Union of Needletrades, Industrial and Textile Employees Ontario District Council v. Black Photo Corporation, 1997 CanLII 15566

[1997] OLRB REP. MAY/JUNE 347

3612-96-R Union of Needletrades, Industrial and Textile Employees Ontario District Council, Applicant v. Black Photo Corporation, Responding Party v. Group of Em­ployees, Objectors

BEFORE: Jamtice Johntston, Vice-Chair,

APPEARANCES: L, A, Richmond, A, Dagg, D, Ladd and N. Keresztesi for the applicant; A. P Tarasuk, Williamn McNaughton, 72 Grouvis and A, Henkelman for the responding party; C, J. Abbass and Tom Carter appearing on behalf of the objecting employees.

DECISION OF THE BOARD; June 19, 1997

1. This is an application for certification.

2. By decision dated February 12. 1997, the Board (differently constituted) after examining the evidence before it and concluding that it appeared that not less than forty percent of the individuals in the bargaining unit proposed in the application for certification were members of the union at the time of the application, directed that a representation vote be held.

3. Prior to the representation vote, the parties reached the following partial agreement with regard to the bargaining unit description:

all employees of Black Photo Corporation at 371 Gough Road in the Town of Markham. save and except Team Leaders and persons above the rank of Team Leaders, office, clerical and sales staff.

Clarity Note: On site store staff, Marketing, Accounting, MIS, Inventory, Purchasing, Service, Mini Lab Operations staff are not included in the bargaining unit and pending resolution by the Board excluding as well Customer Service Smile Center and Black's express.

4. There were 153 persons on the voters' list at the representation vote held on February 14, 1997 and 139 people voted. Of the ballots cast, sixty-five were marked in f'avour of the applicant and sixty-one were marked against the applicant. Eleven ballots were segregated and not counted and two ballots were spoiled.

5. At an officer's meeting on March 5, 1997, the parties were able to agree that six of the eleven individuals previously in dispute were eligible to vote. However, the ballots were not counted at that time and have not as yet been counted. The parties were also able to agree on the following bargaining unit description:

all employees of Black Photo Corporation at 371 Gough Road in the Town of Markham. save and except Team Leaders and persons above the rank of Team Leaders, office, clerical and sales staff.

Clarity Note: On site store staff', Black's Express, Marketing, Accounting, MIS, Inventory, Purchasing, Service Mini Lab Operations staff are not included in the bargaining unit,

6. Accordingly, at the hearing before me, the eligibility of five individuals to cast a ballot was still in dispute. The individuals in dispute are Stephen Beagle, Susan Earhart. Russel De Souza, Nicole Lehman and Grant O'Halloran.

7. In addition to the above issue, the responding party, Black Photo Corporation (the "com­pany" or the "employer") challenged the status of the applicant, the Union of Needletrades, Industrial and Textile Employees Ontario District Council (the "union") as a trade union pursuant to section 1(l) of the Labour Relations Act, 1995 (the "Act"). The company also challenged the form of the membership evidence utilized by the union arguing that the name on the membership card was different from the name of the applicant.

8. The union by correspondence dated February 14,1997, the day of the vote, indicated that it wished to rely on section 11 of the Act and requested that the Board certify the union pursuant to that section. Particulars of the employer's alleged misconduct were provided in the letter.

9. Accordingly, at the hearing before me there were four issues to be dealt with:

(i) the list issues (the eligibility of the five individuals to cast a ballot);

(ii) the trade union status issue;

(iii) the membership evidence issue; and

(iv) the section 11 application,

10. At the hearing the parties agreed to deal with the status issue, the membership evidence issue and to deal with, on a preliminary basis, four of the five individuals whose entitlement to cast a ballot was in dispute. It was agreed that the Board would deal with the union's application pursuant to section II of the Act if or when it became necessary to do so.

11. The only witness to testify before the Board was Ms. Alexandra Dagg, Business Manager of the Ontario District Council of the Union of Needletrades, Industrial and Textile Employees (for ease of reference U,N.I.T.E.). Ms, Dagg has been the Business Manager of the Ontario District Council (the "District Council") since 1990. Prior to that, she was an organizer and the Education Director. She has been employed by the District Council for a total of 12 years. Ms. Dagg gave her evidence in a candid, forthright manner and I found her to be a very credible witness. Ms. Dagg's evidence was directed to the issue of the trade union status of the applicant. In addition to her viva voce evidence, the applicant also put into evidence extensive documentary support for its position that the Board should find the applicant to be a trade union within the meaning of the Act.

The Status Issue

(a) The Facts

12, The applicant in this case is the Union of Needletrades, Industrial and Textile Employees Ontario District Council.

13. Prior to 1990, the District Council operated pursuant to the constitution of the International Ladies Garment Workers Union (the "ILGWU"). That constitution provides for the creation of a joint board pursuant to Article 6, a joint council pursuant to Article 7 or a district council pursuant to Article 8. At that time, there were three locals of the ILGWU which belonged to the District Council. They were Local 14, Local 83 and Local 92, all of whom appear to have been issued a charter by the ILGWU in 1911. These three locals are members of the District Council and it appears that they have existed continuously since their charters were issued.

14. At the hearing, the applicant was unable to provide the Board with copies of the original charters for Locals 14, 83 and 92 or for the District Council. Despite the best efforts of the applicant the charters could not be located. Instead, a letter dated March 6, 1997 from Mr. Jay Mazur, President of the ILGWU was provided to the Board, It reads as follows:

Dear Sister Dagg,

Listed below are the dates the locals belonging to the Ontario District Council were originally chartered by the ILGWU: Local 14, Jan. 4, 1911; Local 83, April 3, 1911; Local 92. May 29, 1911; and Local 136, Nov. 15, 1994. As you know the ILGWU merged with ACTWU on July 1, 1995 to form UNITE.

Regarding the history of the District Council: the Toronto Cloak Joint Board was formed on June 30, 1912 and the Toronto Dress and Sportswear Joint Board was formed on Dec. 13, 1971. On Nov. I, 1982 these Joint Boards merged and became the Ontario Cloak Dress Sportswear District Council, commonly known as the Ontario District Council.

Fraternally,

Jay Mazur

President

15. This letter was written in response to telephone enquiries made by Ms. Dagg, Counsel for the employer objected to this letter's admission on the basis that it constituted hearsay and because it did not constitute the best evidence of the charters. After considering the submissions of counsel on this point. I admitted the letter subject to the weight it should be given.

16, The District Council has four full-time staff, Ms. Dagg, a Business Agent and two organiz­ers, The local unions do not have full-time staff, nor do they have their own separate bank accounts. Although the local unions have stewards who deal with grievances at the local level (and other local issues), it is the District Council that processes grievances to arbitration. Either Ms. Dagg or the Business Agent negotiates and signs collective agreements on behalf of the locals. The District Council staff do all of the organizing on behalf of the locals. All of the locals are represented on the District Council by elected delegates.

17. Local 136 was chartered by the ILGWU on November 15, 1994. It too is a member of the District Council and is provided services by the full-time employees of the District Council. It elects members or delegates to sit on the District Council.

18. On April 19, 1990, the District Council adopted new by-laws. These by-laws make it clear that the District Council is to be made up of all affiliates of the ILGWU in the Province of Ontario, These by-laws were drafted by Ms. Dagg and were approved and adopted by the delegates to the District Council meeting held on April 19. 1990, A copy of the by-laws and the minutes of this meeting, which were taken by Ms, Dagg, were provided to the Board.

19. All of the District Council staff report to Ms. Dagg who reports to the District Council. Once every three years, an election is held. Ms. Dagg's position, amongst others, is open to election, The District Council holds monthly meetings, except in the summer, and Ms, Dagg provides the members of the District Council with regular reports concerning ongoing activities such as grievances, organizational campaigns or negotiations, and on matters such as finances and operational issues. There is a management committee of the District Council which is made up of the President, Vice-President, and Secretary of the District Council as well as Ms. Dagg and one other District Council member. This Management Committee meets and discusses issues such as staff hiring and compensation. It then makes a recommendation to the District Council as a whole which votes on the issue.

20. On October 31, 1992, a Certificate of Affiliation was issued to Local 12 of the ILGWU, Local 12 is chartered under the Associate Membership Program of the ILGWU (referred to as "AIM,"), This program is aimed at providing women homeworkers with a variety of services. However, the ILGWU does not have the authority to bargain on behalf of the members of Local 12. A.I,M. has its own by-laws which govern the affiliated locals.

21. Counsel for the applicant provided the Board with a total of 33 certificates which had been issued by the Board to the ILGWU and one which was issued to the Sportswear Local 199 ILGWU on October 26, 1963. Although the name of the ILGWU on occasion has an apostrophe after either the "s" in Ladies or the "s" in Workers, I am not prepared to give this any significance. Accordingly, the status of the ILGWU as a trade union has long been accepted by the Board.

