Teamsters Local Union No. 419 v. Martha's Garden Inc., 1997 CanLII 15497

Ontario Labour Relations Board

[1997] OLRB Rep. September/October 891

0245-97-R Teamsters Local Union No. 419, Applicant v. Martha's Garden Inc., Responding Party

BEFORE: Bram Herlich, Vice-Chair, and Board Members S. C. Laing and H. Peacock.

APPEARANCES: Mike McCrearv and Paul Dunne for the applicant; Walter Thornton, Gus Arrigo and Justin Diggle for the responding party.

DECISION OF THE BOARD; September 2, 1997

I.

1. This is an application for certification in which a representation vote has been held in accordance with the direction of the Board (differently constituted) dated April 24, 1997. Although there have been a varying number of issues between the parties at different times in the proceedings, by the time the matter came on for hearing, only one central issue remained. There was, however, a proliferation of manifestations of that single issue before the Board.

2. There is a group of individuals who, although they work together, side by side, performing similar functions to employees paid directly by the responding party (the "employer" or "Martha's"), are paid for their work by an entity other than Martha's (namely by Reliable Employment Services Inc. ("Reliable")-hence we shall refer to this group, as the parties did, as the "Reliable employees").

3. The parties demonstrated breathtaking flexibility in their respective abilities to alter their positions in respect of the Reliable employees. There can be no doubt, and counsel, to their credit, did not assert otherwise, that principles took a back seat to strategic maneuvers in determining the various shifts in the parties' positions.

4. The applicant (also referred to as the "union") initially proposed a fairly standard all employee unit. Subject to certain ultimately irrelevant exceptions, the employer, in its response, essentially adopted the unit proposed by the applicant but proposed a clarity note to specifically indicate the inclusion of the Reliable employees in the bargaining unit. In preparing the voters' list in advance of the balloting, the employer thus included and the union objected to the inclusion of the Reliable employees.

5. The vote was held on April 28, 1997. Twenty-five out of the twenty-six persons on the voters' list (which, of course, included the challenged Reliable employees) presented themselves at the poll and were given ballots. In the result, twelve ballots were marked in favour of the union, eleven were marked against and two were spoiled. Thus, a majority of the total number of ballots cast were in favour of the union. In view of the dispute regarding the Reliable employees, however, their ballots were segregated and counted apart. It was thus possible to further subdivide the results: despite the total majority in favour of the union, a majority of the Reliable employees voted against certification. The vote results prompted the parties to re-evaluate their positions.

6. Indeed, by the time the period for making post vote representations had elapsed, each of the parties had purported to adopt the position formerly advanced by the other. The employer now "agreed" that the Reliable employees ought not to be included or viewed as employees in the bargaining unit -the likely practical result of that "concession" to the union's position would have been that the Reliable employees (whom the employer had formerly claimed as its own) would not have been covered by the certificate whose issuance seemed imminent. The union, on the other hand, now "agreed" that the Reliable employees were employees of Martha's to be included in the bargaining unit. The likely result of the union's "concession" would have been to secure bargaining rights in respect of the Reliable employees (whose eligibility to vote the union had previously challenged and a majority of whom had voted against the union).

7. In that context, the first issue with which the Board was asked to deal was whether there was still an issue in dispute between the parties regarding the Reliable employees.

8. Essentially, the employer argued that since it had accepted the union's position in writing on April 28, 1997 and that the union had not accepted the Martha's position in writing until May 7, 1997, some nine days later and on the last day of the "objection period", that the Board should conclude that the issue of the Reliable employees had been resolved. We should note that the union asserted that, on the day of the vote, it had notified the Board orally, through the Labour Relations Officer who had conducted the vote, that it was withdrawing its challenges to the Reliable employees. That assertion was disputed, but for the purposes of our ruling it was unnecessary to determine. We recessed to consider the submissions of the parties and delivered the following unanimous oral ruling:

For reasons which may be elaborated upon in a subsequent decision, the Board is satisfied that there remains an issue in dispute between these parties, namely whether the individuals referred to as the "Reliable employees" are employees of Martha's and whether a clarity note to that effect ought to be included.

