[1997] OLRB REP. JULY/AUGUST 559
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: Janice Johnston, Vice-Chair.
DECISION OF THE BOARD; July 17, 1997
1This is an application for certification in which I have already issued a lengthy decision dated June 19, 1997. That decision noted that there remained in dispute between the parties, amongst other issues, the issue as to the eligibility of five individuals to cast ballots in the representation vote held on February 14, 1997. The parties were provided with an opportunity to file additional submissions and documents with respect to these five individuals. It was pointed out in the June 19th decision that a hearing would be scheduled to deal with the disputed individuals if necessary. If it was appropriate to do so, the status issues were to be decided based on the written submissions and documents.
2The Board is in receipt of submissions dated June 26, 1997 from the employer and submissions dated July 8, 1997 from the union.
3After reviewing the submissions and accompanying documentation filed by the parties, I am prepared to deal with the issue concerning the employment status of Nicole Lehman and Russel De Souza without a hearing.
4At the time the vote was directed, the Board determined that the individuals eligible to vote would he:
all individuals who had an employment relationship with the responding party in the voting constituency on February 7. 1997, the certification application filing date, are eligible to vote. Employees having an employment relationship on February 7, 1997, the certification application date, include employees who were not at work on that date, so long as there is a reasonable expectation of their return to employment.
5The issue currently to be decided is whether Russel De Souza and Nicole Lehman in fact have an employment relationship with the employer and were therefore entitled to vote.
6In response to the application for certification the employer filed a list of employees in the bargaining unit. This list is primarily made up of full-time and part-time employees who were at work on the application date. The list also included the names of individuals who were not at work on the application date. For these individuals the employer indicated the last day worked, the reason for the absence and the expected date of return. Nicole Lehman and Russel De Souza were not included on this list. It is important to note that the employer did include the names of individuals who worked on an "on-call" basis on this list, but Mr. De Souza and Ms. Lehman were not amongst this group of employees.
7Ms. Lehman last worked for the company during the week ending October 13, 1996. Mr. De Souza last worked for the company in the pay period ending January 19, 1997. The work history of both individuals indicates sporadic contact with the workplace.
8In London District Crippled Children's Treatment Centre, [1980] OLRB Rep. April 461, the Board laid out some general guidelines and reviewed the jurisprudence concerning the Board's approach to questions concerning employment status and an individual's eligibility to vote. The Board stated:
Certification is the primary process in The Labour Relations Act. It is the means by which the wishes of employees for representation are transformed into the affirmative right to a union to bargain collectively on their behalf with their employer. Generally, apart from exceptional cases involving extreme unfair labour practices, certification is accomplished by an application of majoritarian principles. A union can be certified by demonstrating support in excess of 55% of the bargaining unit through membership cards. It can also be certified by obtaining a simple majority of the ballots cast in a representation vote. These are the two normal routes to certification under the Act. Both of these procedures require the application of percentages to a defined number of employees. Because employees may continuously come and go through hiring, lay-offs, leaves of absence, quitting and discharge, the Board has had to devise some general rules to apply in order to fix a clear and stable figure of employees in a given bargaining unit for the purposes of an application for certification.
There are a number of ready illustrations of those rules. The Board has devised, for example, a "terminal date" as a cut off point for assessing the number of membership cards filed by a union and statements in opposition to certification filed by employees. The Board refers to the date that an application is filed for assessing the number of employees in the bargaining unit. (See R v. OLRB, Exparte Hannigan, 1967 CanLII 205 (ON CA), [1967] 2 OR. 469 (CA.)). And it has developed a "thirty day rule" to determine whether an employee absent on the date of application is to be counted within the bargaining unit for the purposes of the application (Amplifone Canada Ltd., [1967] OLRB Rep. Dec. 840). The Board has also evolved "a seven week rule" as a rule of thumb to assess which employees will be viewed as full-time and which as part-time for the purposes of an application. (Sydenham District Hospital, [1967] OLRB Rep. May 135). These are procedural constructs whose application may mean victory or defeat for either party in any particular application. If all of the lines established by these rules were to be redrawn on a case by case basis the certification process would come to a standstill. These established principles are known to the labour relations community and parties coming before the Board can plan on the basis of them. While none of the above rules are entirely inflexible, there is a substantial onus on any party who seeks to have the Board depart from them in a particular case. (Trenton Memorial Hospital, [1980] OLRB Rep. Jan. 116)
The line which the Board has traditionally drawn respecting the eligibility of employees to vote, namely that the employee be in the bargaining unit both on the date that the vote is ordered (or on the terminal date in a pre-hearing vote or as otherwise agreed by the parties) and on the date the vote is taken, is clear and well known through the Board's published decisions, its practice notes (see Practice Note No. 9, August 1964) and its layman's handbook. While originally the Board merely stated that employees in the bargaining unit would be entitled to vote (see e.g., The Boarden Co. Ltd., (1946), 46 CLLC ¶16,641) it evolved the two-pronged eligibility rule to give greater clarity and certainty to voter's lists, as well as to eliminate the possibility of an employer influencing the outcome of a vote by hiring new employees. The Board's practice and the principles underlying it were well canvassed in]. McLeod & Sons Ltd., [1970] OLRB Rep. Feb. 1316.