22, On July 1, 1995, the ILGWU and the Amalgamated Clothing and Textile Workers Union (ACTWU) merged to form the Union of Needletrades, Industrial and Textile Employees (U.N.I,T,E), This merger occurred at a convention in Florida, The District Council sent delegates including Ms. Dagg to the convention. A vote was held at the convention and it was virtually unanimous in favour of the merger. A copy of the merger agreement and the new U.N.I.T.E, Constitution was filed with the Board. The District Council is currently governed by the U.N.I.T.E. Constitution and the local by-laws of the Ontario District Council of the ILGWU, which were amended to reflect the new name. The trade union status of U.N.I.T.E. was found in Board File No, 147 l-95-R as reflected in the decision dated August 21, 1995.

23. Counsel for the applicant provided the Board with copies of the cover page of various collective agreements which had been negotiated by the District Council on behalf of U.N.I.T.E. Generally, the collective agreement is between a particular company and the Ontario District Council of Union of Needletrades, Industrial and Textile Employees with reference to a particular local or locals. In addition, copies of collective agreements in existence prior to the merger, which refer to the company and the Ontario District Council of the International Ladies' Garment Workers Union and various locals, were also provided to the Board.

(b) Argument

24. Counsel for the applicant argued that the Board should give the letter authored by Mr. Mazur regarding the history of Locals 14, 83 and 92 and the District Council the same weight as it would a copy of the Charter issued by the International to a local union. A charter is simply a piece of paper from the International Union stating that a local union has been chartered on a particular date. The letter from Mr. Mazur does the same thing. It is a document from the International stating the dates upon which charters were issued. Simply because the applicant cannot locate copies of charters which were issued in 1911, does not negate their existence. In his view, the applicant has supplied the best evidence of the charters that it can and the Board should accept the letter and give it the same weight as it would copies of the charters themselves. It is not necessary to set out the remainder of the applicant's arguments on the status issue. In support of his argument, counsel referred me to Ontario Hydro, [1989] OLRB Rep. Feb. 185.

25, Employer counsel took the position that the applicant must produce the charter of the local unions or something akin to a charter in which the authority to be a local union was granted. In order for the Board to conclude that a council of trade unions exists, the Board must be satisfied that there are trade unions that have ceded all or part of their authority to a council, which must have an organizational structure. A body can do everything that a trade union or council of trade unions does and still not be a trade union or council of trade unions within the meaning of the Act. In support of this proposition, reference was made to Hydro Electric Power Commission of Ontario, [1971] OLRB Rep. Aug. 501, Buckley Cartage Limited, [1963] OLRB Rep. Nov. 424 and Underwater Gas Developers Limited, [1967] OLRB Rep. Sept. 555. In support of his argument that the applicant must meet the technical requirements imposed by the Board including the requirement to provide copies of its original charter before the Board could find it to be a trade union, counsel for the employer provided the Board with Opera Ghost Production, [1990] OLRB Rep. Mar. 325, Windsor Raceway Holdings Limited, [1979] OLRB Rep. Feb. 154 and J. D. Carrier Shoe Co. Ltd., [1968] OLRB Rep, April 54.

26. It was the employer's view that it was essential for the applicant to produce a copy of the original charter for the local unions and a charter for the District Council. Its failure to do so is fatal to any finding of trade union status. Counsel argued that the Board should not rely on the letter from Mr. Mazur as proof that the charters exist. The constitution of the ILGWU requires that a charter must be granted and the failure to produce documentary evidence of the charters should lead the Board to conclude that they do not exist. Accordingly, regardless of the powers it exercises and what it has done, the District Council is not a council within the meaning of the Act.

27. Counsel for the intervening employees adopted the submissions of the employer. He also took the position that the wording in the constitution of U,N.I.T.E. and the by-laws of the District Council were insufficient to establish that the purpose of the organization was to represent and regulate the relationship between the employees and their employer. It was also suggested that as the local unions making up the District Council did not have officers, they are not trade unions within the meaning of the Act.

28. In response, the applicant's counsel conceded that they had been unable to locate copies of the various charters, but urged the Board to conclude that there is nothing magical about the charter. The letter from the President of U,N.I.T.E,, who is the President of the organization that grants the charters, sets out that charters were issued and the history of the District Council. Accordingly, this letter should be given the same weight as a a copy of the original charter. Given that the District Council and U.N.I.T.E. are existing organizations representing employees, each with a constitution and by-laws and that they are organizations which have been recognized by the international parent and given the right to participate in conventions, the Board should find that the union is a trade union within the meaning of the Act,

(c) Decision

29. Section 1(1) of the Act defines a trade union as follows:

1. (1) In this Act,

"trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

30. After considering the documentary and viva voce evidence and the submissions of the parties, I am of the view that the applicant, the Union of Needletrades, Industrial and Textile Employees Ontario District Council is a trade union within the meaning of section 1(1) of the Act.

31. In Local 199 UAW Building Corporation, [1977] OLRB Rep. July 472, the Board set out a number of steps to be followed by a group of employees seeking to form an organization which would meet the statutory definition of a trade union. They read as follows:

(1) A constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of labour relations) and the procedure for electing officers and calling meetings;

(2) the constitution should be placed before a meeting of employees for approval;

(3) the employees attending such meeting should be admitted to membership;

(4) the constitution should be adopted or ratified by the vote of said members;

(5) officers should be elected pursuant to the constitution.

While it is useful to note these steps as a starting point in this analysis, it is important to remember that these steps pertain to the creation of a new organization. When an organization has existed for a considerable period of time, which is certainly true in this case, the Board has acknowledged that it is less critical to focus on the steps originally taken to bring the organization into existence (see in this regard paragraph 44 of Ontario Hydro, supra and the cases cited therein). I agree with the Board's observation in Opera Ghost Productions Inc., [1990] OLRB Rep. Mar. 325 where it is noted:

12. . .

The Board cannot itself impose any pre-conditions to the existence of a trade union. Any such requirements must be found in the legislation (Re CSAO (Inc. and Oakville Trafalgar Memorial Hospital Association, [1977] 2 OR. 498 (Ont. CA.)). The Board does not "confer" trade union status. Something is either a trade union or not as a matter of fact. The board's function is to make that factual determination. It is not open to the Board to declare that an organization of employees which is factually a trade union is not one and vice versa.

13. Although the requirement that a trade union be an "organization" implies that it must have some structure, and the nature of the rights, obligations and duties that a trade union has under the Labour Relations Act suggests that there are certain characteristics that it must have, the only pre-conditions to trade union status under the Act are that at least two employees have agreed to be bound by the terms of an identifiable agreement between them (i.e., a constitution), which section 84 of the Act seems to contemplate will be in writing, for purposes which include the regulation of relations between employers and employees. There is nothing in either the Labour Relations Act or otherwise which dictates how an organization must be formed, structured or operated in order to be a trade union within the meaning of the Labour Relations Act. There is therefore no one formula which must be followed in order to successfully create an organization which is a trade union within the meaning of the Act. Whether a trade union has come into or continues to exist is a question of fact to be determined having regard to the circumstances in each case (see, for example, Ontario Hydra, [1989] OLRB Feb. 185; LAbbe Construction (Ontario) Ltd., [1987] OLRB Rep. Oct. 1191;Hartley Gibson Company Limited. [1986] OLRB Rep. Nov. 1517).

32. In recent years the Board has adopted a less technical and more practical approach to the question of trade union status. In Caterair Chateau Canada Limited, [1994] OLRB Rep. April 365, the Board commented as follows:

8. While the "five step" procedure set out by the Board in U.A.W Building Corporation, supra, remains a useful guideline both for the Board in determining the status of a trade union under the Act and for persons wishing to form a trade union, the Board has made it clear that that procedure is not the exclusive manner of establishing a trade union. (See, for example, Service Employees International Union, [1991] OLRB Rep. Feb. 267; Local 199 U.A.W Building Corporation, supra.)

More generally, the Board is interested in the substantial, rather than technical, compliance with the procedural steps involved in the formation of the trade union, since the purpose of its inquiry is not so much in ensuring that the precise requirements of the constitution are followed rather than ascertaining that the organization seeking trade union status is a viable one for the purpose of carrying out its obligations under the Act.

12. It is important to note that the Board is far less concerned with the minute issues of constitution­ality of the actions of an organization seeking trade union status than with determining its organiza­tional viability and its ability to carry out the statutory obligations placed upon trade unions by the Act. In this respect, the Board is concerned with the constitution only as evidence of the existence of a viable organization and, therefore whether it is a trade union under the Act. (Re C.S.A.O. National (Inc.) and Oakville Trafalgar Memorial Hospital Association, [1972] OR. (2d) 498.)

33. The letter from Mr. Jay Mazur set out in paragraph 14 states that the local unions 14, 83 and 92 of the ILGWU were chartered in 1911. Ms. Dagg testified that she was unable to locate a copy of the original charters to these locals nor was she able to locate a charter for the District Council. I accept that Ms. Dagg did everything possible to attempt to locate these charters. Despite their historical value, it is easy to appreciate that it might be difficult to locate documents issued in 1911 or 1912. Accordingly, given Ms. Dagg's evidence in support of her efforts to locate the charters and her evidence concerning how the letter of March 6, 1997 was acquired, lam prepared to accept the letter as proof that locals 14, 83 and 92 were chartered by the ILGWU in 1911 and that what is now the District Council was chartered by the ILGWU in 1912. It would be unduly technical for me to insist on the production of the original charters for the locals and the District Council and in their absence to decline to conclude that the applicant is a trade union within the meaning of the Act. The applicant has provided me with copies of the relevant constitutions, by-laws and minutes of meetings in which they were adopted.

