Teamsters Local Union 938 v. UAP Inc.

2980-99-R Teamsters Local Union 938, Applicant v. UAP Inc., Responding Party.

BEFORE: Timothy W Sargeant, Vice-Chair.

APPEARANCES: James L. Robbins and Pat Murdock for the applicant; D. J. Shields and Paul Minich for the responding party.

DECISION OF THE BOARD; March 15, 2000

1. This is an application for certification.

2. The style of cause is hereby amended to reflect the correct name of the responding party: “UAP Inc.”.

3. The Board ordered a vote in this matter which was held on January 13, 2000.

4. In its application the union had requested a bargaining unit described as:

all employees of United Auto Parts Ajax Inc. in the City of Whitby, save and except supervisors and persons above the rank of supervisor.

5. In its response the company took the position that the union’s proposed bargaining unit was not appropriate and proposed the following bargaining unit:

all employees of the responding party employed at its store at 95 Sunray Street, Unit 1, in the City of Whitby, save and except supervisors, persons above the rank of supervisor, office, clerical, technical and sales staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.

6. The vote was held in the constituency proposed by the union. There were three segregated ballots; Mr. Phillip Young (“Young”) challenged on the basis that he was a sales representative, Mr. Melvern Murray (“Murray”) challenged on the basis that he was managerial, and Ms. Sharon McClimond (“McClimond”) challenged on the basis that she was office and clerical. The parties have resolved the issues surrounding Mr. Young (agreed excluded) and Mr. Murray (agreed included).

7. At the vote eleven individuals voted; eight votes were counted and three votes segregated as noted in paragraph 6. Concerning the eight votes, five votes were in favour of the union and three against.

8. In the post vote submissions the parties for, what both counsel refreshingly admit, strategic reasons reversed their positions regarding the inclusion or exclusion of office and clerical workers. The union now takes the position that a bargaining unit which excludes office and clerical and sales personnel could be appropriate, whereas the company now takes the position that a unit including office and clerical employees is the only appropriate bargaining unit.

9. The primary dispute between the parties concerned the position of office clerk, currently occupied by Ms. McClimond, at the Whitby location.

10. The parties are also in dispute as to the description of the bargaining unit. Apparently there are two stores in the City of Whitby operated by the employer. One, the subject of this application, distributes and sells automotive parts to service centres, local garages and individual automobile owners. The other, as set out in the pleadings, is the Whitby Traction Store which apparently distributes and sells parts for commercial trucks and related equipment to companies that service commercial trucks. In these circumstances the responding company seeks an address specific location (namely 95 Sunray Street, Unit 1, in the City of Whitby).

11. The union on the other hand takes the position that the description should be municipal wide and described as “all employees of UAP Inc. in the City of Whitby carrying on business as UAP/NAPA…” In the alternative the union takes the position that a clarity note could indicate that UAP/Inc. does not include the Traction Division location.

12. The union raised a preliminary objection that the employer having originally in its response to the application for certification proposed that the exclusion of “office, clerical, technical and sales staff” was an appropriate unit, it should not now be allowed to alter from that position. Further, the union raised a preliminary issue that the employer should not be allowed to argue the status of Ms. McClimond. In other words the employer is now taking the position that even if the exclusion of “office, clerical, technical and sales staff” is appropriate, Ms. McClimond does not fall within these exclusions. The union submits “that it is too late for the Company to raise a status issue which had never been raised prior to the regional certification meeting”. The parties agreed that by way of procedure, the Board would hear evidence on the merits, and that the preliminary objections would be argued at the same time as the argument concerning merits.

13. The Board heard from one witness, Ms. McClimond. She gave extensive testimony concerning the store functions and her job functions in a very straightforward manner.

14. Without doing full justice to the completeness of the testimony of Ms. McClimond, the Board will rely upon the following facts to arrive at its decision.

15. The store in terms of personnel is basically a small operation. Besides Ms. McClimond, the office clerk, there are three counter clerks, a parts handler/receiver, and five truck drivers. In addition there is a sales representative who circulates among the garages selling the store’s products. He comes into the office a few times a week, though not every day, for about an hour at a time and primarily deals with the counter clerks.

