Teamsters Local Union 938 v. Morrow Transport Inc., 1999 CanLII 19968

[1999] OLRB REP. MAY/JUNE 434

3535-98-R Teamsters Local Union 938, Applicant v. Morrow Transport Inc., Re­sponding Party

Certification - Bargaining Unit - Practice and Procedure - Representation Vote - Union applying to represent bargaining unit of full-time drivers and mechanics employed by employer and estimating that there were 15 individuals in that unit - Employer responding to application by asserting that union's proposed bargaining unit could not be appropriate - Employer giving notice under section 8.1 of the Act and proposing that combined full-time/part-time bargaining unit appropriate - Board conducting vote of full-time and part-time employees and parties subsequently agreeing to count ballots - Less than majority of full-time employees voting in favour of trade union, but majority of employees in combined full-time/part-time voting constitu­ency voting in favour of union - Following vote, union advising Board that it accepts unit proposed by employer in its response to the application and employer advising Board that it accepts unit proposed in union's application - Employer also asserting that combined bargaining unit not appropriate on basis that full-time and part-time employees do not share conununity of interests -Board finding combined full-time/part-time bargaining unit appropriate - Board reviewing policy and language of section 8.1 of the Act and rejecting submission that under section 8.1 of the Act union ought not to be certified in combined bargaining unit because it did not have appearance of 40 percent membership support among employees in that unit - Board certifying trade union to represent employees in combined full-time/part-time bargaining unit

BEFORE: Russell Goodfellow Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.

APPEARANCES: Anthony F Dale, Pat Murdock and Steve Morris for the applicant; Sophia Duguay and Jeff Morrow for the responding party.

DECISION OF VICE-CHAIR RUSSELL GOODFELLOW AND BOARD MEMBER R. R. MONTAGUE; May 6, 1999

1. This is an application for certification.

2. The facts are simple. The union applied to represent a bargaining unit consisting of full-time drivers and mechanics. It estimated that there were 15 people in the unit. The employer responded by:

(1) agreeing with the number of individuals in the unit proposed by the union;

(2) asserting that the unit proposed by the union could not be appropriate for collective bargaining;

(3) proposing a combined full-time/part-time unit;

(4) giving notice under section 8.1 of the Act; and

(5) agreeing that the ballots to be cast in the representation vote be counted.

The basis for the employer's assertion that the union's proposed bargaining unit could not be appropriate was that "... virtually all of [the] part-time employees are drivers who share a community of interest with the full-time drivers and mechanics which the applicant seeks to represent." Eight part-time employees were listed in Schedule B to the response, none of whom were at work on the date that the application was delivered but three of whom were expected back at work prior to the holding of the vote.

3. On the basis of the foregoing, the Board (differently constituted) found, "[for the purpose of this decision only ... that the bargaining unit proposed in the application for certification could be appropriate for collective bargaining" and directed that a vote be held in the unit proposed by the employer. The Board also required that the ballots of the part-time employees be segregated and not counted.

4. Prior to the holding of the vote, a labour relations officer consulted with the parties. The parties advised the officer that they were maintaining their positions as set out in the application and response, and the officer advised the parties that the union's level of membership support was greater than 40 per cent in the unit proposed in the application for certification but less than 40 per cent in the unit proposed in the response.

5. The vote was duly held. Thirteen of the 16 full-time employees and three of the eight part-time employees (those with return to work dates) voted. Six of the full-time employees voted for the union and seven voted against. The ballots of the part-time employees were not counted.

6. The next day both parties had a change of heart. In written correspondence with the Board, the union:

(1) advised that it "... hereby accepts the employer's proposed bargaining unit...";

(2) asserted that the parties were "therefore" agreed that the appropriate bargaining unit was the one proposed by the employer;

(3) withdrew its challenge (expressed in the pre-vote consultation with the officer) to the eligibility of the part-time employees to vote;

(4) announced that the parties were "therefore agreed" that the ballots of the part-time employees should be counted; and

(5) submitted that, because it had more than 40 per cent membership support in its proposed unit, the section 8.1 issue should be resolved in its favour.