34. The submissions of counsel for the group of employees to the effect that the local unions do not have officers, is not borne out by the facts. The local unions elect stewards who deal with the various companies with which the union has a collective bargaining relationship on daily or local issues. The locals elect delegates to the District Council and the District Council has officers and employees to deal with matters such as the negotiation of collective agreements, arbitration of griev­ances and organizing efforts. Accordingly, I am satisfied that the locals and the District Council are inter-related organizations each of which has the status of a trade union within the meaning of the Act.

35. Accordingly, the applicant has met the statutory definition of "trade union" and I find that it is a trade union within the meaning of section 1(1) of the Act. In addition, the District Council in its own right is a trade union within the meaning of the Act.

The Membership Evidence Issue

36. As already noted, the applicant in this case is the Union of Needletrades, Industrial and Textile Employees Ontario District Council. The membership evidence filed by the applicant is in the following form:

U.N.I.T.E.

I apply for and accept membership in the Union of Needletrades, Industrial And Textile Employees (AFL-CIO-CLC) and agree to be represented by the said union for the purposes of collective bargaining with my employer.

______________________________________ Date _____________ 19 ____

Signature of Applicant

______________________________________ Date _______________ 19 ____

Signature of Witness

____________________________________________________________________

PRINT

LAST NAME

FIRST NAME

ADDRESS

POSTAL CODE: ______________________ PHONE: ____________________

EMPLOYED BY: _______________________________________________

S.I.N.: _________________________________________JOB TITLE: __________

FULL TIME: __________________________________ PART TIME: ___________

37. Prior to the vote, the Board sent to the employer a Notice of Vote and Hearing (Form 15) which indicates that the applicant is the Union of Needletrades, Industrial and Textile Employees Ontario District Council. The notice amongst other things, indicates that a vote will be held by secret ballot and that the question on the ballot will be:

IN YOUR EMPLOYMENT RELATIONS WITH YOUR EMPLOYER DO YOU WISH TO BE REPRESENTED BY THE UNION?

This notice was posted in the workplace the day before the vote.

38. The employer and the group of employees took the position that the evidence of membership filed by the applicant in this case is not evidence of membership in it, but is evidence of membership in the International Union. Accordingly, the responding party took the position that the membership evidence filed in this case was not valid and that the Board therefore did not have any evidence of membership in the applicant before it. In addition, issue was taken with regard to the fact that the Form A-4 (Declaration Verifying Membership Evidence) which accompanied the membership evidence did not disclose that the name on the membership cards differed from the name of the applicant.

39. The applicant responded by taking the position that the Board, by virtue of section 8(9) and section 7(13) of the Act, and the decision dated February 12, 1997 in which a representation vote was directed, was precluded by law from considering any challenge to the union's evidence of membership at this point in the proceedings.

40. The parties agreed to argue this matter as a legal question based on the membership documents before the Board and no evidence was called. Counsel for the group of employees also made a motion to dismiss this application for a failure to make out a prima facie case. In essence, the prima facie motion went as follows: as the applicant had failed to file membership evidence, there was no basis upon which the Board should have directed a vote or could grant a certificate to the union and accordingly this application for certification should be dismissed. Both objections to or motions with regard to the membership evidence were argued at the same time.

41. Before turning to the submissions of the parties, it is helpful to set out the relevant sections of the Act. These are:

7. (l) Where no trade union has been certified as bargaining agent of the employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining and the employees in the unit are not bound by a collective agreement, a trade union may apply at any time to the Board for certification as bargaining agent of the employees in the unit.

(7) The right of a trade union to apply for certification under this, .section is subject to subsection 10(3), section 67 and subsection 160(3).

(8) An application for certification may be withdrawn by the applicant upon such conditions as the Board may determine.

(9) If the trade union withdraws the application before a representation vote is taken, the Board may refuse to consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year or such shorter period as the Board considers appropriate has elapsed after the application is withdrawn.

(10) If the trade union withdraws the application after the representation vote is taken, the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year has elapsed after the application is withdrawn.

(II) The trade union shall deliver a copy of the application for certification to the employer by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.

(12) The application for certification shall include a written description of the proposed bargaining unit including an estimate of the number of individuals in the unit.

(13) The application for certification shall be accompanied by a list of the names of the union members in the proposed bargaining unit and evidence of their status as union members, but the trade union shall not give this information to the employer.

(14) If the employer disagrees with the description of the proposed bargaining unit, the employer may give the Board a written description of the bargaining unit that the employer proposes and shall do so within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.

8. (1) Upon receiving an application for certification, the Board may determine the voting constitu­ency to be used for a representation vote and in doing so shall take into account,

(a) the description of the proposed bargaining unit included in the application for certification; and

(b) the description, if any, of the bargaining unit that the employer proposes.

(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.

(3) The number of individuals in the proposed bargaining unit who appear to be members of the trade union shall be determined with reference only to the information provided in the application for certification and the accompanying information provided under subsection 7(13).

(4) The Board shall not hold a hearing when making a decision under subsection (I) or (2).

(5) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application for certification is filed with the Board.

(6) The representation vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made.

(7) The Board may direct that one or more ballots be segregated and that the ballot box containing the ballots be sealed until such time as the Board directs.

(8) After the representation vote has been taken, the Board may hold a hearing if the Board considers it necessary in order to dispose of the application for certification.

(9) When disposing of an application for certification, the Board shall not consider any challenge to the information provided under subsection 7(13).

10. (I) The Board shall certify a trade union as the bargaining agent of the employees in a bargaining unit that is determined by the Board to be appropriate for collective bargaining if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are east in favour of the trade union.

(2) The Board shall not certify the trade union as bargaining agent and shall dismiss the application for certification if 50 per cent or less of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade union.

(3) If the Board dismisses an application for certification under this section. the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the bargaining unit until one year has elapsed after the dismissal.

(a) Argument

42, Counsel for the union argued that it was not now open to the Board to consider a challenge to the membership evidence filed by the union. Section 8(9) and section 7(13) mean exactly what they say. In addition, the Board in its February 12, 1997 decision made the finding that the union had the appearance of membership support of not less than forty percent amongst the individuals in the proposed bargaining unit. That finding is not now attackable except in circumstances where a union obtained a certificate by fraud contrary to section 64(2) of the Act. In his view, all that is necessary to obtain a vote is that the union has the appearance of forty percent support. In the absence of allegations of fraud on the part of the union, it is not necessary for the Board to determine conclusively whether in fact the union had the support of more than forty percent of the bargaining unit members, as the results of the vote will determine whether the union has sufficient support to be certified pursuant to the Act or whether the application should be dismissed, Under the new legislation, in which a vote is held to determine the wishes of the employees, the documentary membership evidence filed by trade unions no longer has the significance it did when the Board decided applications ('or certification on the basis of that documentary evidence. Now the representation vote is the determinative factor in deciding whether a certificate should issue to the union. In support of this position, counsel referred to the decision of the Board in the Corporation of the City of Toronto, [1996] OLRB Rep. July 552, in particular to paragraphs 132 to 151 of that decision and to R-Theta Inc., [1997] OLRB Rep. Jan./Feb. 116.

43. Counsel for the group of employees argued that this application for certification should be dismissed as the applicant has failed to make out a case for the orders or the certificate they are requesting. He argued that the term "member" of a trade union and "membership" in a trade union includes a person who has applied for membership, not a person who "appears" to have applied for membership. He disagreed with the applicant's interpretation of section 8 and section 7(13) of the Act. In his view, section 7(13) requires that the union file a list of the names of the union members and evidence of their status as union members. The union must have members, not merely appear to have members, and the Board does not have the authority to give a certificate to a union that does not in fact have members. The issue with regard to the "appearance" of support goes to the number of union members, not to whether or not in fact the individuals were members of the trade union. With regard to the appropriateness of challenging the membership evidence after a vote has been held, counsel pointed out that the only way a five-day vote system can work is if the Board looks at the appearance of the membership evidence to direct the vote but then does not preclude an attack on an application that does not meet the basic elements required to support an application for certification. He suggested that I should consider the decision made on February 12, 1997 not to be a decision but to be an administrative act only. In his view, as a procedural matter, prior to deciding the issue of the sufficiency of the membership evidence, the Board must give the parties the opportunity to call evidence and make submissions regarding whether the cards filed in support of the application are indicative of membership in the applicant union or some other organization.