Neither party, strictly speaking, advocates a "he who is swiftest wins the race" approach in these circumstances. Essentially, the employer argues that (and we have entirely discounted any potential evidence regarding discussions between Mr. Dunne and the Labour Relations Officer for this purpose) the union merely waited too long to change its position as the employer had done some seven working days earlier.

In the circumstances, including the fact that the union's submissions of May 7th were within the time period contemplated by the Board, we are satisfied that the union had the same option as the employer had exercised seven days earlier i.e. to change its position.

We are thus satisfied that there remains an issue to be determined between the parties.

9. The Board's oral ruling merits one significant clarification. The reference to parties' abilities or entitlement to "change their position" needs to be read fairly narrowly. The two parties here did not merely change their positions, they each adopted the position formerly held by the other. Thus, while the positions adopted were new to the parties adopting them, they were not new to the process. These were positions that had already been articulated. This was not a situation where a party apparently losing or winning the representation vote suddenly comes up with challenges or additions to the voters list not previously raised by anyone. That kind of situation is to be readily distinguished from the instant one which some might cynically describe as the parties racing, for reasons no doubt closer to self-interest than epiphany, to embrace each other's position.

10. Following the delivery of this ruling, the parties took some time to consider their positions. When the hearing reconvened the parties advised that they would draft and file a statement of agreed facts as well as written submissions in relation to the outstanding issue regarding the Reliable employees. There were, however, two further issues the parties wished the Board to consider and, if possible, rule upon at the hearing. First, the employer asked that a new representation vote be ordered. Second, the employer asked that it be permitted to advance a new position with respect to the appropriate bargaining unit. Martha's submitted that, in the event the Board determined that the Reliable employees were indeed employees of Martha's for the purposes of this application, the Reliable employees did not share a community of interest with the other employees of Martha's. Consequently we were urged to find that two separate bargaining units - one for the Reliable employees and the other for the remaining Martha's employees - would be the appropriate bargaining units. Martha's also asserted that the facts upon which it would rely for advancing this position were the identical facts which would be required to dispose of the issue of whether the Reliable employees are employed by Martha's.

11. With respect to the request for a further representation vote, the employer argued that employees ought to have explicitly been made aware of the applicant's position regarding the Reliable employees prior to the vote. The Board's prior decision and consequent notice of vote described an "all employee" voting constituency without any reference to the clarity note proposed by the employer.

12. It is true that in striking voting constituencies, the Board generally tends to opt for the widest reasonable constituency so as to preserve the potential utility of the vote. Actual bargaining unit determinations, certainly when they are disputed, are not made until after the representation vote has been taken. Where there is a clear dispute between the parties regarding the bargaining unit description, the parameters of that dispute may well be identified in the Board's decision directing the vote (e.g. where a party seeks the exclusion of an identifiable group of employees, such as part-time employees or office and clerical employees, from the bargaining unit). The Board, however, does not, in advance of the vote, typically outline in either its decisions or postings the parameters of disputes regarding employee status or voter eligibility. The latter sorts of issues are commonly referred to as "list" issues to distinguish them from bargaining unit issues. And while the dividing line between these types of issues may not always be crystal clear (a bargaining unit dispute will typically result in corresponding list issues though not necessarily the reverse), the Board observed and the parties acknowledged, at the commencement of the instant hearing, that the issue (if there was one) in this case was essentially a list issue: i.e. are the Reliable employees employed by Martha's? If they are, they would, barring some specific bargaining unit exclusion which no one in this case had proposed, be included in an all employee bargaining unit.

13. Does the fact that there was no explicit notice of this list issue to affected employees prior to the taking of the vote or the fact that the employer's proposed clarity note was not included in the voting constituency mean that a new vote ought to be directed? We think not.