16. Up until November 1999, there was also a Supervisor located at the store. He left and it is expected that at some time in the near future the position will again be filled. At the moment the Regional Manager is the supervisor of the Whitby store. He is not physically located at Whitby and is the manager over three other stores, one in Pickering, one in Uxbridge and one in Port Perry. He is located at Pickering. He currently visits Whitby two or three times a week.

17. The head office of the company is located in Montreal. The Distribution Centre (where the store acquires its parts and inventory) is located in Toronto.

18. The Whitby store in question sells and distributes automotive parts to customers. Its primary customers are garage owners and operators. Speed of delivery of the parts is an important part of the business. Approximately eighty percent of the sales are to garage owners and operators. The other twenty percent derive from over the counter sales.

19. Physically the store is not very large. In the front of the Whitby store there is a small showroom, a washroom, a supervisor’s office and another office in which Ms. McClimond primarily does her work. On entering the front door, the offices would be located on the left hand side and the washroom on the right. In the office clerk’s office, there is a phone, a calculator, three filing cabinets and office furniture. In the supervisor’s office there is a printer, a fax machine and a computer as well as office furniture. Though there is a door to her office, Ms. McClimond testified that it is never closed. A punch clock is located on the side wall opposite the offices and in front of the counter.

20. The front is separated from the rear by a counter. At the counter there are three computers and phones set up for the three counter clerks. The back is essentially a storage area where stock is located. There is a door at the rear of the store in addition to a receiving door. Also located at the back of the building are dispatch tables, a phone and a printer. At the rear behind the counter there is a set of stairs that led upstairs to a small storage area. This upstairs area does not cover the front area of the store. In this storage area large items are stored, as well as old boxes of files containing invoices etc. from the office clerk’s office.

21. The store is open from 8:00 a.m. to 6:00 p.m. Generally on a sale, a counter clerk will take an order and check to see if the part desired by the customer is in inventory. If it is, he processes the order by printing out an invoice. He will punch in the account number and bill out a sale to the customer. The invoice is then printed, usually on the printer located at the rear. The parts handler/receiver then takes the invoice and picks the part or parts to be delivered. He places the part or parts on the dispatch table with the invoice for the driver to deliver. The parts handler/receiver is in charge of dispatching the drivers. The driver then takes the invoice and part or parts and delivers it or them to the customer. The customer signs the invoice and a copy is left with the customer. The remainder of the invoice is returned to the store and placed in a box by the dispatch tables.

22. If the part is not in storage then the counter clerk will first see if the part can be located in another of the company’s stores. If it is in another store, generally the same process is followed, though the other store would generate an invoice to the Whitby store. The part would be picked up and returned to the Whitby store. The counter clerk would then bill the customer. The counter clerk would note the account number by hand on the invoice from the other store and put such invoice in a tray below the counter. The invoice to the customer will then be put on the dispatch table and the same process as outlined above is followed.

23. If the part came from an outside supplier basically the same process would again apply. The counter clerk, however, will generate by hand a purchase order to the outside supplier. This purchase order remains in the store until the part is picked up. It is then attached to the packing slip that comes with the part. When the packing slip is delivered the counter clerk will hand write on such slip who the part is to be billed to and this is placed in the tray below the counter. The part received is put on the dispatch table with an invoice to the customer generated by the counter clerk and the same process as outlined above is followed.

24. If the part is not in stock a special order may be made to the Distribution Centre. In such instance much the same process is followed. The counter clerk would order the part from the warehouse through the computer. The warehouse would then generate a packing slip. The part is usually delivered the next day. It is to be noted that a delivery truck comes from the warehouse and makes a delivery of inventory and special orders every night. These deliveries are made after 6:00 p.m. when nobody is at the store. The deliveries are left just inside the receiving doors. When the special order is delivered it would have a packing slip. The parts handler/receiver would check to make sure all parts delivered including inventory listed on the packing slip have indeed been delivered. The packing slip for the special orders is delivered to the counter clerk, who then makes an invoice for the customer and the same process as outlined above is followed.