44. Employer counsel suggested that the Board's review and analysis of the membership evidence supplied by the union should remain the same whether the documentary evidence is being relied upon to direct a representation vote, or to hand out a certificate to the union. As the wishes of the employees cannot be disclosed, except to the Board, the Board has always demanded that the union maintain high standards with regard to documentary evidence. Where the application for membership does not name the applicant and this is not disclosed in the A-4, the application for certification should be dismissed. The Board has at all times, as a statutory tribunal, the duty to follow the statute. If the statute requires membership in the applicant, it must be there and before the Board, The Board must he satisfied with regard to the membership evidence and must deal with the issues raised concerning it whenever they are raised. He distinguished the Corporation of the City of Toronto, supra and R-Theta Inc., supra, on the basis that they both dealt with the appearance of the percentage or amount of membership support the union had. In this case, there is no evidence of membership in the applicant before the Board. The Board made an error in its decision of February 12, 1997 as there was no membership evidence upon which to direct the vote. He suggested that when an error is made, there is a duty to correct it. Counsel accepted that the Board had membership evidence before it but it was not evidence of membership in the applicant. In his view, the applicant might as well have used the membership cards of the United Steelworkers of America or the Canadian Auto Workers as the cards it did, as the effect would be the same. The employer stressed that it was not taking issue with the numbers or the percentage of support, but that the membership evidence filed did not establish membership in the applicant. The employer's position was that the membership evidence filed does not support the appearance of forty percent of the employees in the bargaining unit being members of the applicant and that the challenge being made was not precluded by section 8(9) of the Act.

45, In response, union counsel suggested that the wording of the Act does not support the position urged upon me by the employer and group of employees. If the Board looks to section 8(3), the language clearly states "appear to be members of the trade union". Counsel for the group of employees states that he is not challenging the "information" provided by the union but whether it applies to the applicant. However you word it, that is a challenge to the membership evidence which is prohibited by section 8(9) of the Act. The Act does not restrict the challenge to the numbers, it restricts a challenge on any basis. Union counsel reiterated that the vote-based system under the new legislation is not the same as the former card-based system and that it is the vote that now determines whether or not a union will be certified. The cards are not as important as they used to be, as they only get you a vote, which then determines the employee wishes.

46. In response to the motion for dismissal brought by counsel for the group of employees, the union suggested that it would not be appropriate or fair for the Board to consider a challenge to the membership evidence at this point in the proceedings. Had a challenge been raised prior to the vote or prior to the Board's decision to direct the vote, the union would have been in a position to correct any deficiencies in the membership evidence or withdraw the application. The Board in its earlier decision indicated that the applicant was entitled to a vote and it must be able to rely on that decision. Now that the vote has been taken, if the employer's challenge is successful, the union faces a dismissal of the application and the imposition of a bar. Accordingly, the Board should not consider any challenge to the form of the cards or the A-4 declaration or any other aspect of the membership evidence submitted.

(b) Decision

47. In this case, the application for certification was made in the name the Union of Needletrades, Industrial and Textile Employees Ontario District Council. The membership cards filed with the application state that the individual is applying for membership in the Union of Needletrades, Industrial and Textile Employees (AFL-CIO-CLC). The panel of the Board which directed the vote by decision dated February 12, 1997, reviewed the membership evidence filed in this case and determined that forty percent or more of the individuals in the bargaining unit appeared to be members of the trade union. That decision is currently being challenged by the employer and a group of employees. Accordingly, I am prepared to treat this challenge to the Board's February 12, 1997 decision as a request for reconsideration of that decision. For all of the reasons that follow I am satisfied that this request for reconsideration ought to be dismissed. I am satisfied that the Board's determination in the decision dated February 12, 1997, that forty percent or more of the individuals in the bargaining unit proposed in the application for certification appeared to be members of the union at the time the application was filed, was correct.

48. This is the first case in which the veracity or the form of the membership evidence supplied to the Board by a union has been called into question under the new certification system created by Bill 7. As was correctly pointed out by the parties, the issue of the quantum of support (i.e. the forty percent issue) has been dealt with by the Board in several cases to date (see in this regard the Corporation of the City of Toronto, supra, R-Theta Inc., supra, and Burns Security, [1996] OLRB Rep. April 192). Although the Board has commented in obiter with regard to the issue of the form or the quality of the membership evidence in those cases, this is the first instance in which the issue has been directly challenged and litigated. However, the Board's analysis with regard to the interpretation of section 7(13), 8(2), 8(3) and 8(9) of the Act in the decisions referred to above is clearly relevant to the issue before me.

49. The certification process prior to the passage of the current legislation was primarily a 'card-based" system in which the Board decided certification applications based on the documentary evidence of membership filed by the union with its application for certification. Although representation votes were conducted in certain circumstances under that system, approximately eighty to ninety percent of the applications for certification were decided without a vote. That approach was changed under the current statute. The new approach to certification applications requires that there be a "vote in every case" and that the vote be conducted very quickly. A review of the previous system is provided in The Corporation of the City of Toronto, supra, (see paragraphs 67 to 81) and it is not necessary to set it out again. However, it is helpful to look at the Board's analysis in The Corporation of the City of Toronto, supra, with regard to the differences between the previous document-based/card-counting system and the current vote system and the Board's analysis of the wording of the certification provisions contained in the current legislation. In that regard the decision reads as follows:

132. Under the pre-Bill 7 regime, the Board had to make a number of findings with respect to union membership, based largely upon documentary evidence; and in the Bill 40 period (1992-95) there was a rather precise list of the kinds of evidence that the Board could or could not consider when deciding whether the union had established the requisite support, or whether a representation vote should be ordered, The details do not matter. What is significant is that both before and after Bill 40, these evidentiary disputes were a frequent cause of litigation, because the documents were all the Board had to go on to make the required finding of membership, and thus the documents were the subject of frequent attack. From an employer's perspective there was an understandable suspicion of documents that it was not allowed to see (section 119 of the Act), and might have been collected in circumstances where peer or other pressures had influenced the employee's choice. Moreover, from a purely tactical point of view, if the employer could cast doubt on the union's membership evidence, the Board might order a representation vote: union supporters would then have an additional opportunity to change their minds, and the employer would have an opportunity to communicate with employees and persuade them to forego the collective bargaining option. A vote involved a contest for employee allegiance in which the employer could deploy formidable tools of persuasion and had some real advantages. Under the former model, therefore, there were lots of reasons to attack the documents.

133. Under Bill 7, however, the focus shifts to a representation vote rather than findings based solely on documentary evidence. The vote becomes the final arbiter, and the quality of the membership documents signed some days or weeks before, becomes much less significant. Em­ployee wishes, collectively expressed, become the critical factor for granting certification.

134. Against that background, it is easy to understand why the Legislature provided that when determining the number of individuals from the bargaining unit who "appear" to be union members, an appearance is sufficient, the Board need look only to the information provided in the application for certification; and, pursuant to section 7(13) in disposing of the certification application, the Board does not consider challenges to that information. Bill 7 inhibits litigation over the sufficiency of the membership information because the apparent level of support so disclosed by those documents no longer determines the union's right to certification. What matters is how many employees cast ballots in favour of the union.

135. Under the new scheme, certification depends upon employee wishes recorded in a representa­tion vote. The quick vote is the central feature of the new process. But by the same token, once the vote becomes the exclusive means of testing employee wishes, we think that it is much less likely that the Legislature intended a lot of "front end litigation" over the right to have such a vote taken -let alone a scenario like the present one where the employee wishes might have to be disregarded altogether. We are also reluctant to accept an interpretation that means a Bill 7 vote in this case is more difficult to obtain now than it would have been under Bill 40.

136. Is there an alternative? Could the Board avoid the problem of "front end litigation" and consequent delay, by directing a vote within five days as an administrative matter, but then declining to give effect to it (assuming that a majority of the employees voted in favour of union representation) pending a subsequent determination by the Board of actual 40 per cent "card support" among the employees ultimately found to be in the unit? Could the Board litigate the threshold test later on? In other words, could the Board treat the new Bill 7 procedures as if they minored the former pre -hearing vote process?

137. The problem with this approach is that it has no support in the language of the statute. The decision to order the vote is made on the basis of a determination of an appearance; and once that determination is made, nothing in the statute contemplates it being revisited. Indeed, the statute says the opposite: the results of the vote will be given effect, (perhaps subject only to unfair labour practice allegations - see section II). Section 10(1) provides that where the union wins the vote, the union "shall" be certified. The language is mandatory. The union's certification is, quite explicitly, not subject to a second check of its entitlement to the vote in the first place.

138. Had the Legislature intended some ex post .facto determination of actual 40 per cent card support, as opposed to an appearance of 40 per cent support, the Legislature could have reproduced language such as section 9(4) of the old pre-hearing vote procedure. However, when one compares the language of the current statute to the language of section 9 of the old Act, it is evident that the Act used to, could have, but now does not make a finding of actual support at any level (as opposed to the appearance of support) a condition precedent to certification. The structure of Bill 7 does not envisage later litigation about, or confirmation of, the section 8(2) decision. Nor, as we have already mentioned, is "front end litigation" practically feasible in 5 days. or seemingly permitted by section 8(4).

