Teamsters Local Union 91 v. Komtech Inc., 2000 CanLII 12342

0622-00-R Teamsters Local Union 91, Applicant v. Komtech Inc., Responding Party.

BEFORE: Gail Misra, Vice-Chair.

APPEARANCES: N.L. Jesin and A. Papineau for the applicant; Terry D. McEwan and Raj Mathur for the responding party.

DECISION OF THE BOARD; June 29, 2000

1. This is an application for certification, made pursuant to the Labour Relations Act, 1995 (the “Act”), in which a representation vote was held on June 2, 2000.

2. Following the holding of the vote the parties were able to agree on a bargaining unit description and the ballots cast were counted in two stages. The applicant (the “union”) won by one vote. The responding party (“Komtech” or the “employer”) then took the position that the uncounted and excluded ballots of two individuals the employer had listed as office employees should be counted, as the employer claimed they were in fact employees in the bargaining unit. That was the issue that was before the Board at the hearing held in this matter on June 26, 2000.

3. Komtech argued that the employer did not agree to exclude the two individuals from the bargaining unit. It argued that Mr. Mathur, the President of the company, did not understand that he was signing a binding agreement when he affixed his signature to the Appendix that comprised a list of persons whose votes would or would not be counted. The employer further asserted that thereafter, when Mr. Mathur refused to sign the Certification Worksheet, that document had the Appendix attached, so his refusal to sign negated his earlier signature on the Appendix document. In the alternative, Komtech argued that even if the employer had agreed to exclude them, that agreement is unenforceable because the two individuals should be in the bargaining unit, and the parties cannot agree to exclude them. The employer argued that every employee in a bargaining unit has a statutory right to vote, and that the parties couldn’t agree otherwise without consultation and agreement of each individual employee who may be affected.

4. The union argued that the employer had signed off on both the bargaining unit description and the list of employees whose ballots would be counted, that office employees were excluded from the agreed-upon bargaining unit, and that Komtech should not be permitted to resile from its agreements.

5. Having heard the evidence and submissions of the parties the Board ruled orally at the hearing that the ballots cast by the two individuals in question would not be counted, and that since the union had received more than 50 % of the ballots cast, a certificate would issue to it. These are the reasons for that decision.

6. The Board heard the testimony of Mr. Raj Mathur, the President of Komtech, and Mr. Andre Papineau, the President of Local 91 of the union. Both witnesses were straightforward and gave their evidence to the best of their recollection.

7. A chronology of the events that occurred in this application is necessary. The union filed an application for certification on May 26, 2000, in which it was seeking to represent the following bargaining unit of the employees of Komtech:

All employees of Komtech Inc. in the Regional Municipality of Ottawa-Carleton, save and except group leaders and supervisors, persons above the rank of supervisor, office and sales staff.

8. Komtech filed a timely response to the application in which it disagreed with the bargaining unit description the applicant wanted. It believed the appropriate bargaining unit would also exclude the Tool Room, Quality Control, Process Technicians and Maintenance employees, in addition to the exclusions the union had listed. It asked that the ballots cast by any employees in these categories be segregated. The employer listed as its contact person for the application Ms. Donna Blair, Human Resources Associate. Mr. Raj Mathur signed the response and its attachments on behalf of the responding party.

9. In accordance with Rule 69 of the Board’s Rules of Procedure the responding party filed with its response the required Schedules A and B. Schedule A is supposed to list all of the employees who would be in the bargaining unit the union is seeking to represent, along with their respective job classifications. The employer filed a list of 92 employees in Schedule A. It included the names of those employees it believed should not be in the bargaining unit as they belonged to the four categories the employer wished to have excluded. The company controller, Mr. Brent Caves, prepared the list. When Mr. Mathur reviewed the list, he marked with a black “X” the names of the employees Komtech was challenging. The names of Bill Christofilakis and Christine Clavet were not on the employer’s Schedule A.

