[1998] OLRB REP. MARCH/APRIL 212
2627-97-R Brewery, General and Professional Workers' Union, Applicant v. International Brotherhood of Electrical Workers, Local 353, Responding Party
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.
APPEARANCES: John McNamee and Bill Robinson for the applicant; Joseph Liberman and Joe Fashion for the responding party.
DECISION OF RUSSELL G. GOODFELLOW, VICE-CHAIR AND BOARD MEMBER J. A. RUNDLE; April 30, 1998
1This is an application for certification.
2A representation vote was held on October 30, 1997. There were 25 names on the voters' list. Twenty-two people voted. The ballots of 16 voters were segregated. No ballots were counted. The parties disagree on the appropriateness of the applicant's proposed bargaining unit. They also disagree on the list of employees to be included in the unit. These matters were listed for hearing.
3Also listed for hearing was a request by the applicant to amend its proposed bargaining unit description. That request had been made prior to the decision directing the vote but it was not addressed in the vote decision. At the hearing before us, the employer submitted that the Board should not permit the amendment.
4After hearing the parties' arguments on the appropriateness and amendment issues, the Board ruled (in truly bottom-line fashion) that the bargaining unit description would be the one sought by the employer (subject to the resolution of two other outstanding issues as to the appropriate level of managerial exclusion) and not the one sought by the applicant in its amendment. In so doing, and in giving no reasons for its decision, the Board left it unclear in the parties' minds whether the basis for its decision was a refusal to permit the requested amendment or a finding that the amended bargaining unit was inappropriate in any event. The effect of this ruling was to bring into the unit several employees and, therefore, to create the possibility of counting their ballots.
5When this decision did not produce any agreement between the parties as to the counting of ballots, the Board proceeded to hear the parties' submissions on a third issue - a motion by the applicant that the employer ought not to be allowed to change its position, expressed in the list of employees filed in its response, as to the inclusion of four individuals in its proposed bargaining unit.
6The Board reserved its decision on this issue. We now provide that decision together with our reasons for the earlier bargaining unit description ruling.
Decision on the employer's "change in position"
7Prior to the vote, the employer sought to remove four names from its original list of employees set out in Schedule A to its response. The employer raised these challenges or possible amendments to its list with the Labour Relations Officer prior to the holding of the vote. Before us, the employer asserted that in raising these challenges or seeking to make these amendments it was merely responding to positions taken by the applicant as to the employee status of three individuals whose names the employer had placed on its original list. Specifically, the employer took the position that if the union was challenging the employment status of two individuals because of their relationship with a third party, then two other individuals whose names it had placed on the original list should be so treated as well. According to the employer, the two additional employees stood in precisely the same legal position as the two employees sought to be excluded by the union. With respect to two further employees, the employer asserted that they perform essentially the same functions, for purposes of the Act, as does an employee whom the applicant claims is managerial.
8It was the position of the applicant that the Board ought to exercise its discretion, in effect as the master of its certification procedure, to preclude what it characterized as an obvious attempt at "gerrymandering". The gist of the applicant's argument was that the employer's change in position was not the product of anything the applicant did in response to the original list but the employer's own review of the Form A-4 (which was received prior to the vote) and, presumably, its assessment as to how employees were likely to vote. Relying essentially on pre-Bill 7 case law, the applicant attempted to draw a parallel between the receipt by the employer of the Form A-4 and the giving of the count in the former card-based certification system. Under that system, once the count was given, the Board would generally not allow parties to change their positions as to which employees were in or out of the bargaining unit. In the words of the Board in Santa Maria Foods, [1981] OLRB Rep. Nov. 1618, this policy was intended to ensure that certification hearings would not become "endless meanderings without map or compass, each turn in the journey being dictated by changing perceptions of the parties as to what best serves their own interests".