139. Isn't there something improper about a union being awarded bargaining rights after a represen­tation vote, when it never actually had sufficient support to entitle it to the vote in the first instance? The practical answer to that is that it doesn't happen very often and when it does it is mostly by accident, so why should the employees' entitlement to vote on the issue be lost because of the union's miscalculation. On a more panoramic level though, the answer we think is simply "no" -not in the context of the present statute and the values that it promotes. The statute now provides enhanced scope for the expression of employee wishes in several areas (strikes, ratifications, certification) and provides the means to give effect to that expression. More than that, the statute makes it clear that the result of a representation vote should govern even where the membership evidence tendered by the union was somehow unsatisfactory (see section 8(9)). In other words, in a quick "vote in every case" regime, ultimate faith is based on the ballot box as the means of testing employee wishes.

140. Given the premise that there is to be a "vote in every case", there is also something very pragmatic about the scheme of the new Act. Rather than set up an elaborate administrative machinery to assess membership cards and compare them to lists and to signatures provided by the employer, and rather than entertain disputes about entitlement to votes and appropriate voting constituencies, the statute has prescribed a scheme of incentives and sanctions to regulate behaviour with a view to obtaining a quick test of employee wishes. It is a scheme which (so far at least) has been successful in: expediting the disposition of time-sensitive certification matters; simplifying a once complex process: and minimizing the costs to the parties and the public. While one should not judge the new system by its first few months of operation, the Board's reading of the statute has facilitated quick votes; and that in turn has (so far) been accompanied by fewer unfair labour practice allegations, fewer formal hearings, and an apparent willingness to agree on bargaining unit descriptions and voter eligibility questions which were frequently the subject of litigation under the old system. And, of course, the basic building blocks of the system remain the same: employees must still organize themselves into "appropriate bargaining units" and, as before, a trade union cannot be "certified" as their bargaining agent unless it demonstrates that a majority of the employees in that bargaining unit have signified their desire to be represented - now by means of a vote. These fundamentals of the certification process have not changed.

50. In R-Theta Inc., supra, a case that focused primarily on an alleged fraud on the part of the trade union, the Board commented as follows regarding the new certification procedures in the Act:

26. When Bill 7 was passed, the system was changed to one that is primarily vote based, although membership evidence is still essential for the entitlement to a vote (section 7(13)). And the statute gives quite specific directions about what information shall be relied on by the Board and at what stage in making making its determinations. The system provides for a vote which is directed by the Board without holding a hearing (section 8(4)), based only on the information in the application for certification. That information relates to the appearance of membership of 40% of the employees in the bargaining unit proposed in the application and the accompanying membership evidence (sections 8(2) and (3)). If the Board considers it necessary in order to dispose of the application for certification, the Board may hold a hearing after the vote. However, in disposing of the application for certification, the Board is not permitted to consider any challenge to the membership evidence (section 8(9)).

27. As always, the Board is required to determine the appropriate bargaining unit for the application (section (9)). Then as a result of the vote, the Board is required to certify a trade union if more than 50% of the ballots cast by employees in the bargaining unit have voted for the union (section 10).

28. The combination of these legislative provisions describes a quick vote system for normal certification applications, where a hearing is not available prior to a vote being held. After the vote is held, a hearing is held only if the Board considers it necessary to dispose of the application. Even at this stage, litigation is restricted explicitly. The Board is not permitted to consider any challenge to the information provided under section 7(13), the names of union members and evidence as to their status as members. This is a significant change, as it was formerly the normal practice to dispose of challenges to the membership evidence before an application was determined. Now, the statute says the Board is not to do that.

29. And section 10 is quite specific as to what shall be done with the vote results. If the union receives more than 50% of the votes cast by employees in the bargaining unit determined to be appropriate, the Board shall certify. And if the union does not receive that level of support, the application is dismissed with a bar. It is section 10 which determines what issues are necessary to deal with prior to disposing of a certification application. They are the identification of the employees voting as ones within the bargaining unit which has been determined to be appropriate. and the ascertainment of the count.

30. The statute articulates certain exceptions to the "normal" route described above. These are in section II. The Board may certify without a vote where the employer has contravened the Act and the results of that are such that the true wishes of the employees are not likely to be ascertained, no other remedy will suffice, and the union has adequate support for collective bargaining. And the Board may dismiss an application where the union has contravened the Act such that the true wishes of the employees do not or could not be ascertained and no other remedy, including the taking of another vote is sufficient. When either of these situations occur, the Board is not bound by the requirements of section 10 as to granting or dismissing a certification application. The situations of illegality in section 1] are the only exceptions to the entitlement of a union to certification after winning a representation vote as set out in section 10.

51. Section 7(13) of the current Act requires the union to file a list of the names of the union members in the proposed bargaining unit and evidence of their status as trade union members (i.e. membership cards). The Board then pursuant to section 8(2), reviews the information supplied by the union and determines whether forty percent or more of the individuals in the bargaining unit proposed by the applicant appear to be members of the union. Section 8(3) provides that the Board shall make the above determination with reference only to the information provided under section 7(13).

52. As was pointed out by the Board in The Corporation of the City of Toronto, supra, the decision to order the vote is, pursuant to sections 8(2) and 8(3) based on the assessment by the Board that forty percent or more of the individuals in the bargaining unit proposed by the applicant appear to be members of the union at the time the application was filed. Once that determination is made, there is nothing in the statute that directs the Board to determine the actual support of the union (such as was the case under the previous statute in the pre-hearing vote provisions). In fact, the opposite is true. I agree with the conclusion reached in The Corporation of the City of Toronto, supra, that the current Act is quite specific and that section 10(1) provides mandatorily that if the union wins the vote, in the absence of fraud as dealt with in section 64 or unfair labour practice allegations pursuant to section 11, the union "shall" be certified. Accordingly, the union's victory in the representation vote is not subject to a review and assessment of its right to the vote in the first place, other than as set out below. If the legislature had intended to provide for that type of approach, it could have utilized language similar to the previous pre-hearing vote provisions. It did not do so.

53. It is also worth emphasizing the provisions of section 8(4) of the Act, which state that "the Board shall not hold a hearing when making a decision under subsection (1) or (2)." This further buttresses the conclusion that the Board's determination under section 8(2) of the "appearance" of the requisite level of support is not subject to challenge, except (as here) by way of a request for reconsideration of the original decision. However, consistent with section 8(4), even where reconsidera­tion is requested, no hearing ought to be held to consider the matters raised in any reconsideration application and given the statutory scheme as described above, the Board will likely only reconsider where the Board has inadvertently committed some error in the initial decision.

54. The assessment by the Board, required by sections 8(2) and 8(3) of the Act of the appearance of membership support requires that the Board look at the quantum of support enjoyed by the union as well as the form of the membership evidence. The word "appear" applies to the Board's review of the form of the membership evidence, as well as to the Board's review of the amount of membership evidence submitted by the union. In other words, if the membership evidence submitted "appears", in the opinion of the Board, to be evidence of membership in the applicant union, then the Board can rely upon it. Similarly, if it "appears" to the Board that forty percent or more of the individuals in the bargaining unit proposed by the applicant are members of the union, the Board shall direct a representa­tion vote. This conclusion is reinforced by section 8(9) of the Act which specifically prohibits the Board from considering any challenge to the information supplied under section 7(13) of the Act.

55. As pointed out above, in this case there is a difference between the name used in the application and the name on the membership evidence. Both refer to the Union of Needletrades, Industrial and Textile Employees. However, the application refers to the "Ontario District Council" and the membership evidence refers to the "AFL-CIO-CLC". The question on the ballot simply asks whether the individual wishes to be represented by the union. In these circumstances, the Board concluded in the February 12, 1997 decision that the membership evidence filed with the application was sufficient to meet the requirements imposed by section 8(2) of the Act. Assuming for the sake of argument that the applicant is a different entity from the entity whose name is on the membership cards, does that mean that the Board was wrong to conclude that "forty percent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the union" pursuant to section 8(2) of the Act? Given the similarity between the two names in this case, I am satisfied that the membership evidence was sufficient to yield an "appearance" of forty percent support and that the Board's decision was correct. This is not the situation referred to by counsel for the employer where the applicant is the Canadian Auto Workers and it submitted membership cards of the United Steelworkers of America. The two names in this case are very similar. In addition, as already noted, the Notice of Vote and of Hearing makes it clear who the applicant is and who the employees are therefore voting for or against. This notice is issued by the Board and posted in the workplace prior to the vote.

56. The Act makes it very clear that the representation vote now determines the outcome of the union's application for certification, not the sufficiency and adequacy of the documentary membership evidence which enabled the union to get the vote in the first place. Accordingly, the challenge to the adequacy of the membership evidence and the motion to dismiss this application due to a failure to make out a prima facie case, which I have treated as requests for reconsideration, are hereby dismissed. I am not prepared to overturn the Board's finding in the decision dated February 12, 1997 that forty percent or more of the individuals in the bargaining unit appeared to be members of the union.

The List Issues

57. The remaining issue to be dealt with is the eligibility to vote of Stephen Beagle, Susan Earhart, Russel De Souza and Nicole Lehman. As noted earlier, the parties are also in dispute with respect to the status of Mr. Grant O'Halloran, but it was agreed that this issue would be dealt with later, if it was still necessary to do so.