7. For its part, the employer advised the Board in writing that it had "... reconsidered its position with regards to the Bargaining Unit description" and was "... now in a position to agree with the description submitted by the union in the Application for Certification." On that basis, the employer asked the Board to "... issue its decision on the Union's Application for Certification accordingly."

8. The Board did none of these things. Rather, it assigned an officer to meet with the parties in the regional certification process and, as part of that process, the parties agreed to count the ballots cast by the part-time employees on a "without prejudice" basis. As revealed by the count, all three part-time employees voted for the union. As a result, if the Board were to find that the larger unit was appropriate, and subject to the "section 8.1 issue", the union would be entitled to be certified on the basis of a nine to seven overall majority. After being advised of the count, both parties elected to maintain their positions on the outstanding issues and the matter proceeded to a hearing before the Board.

9. At the hearing, both parties accepted the other's right to swap, post-vote, their pre-vote positions on the issue of the appropriate bargaining unit: see Martha's Garden Inc., [1997] OLRB Rep. Sept./Oct. 891. However, in support of its change of position, the employer was now asserting that the two groups of employees whom it had formerly claimed had such a strong "community of interest" that they needed to be included in the same bargaining unit, now had so little community of interest that the Board had to keep them apart; in other words, the employer was now taking the position that the combined unit, which it had formerly characterized, in effect, as the only appropriate unit, was no longer appropriate and that the unit which it had formerly said could not be appropriate was now the only appropriate unit. To that end, the employer called only one witness and that witness was cross-examined only briefly.

10. On the basis of the evidence, we are satisfied that the full-time/part-time unit satisfies the test of appropriateness established in the Hosp ital for Sick Children, [1985] OLRB Rep. Feb. 266. Even leaving aside the decidedly undemanding approach taken to the concept of "community of interest" in the Board's case law (see e.g. Active Mold Plastic Products Ltd., [1994] OLRB Rep. 617), there was ample evidence of that requirement here. Thus, for example, both categories of employees perform the same work (although the full-time drivers almost invariably get the more "lucrative" runs) according to the same compensation formula (mileage plus). Although full-time drivers generally work between 50 and 60 hours per week, they may also work as few as 24 hours in a week. At the same time, although not likely in the same week, part-time employees have, on occasion, worked more than 24 hours in a week. (Indeed, these facts led the employer's witness to concede that classifying some employees as either full-time or part-time for the purposes of this application was not altogether easy). Similarly, although part-time employees do not receive benefit coverage, neither do some full-time employees -the decision to pay benefits rests with the company and appears to depend upon the length of employment and the number of hours worked. Further, and perhaps not surprisingly, both categories of employees share common facilities, complete the same paperwork, and are subject to the same reporting arrangements, driving restrictions and disciplinary rules. There is also some history of part-time drivers becoming full-time drivers.

11. Weighed against these factors are the somewhat more modest variables that part-time drivers, unlike full-time drivers, may need to call-in to obtain their work assignments and may not know the work that they will be performing the next day (although here, too, we note that the same may apply to full-time drivers depending upon the number of hours being worked at the time). Part-time drivers, unlike full-time drivers, also have the ability to refuse runs. Even accepting, therefore, the employer's characterization that the role of part-time employees is to "handle the ovefflow", the evidence more than meets the test of "community of interest" established in the Board's case law.

12. On the basis of the foregoing, the Board finds that the two groups of employees share a sufficient community of interest that they can bargain together in a viable way without causing serious labour relations problems for the employer. The suggestion that the interests of these employees are so inherently divergent that they could not be accommodated in collective bargaining is supported neither by the evidence nor the Board's experience. In this regard, we refer to Caressant Care Nursing Home of Canada, Limited, [1996] OLRB Rep. Sept./Oct. 748 and note that the cases relied on by the employer, Leon's Furniture Limited, [1976] OLRB Rep. May 232 and Marriott Corporation of Canada Ltd. (at Carleton University), [1997] OLRB Rep. May/June 468, pre-date Caressant Care (Leon's) and involve a different "community of interest" requirement (Marriott), respectively. In the circumstances, we are satisfied that the broader bargaining unit originally proposed by the employer in its response is appropriate for collective bargaining.