14. No employee or person claiming any entitlement to vote has taken the opportunity available to raise any concern. With but a single exception, each and every person any party argued was entitled to vote marked a ballot. Further, it is frankly difficult to know or appreciate what difference greater employee knowledge about the position of the union (or the employer) about the Reliable employees might have made to the exercise of employee franchise. Finally, a certain irony in this case flows from the argument that employees ought to have had a better idea of the union's (or the employer's) position. Given the parties' demonstrated ability to reverse ground, one might be forgiven the sensation of trying to hit a moving target. In all of these circumstances, we were not persuaded that it would be appropriate to and we declined to direct the taking of a second representation vote.

15. With respect to the second issue, the union argued that the employer ought not to be permitted to raise a new issue or to take a new position with respect to the appropriate bargaining unit at this stage of the proceedings.

16. The Board reserved its ruling with respect to that issue. The parties then agreed on a schedule for the filing of agreed facts and submissions with respect to the Reliable employees issue. That process has now been completed. There are thus, potentially, three issues with which the Board may have to deal. First, are the Reliable employees employed by Martha's? If so, ought the employer to be now permitted to advance an alternative position with respect to the appropriate bargaining unit(s)? Finally, what is/are the appropriate bargaining unit(s)?

17. The parties filed the following Statement of Agreed Facts:

STATEMENT OF AGREED FACTS

REGARDING "WHO IS THE EMPLOYER"/SEPARATE BARGAINING UNITS

For the purposes of this Statement, persons paid directly by Reliable Employment Services Inc. ("Reliable") shall be referred to as "the Reliable employees", and persons paid directly by Martha's Garden Inc. ("Martha's") shall be referred to as "the Martha's employees". "The workplace" refers to the workplace at 475 Homer Avenue, where Martha's is located.

1. The Reliable employees and the Martha's employees work together, side by side, perform similar functions, and share the same change and lunch rooms at the workplace.

2. The shortest duration of employment of a Reliable employee at the workplace as of the date of the Application for Certification was four (4) months and some Reliable employees had worked continuously at the workplace for more than two (2) years.

3. Martha's determines and communicates the work schedule to the Martha's and Reliable employees, including vacation and holiday scheduling, based on the available or required work. In the event of absences from scheduled work, some Reliable employees contact Reliable, whereas others contact Martha's. Martha's preference is that the Reliable employees contact Martha's directly.

4. The Reliable employees are paid directly by Reliable, including wages, vacation and statutory holiday pay. Martha's pays fees to Reliable in relation to the services performed at the workplace by the Reliable employees, and Reliable retains a portion of these fees. Martha's is not consulted concerning the wages that are paid to the Reliable employees. There is a relationship between the wages paid by Reliable to the Reliable employees and the fees paid by Martha's to Reliable.

5. The payment of wages to the Reliable employees is normally effected by a representative of Reliable attending at the workplace and delivering cheques payable to the Reliable employees to a member of Martha's management, who distributes the cheques to the Reliable employees at the workplace.

6. Martha's pays Employer Health Tax and Workers' Compensation premiums in relation to the Martha's employees, whereas Reliable pays such premiums in relation to the Reliable employees.

7. Reliable provides an orientation of the workplace facilities at the workplace to the Reliable employees prior to or at the start of work at the workplace, whereas Martha's management and/or employees train(s) such employees in relation to the operation of machines and equipment at the workplace and other aspects of the performance of work.

8. Day-to-day supervision of the Reliable employees at the workplace, including the assignment of work, is provided by Martha's management and/or employees.

9. In the event of the termination of the employment of a Reliable employee, Reliable would be notified, in advance, by Martha's, although the decision would in effect be made by Martha's. There have been occasions when Martha's has imposed discipline, falling short of the termination of employment, in relation to a Reliable employee, without Martha's contacting Reliable, in advance, in relation to such disciplinary action.

10. Reliable does not supply any tools or equipment in relation to the Reliable employees. Uniforms and other work-related clothing and tools are supplied to the Reliable employees by Martha's.