(a) Stephen Beagle and Susan Earhart

58. Stephen Beagle and Susan Earhart are classified as Team Leaders. In the application for certification filed on February 7, 1997, the union proposed a bargaining unit in which Team Leaders would be the first managerial exclusionary level. The proposed bargaining unit read as follows:

all employees of the Black Photo Corporation at 371 Gough Road (Head Office), save and except Team leaders and persons above the rank of Team Leaders, Office and Sales Staff (including on site store), Marketing, Accounting. MIS. Inventory and Purchasing Service and Mini Lab Operations Staff.

The employer's response filed on February II, 1997 proposed the following bargaining unit description.

all employees of the responding party at 371 Gough Road, in the Town of Markham, save and except Team Leaders and persons above the rank of Team Leaders, office, clerical and sales staff.

Clarity Note: On site store staff, marketing, accounting, MIS, Inventory, Purchasing, Service, Blacks Express, Customer Service Smile Centre and mini lab operations staff are not included in the bargaining unit.

59, Upon reviewing the two proposed bargaining unit descriptions, it is apparent that the parties were in dispute with regard to whether or not staff employed in the Blacks Express and Customer Service Smile Centre should be included in the bargaining unit. However, there was clearly agreement that the Team Leaders should be excluded from the bargaining unit. On the Schedule "A" filed with the response, the employer included the names of Mr. Beagle and Ms, Earhart on the list of employees and indicated that their job classification was Team Leader.

60. In the pre-vote consultation, the responding party took the position that although classified as Team Leaders. Ms. Earhart and Mr. Beagle were not Team Leaders but lead hands. Accordingly, they should be included in the bargaining unit. It was agreed that all of the other individuals classified as Team Leaders were excluded from the bargaining unit, The applicant argued that Ms. Earhart and Mr. Beagle should be excluded from the bargaining unit as well. The employer maintained its position on the day of the vote and at the subsequent officer's meeting on March 5, 1997, as did the union, Therefore, it is the employer's position that although it has agreed that the managerial line of exclusion is Team Leaders, and despite the fact that Ms. Earhart and Mr. Beagle are classified and known to be Team Leaders, as these two individuals do not exercise managerial functions within the meaning of the Act they should therefore be included on the voters' list. Ms. Earhart and Mr. Beagle have cast ballots and their ballots have been sealed and segregated.

61, In correspondence leading up to the hearing, the parties articulated their positions with

regard to Ms, Earhart and Mr. Beagle. The applicant in correspondence to the Board dated March 4, 1997 and March 7, 1997 articulated its position as follows:

(b) Managerial Challenges

It is the position of the Applicant that Stephen Beagle, Susan Earhart. and Grant O’Halloran occupy the positions of Team Leader or above that position, and therefore are excluded from the bargaining unit. In fact, the Responding Party's own pre-vote documents and filings identify Beagle and Earhart as Team Leaders. The Responding Party is, therefore, precluded from taking an opposite position at the time of the vote. It is also the Applicant's position that these persons are not eligible to be in the bargaining unit pursuant to section l(3)(b) of the Act.

(b) Stephen Beagle and Susan Earhart

These two individuals were agreed by both parties to be Team Leaders on February 14, 1997. The Applicant and the Responding Party agreed, in writing, on February 13 and 14, 1997, and continue to agree, that Team Leaders are excluded from the bargaining unit. Notwithstanding the Responding Party's agreement to exclude these Team Leaders from the bargaining unit, the Responding Party now takes the position that they should not be excluded from the bargaining unit and should be allowed to vote. The basis for this is that although their titles are Team Leaders, and although they appear on the list of the Responding Party's employees as Team Leaders, they are not Team Leaders. It is the Applicant's position that this, too, is an example of the Responding Party resiling from agreements, simply for the purpose of attempting to gerrymander the voters list.

62. The employer's position as stated in its letter to the Board dated March 14, 1997 reads as follows:

b. Stephen Beagle and Susan Earhart:

It has been the Respondent's position from the outset that the term "team leader" is a generic term that is recognized by management and the employees in reference to those persons who are employed in a managerial capacity at the lowest level. It has also been the position of the Respondent that Stephen Beagle and Susan Earhart although classified as team leaders by title, do not exercise managerial responsibilities within the meaning of 1(3) of the Act and are therefore not [sic] appropriate for inclusion in the bargaining unit. This position has been consistently maintained by the Respondent throughout the proceedings and this position was explained in detail to the Board officer at the first instance when the Board officer was attempting to obtain agreement on the various issues relating to the instant application. For this reason both Stephen Beagle and Susan Earhart were included on the employers' schedules that were filed with the Board at the very outset, furthermore it was explained to the Board officer as well as the Applicant prior to the counting of the ballots that the reason that Stephen Beagle and Susan Earhart were included on the schedules with the title team leader was because they did not exercise managerial functions within the meaning of the Act, that the title of team leader vis a vis Stephen Beagle and Susan Earhart was an anomaly and that their inclusion in the bargaining unit by the Respondent is based on the fact that they do not exercise managerial functions within the meaning of l(3)(b) of the Act.

63. At the hearing, counsel for the applicant continued to take the position that as the parties had agreed that Team Leaders were excluded and as Ms. Earhart and Mr. Beagle were classified as Team Leaders, they were excluded from the bargaining unit. Counsel for the employer stated that it had been the company's position from the beginning that although these two individuals were called Team Leaders, they do not perform managerial functions and should be included in the bargaining unit. The other Team Leaders do perform managerial functions and should be excluded. In response, union counsel argued that either they are Team Leaders or they are not. They are on the list as Team Leaders and that's what they are. Company counsel cannot now argue, because the vote is close, that some Team Leaders are in the bargaining unit and some are out. In support of his position that the employer should not be allowed to resile from the parties' agreement with regard to Team Leaders, counsel provided the Board with the following decisions: Saint Elizabeth Health Care - Durham Region, [1996] OLRB Rep. Dec. 1008; Airline Limousine Services Limited, [1989] OLRB Rep. May 395; Beresford Tavern, [1989] OLRB Rep. May 405; Laurent Lamoureux Co. Ltd., [1985] OLRB Rep. Nov. 1618; Asea Brown Boveri Inc., (unreported decision, Board File No. 1787-92-R, Jan. 29, 1993); Beaverbrook Estates Inc., [1990] OLRB Rep. Jan. 13; 795679 Ontario Limited c.o.b. as G.G.'s Foodmart, (unre­ported decision, Board File No. 2005-96-R, Dec. 5, 1996; B & B Electric Co. Division of Electrobauer Svstems Limited and/or Electrobauer Ltd., [1996] OLRB Rep. Dec. [907]; Chedoke-McMaster Hospitals. [1997] OLRB Rep, Feb. 35.

64. The Board's jurisprudence makes it very clear that when the parties have agreed on a particular point or issue, they will not be allowed to resile from that agreement. The difficulty in this situation is determining whether or not the parties ever were in agreement with regard to the inclusion or exclusion of Ms. Earhart and Mr. Beagle.

65. It is not disputed that the bargaining unit proposed by both parties had as the first level of managerial exclusion the classification of Team Leader. However, on the Schedule "A" filed by the employer with its response, it included Mr. Beagle and Ms. Earhart on the list of employees. At no time did the employer sway from its position that all of the Team Leaders except Ms. Earhart and Mr. Beagle should be excluded from the bargaining unit,

66. The difficulty with the employer's position, is that if it felt Ms. Earhart and Mr. Beagle were not truly "Team Leaders" in the way in which that classification was utilized by both parties as the first line of managerial exclusion in the proposed bargaining unit descriptions, why was this position not set out in the clarity note which accompanied the employer's proposed bargaining unit description? It would have been a very simple matter to spell out clearly that the term "Team Leader" did not, in the employer's view, include Ms. Earhart or Mr. Beagle in the same manner as other groupings of employees were not to be included in the bargaining unit. As the company utilized a clarity note, it would have made sense to set out its position with regard to Mr. Beagle and Ms. Earhart at that point. There then could not have been any confusion as to the company's position,

67. On the other hand, it appears that although raised somewhat obliquely by the employer, i.e. in the Schedule "A" filed as opposed to in the clarity note to the bargaining unit description itself, there can be no doubt (nor did the union suggest that it was not aware) that from the beginning the employer's position has been consistent with regard to these two individuals.

68. Accordingly, I am not prepared to conclude that the parties have ever been in agreement with regard to these two individuals. As such, the employer is not resiling from any agreement. It is therefore appropriate to determine the issue of the inclusion or exclusion of Ms. Earhart and Mr. Beagle from the bargaining unit based on the merits.

69. There is another issue concerning the timeliness of the employer's particulars and submis­sions with regard to the individuals whose eligibility to vote and/or to be included in the bargaining unit is still in dispute. I will deal with that issue at the end of this decision,

(b) Russel De Souza and Nicole Lehman

70. It appears that Ms. Lehman and Mr. Dc Souza perform work in an area known as the Customer Service Smile Centre (CSSC), The dispute with regard to these two individuals is a tangled web.