9Unfortunately, the applicant's argument pays insufficient heed to the fact that the former card-based certification system has been replaced by a vote-based one in which no count is given until the ballots have been tabulated. Thus, while under the former system the guide to the subsequent litigation was established immediately prior to the giving of the count (see e.g. Santa Maria Foods, above, at para. 8), under the current system it is found in the report prepared by the Labour Relations Officer at or immediately prior to the holding of the vote. The significance of the Officer's Report to defining the scope of the subsequent litigation was recently dealt with in Martha's Garden Inc., [1997] OLRB Sept./Oct. 891 at 897-898, where the Board put the matter this way:
- The issue which arises now is in what circumstances and to what extent ought the parties to be permitted to abandon or alter the positions they have staked out prior to the taking of the vote. The question is reminiscent of the one dealt with at the outset of this decision. If the parties were irrevocably bound to their pre-vote positions, then every pre-vote disagreement might have to be litigated. That would hardly be a healthy or productive climate for this Board to foster. On the other hand, if parties are permitted to change positions or raise new issues any number of times and at any stage in the process, the finality of litigation would be nothing more than an empty hope. As a general rule, just as agreements between the parties are final, so too should the Officer's report prepared in advance of or concurrent with the taking of the vote be seen as the roadmap to the litigation, if any, which will follow the vote (at least insofar as it pertains to bargaining unit or list issues).
[emphasis in original]
10Implicit in this decision is the understanding that, absent agreement and prior to the preparation of the Officer's Report, parties will have an opportunity to examine their positions and may need to adjust them in light of new information, including positions advanced by the other party. While the Board would hope that such 'jockeying for position" will be kept to a minimum, it is likely an inevitable feature of a five-day vote-based system. To vary the metaphor only somewhat, it is not something over which the Board will be prepared to closely "ride herd". That level of supervision will apply following the preparation and execution of the Report.
11Obviously, the timing of the employer's change in position in this case (which was prior to the holding of the vote and the preparation of the certification worksheet) does not offend this principle. Nor, in our view, can it be said to have prejudiced the applicant. The Board does not accept the applicant's assertion that the employer's conduct may have had a chilling effect on employees' voting intentions or that the applicant relied to its detriment on the employer's original list in structuring its pre-vote campaigning. This is not a 600-person bargaining unit and the employer is not seeking to add names to the list but to delete them. We cannot see how the employer's change in position can be said to have prejudiced the applicant in any way.
12It is also important to bear in mind that what the applicant is asking the Board to do is to rule that four employees who may not, in fact, be properly part of the bargaining unit should nevertheless have their ballots counted. This too is a significant consideration.
13For all of these reasons, the applicant's motion to deny the employer the opportunity to have the status of Messrs. Martindale, Venning, Nahirney and Robinson determined on the evidence is dismissed.
Reasons for the earlier bargaining unit description decision
14The original bargaining unit description sought by the applicant was:
all employees of the Respondent. save and except Business Manager, persons above the rank of Business Manager, persons covered by an existing collective agreement and persons regularly employed for not more than 24 hours per week.
15The bargaining unit description set out in the employer's response was:
all employees of the Responding Party, save and except business manager, persons above the rank of business manager, President of the Executive Committee, persons covered by an existing Collective Agreement and persons regularly employed for not more than 24 hours per week, in the Municipality of Metropolitan Toronto.
16Subsequent to the filing of the response, the applicant wrote to the Board identifying certain challenges it wished to make to the employer's list of employees and seeking to amend its original bargaining unit description so that it would read:
all employees of the Responding Party, save and except business manager, office manager, persons above the rank of office manager or business manager, persons employed as general labour/maintenance, persons covered by an existing Collective Agreement, and persons regularly employed for not more than 24 hours per week.
(applicant's emphasis)
17Apparently through inadvertence, the Board did not address the applicant's request at the 44 time that it was made and directed the vote based on the applicant's original bargaining unit description. At the hearing, the parties agreed that we could leave aside the issue of the appropriate level of managerial exclusion and determine: (a) whether the applicant's requested amendment to exclude "persons employed as general labour/maintenance" should be allowed; and/or (b) whether a unit that would exclude "persons employed as general labour/maintenance" was appropriate.
18As indicated, the majority ruled that the general labour/maintenance employees would not be excluded from the bargaining unit. The basis for the ruling was that a unit that would exclude "persons employed as general labour/maintenance" was not appropriate.
19The parties placed before the Board an agreed statement of facts concerning the duties and responsibilities of persons employed in the general labour/maintenance category and their relationship to the employer and other employees. Counsel for both sides then supplemented this statement with certain additional factual representations that are not material to our decision.
