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted until the date that had been set for the hearing.
Having regard to the agreement of the parties, the Board hereby consents to adjourn this application sine die for a period not exceeding one year. The parties are to advise the Board within that time of the status of their discussions on bargaining unit description in order that the certification may be finalized.
This panel will remain seized.