71. At the outset, the responding party took the position that individuals employed in the CSSC and in the "Black's Express" should be treated in a similar fashion by the Board. It appears that the employer took the position that the CSSC employees shared a community of interest with the Office and Clerical staff and should be excluded from the bargaining unit, Therefore it was the position of the employer that both groups of employees, those employed in the CSSC and in the Black's Express, should be excluded from the bargaining unit. The applicant took the position that the CSSC positions should be included in the bargaining unit and the employees employed in the Black's Express should be excluded from the bargaining unit, Therefore at the time of the vote, on February 14, 1997, the union was arguing for the inclusion of Ms. Lehman and Mr. De Souza in the bargaining unit and the employer took the position that they should be excluded.

72. On February 17, 1997, the union wrote the following letter to the Board:

Re: Union of Needletrades, Industrial and Textile Employees - Ontario District Council and Black Photo Corporation:

OLRB File No. 3612-96-R

With reference to the report from the Labour Relations Officer attending the voting on the above file on February 14, 1997, the union now agrees with the company position to exclude Nicole Lehman and Graham Scott from the list of challenged individuals.

Thank you for your attention to this matter.

Accordingly, at this point the union partially accepted the employer's position. It agreed that two individuals employed in the CSSC should be excluded from the bargaining unit. Presumably, the rest of that group of employees were to be included in the bargaining unit.

73. At the officer's meeting held on March 5, 1997, the company changed its position with regard to people employed in the CSSC and agreed with the union that those individuals should be included in the bargaining unit. The parties agreed that people employed in the CSSC would be included in the bargaining unit and that those persons employed in the Black's Express would not be included in the bargaining unit. However, the applicant argued that as it had agreed to the employer's challenge with regard to Ms. Lehman and Mr. De Souza and because these two individuals were not employees of the company and did not have a sufficient employment relationship with the company, that they should not be entitled to vote. The company took the position that as it had agreed to include in the bargaining unit persons employed in the CSSC, and Ms. Lehman and Mr. De Souza were employed in that area, that this meant that they were to be included in the bargaining unit, The company took the position that they did have an employment relationship with the company. In addition, the employer argued that the union could not raise a "new" challenge to these two individuals, namely that they were not employees, after the vote has been held.

74. In correspondence dated March 7, 1997, the union stated its position with regard to Ms. Lehman and Mr. De Souza as follows:

(a) Russel De Souza and Nicole Lehman

At the vote on February 14, 1997, the Responding Party challenged these two individuals and asked that their ballots not be counted. The Responding Party took the position that these two individuals ought to be excluded from the bargaining unit and from the vote.

On February 17, 1997 and again on February 18, 1997, the Applicant advised the Board, in writing, that it agreed that Nicole Lehman and Russel De Souza should be excluded and their ballots not counted. That is, on February 18^th, after reviewing the matter, the Applicant agreed with the Responding Party's position that these two persons should be excluded. After the Applicant agreed with the Responding Party that these two persons should be excluded, the Responding Party changed its position and now takes the position that these two persons should be included in the bargaining unit. This is clearly improper gerrymandering of the voters list.

The Responding Party, on March 5, 1997, should not be allowed to resile from its written position taken on February 14th and agreed to by the Applicant on February 17th. If the parties are allowed to continually reverse their positions in response to the opposite party's last position, the expedition of certification hearings will be impossible and the holding of regional certification meetings will become futile. The Board has consistently enforced agreements made by the parties respecting employees in the bargaining unit and on the voters list, both under the old Act and the new Act (see Airline Limousine Services Limited, [1989] OLRB Rep. May 395; Laurent Lamoureux Co. Ltd., [1985] OLRB Rep. Nov. 1618: Beaver Brook Estates Inc., [1990] OLRB Rep. Jan. 13 (para. 8-9); Asea Brown Bovery Inc., [1993] OLRB Rep. Nov. 314, Board File No. 1787-92-R applying Lorne's Electric, [1990] OLRB Rep. Sept. 935 and Croon Electric. (1978] OLRB Rep. April 344; 795679 Ontario Ltd. cob, as G.G.'s Food Mart. [1996] OLRB Rep. No. 4732. Board File No. 2005-96-R; B&B Electric Co. [1996] OLRB Rep. No. 4360, Board File No. 1831-96-R; Chedoke-McMasmer Hospitals. [1997] OLRB Rep. No. 3935. Board File No. 2125-96-R; St. Elizabeth Health Care. [1996] OLRB Rep. No. 4496. Board File Nos. 2137-96-R and 2371-96-R).

As of February 17, 1997, there was a written agreement between the two parties to exclude these two individuals from the ballot and the bargaining unit. The Responding Party cannot resile from this agreement at any time after February 17. 1997.

In the alternative, and in the event the Board requires a hearing on the status of these two individuals, the Applicant takes the following position. These two individuals ought to be excluded on the basis that they are not employees of the employer or, alternatively, do not have a sufficient employment relationship to entitle them to vote. Russel De Souza is the son of Rosemarie De Souza. the Manger of Customer Service. On a casual basis, their parents may have obtained some work from them at the company at some time in the past. During the course of the organizing campaign, neither of these two individuals was at work. Neither of them has any continuing employment relationship with the Responding Party. Neither of them has performed any significant work in the past year for the company. In summary, neither of these individuals has an existing or continuing employment relationship with the Responding Party, and neither has performed suffi­cient amount of work on any kind of regular basis to justify these persons having any right to participate in the decision-making process of the employees in the bargaining unit.

75. The company, in correspondence dated March 14, 1997 took the following position:

a. The exclusion of Russel Dc Sousa and Nicole Layman:

Russel Dc Sousa and Nicole Layman are employed as part of a seven person customer service team known as the "Smile Centre". It was the Respondent's initial position that all employees of the Smile Centre be excluded from the bargaining unit insofar as there was a lack of community of interest between persons employed in the Smile Centre and the main lab. The Applicant's initial position was that all persons employed in the Smile Centre be included in the bargaining unit. At no time did the Respondent challenge the inclusion of Russel De Souza and Nicole Layman on the grounds that they did not have an employment relationship with the Respondent. Similarly, prior to the counting of the ballots the Applicant did not challenge Russel De Souza and/or Nicole Layman on the grounds that they did not have a sufficient employment relationship with the Respondent. It is only after the count was released that the Applicant by letter dated February 17, 1997 changed its position and raised the challenge vis a vis Russel Dc Sousa and Nicole Layman that they did not maintain a sufficient employment relationship with the Respondent. In our respectful submission raising the challenge in this form is a new challenge raised by the Applicant subsequent to the counting of the ballots. Furthermore, in our respectful submission this is an attempt by the Applicant to resile from its position that persons employed in the Smile Centre are appropriate for inclusion in the bargaining unit. We are requesting that the Applicant be held to its initial position that any and all persons employed in the Smile Centre are appropriate for inclusion in the bargaining unit. Whether or not any person who was employed in the Smile Centre such as Russel Dc Sousa and Nicole Layman did or did not have a sufficient employment relationship is a matter of fact that ought to be determined by the Board. If it is determined that Russel De Sousa and Nicole Layman have an employment relationship with the Respondent then they as employees of the Smile Centre must be included in the bargaining unit as all other employees of the Smile Centre pursuant to the agreement of the parties that the Smile Centre employees are eligible for inclusion in the bargaining unit.

76. Therefore, to summarize, the company argued that all of the CSSC employees should be included in the bargaining unit. As Mr. De Souza and Ms. Lehman worked in the CSSC they were to be included in the bargaining unit. In addition, as the union had at no time on February 14, 1997 (the date of the vote) or before challenged the employment status on Ms. Lehman or Mr. De Souza, they cannot now, after the vote has been held, raise a new challenge to these two individuals. While agreeing that the people employed in the CSSC should be included in the bargaining unit, the union argued that Mr. De Souza and Ms. Lehman should not be allowed to vote as they were not employees of the company. The union did not suggest that Ms. Lehman and Mr. De Souza would not have been included in the bargaining unit if they had had a sufficient employment relationship. But because they did not, they should not be allowed to vote. It was the union's view that Ms. Lehman and Mr. De Souza should be "out" because the parties had agreed on this and secondly because they did not have an employment relationship with the company.

77. It was argued by the union that as it had, after the vote but prior to the hearing, accepted the position of the company with regard to Ms. Lehman and Mr. Dc Souza, that this should end the matter. However, the problem with this simple solution is that the union did not completely accept the company's position but wanted to agree to the exclusion of only two of the individuals employed in the CSSC. It still wanted the remaining individuals employed in the CSSC to be included in the bargaining unit. Had the union after the vote, changed its position and agreed to exclude all of the individuals in the CSSC (which was the company's position), then that agreement would likely have ended the issue. The union did not do that. The employer, after the vote, changed its view and the parties were able to agree that the employees in the CSSC (other than Ms. Lehman and Mr. De Souza) should be included in the bargaining unit.

78. The difficulty with the position taken by the union is that it wants it both ways. The union wants Mr. De Souza and Ms. Lehman off the list but the other CSSC employees to be on the list. The union wants a bargaining unit description which includes the employees in the CSSC except for Mr, De Souza and Ms. Lehman, who the union alleges for the first time after the vote has been held, do not have an employment relationship with the company. It would be a totally different situation if the union had taken the position from the beginning that the CSSC employees, other than Ms. Lehman and Mr. De Souza, should be included in the bargaining unit and had raised the issue of their employment status at or prior to the vote. The union did not do this but sought to put forward a new argument with regard to Ms. Lehman and Mr. De Souza, after their position with regard to the CSSC employees had been made at the vote.