11. Martha's pays the premiums or otherwise provides the following group benefits on behalf of the Martha's employees:

a) Group Insurance (Aetna) • Life, AD&D • Long Term Disability • Health Care benefits

b) Self-Insurance (Martha's) Extended Health Care • Dental

No such payments or benefit coverage is/are made or provided by Martha's on behalf of the Reliable employees. Martha's has no knowledge regarding whether Reliable pays group insurance premiums in relation to any or all of the Reliable employees.

18. In support of their respective submissions, the parties referred us to a number of cases including: Templet Services, [1974] OLRB Rep. Sept. 606; The Tower Company, [1979] OLRB Rep. June 583; Dare Personnel Inc., [1995] OLRB Rep. July 935; Nichirin Inc., [1991] OLRB Rep. Jan. 78; and Sylvania Lighting Services, [1985] OLRB Rep. July 1173.

19. The Board's jurisprudence in this area is neither complicated nor controversial: the parties referred to different Board decisions which all apply essentially the same principles which have been set out in many cases including K Mart Canada Limited, [1983] OLRB Rep. May 649 at paragraph 37 (cited in Nichirin Inc., supra; see also York Condominium Corporation, [1977] OLRB Rep. Oct. 645):

37. The criteria which the Board considers helpful in determining which of two (or more) entities is the employer for purposes of the Labour Relations Act include the following:

(1) the party exercising direction and control over the employees;

(2) the party bearing the burden of remuneration;

(3) the party imposing discipline;

(4) the party hiring the employees;

(5) the party with authority to dismiss the employees;

(6) the party who is perceived to be the employer by the employees; and

(7) the existence of an intention to create the relationship of employer and employee.

(See, for example, Windsor Airline Limousine Services Limited, [1981] OLRB Rep. March 398; Sutton Place Hotel, [1980] OLRB Rep. Oct. 1538; Toronto Arts Productions, [1980] OLRB Rep. Sept. 1556; and The Tower Company (1961) Ltd., [1979] OLRB Rep. June 583; and the numerous authorities cited therein.) The cases have generally not assigned any particular order of priority to those factors, but rather have tended to indicate that the weight to be given to each factor must depend upon the facts of each case. However, the Board has tended to attach considerable significance to "overriding control" in determining which of two or more entities is the employer of certain persons. Moreover, the Board has consistently found that neither private arrangements as to who is the employer, nor administrative paymaster arrangements, are indicative of the true employer.

20. Having reviewed the agreed facts, the caselaw referred to and the submissions of the parties, we are satisfied that the Reliable employees are indeed employees of Martha's. It is clear that a majority of the factors set out in K Mart above favour this conclusion. It was not seriously disputed that Martha's is the party exercising direction and control, imposing discipline and having the authority to dismiss. Neither do any of the other factors point unambiguously to the conclusion that Martha's is not the employer.

21. While the Reliable employees' pay cheques undoubtedly are drawn on a Reliable account (though delivered by Martha's), Reliable can be viewed as providing a payroll service - the quantum of the fees charged to Martha's by Reliable is a direct function of the wages paid to the Reliable employees. Thus, Martha's can be seen as the party bearing the ultimate burden of remuneration (plus the consequent fees). While Reliable may well effect the initial hiring of the Reliable employees, it is Martha's who must ratify that selection by accepting and continuing to accept the employee in question, a choice the parties agree is totally within the purview of Martha's. The issue of "who is perceived to be the employer by the employees" is one about which we have no direct evidence. Indeed, in view of comments we have already made about the parties' own abilities to shift ground, one might not be surprised to find that any assessment of perception might be unlikely to point unambiguously in one direction or another. Finally, the apparent longevity of the Reliable employees tenure (minimum four months and up to in excess of two years) is inconsistent with the kind of temporary assignment one might expect to find where the referring agency was the true employer. The mere duration of the assignments, while in no way determinative, can certainly be pointed to as support for the conclusion that there is an intention to create an employer-employee relationship between Martha's and the Reliable employees. At a minimum, it provides no support for a contrary conclusion.