10. The Board practice is that prior to the vote being held, a Board Officer contacts the parties to identify any issues and to see if any matters can be resolved. On May 31, 2000 it appears that a Board Officer contacted those people the parties had listed as their contacts, and completed the “Pre-Vote Consultation Worksheet”. He identified that he had spoken to Donna Blair for the employer. Mr. Mathur, in his evidence, confirmed this. Ms. Blair was not called to testify. The parties’ dispute about the bargaining unit description was noted on the Worksheet.

11. In paragraph 11 of the Pre-Vote Consultation Worksheet it states:

Pursuant to the full/partial agreement on the bargaining unit described in paragraph 4 above, the following individuals are challenged by the parties in relation to the Voter’s List:

12. This paragraph notes that the employer had 21 challenges to the list: fifteen individuals were listed as being in the four categories the employer wanted excluded (Process Technicians, Quality Control, Tool Room, and Maintenance); Mr. Christofilakis and Ms. Clavet were apparently claimed by the employer to be “Office Staff”; three individuals were said to be exercising managerial functions as defined in section 1(3)(b) of the Act; and one individual was claimed to be a group leader. The “Voter’s List” was apparently prepared by the Board Officer by using the employer’s Schedule A and hand-writing in any names identified by the employer. The union had no challenges. The completed Worksheet along with the Voter’s List was faxed to each of the parties on June 1, 2000, a day prior to the vote being held. The employer did not dispute the composition of the Voter’s List nor the Worksheet. It has conceded that the information listed by the Board Officer was received from Ms. Blair, Komtech’s listed contact.

13. The representation vote was held on June 2, 2000 and was conducted by one of the Board’s Returning Officers. Mr. Brent Caves, the controller for Komtech, was the employer’s scrutineer and Mr. Papineau was the union’s scrutineer. Of the 100 persons on the voter’s list, 89 voted. Of those who voted, 21 ballots cast by the persons the employer had indicated it challenged were segregated. Each of those ballots was put in an unmarked envelope, and then in a second envelope that indicated the individual’s name and classification as per the voter’s list. Following the vote Mr. Mathur joined Mr. Caves as representatives of the employer in a meeting with the Board’s Returning Officer and Mr. Papineau. The Returning Officer counted the unchallenged ballots in the employer’s proposed smaller bargaining unit. The result of that count was that the union had 38 votes in its favour and 30 against.

14. At that juncture Mr. Mathur agreed to the union’s bargaining unit description and withdrew the request to exclude employees in the Tool Room, Maintenance, Quality Control, and Process Technicians. The Returning Officer recorded the parties’ agreement on the Board’s “Certification Worksheet”, and Messrs. Mathur and Papineau initialed the bargaining unit description which read as follows:

All employees of Komtech Inc. in the Regional Municipality of Ottawa-Carleton, save and except group leaders and supervisors, persons above the rank of supervisor, office and sales staff.

15. In the normal course, when parties have agreed on a bargaining unit description, they must then agree on whose ballots can be counted as only employees identified as being in the bargaining unit may participate in a representation vote. According to both Messrs. Mathur and Papineau, the Returning Officer directed their attention to the list of names of persons whose ballots had been segregated. The Officer had this list prepared as a page entitled “Appendix” indicating the name of each person, which party had challenged the name, the reason for the challenge, whether the individual had cast a ballot, and a notation that each of the persons “remain in dispute”. At this stage of the process the Officer went through the list with the two parties to get agreement on who would be “IN” and who would be “OUT” based on the agreement on the bargaining unit description. There was no dispute with respect to most of the individuals, and the parties agreed that they would be in the bargaining unit (and hence have their ballots counted). The notation reading “remain in dispute” next to each name was changed to indicate they were “IN”. The only two names remaining in question were those of Mr. Christofilakis and Ms. Clavet, who were listed as “office staff”, as they had been all along at the employer’s behest since the pre-vote consultation with the parties.