79. The Board consistently encourages the settlement of issues that are in dispute between the parties. And the Board holds the parties to any agreements which may have been reached. Once the parties have agreed on an issue, the Board will not allow one side to resile from this agreement (see in this regard the cases referred to by the union in its correspondence set out in paragraph 60 of this decision). It has always been the approach of the Board to encourage and facilitate the settlement of matters in dispute between the parties.

80. However, in this case, I cannot conclude that the parties have "agreed" to exclude Mr. De Souza and Ms. Lehman and to include the other CSSC employees as was urged upon me by the union. At and prior to the vote on February 14, 1997, the union took the position that the CSSC employees should be included in the bargaining unit. The employer later agreed to this without attempting to make any exceptions. Accordingly, I am of the view that the parties have agreed that the appropriate bargaining unit description should include the Customer Service Smile Centre employees but have not agreed concerning the status of Mr. De Souza and Ms. Lehman.

81. The next issue therefore is whether or not the union should be allowed to change its position on Ms. Lehman and Mr. De Souza and to raise a challenge to the employment status of them after the vote has been held. Having taken the position at the vote that the individuals working in the CSSC should be included in the bargaining unit, should the union be allowed afterwards to assert that all but two of these individuals should be included and change its position to challenge two people on the basis that they do not have an employment relationship? The union accuses the company of' gerrymandering because it has agreed to include the CSSC employees in the bargaining unit. The employer accuses the union of gerrymandering because it now wants all but two of the CSSC employees to be included in the bargaining unit. In the circumstances, given that the parties were in dispute concerning the individuals employed in the CSSC at the time both parties changed their positions and that the ballots cast by these individuals had been segregated, it is difficult to conclude that in the face of those challenges there is any prejudice to the employer to allow the union to raise the issue of the employment status of Ms. Lehman and Mr. De Souza after the vote but prior to the hearing.

82. The Board's Rules of Procedure provide as follows with regard to the making of representa­tions after a vote has been held.

41. Any party or person who wishes to make representations about the vote or the report must file those representations in writing promptly, and in any event within seven (7) days of the date the report was first posted. If a party or person wants an oral hearing, this request must beset out in the representations together with the reasons for the request in the way required by these Rules.

In addition, the Form T-36, Notice of Report of Board Officer stipulates in paragraph 2 as follows:

2. If you wish to make representations concerning any matter relating to the application for certification which remains in dispute, or any matter relating to the representation vote, the accuracy of the report, or the conclusions the Board should reach in view of the report, you must file a statement of representations with the Board which must include the following details:

The notice also provides that submissions must be made within seven days of the date of the notice. In this case, the union notified the Board of its change in position with respect to Ms. Lehman and Mr. De Sousa within that seven-day time frame.

83. As I have already pointed out at length, the new certification process found in the current Act provides for a "quick vote" in every case. The parties no longer have much time prior to the vote to research and analyze what position should be taken with regard to the eligibility of certain individuals to either vote or to be included in the bargaining unit. While normally the Board expects the parties to bring forward any challenges to the list and articulate the basis for the challenges before the vote is held, in this case the right to vote of Ms. Lehman and Mr. De Sousa had already been challenged and their ballots segregated and not counted. So in a sense, while the basis for the challenge was "new", the fact that the status of these two individuals was in dispute was not new. In the circumstances, I am satisfied that the union raised its challenge to Ms. Lehman and Mr. De Sousa as soon as it reasonably could. It is difficult to see in this case how it creates any prejudice to the employer to allow the union to add a "new" challenge to the ability to vote of individuals already in dispute. Therefore, I am prepared to allow the union to raise a challenge to the employment status of Ms. Lehman and Mr. De Sousa. This matter remains to be litigated on its merits.

(c) List Issues - generally

84. There was one final issue with regard to the dispute concerning the list of employees. At the hearing, the counsel for the union argued that if the union was unsuccessful in its position that the Board should find that the parties were in agreement concerning whether or not Ms. Earhart, Mr. Beagle, Ms. Lehman and Mr. De Sousa were or were not eligible to vote, then the Board in deciding the issue on the merits should determine the eligibility of the individuals to cast a ballot based on the materials filed and submissions made prior to the hearing. The union, prior to the hearing and in accordance with the Board's Interim Information Bulletin No. 4 - Status Disputes in Certification Applications, filed submissions in support of its position on the merits regarding Ms. Lehman, Mr. Beagle, Ms. Earhart, Mr. De Souza and with regard to Mr. Grant O'Halloran, about whom there was no suggestion that the parties had ever reached agreement. The employer had only made relatively brief submissions articulating its position on the five individuals at the time of the hearing. Counsel for the union stressed the importance of the Board's Rules and Procedures and argued that the company should not be allowed to ignore them and should be precluded from filing materials and documents at the hearing. In support of his position, counsel referred the Board to The McGill Club, [1996] OLRB Rep. Oct. 877.

85. Counsel for the employer suggested that given the number of outstanding issues in this case, it was difficult to know what to file until the basis upon which the union was alleging that there was an agreement with regard to four of the five individuals still in dispute, was made clear. Counsel sought leave of the Board to file additional documents and submissions "down the road". Given the manner in which the hearing unfolded, this issue was left aside to be dealt with if necessary.

86. On March 20, 1997, two days after the conclusion of the hearing, the Board received a six-page letter setting out the submissions of the employer on the issue of the exclusions as well as a bundle of documents. The letter also contained brief submissions in response to the union's allegations in support of its section 11 complaint.

87. Naturally, the union objected to this late filing of submissions and documents. The union also suggested that it was completely improper for the company to have simply filed these documents prior to the Board's having ruled on the issue of whether or not the employer would be allowed to ignore the time frames set out in Interim Information Bulletin No. 4. In addition, the union suggested that it would constitute a denial of natural justice if I were to refer to the documents filed and submissions made after the hearing of these issues and render a decision in the preliminary matters based in any part on these materials.

88. In response, the company asserted that as the union had failed to comply with various time frames prior to the hearing, the Board should not consider any documents filed by the union. In addition, the company suggested that there was no prejudice to the union in this situation as the union will have ample time to respond to the submissions made by the company, as this matter has not yet been concluded.

89. I completely agree with the union that it would be improper for me to consider the submissions of the employer and the documents filed in determining the issues litigated on March 17 and 18, 1997. Accordingly, in reaching the conclusions that I have in this decision, I have not even reviewed the late submissions and documents filed by the employer, let alone relied on them in any way.

90. In the normal course, when there are issues still in dispute after the vote, one of the Board's Labour Relations officers meets with the parties at a post-vote meeting and encourages the parties to agree on a process to be followed at the hearing. This could include an agreement to leave certain issues aside until other issues have been dealt with, or an agreement to deal with certain issues in a certain order. Although the parties did not reach such an agreement in this case, it is difficult to dispute that there is little if any prejudice to the union to allow both parties to fully articulate at this point, with the appropriate documentation, their positions with regard to the merits of the dispute regarding whether or not the ballots cast by the five individuals should be counted.

91. Had what I have referred to as the "list issues" been the only issues in dispute at the time of the hearing and had the company failed to comply with Interim Information Bulletin No. 4 prior to the hearing, I would have taken a very different view. Given the number of issues in dispute and the possibility that the union's "preliminary" arguments may well have succeeded, I am prepared to adopt a flexible approach in this case. However, a failure in the future to comply with the Board's practices could result in a party being prohibited from filing materials in what is clearly an untimely fashion.

92, Accordingly, although the company should have waited for my ruling on this issue, I am prepared to afford both parties the opportunity to file any additional submissions or documents relevant to the issue of the status of the five individuals still in dispute.

93, Although the company has apparently already filed what it feels is relevant, it will neverthe­less be given an additional five days from the receipt of this decision (which as the parties will be contacted and provided with an opportunity to come pick up this decision at the Board, should be the date of the decision) to file additional submissions and documents with the Board with a copy to counsel for the union and counsel for the group of employees.

94. Counsel for the union shall then have a further seven days to respond to any submissions and to tile any documents felt to be relevant. The time frame under which the union must respond may be extended if it is necessary to deal with a request for documents.

95. Upon the receipt of the additional submissions and documents, if any, the Board shall determine the appropriate next step, If necessary, a hearing may be scheduled to deal with the issue of the status of the five disputed individuals. However, if it is appropriate to do so, the Board may determine the status issues based on the written materials and submissions of the parties. Depending on the outcome of the list issues, it may or may not be necessary to deal with the union's application pursuant to section II of the Act, Accordingly, at this point, it is appropriate to continue to leave this issue aside until the list issues have been dealt with on their merits.

96. If any of the parties feel that it may be helpful to meet with a Labour Relations Officer at this point, a request to the Manager of Field Services may be made.

97. I shall remain seized of this matter,