25. It is to be noted that in relation to inventory stock, a designated counter clerk (Mr. Murray) does the paper work and enters the information into the computer. The inventory then gets put on the shelves in the rear of the building by the Parts Handler/Receiver. If there is a shortage Mr. Murray usually calls the Distribution Centre to let then know. The shortage is marked on the packing slip by hand by Mr. Murray at the counter. With the delivery of parts from the Distribution Centre, also delivered is an envelope containing an invoice for the parts delivered.

26. If a part is returned by a customer the driver fills out a return form slip at the time the part is returned. A copy stays with the customer, the remainder of the return form comes back to the store with the part. The part and this slip are placed at the back in a bin for returned goods. The parts handler/receiver makes sure that the part was returned, then the return form slip goes to Mr. Murray and he credits the customer for the returned part. Mr. Murray then generates an invoice which will be a credit to the customer’s account. On this return form slip Mr. Murray will, by hand, note the invoice number of the credit. The return form slip is then put into a separate box at the parts table. The invoice is put in a tray underneath the counter.

27. On an over the counter sale, where a customer comes into a store, the customer may pay by either cheque, cash or charge card. The customer will talk to a counter clerk who determines whether the part is in stock. It is often the counter clerk himself who will pick the part. An invoice is generated by the counter clerk who indicates whether the sale is cash, cheque or credit card. A copy of the invoice is given to the customer and the rest of the invoice is placed in the till along with the cash, cheque or charge card slip. Sometimes the part is not in inventory and it will be ordered for the customer who typically will return the next day to pick it up. The tills themselves are kept in the safe overnight.

28. Up until this point in the procedure the office clerk has virtually no part in the ordering and distribution of the parts. The only role Ms. McClimond might play is to answer the phone if the counter clerks are all busy and tell the customer that a counter clerk will be with them as soon as possible. She does not have the ability to actually take an order and in fact has never done so. In summary, the distribution and delivery of a part takes place without the necessity of any action by the office clerk.

29. What then are Ms. McClimond’s functions? In brief she :

• balances the tills;
• prepares daily reports;
• deals with accounts receivable;
• deals with invoicing customers;
• assists with customer complaints concerning invoicing;
• files the various invoices, packing slips, return forms etc.;
• assists in opening up customer accounts;
• may extend credit;
• forwards the employees time cards to the Pickering Office;
• distributes the mail;
• operates a small float in cash box for emergency supplies (stationery etc.);
• calls the Distribution Centre if there are short falls to deal with invoicing problems; and,
• helps prepare a monthly report to be delivered to Head Office.

30. To expand on the above Ms. McClimond commences work at 8:00 a.m. The first step of the day is to balance the cash tills. Each counter clerk has a float of $100.00. If she can not balance a till, she will discuss the matter with the appropriate counter clerk. It may be for example that a customer did not pay on the day in question. Usually the problem is solved. Each day there are three reports generated. The Daily Report is generated by Mr. Murray. In the absence of a Supervisor, Mr. Murray a counter clerk has assumed many of the duties previously performed by the supervisor. The Daily Report lists all the sales for the previous day, the credits, what was ordered by the customers and other information. Ms. McClimond receives a copy of this Report. Mr. Murray checks it out, and then Ms. McClimond takes the report and separates it (i.e. from the perforations) and sends a copy to the Regional Manager. A copy is also filed in a book at the store. The second report is a draft version of the Daily Collection Report. This is the report done by Ms. McClimond listing all payments on account, all cash sales, all credit transactions and any N.S.F. cheques returned from the bank. After balancing the tills this report may have to be adjusted. This is performed at the computer in the Supervisor’s office. The report is validated on the computer and printed. This is then the third report and is called the Validated Daily Collection Report. One copy of this report is sent to Montreal to the Accountant via an envelope sent to the Distribution Centre and forwarded to Montreal. This report is signed by Mr. Murray. One copy is kept at the store.