13. This brings us to the section 8.1 issue. The essence of that issue is whether the union is entitled to be certified to represent the larger unit when it did not have an appearance of 40 per cent membership support among the employees in that unit. The union asserts that it is so entitled because the 40 per cent requirement only applies to the unit proposed in the application for certification. The employer says that the union is not so entitled because, in effect, it is the bargaining unit that is ultimately found to be appropriate that matters. Both on the clear and precise language of section 8.1 and what we understand to be the mischief to which that provision is directed, we agree with the union.

14. Section 8.1 was introduced into the Act in August 1998 by Bill 31. Prior to this amendment, the statutory provisions governing a union's entitlement to a vote, to a counting of the ballots and to certification, read as follows:

15. (1) 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.

(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 determination under subsection (2) shall be based only upon 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 (1) 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).

9. (1) Subject to subsection (2), upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of any of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

(2) Where, upon an application for certification, the Board is satisfied that any dispute as to the composition of the bargaining unit cannot affect the trade union's right to certification, the Board may certify the trade union as the bargaining agent pending the final resolution of the composition of the bargaining unit.

10. (1) 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 cast 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.

Many of those provisions were the product of only slightly less recent changes to the Act brought about by Bill 7. Included within these changes was the elimination of the former card-based certification system and the introduction of a vote-based one.

15. Among the early issues that arose under Bill 7 was whether the union was only required to establish an appearance of 40 per cent support among the number of employees it estimated to be in its proposed bargaining or whether it needed to show 40 per cent among the number of employees actually included in the unit. In The Corporation of the City of Toronto, [1996] OLRB Rep. July/Aug. 552, the Board considered the purpose of the new vote provisions, the language of the amendments and various administrative and policy-related factors, before determining that the union only needed to show 40 per cent support among the number of employees it estimated to be in the unit; in other words, the Board found, in effect, that the employer's estimate of the size of the unit was irrelevant to the union's entitlement to a vote or to be certified on the basis of the results of that vote.

16. The Board's decision in The Corporation of the City of Toronto, and the subsequent affirmation of that decision by the Divisional Court, are widely regarded as having been the catalysts for the enactment of section 8.1. This provision states:

8.1 (1) If the employer disagrees with the trade union's estimate, included in the application for certification, of the number of individuals in the unit, the employer may give the Board a notice that it disagrees with that estimate.

(2) A notice under subsection (1) must include,

(a) the description of the bargaining unit that the employer proposes or a statement that the employer agrees with the description of the bargaining unit included in the application for certification;

(b) the employer's estimate of the number of individuals in the bargaining unit described in the application for certification; and

(c) if the employer proposes a different bargaining unit from that described in the application for certification, the employer's estimate of the number of individuals in the bargaining unit the employer proposes.

(3) A notice under subsection (1) must be given within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.

(4) If the Board receives a notice under subsection (1), the Board shall direct that the ballot boxes from the representation vote be sealed unless the trade union and the employer agree otherwise.

(5) The following apply if the Board receives a notice under subsection (1):

1. The Board shall not do anything under section 10 except as allowed under paragraph 2 or as required under paragraph 8.

2. If the Board did not direct that the ballot boxes be sealed, the Board may dismiss the application under subsection 10(2).

3. Unless the Board dismisses the application as allowed under paragraph 2, the Board shall determine whether the description of the bargaining unit included in the application for certification could be appropriate for collective bar­gaining. The determination shall be based only upon that description.

4. If the Board determines that the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining, the Board shall determine the number of individuals in the unit as described in the application.

5. If the Board determines that the description of the bargaining unit included in the application for certification could not be appropriate for collective bargaining,

i. the Board shall determine, under section 9, the

unit of employees that is appropriate for collective bargaining, and

ii. the Board shall determine the number of individuals in that unit.

6. After the Board's determination of the number of individuals in the unit under paragraph 4 or 5, the Board shall determine the percentage of the individuals in the bargaining unit who appear to be members of the union at the time the application for certification was filed, based upon the Board's determination under paragraph 4 or 5 and the information provided under subsection 7(13).

7. If the percentage determined under paragraph 6 is less than 40 per cent, the Board shall dismiss the application for certification and, if the ballot boxes were sealed, the Board shall direct that the ballots be destroyed without being counted.