22. While we have engaged in some parsing of the factors traditionally examined by the Board, it is, however, the answer to the summary and all-encompassing question which is clearly determinative in this case. Apart from the initial referral, some initial orientation (which the parties distinguished from training), and a name on a paycheque, Reliable plays no significant or on-going role in the working life of the Reliable employees who are fully integrated into Martha's operations. The overriding control, the day to day control of the Reliable employees' working lives clearly resides in Martha's. It is for all of these reasons that we are persuaded that Martha's is the employer of the Reliable employees.

23. In view of this finding, we turn now to the issue of the appropriate bargaining unit(s). First, ought the employer to be permitted, at this stage of the proceedings, to advance a new position with respect to the appropriate bargaining unit(s)'?

24. It is helpful to review some of the basic components typically associated with the processing of a certification application. The application is delivered to the employer who is required to file a response within 2 days. Thus, very early on the parties are required to declare their positions with respect to the appropriate bargaining unit. Generally speaking, those declarations (contained in the application and the response) will form the framework within which the parties and the Labour Relations Officer who assists them will work. Shortly after the initial filings, the Board will (assuming the requirements of section 8(2) are met) direct the taking of a representation vote usually held on the fifth working day following the filing of the application. Where the application and response disclose agreement with respect to the bargaining unit, the Board will describe the voting constituency in those terms. Where there is no such agreement, the Board will determine the voting constituency by taking into account the positions of the parties and fashioning a voting constituency which (within reason) will maximize the utility of the vote.

25. Prior to the taking of the vote, and in addition to the consultations which typically take place on the day of the representation vote, the parties will be contacted by a Labour Relations Officer. The purpose of these contacts is, to put it broadly, to attempt to resolve any and all disputes associated with the application. But while the parties are required to declare their positions with respect to the bargaining unit issues at the very start, it is only after the response (which includes a list of employees) is filed and often after the vote has been directed that the Labour Relations Officer will begin to make efforts to secure the parties' agreements with respect to voter eligibility and what we have already referred to as the list issues. By the time the vote is taken the Officer will have prepared a report which is executed by the parties. The report will clearly set out a number of different matters but, for our purposes, will typically include the parties' positions on both bargaining unit and list issues. Either party may challenge names the other advances as an eligible voter. Those challenges and the basis for each one of them will be recorded or incorporated into the Labour Relations Officer's report.

26. The issue which arises now is in what circumstances and to what extent ought the parties to be permitted to abandon or alter the positions they have staked out prior to the taking of the vote. The question is reminiscent of the one dealt with at the outset of this decision. If the parties were irrevocably bound to their pre-vote positions, then every pre-vote disagreement might have to be litigated. That would hardly be a healthy or productive climate for this Board to foster. On the other hand, if parties are permitted to change positions or raise new issues any number of times and at any stage in the process, the finality of litigation would be nothing more than an empty hope. As a general rule, just as agreements between the parties are final, so too should the Officer's report prepared in advance of or concurrent with the taking of the vote be seen as the roadmap to the litigation, if any, which will follow the vote (at least insofar as it pertains to bargaining unit or list issues).

27. But just as the Board has already demonstrated in the very first issue dealt with in this decision, application of this general rule should be neither rigid nor invariable. First, it obviously makes no sense to require a party to litigate a position it no longer advances. Such an approach would eliminate the two most typical ways of achieving settlements - either the parties agree to something different from either of their original positions or one party simply accepts the position of another. Thus, despite the general rule, there ought to be no inherent obstacle to a party abandoning its position and accepting that advanced by another.