31. After the reports are completed, Ms. McClimond then prepares the bank deposit which includes all cheques and cash, including cash delivered and cheques sent by mail to pay customer’s accounts. This is all bundled in an envelope and kept in the petty cash box until it goes to the Bank. Usually a driver will take it to the Bank. Ms. McClimond would place a note on the dispatch table saying the bank deposit is ready to go to the bank. She estimates that balancing the tills, preparing the reports and bank deposit takes approximately two and one half to three hours a day.

32. In relation to filing duties, all invoices, credit invoices, return slips etc of the previous day are either picked up by Ms. McClimond directly or delivered to her. She then files the invoices in piles of 250 invoices. There could be as many as 3000 invoices in a month. Each month a new record of invoices is started. The invoices themselves are filed in a box which may stay in her office for a period of up to six months. Eventually the boxes are taken from her office and stored upstairs. Similarly she sorts and files Packing Slips and matches them to the proper invoices. In regards to the Return Forms they are filed on a weekly basis. If there are problems with a customer complaint she will search for the original invoice in the filing system. She estimates that these filing functions take her two to three hours a day.

33. Ms. McClimond testified that she spends about 20 minutes to an hour a day delivering and sending the mail. She will not open mail specifically addressed to an individual or marked confidential. She also spends an hour or two a day dealing with receivables. In addition, on a daily basis she will deal directly with customers inquiring about invoice problems. If the problem involves a part the customer will speak to a counter clerk, but she may be required to retrieve the original invoice from the files and fax it to the customer.

34. On a monthly basis she is involved with the Monthly Report. This Report contains information on individual customers, the purchases for the month, volume of sales for the store and other financial information. Mr. Murray prints off the report from the computer and signs the Report. Ms. McClimond then separates and sorts the report and sends it by inter office mail to Montreal and to the Regional Manager. The monthly report takes most of the day to prepare. Also on a monthly basis, customers are billed. The statements are generated off the computer by Mr. Murray, given to Ms. McClimond who separates them, and puts them in envelopes and mails them to the customers.

35. These are the core functions performed by Ms. McClimond. However, she is involved in other administrative matters such as;

• assisting in opening new accounts;
• extending credit in certain instances
• forwarding the time cards; and ,
• handing out pay cheques delivered from Pickering.

36. In her job she has regular discussions with the parts/receiver, the drivers and counter clerks. She walks freely throughout the store. She goes to the rear at least three or four times a day in regards to inter office mail. She also is at the counter at least once an hour picking up invoices or dealing with other matters such as balancing the tills.

37. In terms of supervision although Ms. McClimond considered that the Regional Manager was her boss, it is clear from her testimony that she also considers the Office Supervisor as her superior. The Office Supervisor is located at Pickering. At Pickering there are two or three employees that the Office Supervisor oversees, as well as another office clerk who works at the Uxbridge and Port Perry stores. As Ms. McClimond testified the Office Supervisor oversees the office and clerical employees for the region. If there are problems “we can call her”. Ms. McClimond was trained under the office supervisor’s direction by either the Office Supervisor herself, or at times by another clerical employee located at Pickering. Ms. McClimond talks daily with the Office Supervisor and is in far more frequent contact with her than with the Regional Manager. For example she will talk to the Office Supervisor about extending credit in situations Ms. McClimond does not feel confident to extend credit on her own. She is also in contact with other office clerks at Pickering involving accounts receivable or other accounts involving the Whitby store. In terms of vacation, Ms. McClimond is replaced by another office clerk and not by anybody located at the Whitby store.

38. In terms of the personnel at the store Ms. McClimond testified “that all the guys in my store outside of my job, do everything”. What she meant was that the counter clerks, parts/handler and drivers often interchange and do each others functions. As she testified she does not have the skill sets to perform the functions of the counter clerks, parts handler/receiver or drivers and never has performed such functions. In her words “I am an office clerk”.