20In the circumstances, the Board sees no need to reproduce the agreed facts or to record the parties' arguments at all. In determining whether a particular bargaining unit is appropriate the Board must consider not only whether there is a sufficient community of interest for the employees to bargain together in a viable way (a requirement which the Board has repeatedly said lacks significant content) but whether the particular configuration of employees sought to be represented would cause the employer any serious labour relations problems. (Indeed, it is this latter inquiry which has become the focus of the test.) In this case, while it was clear that a unit of employees that would either include or exclude the general labour/maintenance employees (only five or six in number) would meet the first branch of the test, the majority was of the view that to exclude them would fail the second branch and raise other labour relations concerns.
21In the majority's view, the points of contact between the disputed employees and the rest of the bargaining unit are sufficient to enable the employees to bargain together in a viable way and will not result, as the applicant would suggest, in two completely different sets of terms and conditions of employment. These commonalties include membership in the same union/employer, work performed at or out of the same location, vertical integration of some workplace activities, and payment out of the same ultimate source. On the other hand, and despite the differences that do exist (and to be fair to the applicant there were many, e.g. the purposefully short-term nature of the employment, the payment of hourly vs. salaried wages out of different funds, and the absence of any significant "horizontal" integration of work functions) to have excluded the general labour/maintenance employees would have given rise to (a) unnecessary and, in the circumstances, undue fragmentation of the workplace; and/or (b) the equally troubling prospect that this remaining rump of employees would, as a practical matter, be forever denied the opportunity to obtain collective representation.
22There are only 40 (or so) employees in this workplace, of whom approximately 14 are already represented by another trade union in an office and clerical bargaining unit. To add a second trade union which represented all remaining employees except those employed in a single category or classification would give rise to the competing and equally undesirable possibilities of a third bargaining unit and bargaining agent being added to the workplace mix or that the remaining grouping would be too small to attract the attention of another union. Weighed against these possibilities was the desire of the applicant to represent, in the end, what amounts to little more than a classification-based or, perhaps, departmental bargaining unit consisting essentially of business representatives. This, too, is a practice upon which the Board's case law has frowned and provides an additional reason for our finding that this aspect of the bargaining unit description proposed in the amendment was not appropriate.
23In the result, the majority finds that the applicant must take the remaining workforce as it finds it. Any concerns that we might have about the strength of the interests held in common between the group of employees that the applicant seeks to represent and the general labour/maintenance employees it wishes to exclude are outweighed by these competing concerns.
24For these reasons, the majority considers the exclusion of the general/labour maintenance employees to be inappropriate and, therefore, ruled as it did. In view of this decision, we also found it unnecessary to address the further question of whether the applicant was entitled to amend its proposed bargaining unit description prior to the decision directing the vote.
25The matter will be re-listed for hearing.
DECISION OF BOARD MEMBER H. PEACOCK; April 30, 1998
I dissent in respect of the inclusion of the general labour/maintenance category of employment in the bargaining unit.
I find it totally inappropriate that dues-paying members of the respondent employer trade union employed for relatively short periods of time primarily to top up hours needed to establish Employment Insurance credits should be included for collective bargaining purposes along side the business representatives of the employer that the applicant seeks to represent. There is no community of interest between the two groups. Their eligibility as local union members on the dispatch list in obtaining additional non-trade hours places the so called general labour/maintenance group closer in interest to the employer than to the applicant. In the parlance of the not for profit sector, they are numbered among the "owners" to whom this employer is accountable. There is no on-going labour relations concern. The conditions of the general labour/maintenance group are governed by rates found in the Principal Construction Agreement when assigned to work within the local union facilities that they would be paid as journeymen referred by the local in the usual manner. They are not paid out of the general payroll fund of the local union, but out of various trust funds for education and building maintenance.
In my view, the agreed facts referred to in paragraph 20, demonstrate clearly the gulf between the interests of the unit of business representatives sought by the Brewery Workers' Union and the interests of the local union members temporarily employed in the general labour/maintenance group.
Accordingly, I would grant the applicant's request to amend its proposed bargaining unit and find the amended description excluding the general labour/maintenance group to be appropriate.