16. Mr. Mathur advised the Officer and Mr. Papineau that Mr. Christofilakis and Ms. Clavet were “not really office staff”, but rather, worked in the Tool Room and Quality Control respectively, and so should have their ballots counted. This was the first time that the employer had made this statement. Mr. Papineau objected as they were listed as office staff, and he indicated that if their ballots were counted and the union won, since they had been listed as office workers, the whole office should be in the bargaining unit. Mr. Mathur then indicated he did not want the office staff included in the bargaining unit. He therefore agreed that their names would be “OUT”. The Returning Officer recorded in the “agreement after the vote” column on the Appendix that these two individuals were “OUT”. Messrs. Papineau and Mathur initialed the Appendix at this stage, and based on the parties’ agreement, the Returning Officer counted the ballots cast by all those persons who the parties had agreed were in the bargaining unit. After this count 44 ballots were cast in favour of the union, and 43 against.

17. After the vote results had been released Mr. Mathur turned to Mr. Caves and said the two were not really office staff. Mr. Mathur then indicated to the Returning Officer that he wanted the ballots cast by Mr. Christofilakis and Ms. Clavet counted as he again claimed that they are not really office workers but are working in the Tool Room and in Quality Control. The Returning Officer advised Mr. Mathur in Mr. Papineau’s presence that it was too late, that the employer could not change its position now, and that Mr. Mathur would have to put his latest position in writing to the Board within five days of the date of the vote. Mr. Mathur refused to sign the Certification Worksheet prepared by the Returning Officer as he was of the view that he still had not agreed about the two individuals in question. Mr. Papineau signed the Worksheet on behalf of the union.

18. It appears that following the holding of the vote Komtech retained counsel to represent it in this application. In the submissions to the Board following the vote Komtech stated that “due to a miscommunication between Komtech and the Board official who was making inquiries concerning the voters list Christofilakis and Clavet were incorrectly recorded by the Board as being part of the office staff” (emphasis added). The evidence before the Board does not support this statement. Mr. Mathur testified that the company controller, Mr. Caves, had prepared the original Schedule A and had left off some names, including those of the two individuals in contention. Mr. Mathur signed the Komtech response and marked Schedule A with black “x” markings, so it is obvious that Mr. Mathur was aware of the list of employees that Komtech had submitted. He did not have the two individuals in question added to Schedule A.

19. Mr. Mathur further testified that the Board Officer had called Ms. Blair and that all of the names added to the list were as a result of the Officer’s discussion with Ms. Blair. It was following that discussion that Mr. Christofilakis and Ms. Clavet’s names were added to the list as “office staff”. Komtech did not call Ms. Blair to testify about what she had told the Board Officer. Clearly the Board Officer would not know what capacity people at Komtech worked in, so it is reasonable to draw the inference that it had to be as a result of the information received from Ms. Blair that the notation was made that Mr. Christofilakis and Ms. Clavet were office employees.

20. Even if it could be said that the Board Officer had made an error in his notation, the Pre-Vote Consultation Worksheet and Voter’s List were sent to the employer before the vote was held. Komtech never advised the Board Officer, or later the Returning Officer, prior to the vote that there were any discrepancies on the voters list. Even when the two individuals in question presented themselves to vote, the Komtech scrutineer did not indicate that these two people were not office employees. Their votes were segregated as office employees. After the vote was held, and Mr. Mathur was present at the meeting to open the ballot box, he did not indicate that these two people were not office employees.

21. It was only just before the second count was conducted that Mr. Mathur suggested that Mr. Christofilakis and Ms. Clavet were “not really office employees”. However, following a discussion with the Returning Officer and Mr. Papineau, Mr. Mathur agreed that the second count would be done with the agreement that Mr. Christofilakis and Ms. Clavet were “OUT” of the bargaining unit, and he signed the Appendix indicating that agreement.

22. Thereafter, when the vote results were revealed as being as close as they were, and that the union had won by one vote, Mr. Mathur said he had not agreed about the two individuals, and that he wanted them included in the bargaining unit.