39. In his argument counsel for the employer submitted that given the size of the bargaining unit this was not an appropriate case for an office exclusion. Counsel submits that at the end of the day what you have is an employee who is integrally involved in the business undertaken at the store. It makes no sense to exclude an employee involved in the payment side of the business. Really the only reason for the union request for exclusion is strategic, no other real justification. On the other hand in a small unit the reason to include her is based on sound labour relations principles. The one employee in question should not be excluded in such a small unit. She is integrally involved in the business and on a daily basis in contract with all the other employees at the store. She is involved with customers in regards to invoice and billing problems, as well as returns. This is all part of providing good service for the customer. If the Board excludes the office clerk it is creating an artificial line, and in essence is involved solely in a classification exclusion.

40. Though the store needs a clerical function, the major clerical administration takes place at Pickering i.e. payroll, financial analysis, overall credit review. It makes sense that the business is configured to have the primary sales function at the store and the major administrative work done at the central regional office in Pickering. Ms. McClimond primary function is in connection with sales. Essentially there are four classifications at the store; counter clerks, parts handler/receiver, drivers and office clerk. There is no argument that three of these classifications are in the bargaining unit. Just as it would be inappropriate to exclude drivers from the proposed unit, it is equally inappropriate to exclude the office clerk. What all these classifications are involved in, is the first level of sales to the customer, i.e. community of interest. The test of a serious labour relation problem set out in the Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 decision does not apply, as the first test under the Act that the proposed unit by the union be an appropriate unit is not satisfied. Further in line with recent jurisprudence such potential fragmentation of bargaining units in a small unit should not be sanctioned. For the above reasons the Board should determine that the exclusion of the office clerk in this small bargaining unit is not appropriate.

41. During the course of argument counsel for the employer referred to the following cases:

• Martha’s Garden Inc. [1977] O.L.R.D. No. 2925;
• Morrow Transport Inc.[1999} O.L.R.D. No. 1844;
• McDonald’s Restaurants of Canada Limited [1974] O.L.R.B. Rep. October 755;
• Usarco Limited, [1967] O.L.R.B. Rep. September 526;
• Motor Coach Industries Limited, [1992] O.L.R.D. No. 2447;
• Wakefield Lighting Limited, [1965] O.L.R.B. Rep. May 143;
• Domtar Chemicals Limited, [1968] O.L.R.B. Rep. October 719;
• Creeds Storage Ltd., [1985] O.L.R.B. Rep. February 238;
• Rapid Blue Print Inc., [1986] O.L.R.B. Rep. June 821;
• Paragon Tools Company, [1969] O.L.R.B. Rep. May 209;
• Hudson’s Bay Company, [1985] O.L.R.B. Rep. December 1744;
• Simpsons Limited, [1984] O.L.R.B. Rep. September 1255;
• Bestview Holdings Limited [1983] O.L.R.B. Rep. August 1250;
• Board of Governors of Ryerson Polytechnical Institute, [1984] O.L.R.B. Rep. February 371

42. Counsel for the union submits that its proposed unit could be an appropriate unit. Counsel points out that the union only has to show that such proposed unit could be an appropriate, not necessarily the most appropriate bargaining unit i.e. there may be more than one appropriate bargaining unit. On the other hand the employer must show that the proposed unit of the union is not appropriate. In counsel’s submission the employer has not shown that the union’s proposed bargaining unit is not appropriate. Clearly there is no evidence that the union’s proposed unit would cause serious labour relations harm within the meaning of the Hospital for Sick Children decision, (cited above). Further as the employer had initially submitted in its response to the application for certification that a unit excluding office and clerical was an appropriate bargaining unit, it surly can not now argue that such exclusion is not appropriate.

43. In any event based on the evidence the exclusion of Ms. McClimond is clearly appropriate. Based on the employer’s pleadings, the Whitby store is in the business of distributing auto parts. The office clerk plays no role in such distribution. Her role is clearly a clerical function performed after the parts have been distributed. As such her work is really not an aspect of production, but is clearly an aspect of office and clerical work. Her line of supervision is different from that of the other employees. She obviously considers the Office Supervisor, as her superior, in her day to day direction. Her functions for the most part are performed in a separate office away from the counter clerks, the parts handler/receiver and the drivers. Her interaction with such employees is limited as on her own evidence most of her day is spent in her office, in preparing reports, dealing with receivables and filing. She is not able to do any of the core functions of the other employees at the store, and neither are they able to perform the core functions of her position. When she is on vacation she is replaced by another office clerk from a different location, not by anyone at the Whitby store. As such she is not integrated functionally with the rest of the employees at the store.