8. If the percentage determined under paragraph 6 is 40 per cent or more,

i. if the ballot boxes were sealed, the Board shall direct that the ballot boxes be opened and the ballots counted, subject to any direction the Board has made under subsection 8(7), and

ii. the Board shall either certify the trade union under subsection 10(1) or dismiss the application under subsection 10(2).

17. On the basis of the foregoing, it seems fair to say that the "mischief' to which section 8.1 was directed was the possibility that trade unions might knowingly, recklessly or, perhaps, inadvertently, under-estimate the number of employees included in the proposed bargaining unit in order to obtain a vote. While the Board, in The Corporation of the City of Toronto, posited that this would not likely be a common occurrence and, in view of the democratic nature of the subsequent process, suggested that the labour relations harm might be difficult to identify, the Legislature was not so sanguine. The result was section 8.1.

18. Some of this history and these statements of legislative purpose were recently described by the Board in Toronto Star Newspaper Limited, [1999] OLRB Rep. Mar./Apr. 352 where the issue was whether the Board was required to seal the ballot box in response to a "section 8.1 notice" even when it was apparent that the union enjoys 40 per cent support among the number of individuals estimated by the employer to be in the unit. The Board stated in that case:

19. In most certification applications there is some divergence between a union's estimate and the employer's estimate of the number of employees in the union's proposed bargaining unit. That divergence may or may not be numerically significant. In some cases the union's membership evidence will establish that the union has provided proof of more than 40 percent support on its own estimate and on the employer's estimate and list of employees. But, in other cases, that will not be the situation. The union will show over 40 percent support of the number in its estimate of the size of the bargaining unit, hut it will not show such support in relation to the number (by comparison with the employee list) provided by the employer.

20. Bill 31 prevents a union which does not actually have more than 40 percent support in its proposed bargaining unit from being able to enjoy the benefits of a representation vote. Bill 31 achieves this purpose by requiring the sealing of representation ballots in circumstances in which doubt is created by the information provided in the response as to whether the union has the requisite initial support. There is no delay in the holding of quick representation votes - that is the reason why the decision to hold a representation vote is still founded completely upon the informa­tion contained in the union's application. In other words, the legislature did not seek to have the resolution of any disputes between the parties as to the number and identity of employees in the bargaining unit determined by the Board as a condition precedent to the holding of a representation vote. To do that would have resulted in significant delays in the holding of representation votes.

Instead, the legislature elected to deal with the mischief in a manner which did not impede the holding of the representation vote. The vote would be held, but its counting would be delayed until the actual number of employees in the bargaining unit proposed by the union, if the unit could be appropriate (see 8.1(5)4), has been determined. The ballot box would be sealed until that determination.

After outlining the relevant policy considerations, the Board summarized its approach to section 8.1 as follows:

15. The Board will seal the ballot box in circumstances in which the mischief which Bill 31 sought to eliminate is present. Thus, as occurs in some cases, if the difference between the union's estimate and the employer's estimate is numerically relevant, or if there is significant doubt as to whether the union's proposed bargaining unit could be appropriate, then the representation vote will proceed (if the union has over 40 percent membership evidence in respect of its estimate), but the ballot box will be sealed until the actual determination of the number of employees in the union's proposed "could be" bargaining unit (or, if the union's proposed unit could not be appropriate, in the appropriate unit ultimately determined by the Board under section 9) has been made and the union's membership evidence has been compared to the list of employees within that unit. If then the information proves that the union did not actually have over 40 percent membership support, the application will he dismissed, the vote will be treated as a nullity and the ballots will be destroyed. That is done because the union will be shown not to have had the prerequisite membership support to enable it properly to initiate the certification process. If, on the other hand, the union's membership evidence proves to show more than 40 percent of the actual number of employees in the bargaining unit, then the ballots cast in the representation vote will be counted.

16. While this history and these statements of the "mischief' to which section 8.1 is directed would appear to provide strong support for the approach taken by the majority in this case, they are not necessary to it. In our view, the answer to the section 8.1 issue is plain on the wording of the statute: with one very specific exception, section 8.1 is concerned only with the level of membership support in the unit proposed by the trade union in the application for certification; it is not concerned with the level of membership support in the unit contained in the response or in any other unit that the Board might find to be appropriate.