23. This is a case in which the employer has from the start taken the position that Mr. Christofilakis and Ms. Clavet are not in the bargaining unit because they are office employees. Komtech did not include their names on Schedule A to the response, even though it listed all other employees in the Tool Room and Quality Control program. Mr. Caves, who prepared Schedule A, was not called to testify, so the Board must assume that he did not believe that their names should be on the list of those who may be in the bargaining unit. In any event, Mr. Mathur checked and signed the Schedules and the employer’s response, and he obviously did not see fit to include these two individuals on the list as working in Quality Control and the Tool Room.

24. Even if the Board accepts that it was an oversight that their names were left off, when Komtech had the opportunity to add them to the voter’s list, Ms. Blair added them as “office staff”. She too was not called to testify before the Board. Again, assuming that the Board Officer made a mistake in noting the two individuals as office staff, Komtech did not correct the error even though it had the voter’s list a day before the vote was held. Finally, Mr. Caves was present as the Komtech scrutineer at the vote, but he did not move to correct the error when Mr. Christofilakis and Ms. Clavet came to cast their ballots, and he permitted their segregated ballot envelopes to indicate they were “office staff”.

25. The employer here has chosen from the beginning of the certification process to keep as many persons as possible out of the bargaining unit by defining them within the parameters of the exclusions. It must live with the consequences of its choice. It would appear that before the second count was conducted Mr. Mathur decided to gamble that there would be enough votes cast against the union to defeat the application, and so agreed to the Appendix list regarding whose votes would be counted and whose would not. He signed the document indicating that Mr. Christofilakis and Ms. Clavet were out of the bargaining unit. It was on the basis of that agreement regarding everyone in dispute that the Returning Officer opened the remaining ballots of those in the bargaining unit and told the parties the results of the vote.

26. There is no dispute that from the beginning of the certification application the union and employer were in agreement that the office staff would be excluded from the bargaining unit. The employer then identified Mr. Christofilakis and Ms. Clavet as office staff and listed them as employer challenges to the voter’s list. At the end of the day, the bargaining unit agreed upon still excluded office staff, and before the second count was conducted Mr. Mathur agreed that because these two individuals had been listed as office staff, their votes would not be counted.

27. Komtech relied on the Board’s decision in Huntsville Price Chopper, [1999] OLRB Rep. Sept./Oct. 840, for the proposition that it could continue to change its position during the period after the vote when objections may be made. In that case there were two issues before the Board. One regarded the segregated ballot of Debra Norman. The parties had agreed that Ms. Norman would not be on the voter’s list as she was no longer in the employ of the responding party. Minutes prior to the vote the employer told the Board Officer conducting the vote that Ms. Norman had not resigned her employment. Ms. Norman appeared and voted, but her ballot was segregated. In that case, as in the case before me, the employer argued that employees have a statutory right to vote. The Board declined to permit the employer to resile from its agreement to the voter’s list as it noted that the parties had, through the Pre-Vote Consultation process, agreed on the composition of the voter’s list. Further, the Board found that the employer had put its mind to the question of whether Ms. Norman should be included on that list. The Board specifically noted that this was not an instance where an individual had been inadvertently left off the list, but rather that the parties had turned their minds to whether or not Ms. Norman should be on the list.

28. Komtech did not advert to this portion of the decision when making its argument before me. However, I found this aspect of the Huntsville decision helpful in reaching the decision I did. In that case the Board clearly relied on what the parties had identified in the pre-vote consultation process regarding the list of employees, and did not permit a party to resile from a position taken. There, as in the case before me, it was not a question of inadvertence, but rather there had been thought given to the status of a particular individual. In the present instance the employer chose to add Mr. Christofilakis and Ms. Clavet to the list after it had already prepared Schedule A, and to list them as “office staff”. That was the voter’s list the parties then worked from on the day of the vote.

