Union of Needletrades, Industrial and Textile Employees, AFL-CIO, CLC v. GMA Cover Corporation, 1998 CanLII 18382

[1998] OLRB REP. SEPTEMBER/OCTOBER 796

1366-98-R; 1586-98-U Union of Needletrades, Industrial and Textile Employees, AFL-CIO, CLC, Applicant v. GMA Cover Corporation, Responding Party

BEFORE: G. T Surdykowski, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.

APPEARANCES: James Robbins, John Wensley, Rosa Bartella, Maria Margetiak, Janice French and Bert Donkersgoed for the applicant; Erin R. Kuzz and Gail Wilson for the responding party.

DECISION OF THE BOARD; October 5, 1998

1Board File No. 1366-98-R is an application for certification. By decision dated July 20, 1998, the Board (differently constituted in part) accepted the agreement of the parties regarding the appropriate bargaining unit description for this application, and directed that a representation vote be taken of the individuals in the voting constituency which reflected that bargaining unit description.

2Board File No. 1586-98-U is an application under section 96 of the Labour Relations Act, 1995 (the "Act") in which the union alleges that the responding employer has violated sections 70, 72, 76, 86(2), 87(1), and 119(1) of the Act. That is, it is an unfair labour practice complaint.

3Although the union initially sought to have the application for certification and unfair labour practice complaint consolidated or heard together, at the hearing on September 17, 1998, it agreed that the two matters could proceed separately. It was quite appropriate for the union to do so, because it is apparent that the disposition of the unfair labour practice complaint can have no effect on the application for certification, but that litigating it together with the application for certification is likely to delay the disposition of that representation proceeding. (However, the Board notes that the determination of the issues in the application for certification may have an effect on the unfair labour practice complaint, and may expedite the disposition of that matter.) Accordingly, the Board directed that the application for certification proceed first.

4The vote in the application for certification was taken on July 22, 1998 as directed by the Board. The names of 72 individuals were on the voters list, including three whose right to vote was challenged by the applicant on the basis that (it is alleged) they exercise managerial functions and are therefore not "employees" within the meaning of the Act. 70 individuals voted, including all three of the individuals challenged by the applicant (their ballots were segregated and sealed). The 67 unsegregated ballots were counted. The Board Officer's Report of Vote indicates that 35 ballots were marked in favour of the applicant, 30 were marked against the applicant, and 2 ballots were spoiled.

5The Board dealt with the spoiled ballots issue at the hearing on August 17, 1998.

6The first question was whether the employer could even raise the issue. The Board ruled (orally) that, having identified the issue in its post-vote representations, the issue raised by the employer was one which was properly before the Board.

7The purpose of giving parties an opportunity to make representations after a representation vote is obvious from paragraph 2 of the "Notice of Report of Board Officer" which in this case was issued on July 22, 1998 (the date of the vote), as follows:

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:

(a) the full name, address, telephone number and facsimile number (if any) of the party making the representations, of a contact person for that party, and of any other party;

(b) a detailed statement of all the material facts on which you rely, including the circumstances, what happened, when and where it happened and the names of any persons said to have acted improperly; and

(emphasis added)

Spoiled ballots are clearly a matter which relates to the representation vote.

8The issue of the spoiled ballots was disposed of relatively easily as well. Upon considering the representations of the parties, the Board ruled, again orally, that neither of the two ballots in issue were spoiled, and that they should both be counted.

9One of the alleged spoiled ballots had a clear circular pencil mark entirely within the space for voting "no". The other had the word "no" on the ballot clearly circled. (Interestingly, there was a third ballot, which had been accepted by the Board Officer which had the word "no" written in the circle beside the word "no" on the ballot.)

10The test which is applied by the Board in such cases is well-established, and has been applied consistently for over 30 years: a ballot which does not identify the voter and clearly indicates the choice of the voter shall be counted (National Starch and Chemical Co. (Canada) Ltd., [1968] OLRB Rep. June 285; Success Display Limited, [1971] OLRB Rep. Oct. 636; Lecours Lumber Company Limited, [1972] OLRB Rep. Nov. 982; Fruehauf Trailer Company of Canada Limited, [1974] OLRB Rep. April 254; National Communications and Data Company Limited, [1974] OLRB Rep. Aug. 567; Aluminart Products Ltd., [1988] OLRB Rep. June 538; Maidstone Manufacturing Inc., [1994] OLRD No. 4813, application for judicial review dismissed by Divisional Court [1995] OLRB Rep. March 388; Ian Martin Limited, [1994] OLRD No. 1170; International Brotherhood of Electrical Workers, Local 353. [1996] OLRD No. 426; Edwards, a unit of General Signal, [1996] OLRB Rep. Aug. 632).

11The Board was satisfied that each of the ballots in issue in this case demonstrated the clear intention of the voter to vote "no" to the question voters were asked (i.e. "In your employment relations with the employer do you wish to be represented by the union?), and the Board was therefore satisfied that the ballots in issue met the "no identification/clear choice" test.

12As a result of this ruling, the vote tally changed to 35 for the union and 32 against, which makes the 3 segregated ballots relevant.

13The three persons whose "employee" status is in dispute are Gurpal Gill, Ming Ly, and Santokh Singh, all of whom are classified as "team leaders". The parties agreed to exchange written representations in that respect, and they have done so.

14Upon reviewing the representations of the parties, the Board does not consider it appropriate to try to determine whether the three individuals in issue are "employees" for the purposes of this application on the basis of the written materials.

15The Registrar is therefore directed to schedule a hearing in Board File No. 1366-98-R for the purpose of hearing the evidence and representations of the parties with respect to the issues between the parties regarding the list of employees in the bargaining unit. In that respect, the Board notes that the employer has submitted that if the three persons in issue are found not to be "employees", the other "team leaders" should also be excluded from the bargaining unit. To the extent that this is a "challenge" to the "employee" status of other than the three individuals named above, it was made for the first time in the employer's written representations after the August 17, 1998 hearing. The union has objected to this on the basis that any such challenges have not been made in a timely way. This issue will have to be addressed by the hearing panel. (The parties are reminded that Information Bulletin No. 4 applies.)

16It appears that four hearing days will be required for the application for certification. If either party thinks that additional hearing time is likely to be required, they should advise the Registrar of the total number of hearing days it considers is likely to be necessary immediately.

17Because of the delay which is otherwise likely to occur, the unfair labour practice complaint in Board File No. 1586-98-U should also be scheduled for hearing. This hearing, which need not be before the same panel, should be scheduled to begin six to eight weeks after the last certification hearing date.

18This panel is not seized with either of these matters.