17. Section 8.1 works like this. Pursuant to subsection (1), the employer is entitled to give the Board a notice expressing its disagreement with the union's estimate of the number of individuals in "the unit". (As there is only one unit in relation to which the union can provide, and is statutorily required to provide, an estimate, this must be taken as a reference to the bargaining unit proposed in the application for certification.) If it disagrees with the union's estimate, the employer must also provide its own estimate of the number of employees included in the unit proposed in the application for certification: paragraph (b) of subsection (2). If the employer's estimate exceeds that which was given by the union and, according to the Board's decision in Toronto Star Newspaper Limited, above, the effect is to bring the applicant's appearance of membership support below the 40 per cent threshold, the Board is required to seal the ballot box unless the parties agree otherwise: subsection (4). Thereafter, the Board must determine the actual number of employees in the unit and the union's level of membership support in that unit: paragraph 6 of subsection (5). If the Board determines that the level of support is below 40 per cent, the application must be dismissed: paragraph 7 of subsection (5). Otherwise, the outcome must be determined by the results of the vote: paragraph 8 of subsection (5). The critical point, however, is that throughout all of this the Board is concerned only with the bargaining unit proposed in the application for certification.

18. The exception arises where the employer asserts, and the Board determines, that the unit proposed in the application for certification "could not be appropriate for collective bargaining": paragraphs 3, 4 and 5 of subsection (5). If the Board makes that determination, and only if it makes that determination, the Board must go on to determine "the unit of employees that is appropriate" and "the number of individuals in that unit": paragraph 5 of subsection (5). In order to assist the Board in this endeavour, the employer is required to include in its notice "the description of the bargaining unit that [it] proposes ..." and its estimate of the number of individuals in that unit: paragraphs (a) and (c) of subsection (2). If, as a result of this exercise, the Board determines that the union does not enjoy 40 per cent support in the appropriate unit, the union cannot be certified: paragraph 7 of subsection (5). However, and to reiterate, this process is only applies where the Board finds that the unit proposed in the application for certification "could not be appropriate for collective bargaining".

19. The obvious purpose of the "could be appropriate" requirement is to ensure that trade unions do not apply to represent a bargaining unit that could never be considered appropriate by the Board (but in which they enjoy 40 per cent card support) in order to obtain a vote and, conceivably, certification in a (typically) larger unit proposed in the response. While this scenario and the present one share the feature that it is the unit that was originally proposed in the response that has been found to be appropriate, the current situation lacks the statutory condition precedent to an assessment of support in a unit other than that which was proposed in the application for certification: a finding by the Board "that the description of the bargaining unit included in the application for certification could not be appropriate for collective bargaining."

20. The reality in this case, as in many others, is that both parties have used all of the maneuvering room that the statute and the Board's processes allow them. The union, apparently, is prepared to assert as an appropriate unit, and to seek the right to represent, whatever unit it can get. The employer, apparently, is willing to assert as the only appropriate unit whatever unit may have the effect of keeping the union out. As matters developed, however, the union lost in the smaller, but won in the larger, of two appropriate units. Had the Legislature been troubled by this prospect it could have dealt with the matter quite simply (by requiring, as did the former pre-hearing vote provisions, that trade, unions demonstrate the requisite level of membership support in the unit ultimately found to be appropriate by the Board) rather than through the intricate and elaborate provisions of section 8.1. It appears to us, therefore, that with one very narrow exception, the Legislature has elected to respect the supremacy of the ballot box and to allow the Board to give effect to the wishes of employees expressed in a secret ballot vote.

21. Thus, and to return to the facts before us, the union applied for a bargaining unit that was entirely appropriate and in which it enjoyed the requisite appearance of 40 per cent membership support. The employer responded with a broader (but also appropriate) unit in which the union did not enjoy 40 per cent support. A vote was held in which the union was unsuccessful in the smaller unit but won in the larger unit, and both parties have accepted the other's right to change positions on the appropriate bargaining unit.

22. On the basis of the foregoing, and in view of our determination that 40 per cent or more of the individuals in the bargaining unit included in the application for certification appear to have been members of the trade union at the time that the application was filed, a certificate will issue to the applicant to represent:

all employees of Morrow Transport Inc. in the Town of Cobourg, save and except dispatchers, office, clerical and sales staff, supervisors and persons above the rank of supervisor.