29. The second issue decided in Huntsville was whether, as a result of the employer accepting the union’s position regarding four individuals prior to the vote being held, there should be any further concern about the ballots cast by those individuals. The union had asked for the inclusion of four individuals; the employer had challenged their inclusion, but prior to the vote advised the union and the Board Officer that it was withdrawing its challenges. The union, at the same time but unbeknownst to the employer, indicated it no longer insisted on the inclusion of the four individuals, and accepted the employer’s exclusion. The employer argued that when it withdrew its challenge that was the end of the matter as it had made the first move. The Board held that an issue remained to be resolved as the parties had not agreed on the matter, the union had also changed its position in a timely manner, and the Board Officer had therefore segregated the votes of those in question.

30. I did not find this portion of the Huntsville decision of assistance in determining the issue before me. In that case the parties had changed their positions when there was no signed agreement between them. They had not been of one mind at any point, and the Board therefore did not find that the issue in question had been resolved. That is not the situation before me. Before the second count of the ballots took place the parties agreed on the list of who would and who would not be considered in the bargaining unit. Messrs. Mathur and Papineau then signed off on the list, and the ballots were therefore counted. The employer, after having agreed on the list, was then seeking to resile from the agreement.

31. It is disingenuous for the employer to argue that because Mr. Mathur did not sign the Certification Worksheet, therefore his signature on the Appendix is not binding. Mr. Mathur is the President of Komtech and was making the decisions on behalf of the company. He knew what was going on, and specifically, that the union had won the vote after the first count on the bargaining unit that the employer had proposed. He therefore decided to take his chances by accepting the union’s broader bargaining unit and to thereby bring into play 18 more ballots. He agreed to sign a document that states “Agreement after the vote” and lists who is considered in or out of the bargaining unit. Nowhere on the document is there a notation that Mr. Christofilakis and Ms. Clavet “remained in dispute”. Indeed, that notation had specifically been removed with respect to each of these individuals, and the notation “OUT” was listed after their names in the “Agreement after the vote” column before Mr. Mathur affixed his signature to the document.

32. The Board’s decision in Highland Packers Limited, [1994] OLRB Rep. April 434, was of much more assistance in reaching the decision in this case. In that application for certification a representation vote was held after the parties had agreed on a voter’s list. After the vote the parties agreed to count the ballots cast, and that one segregated ballot would be counted. When the vote results were revealed, there was a tie between those who had voted for and against the union. The union then objected to the results of the vote claiming that the person who had cast the segregated ballot should not have been permitted to vote, and that an individual not on the voter’s list should have been on. The Board, relying on earlier jurisprudence, was of the view that parties should not be permitted to resile from agreements made in earlier stages of a certification process. It stated that since the parties had agreed to open the ballot box and count the ballots, it would be inequitable and an abuse of the Board’s proceedings to permit the union to challenge the status of the individual in question or the composition of the voters list. The union was found to have waived its challenge to the status of the one individual, and to have agreed that all eligible voters had voted, so it was not permitted to resile from those positions.

33. There are some differences in the way that the Board conducted votes before and after the 1995 amendments to the Act were made. The Board no longer has forms of the sort signed in Highland Packers. However, the principles applied by the Board remain the same. Parties are not permitted to resile from agreements they have reached in earlier stages of a certification process. Thus, if parties have agreed on a bargaining unit description early in the certification process, the Board would be highly unlikely to permit one or the other party to unilaterally seek to resile from that agreement later on. Indeed, in this case when the Board asked Komtech if it was also resiling from its agreement on the bargaining unit description that had, like the Appendix, been signed off by Mr. Mathur, the Board was assured that that was not the case. It is unclear to the Board how there can be a difference between signing off on the bargaining unit description and signing off on a list indicating who will be in or out of the bargaining unit.