44. In relation to the argument that if Ms. McClimond was excluded, she would not have the opportunity to join a union, counsel pointed out that by agreement of the parties the sales representative was also excluded, and that these employees might form a viable bargaining unit. Also counsel submitted that in the region there were other office clerks and these individuals also might form a viable bargaining unit.

45. In conclusion on the merits counsel for the union submitted that an office and clerical exclusion was an appropriate exclusion which has been recognized by the Board on numerous occasions. The unit proposed by the union is an appropriate and viable unit. Thus in accordance with the test set out in the Hospital for Sick Children decision, the proposed bargaining unit by the union is a viable unit and should be recognized. There is no question based on the evidence that the counter clerks, parts handler/receiver and drivers form a viable unit, and have a community of interest.

46. Counsel for the union submits that based on the evidence Ms McClimond is clearly a clerical employee. As such she is “office and clerical” and would be excluded in the union’s proposed bargaining unit.

47. In relation to the preliminary matters counsel for the union submits that the employer should not be able to change its position concerning the description of the bargaining unit from its original position filed with its response. Counsel argues that in changing its position after the vote the employer has put a new position forward that was not present prior to the vote – namely that proposed unit by the union could not be appropriate. The union in originally applying for an all employee is entitled to determine what may be an appropriate unit. In applying for an all employee unit, it does not mean that the union was taking the position that a unit excluding office and clerical was not appropriate. When the employer replies that a unit excluding office and clerical is appropriate it is obviously at that point of time not arguing that an office and clerical exclusion could not be appropriate. By reversing its position after the vote the employer is putting a new position forward that such an exclusion is not appropriate. This was not the position of either party prior to the vote and based on the Board’s jurisprudence should not be permitted. Likewise counsel for the union argues that the position of the employer that even if an “office and clerical” exclusion is appropriate, Ms McClimond does not fall into such exclusion, is a new position of the employer taken after the vote and ought not to be permitted.

48. In reply on these preliminary matters counsel for the employer submits that in relation to the “office and clerical” exclusion only two positions were in issue prior to the vote - namely whether or not such exclusion was appropriate. There is no new issue after the vote. Procedurally in accordance with the Board’s jurisprudence the parties are allowed to change their positions after the vote. Similarly in regards to Ms. McClimond, her status was always in issue, otherwise her vote would not have been segregated. Again, this is not a new issue. Thus the preliminary motions should be dismissed.

49. In regards to the geographic scope counsel for the union submitted that the Board’s general practice is to describe a bargaining unit on a municipality wide basis. The only exception is when the employer has more than one location in the municipality. In this situation there are clearly two separate divisions with no interchange of functions or employees. In such circumstances the Board should describe the employer in terms of the UAP/NAPA division and certify on a municipality wide basis. Certainly the Board has certified on a division basis in the past on agreement of the parties.

50. In reply, the employer argues that he is not aware of any decision of the Board in a certification matter where, absent agreement of the parties, the Board has held that a division is the employer. Here the employer is “UAP Inc.”. A division is not a legal person and therefore should not, absent agreement of the parties, be found to be the employer. Thus the general Board policy should apply and as there are two locations of the employer in Whitby, if a certificate is issued, it should be site specific.