26. The Registrar will destroy the ballots cast in the representation vote after thirty (30) days from the date of this decision unless a statement is received from either party requesting that the ballots not be destroyed.

27. The responding party is directed to immediately post copies of this decision adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. This posting must remain in place for a period of thirty (30) days from the date of this decision.

DECISION OF BOARD MEMBER JAMES A RONSON; May 6, 1999

1. The legislature used Bill 160 to add section 8.1 to the Labour Relations Act after the Board careered off the shiny, new interpretative rails laid down by the legislature in Bill 7. This interpretative derailment occurred in a case involving the National Automobile, Aerospace, Transportation and General Workers of Canada (CA W-Canada) and Falconbridge Limited, Kidd Creek Division, (Board File No. 1007-96-R, unreported). I wrote a comprehensive dissent in Falconbridge, but you won't find this seminal case in the Board reports; - nor has the Board found reason to refer to it subsequently. The decisions in Falconbridge and my dissent were not reported, I am advised, because the Board does not publish dissents. In any event, to assist the reader, a copy of my dissent in Falconbridge is attached to this decision as ADDENDUM #1.

2. In this decision the Board interprets section 8.1 in a manner that continues to treat the ratio in Falconbridge as good law. So now we know what the Board contemplated in 1996 had the Canadian Auto Workers Union (CAW - Canada) emerged as the winner of the Falconbridge vote. As a result, following hard on the heels of the reasoning of the Board in the Wal-Mart case, this decision is every bit as consistent in its approach to Bill 7, as amended, and every bit as perverse.

3. Those who are truly interested in the legislative intention behind section 8.1 of the Act should read the decision of my colleague, Judith Rundle, in Toronto Star Newspaper Limited, [1999] OLRB Rep. Mar./Apr. 352.

***** ADDENDUM # 1 *****

ONTARIO LABOUR RELATIONS BOARD

1007-96-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Falconbridge Limited, Kidd Creek Division, Responding Party.

BEFORE: Laura Trachuk, Vice-Chair, and Board Members J.A. Ronson and R.R. Montague.

DECISION OF BOARD MEMBER JAMES A. RONSON September 26, 1996

1. This is an application for certification which soon revealed itself to be the last Hurrah I of a failed organizing campaign. And what a costly, cynical cheer it was to become.

2. The union, which had been outside the company gate since 1993, applied on June 27, 1996 for the bargaining rights to the employer's workforce at the Kidd Creek Mine located in the Timmins area (the First Application"). The union proposed to divide the work force into 2 groups. It filed membership evidence on behalf of some 443 employees and claimed that there were 400 employees in the proposed unit at the Mine Site and 550 employees in the proposed unit at the Metallurgical Site, for a total of 950 employees. The membership evidence did not disclose how many members were working at the Mine Site or the Metallurgical Site.

3. The employer replied on July 2, 1996, saying that all its employees at the Mine Site and the Metallurgical Bite should be included in one bargaining unit. The employer said there were 1550 employees in its proposed bargaining unit, and of these, at least 200 were on vacation at the time. The employer submitted that the union did, not qualify for a vote because it had not submitted membership evidence to show that 40% of the employees in the appropriate bargaining unit were members of the union.

4. The First Application was dismissed by the Board and on July 4, 1996 the union applied for certification to represent all the employees at the two sites in one bargaining unit (the "Second Application"). In the face of the employer's earlier assertion that there were 1550 employees in the proposed unit, the union claimed that there were 950 employees at the two sites. The union filed 443 membership cards in support of the Second Application.

5. The employer filed its response to the Second Application, raising the same concerns as detailed in the First Application, and requesting voting arrangements that which had recently enhanced the successor rights of employees through controversial amendments to the Labour Relations Act (Bill 40), and broadened the ambit of collective bargaining in the public sector, would shortly thereafter restrict those rights for the unionized employees of Ontario Hydro. There is no obvious public policy reason for doing that, nor anything to suggest that the Legislature intended to accomplish that objective.