28. There is a peculiarity of the current certification process which can result in certain oddities. Since representation votes are now routinely taken prior to any final determination regarding the appropriate bargaining unit, the results of such votes can provide great temptation to the parties to revamp their positions in an effort to capitalize on the vote results. One can only hope that the spectacle of parties racing to be the first to adopt the other's position will be truly anomalous. Similarly, while not impossible (see for example Black Photo Corporation, unreported June 19, 1997, Board File No. 3612-96-R) [now reported at [1997] OLRB Rep. May/June 347], it is difficult to imagine many situations in which new list challenges raised after the vote will be permitted by the Board. The Board's reluctance to entertain new list issues is likely to be matched, if not exceeded, by its sceptical response to efforts to raise new bargaining unit issues after the taking of the vote. The Labour Relations Officer's report has and continues to be a useful and important litigation marker for the parties. Parties looking to add new destinations to the roadmap will have to and may well encounter difficulties in persuading the Board that such detours are warranted.

29. How do these considerations apply to the present case? First, it should be noted that the employer in seeking to now raise this bargaining unit issue is attempting to transform what was essentially a list issue (regarding the status of the Reliable employees) into a bargaining unit issue. In effect, the bargaining unit description had been agreed to between the parties until Martha's proposed that the Reliable employees and its other employees be placed in two separate bargaining units. While it is true that there was and is an issue between them regarding the specific reference to the Reliable employees in a clarity note, this is really no more than a reflection of the issue between the parties regarding who is the employer of the Reliable employees. Indeed, that is why the Board had indicated to the parties at the outset that the real remaining issue was a list issue.

30. The employer makes a number of submissions regarding the timing of its representations. On the date of but after the taking of the vote, the employer advised the Board, in writing, of its consent to the applicant's "objection(s)\challenges" and its consequent acceptance that the Reliable employees were not employees of Martha's. In view of the apparent resulting agreement between the parties regarding the status of the Reliable employees, there was no need to advance the position of separate bargaining units, a position which has no practical meaning in the absence of an agreement (or at least a live issue) that the Reliable employees are employed by Martha's. It was not unreasonable for the employer to have had a realistic expectation that the Reliable employees issue was settled so long as it had accepted the union's position and the union had not indicated any change to its view. Thus, we accept that between April 28th and May 7th there was no apparent need or utility in the employer proposing two separate bargaining units. That of course changed on May 7th, the last day for post-vote representations, when the union first advised the Board, in writing, that it was now accepting that the Reliable employees were employed by Martha's. At that stage the employer's expectations must have changed. And while it was entitled to take and argue the position (as it did) that despite the union's May 7th submissions to the Board, the Reliable employees issue was resolved, it simply could no longer expect that the union would concur in that view. Thus, it is difficult to understand why the separate bargaining units proposal was not advanced on May 7th or at any other subsequent time prior to the end of the hearing day on May 26th.

31. But ultimately, and particularly in view of our discussion of the certification process, it is perhaps not the delay between May 7th and May 26th which the Board finds most troubling. The employer proposed the separate bargaining units only after the results of the vote were known. Until then there was essentially no dispute between the parties regarding the bargaining unit description. If we return to the parties' initial positions, both were proposing a relatively standard single all employee unit. It was Martha's that was vigorously insisting that a clarity note be inserted to highlight the inclusion of the Reliable employees in the bargaining unit. Thus, the bargaining unit proposed by the employer was a single bargaining unit which would have included both the Reliable employees and the other Martha's employees. The employer expressed no concerns about the lack of community of interest or the labour relations difficulties which might result from including the two groups of employees in the same bargaining unit. It is difficult to resist the conclusion that it is the specific results of the vote which have determined the late emergence of community of interest and labour relations difficulties as issues which Martha's now wishes to champion.