The Board's past decisions give considerable guidance in the application of the rules regarding the eligibility of employees to vote in the selection of a bargaining agent. Employees on lay-off without a definite date of recall have been held ineligible to vote (Rix Athabasca Uranium Mines Limited, [1961] OLRB Rep. July 127). The Board has found that a person who was an employee in the bargaining unit on the date the vote was ordered and was promoted to acting foreman on the date the vote was taken was ineligible to cast a ballot, notwithstanding that he later returned to the bargaining unit (Success Display limited, [1971] OLRB Rep. Oct. 636). An employee who was absent on Workmen's Compensation on the date the vote was ordered and on the date the vote was taken, but who had neither quit nor been terminated was found eligible to vote (Alex's Plumbing and Heating Limited, [1970] OLRB Feb. 1321). Where, on the other hand, an employee who was absent due to illness had been treated in all respects as terminated and had no real prospect of returning to work, the Board concluded that he was not eligible to vote (Canac Kitchens Ltd., [1978] OLRB Rep. Aug. 723).
The Board's rule respecting eligibility to vote has sought to strike a balance. On the one hand the Board recognizes the interest of employees with a stake in future collective bargaining having a controlling voice in the choice of a bargaining agent. On the other hand it faces the necessity of establishing a democratic process with some finality in situations where employees are subject to varying degrees of turnover....
The Board's voter eligibility rules are not intended and do not purport to achieve a standard of perfect decimal point democracy, assuming such a standard can ever be achieved. The rules seek nothing more than to establish a substantially representative group of employees with a minimum of employment continuity for the purposes of certification....
9In Canac Kitchens Limited, [1978] OLRB Rep. Aug. 723, the Board stated:
- In determining the eligibility to vote of a person who is not actually at work (in this case on the date agreed upon by the parties) the Board has regard to the continuance of the employment relationship. In this connection, it is well established that persons on indefinite layoff are not permitted to cast ballots in representation proceedings. As was stated in Custom Aggregates, [1978] OLRB Rep. March 215, the Board has taken the view that it would be unfair to allow persons whose prospects for continued employment are so uncertain to participate in the selection or rejection of a bargaining agent. Although the absence of a definite recall date is not, by itself, fatal to a person's eligibility to vote, where, as here, there is no evidence to suggest that, on the date agreed upon by the parties, there was an expectation that the employee would be recalled, the Board will conclude that the layoff was for an indefinite period. This conclusion must obtain irrespective of whether the person has in fact been recalled by the date of the vote. One of the purposes of choosing a cut-off date (the date of decision or, as in this case, the date agreed upon by the parties) is to minimize the effect of an attempt to recall or hire employees whose views about representation are known. For the reasons stated, the Board finds that George Nunes was not eligible to vote in the representation vote taken herein.
10In this case the employment records and other documents filed by both parties make it very clear that Mr. De Souza and Ms. Lehman perform work on an extremely erratic and irregular basis. In their submissions to the Board, both parties referred to them as laid off at the time of the application for certification. They were not even included on the employer's list of employees. Clearly therefore they were on indefinite layoff and no date for their recall had been contemplated. From the date of the application for certification to the date of the vote, neither Ms. Lehman nor Mr. de Souza worked. Although Mr. De Souza has subsequently been recalled to work, given the position taken by the employer on this issue of status, this fact is of no assistance to the determination I must make. Obviously, the employer is in control of when Mr. De Souza actually works and it would be simply too self-serving for the employer to point to the fact that he has worked since the vote was held as indicative of an employment relationship.
11Accordingly, after carefully considering the issue of the employment status of Ms. Lehman and Mr. De Souza, I am of the view that their tenuous relationship with the employer is insufficient to ground a conclusion that they are employees and as such entitled to cast a ballot. It would be inappropriate to allow individuals with such an uncertain relationship with the employer to participate in the critical decision concerning the representation of these employees by the applicant trade union. Therefore, I direct that their ballots be destroyed and not counted.
12The applicant has suggested that it may be appropriate to count the ballots cast by:
Wynne Hartviksen;
Shelly Ireland;
Fred Proia;
Patricia McAllister; and
Cathy Orban.
The ballots were originally segregated but the parties subsequently agreed that they should be counted. In the circumstances, I agree with the suggestion of the union that it is appropriate to now count those ballots.
13It is my view that it will not be possible to deal with the contested managerial exclusions, Mr. Beagle, Ms. Earhart and Mr. O'Halloran, based on the written submissions of the parties. If the Board is to determine this issue, a hearing will be necessary. However, it is possible that a hearing may still yet be put off depending on the number of ballots cast for and/or against the union by the five individuals who have been agreed to as eligible voters. If it is not necessary to count the ballots cast by Mr. Beagle, Ms. Earhart and Mr. O'Halloran to determine the outcome of the vote, I am of the view that the issue of their status should be referred back to the parties for their resolution, if it is necessary to do so. In other words, if after the counting of the ballots the union has won by four or more votes, the votes cast by the three individuals are irrelevant and the parties can deal with the status of Mr. Beagle, Ms. Earhart and Mr. O'Halloran in negotiations. Failing agreement the parties could refer the matter back to the Board. If the union is behind by more than three votes after the ballots are counted, they cannot win the vote and once again the votes of the three individuals are irrelevant.
14Immediately, prior to the release of this decision, the Board received a request for reconsideration filed by counsel for the objecting employees and one filed by counsel for the employer as well, with regard to the Board's decision dated June 19, 1997. For reasons that will be provided at a later date, these requests for reconsideration are hereby dismissed.
15This matter is referred to the Manager of Field Services to arrange for the counting of the ballots of the five individuals referred to above.