6. On July 12, 1996 the employer requested the Board to reconsider its decision

and award additional voting days so as to avoid disenfranchising employees by the timing of the application as selected by the union. The submissions by counsel for the employer read, in part:

• "On July 9th, the Labour Board directed a vote and revealed to the employer that the applicant trade union had filed only 443 membership cards.

• As part of the Labour Board process of agreeing on the employees on the voters list entitled to vote, the Labour Board has given the employer list of 1,557 employees to the trade union. The applicant trade union has accepted the employee lists with only 5 challenges. The applicant trade union has thereby agreed the number of employees in the unit is over 1,550.

• Even assuming all of the union cards match names on the list of employees, the applicant has only 443 membership documents out of 1,550 employees, or 29%.

Surely, in these circumstances it is apparent that the estimate of 950 employees employees used by the trade union to support its application was a device to manipulate the percentage. The fact of there being unchallenged votes cast of close to 1,400 or 1,500 employees on the vote today and tomorrow will further confirm the gross under-estimation of the unit by the union to get a vote that its solicitation campaign of over 30 months doesn't support nor justify.

The Board's decision relies upon an unreported City of Toronto OLRB decision dated July 3, 1996. We have now obtained a copy of the Board's reasoning. The facts are entirely different. There was no issue over the number of employees in the City's active employ at the time of the application. The dispute was whether the employees in the unit of "casual employees" should be 369 persons actively at work at the time of the application or increased by 2,455 employees who had been previously at work some time in the previous year. No such variation in the unit size exists at ICidd Creek.

As to the legal analysis, we re-submit our submission made in the Response. It is suggested in paragraph 127 of the ~ ~~gn~g decision that our interpretation would mean an end to votes in 5 days. This is erroneous and simply didn't happen here. The exchange of views on the voters list took place yesterday. The lack of any substantial challenge establishes this as a simple, expeditious process that in no way delays a vote. In any event, there is no prejudice whatsoever to sealing the ballot box because the quick vote is in no way delayed. No hearing was necessary as was suggested in paragraph 130 would delay a vote.

In paragraph 141 and thereafter, the Board hypothesizes that trade unions would not knowingly misrepresent their apparent support. Surely the facts in this case contradict the Board's hypothesis. Over a 30 month period this applicant must surely have known the unit is in the range of 1,500 and not 900 - some two-thirds the size. With all the information available, hcw could any trade union so grossly underestimate the size? It certainly knew the number was 1,550 from the first application. It has agreed to the 1,550 number wit~n two days of the application.

It makes no challenge that the employer inflated the list. It makes no challenge to take some 600 persons off the list.

The Board suggests in paragraphs 143 and 144 that a trade union would not engage in intentional inflating of the list to get a vote, yet that is exactly what has occurred here. A union that has had its campaign plateau and is having difficulty in increasing its support but lacks the 40 percent, is being invited by the Board's decision to under-estimate the unit size to get a vote. What has the trade union to lose? Rather than walking away, surely its best alternative is to get a vote.

The Legislation requires 40's support.

The Board is required to determine the "denominator" in the calculation. It is not confined to a gross underestimation of the number. It has before it the events of a bargaining unit that suddenly swells by 600 people as agreed to by the union. To fail to take note of these facts is to deprive the Board of authority and jurisdiction. The applicant has 29% support and not 401. The Board is without jurisdiction and authority to order a vote.

Kidd Creek requests that the Board seal the ballot boxes and permit the issue to be argued at the Hearing scheduled August 6.

Disenfranchisement of Vacationing Employees

The facts are:

• The trade union has been engaged in this organizational campaign for 30 months.

• The trade union has applied for a vote at a time of its

selection.

• The trade union has selected a time for the vote that

is in the prime vacation period.

• The time for the vote selected is confined to one week in July when substantial numbers of employees would be known to be on vacation.

• Notice of the vote posted in the workplace will not come to the attention of employees on vacation.

• Even if the notice of a vote were to come to employees' attention, they would not be able to attend the vote location.

• Over 200 employees are absent on vacation each week during the summer.

• A high percentage of vacationing employees leave the Timinins area.

• The work locations are remote from workers' residences and would require trips of considerable distance and time in order to vote.