32. In one sense we perhaps should not impugn the employer's motives - both parties in this case have obviously allowed considerations of advantage to triumph over those of principle. It is perhaps too easy for the Board to hover somewhere above the fray and exude indignation at the parties' apparent lack of principles. Parties' posturing before this Board, particularly in close certification applications, has, for decades, been determined by numbers rather than principles. Notwithstanding that, the Board must contain the potential litigation chaos that can result from the parties being permitted to unconditionally advance two sets of positions: the pre-vote positions and the post-vote positions. And while there may be many circumstances in which a party ought clearly to be permitted to relinquish its position and adopt that of an adversary, only extremely exceptional circumstances ought to warrant this Board allowing a party to raise new issues relating to the bargaining unit or the list after and in clear response to the results of the taking of the representation vote. No such circumstances were brought to our attention in this case and, accordingly, we are not persuaded that the employer ought to be permitted to raise a new bargaining unit issue at this stage of the proceedings.

33. Alternatively, even were we to entertain Martha's submissions that there ought to be separate bargaining units, we are not persuaded that the bargaining unit proposed by the applicant is not an appropriate one. It is by no means evident to us that the inclusion of Reliable employees and other Martha's employees in the same bargaining unit would generate serious labour relations difficulties. The employer points to two separate kinds of potential difficulties. First, it asserts that the union may make efforts to rationalize the treatment of the two groups of employees. Improvement for one group may come at the expense of and generate the alienation of the other.

34. Even assuming (without finding) that the employer's submissions paint a more accurate picture of the nature and extent of the current disparities in the terms and conditions of employment of the Reliable and other Martha's employees, we are still not persuaded that their inclusion in the same bargaining unit will create serious labour relations problems. The union obviously has a statutory duty to fairly represent all bargaining unit employees and may, as a result, have to determine some process for reconciling the potentially competing rights and interests of those employees. But that is an essential and extremely familiar staple of the collective bargaining diet. The union may choose to maintain or attempt to eliminate the differences between the two groups of employees. Whatever that choice may be, it is not clear to us that serious labour relations problems are the likely result.

35. The employer also argues that the existing arrangement between it and Reliable ought not to be required to be restructured as a result of the Board's bargaining unit determination. We confess no ability to opine upon the continuing viability of the commercial relationship between Martha's and Reliable. The existing arrangement may or may not survive the establishment of a collective bargaining relationship between Martha's and the Union. It is apparent to us, however, that the assertion that "during negotiations, the parties may have to address a series of issues [in relation to the Reliable employees] that simply do not arise in relation to the [other] Martha's employees" must be equally true regardless of whether there were one or two bargaining units. In other words, to the extent it poses any specific difficulty, it is a consequence of certification not of the bargaining unit configuration. And while the parties can, will and have undoubtedly made their submissions with at least one eye on the results of the vote, our task is to determine whether the bargaining unit proposed by the applicant is appropriate. The fact that different determinations as to the appropriate bargaining unit will, in this case, determine whether or not the applicant's bargaining rights will extend to the Reliable employees is obviously of great concern to the parties. It is not, however, of any relevance or assistance to the Board in making the bargaining unit determination in this case.

36. The bargaining unit the applicant seeks is more comprehensive than the two separate units now proposed by the employer. We are satisfied that the unit proposed by the applicant encompasses a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer. It cannot escape our attention that the unit proposed by the applicant, at least insofar as it would include both the Reliable and other Martha's employees, is identical to that originally proposed by the employer.

37. Accordingly, the Board is satisfied that:

all employees of Martha's Garden Inc. in the Municipality of Metropolitan Toronto, save and except managers, persons above the rank of manager and office and sales staff,

constitute a unit of employees of the employer appropriate for collective bargaining.

38. Having regard to the results of the representation vote held on April 28, 1997, a certificate will issue to the applicant in respect of the bargaining unit set out in the previous paragraph.

39. We have considered the union's request (formerly the employer's) that a clarity note accompany the bargaining unit description so as to explicitly acknowledge the inclusion of the Reliable employees. In view of the specific findings in this decision and the fact that the Board's certificate will of course be read subject to this decision, we are not persuaded that such a clarity note is warranted or required.

40. The Registrar will destroy the ballots cast in the representation vote following the expiration of 30 days from the date of this decision unless a contrary request is received, in writing from one of the parties during that 30-day period.