51. During the course of argument counsel for the union referred to the following cases:

• Martha’s Garden Inc, [1997] OLRB Rep. Sep./Oct. 891
• Chedoke-McMaster Hospitals, [1997] OLRB Rep. Jan./Feb. 35
• Morrow Transport Inc., (unreported; May 6, 1999; Board File No. 3535-98-R
• Hospital for Sick Children, [1985] OLRB Rep. July 266
• Burns International, [1994] OLRB Rep. April 347
• Motor Coach Industries Limited, [1992] OLRB Rep. June 744
• Active Mold, [1994] OLRB Rep. June 617
• Sears Canada Inc., [1998] OLRB Rep. Sep./Oct. 880
• Price Club Westminster,[1992[OLRB Rep. Oct. 1098
• Highbury Ford Sales Limited, [1986] OLRB Rep. 94
• Santa Maria Foods, [1981] OLRB Rep. Nov. 1618
• Menkes Developments Inc. [1987] OLRB Rep. 1290
• Price Club Westminister, [1992] OLRB Rep. Oct. 1098
• TRS Food Services Limited, [1980] OLRB Rep. April 542
• Marchelino Restaurants, [1994] OLRB Rep. Sept. 1240
• Midnorthern Appliance Industries Corp. [1980] OLRB Rep. April 484

DECISION

52. The Board’s jurisprudence in these types of issues has consistently followed the test set out in the Hospital for Sick Children namely – “does the unit which the union seeks to represent encompass a group of employees with sufficient community of interest that they can bargain together on a viable basis without at the same time causing serious labour relations problems for the employer”.

53. Clearly the Board has recognized, many times, that a office and clerical exclusion is an appropriate exclusion. Finally as general principle it is clear from the Board’s jurisprudence that a union for tactical and other reasons has the ability to apply for an appropriate unit not for the most appropriate unit. If the unit applied for is appropriate then the union is not required to justify its reasons for requesting a sought exclusion. On the other hand for the employer to succeed in regards to a bargaining unit description issue it must demonstrate that the exclusion applied for is not an appropriate bargaining unit or would cause serious labour relations harm for the employer.

54. In this instance the employer as it admits, has not advanced any evidence that the office and clerical exclusion would cause any serious labour relations harm.

55. The Board agrees with the argument of the union that based on the evidence Ms. McClimond clearly performs clerical functions. Her duties are clearly more aligned to clerical functions than with the duties performed by other employees at the store. Though she recognizes the Regional Manager as her boss, she clearly recognizes the Office Supervisor at Pickering as a Supervisor. It was the Office Supervisor (or another office clerk directed by the Office Supervisor) who trained her and it is the Office Supervisor who she has daily contact with to discuss ongoing concerns. When she is on vacation, it is another office clerk who replaces her at the Whitby store. Her activities of preparing bank deposits, preparing reports, dealing with receivables and filing are all clearly clerical functions. As she testified most of her working day is spent in her office performing such functions. For these reasons in the Board’s opinion Ms. McClimond is clearly a clerical employee.

56. Further in the Board’s view based on the evidence presented a unit comprised of counter clerks, parts/handler and drivers would form a group of employees with sufficient community of interest that they can bargain together on a viable basis. Clearly these functions are all inter related to ordering parts and having such parts delivered to the customers.

57. The Board also concurs with the submissions of union counsel that an office and clerical exclusion is an appropriate exclusion in this instance. This exclusion is not a classification exclusion of office clerk, but a well recognized office and clerical exclusion. It is to be noted that the parties themselves have agreed to a “sales representative” exclusion, thereby agreeing that the sales representative is properly excluded from the proposed bargaining unit.

58. The Board therefore finds that an appropriate unit in this matter may properly exclude office and clerical employees. Having found that Ms. McClimond is a clerical employee she is also properly excluded from such unit.

59. In these circumstances it is not necessary to rule on the preliminary motions.

60. In regards to the submissions on geographic scope, the Board agrees with the submissions of counsel for the employer.

61. Having regard to the above, the Board finds that:

All employees of UAP Inc. employed at its store at 95 Sunray Street, Unit 1 in the City of Whitby, save and except supervisors, persons above the rank of supervisor, office, clerical and sales representatives.

constitute a unit of employees of the responding party appropriate for collective bargaining.

62. On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant. It is not necessary to count the segregated ballots.

63. A certificate will issue to the applicant.

64. The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.

65. The responding party is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted for a period of fifteen days from the receipt of this decision.

“Timothy W. Sargeant”

for the Board