The Board has failed to provide any reason & for refusing Kidd Creek's request that the vote be held on a day next week and the following week to permit vacationing employees notice of the vote and the opportunity to vote. Kidd Creek renews its request that the Board add additional days for the vote to permit a fair opportunity for all employees to express their decision by secret ballot.

The Purposes of the Act in Section 2 specify that trade unions are the freely­ designated representatives of the employees". Section 8(1) r~quires that a representation vote be taken among the individuals in the voting constituency. The selection of voting days must permit reasonable opportunity for notice and opportunity to vote. The Act contemplates in Section 8(5) that additional days as requested be designated. Our democratic tradition at all levels of government-supervised votes provide for adequate notice and advance polls to permit everyone the opportunity to vote. No lesser standard can be accepted when a vote is to be taken during prime vacation time."

7. The reconsideration request was denied by the majority on July 12, 1996.

8. So, with the union agreeing to a voting list of 1550 people, some 600 more than it had indicated were in the unit, the vote took place. 1369 people voted. 1145 voted against the union and 224 for; - almost half the people who signed membership cards did not vote for the union... With perfect 20/20 hindsight, what a colossal waste of Board time and money! More germane, could this waste of time;- should this waste of public money be prevented in the future?

9. By letter dated July 23, 1996 counsel for the employer advised the Board as follows:

"To avoid any misunderstanding, in accordance with the Returning Officer's Notice and the Board's decision of July 12, the Responding Party wishes to present its representations as set out in its Reply and its July 12 Request for Reconsideration at the Board hearing on August 6, 1996."

10. On July 26, 1596 the issues that were before the original Board panel of Mr. Brain Herlich, Mr. Rene Montague and me, came before a new panel composed of Ms. Laura Trachuk, Mr. Montague and me. Over my objection a majority of the new panel dismissed the union's application, imposed a bar and cancelled the hearing dates set to start on August 6, 1996. The opportunity to prevent the expenditure of unnecessary time and money by the Board in the future was lost.

11. I am concerned at an interpretation of the provisions of Bill 7 that denies a party the opportunity to have its case heard in open hearing before the Board. I am concerned at an interpretation that leads the Board to ignore information on the face of the Board's own record that clearly suggests a manipulation of the Board's procedures. am concerned that the Board would allow the requirements of the Labour Relations Act to be so easily circumvented. I would even hazard to think that I am joined in these concerns by 1,145 others.

12. If there is one thing of which I am sure, it is that the legislature did n~ intend the employer's work force to be disrupted and its production affected by causing a vote to be taken in the situation that is before us. The legislative concept is not difficult to grasp - a union can acquire bargaining rights for a group of employees by winning a democratic vote. That vote will be held if a request is supported by membership evidence showing that 40% of the emp1oyees titled to vote are members of the union. The 40% requirement is the defining legislative filter put in place to prevent:

(a) unnecessary disruption of the workplace;

(b) needless expense to the employer; and

(c) needles expense to the Board;

by applications that have little chance of success.

13. I think my colleague Ms. Rundle got the legislative intent right with her carefully reasoned dissent in the ~ ~ case. With their focus on delay, I think that the majority in that case are pulling at their own bootstraps. If anything, the Board experience with Bill 40. has shown that delay is never a factor if the Board wants to deal with the issues expeditiously. You may not have a vote in 5 days if the Board has to determine the appropriate unit, but if you qualify you can certainly have it in 12.

14. In the short period following the release of the City of Toronto case the events that have occurred in this case and others indicate to me that the interpretative path chosen by the Board slews so far from that blazed by the legislature in Bill 7, that one may validly conclude the Board to have lost itself in 47 pages of its own ink.

15. The majority decision in the City of Toronto case looks at the very problem that is before us in this case, and dismisses it as something that will never happen. And when unions cynically take advantage of an. interpretation allowing them to call for a vote whenever they wish; when the problem does happen with startling frequency, what do we, the Board do? Well, we don't just sit back ~nd continue to ignore it -we emulate the union'. cynicism and take steps to make sure that we will never have to deal with this problem of fraudulent and manipulative conduct. We make sure that the problem can never come front and centre before us unless and until the accused union is the ~ of the vote. With 17 years at the Board, it is an adjudicative method quite new to me.

James A. Ronson

Dated at Toronto this 6th day of May, 1999.

"J. A. Ronson"