34. To accede to the employer’s position would permit parties to endlessly gerrymander and would lead to unnecessary and costly litigation. The Board has a long history of not permitting parties to resile from positions taken earlier in a process to avoid this outcome. (See Beaverbrook Estates Inc., [1990] OLRB Rep. Jan. 13, at paragraph 9). In G.W. Martin Veneer Limited, [1988] OLRB Rep. Jan. 21, the Board stated at paragraph 3 that “A party may withdraw a challenge to a person’s inclusion in the unit, but it may not begin to raise challenges after the vote has been counted”. The Board went on to quote from the decision in Santa Maria Foods, [1981] OLRB Rep. Nov. 1618, which it found applied to the pre-hearing vote situation, and which states:

35. The Board’s Rules and the certification hearing are ordered precisely to avoid the mischief of either party gerrymandering the employee lists or the structure of the bargaining unit in such a way as to avoid or favour certification, as the case may be. Pursuant to Form 3 of the Board’s Regulations an employer is required to provide to the Board, not later than the terminal date, complete lists of employees in the bargaining unit proposed by the union on the date of application. The late filing of lists or the amendment of lists filed can be only by leave of the Board pursuant to its discretion under sections 82 or 83 of the Rules of Procedure.

36. … Without these general rules certification hearings would be 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. That is why, absent extraordinary circumstances, the Board does not entertain submissions on the structure of the bargaining unit or the list of employees in the unit after the point in the hearing when the count has been given.

37. Counsel for Komtech argued that the Board’s earlier jurisprudence is of little utility in the current regime of a vote in every case. The Board disagrees with Komtech in this regard. In the current system it is as important as it ever was that parties reach agreements on as many aspects of an application for certification, or decertification, as they can, so that there are few issues to be litigated and so that quick resolutions may be reached. Once parties have reached agreements however, the Board will not condone a party’s decision to resile from an agreement, except in the most extraordinary of circumstances. To do otherwise is to nullify the object of reaching agreements, and undermines the whole process. Knowledge of the Board’s policy in this regard forces parties to be careful in making agreements before final counts are made and revealed. In any event, common sense dictates that if a party signifies agreement on a matter, it will likely be held to that agreement in the absence of any indication that the agreement was given conditionally.

38. In Martha’s Garden Inc., [1997] OLRB Rep. Sept./Oct. 891, the Board addressed an employer’s wish to change its position on the bargaining unit description in a certification application. In its decision the Board outlined the process in the current certification process as follows:

39. It is helpful to review some of the basic components typically associated with the processing of a certification application. The application is delivered to the employer who is required to file a response within 2 days. Thus, very early on the parties are required to declare their positions with respect to the appropriate bargaining unit. Generally speaking, those declarations (contained in the application and the response) will form the framework within which the parties and the Labour Relations Officer who assists them will work. Shortly after the initial filings, the Board will (assuming the requirements of section 8(2) are met) direct the taking of a representation vote usually held on the fifth working day following the filing of the application. Where the application and response disclose agreement with respect to the bargaining unit, the Board will describe the voting constituency in those terms. Where there is no such agreement, the Board will determine the voting constituency by taking into account the positions of the parties and fashioning a voting constituency which (within reason) will maximize the utility of the vote.

40. Prior to the taking of the vote, and in addition to the consultations which typically take place on the day of the representation vote, the parties will be contacted by a Labour Relations Officer. The purpose of these contacts is, to put it broadly, to attempt to resolve any and all disputes associated with the application. But while the parties are required to declare their positions with respect to the bargaining unit issues at the very start, it is only after the response (which includes a list of employees) is filed and often after the vote has been directed that the Labour Relations Officer will begin to make efforts to secure the parties' agreements with respect to voter eligibility and what we have already referred to as the list issues. By the time the vote is taken the Officer will have prepared a report which is executed by the parties. The report will clearly set out a number of different matters but, for our purposes, will typically include the parties' positions on both bargaining unit and list issues. Either party may challenge names the other advances as an eligible voter. Those challenges and the basis for each one of them will be recorded or incorporated into the Labour Relations Officer's report.

41. 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).

42. But just as the Board has already demonstrated in the very first issue dealt with in this decision, application of this general rule should be neither rigid nor invariable. First, it obviously makes no sense to require a party to litigate a position it no longer advances. Such an approach would eliminate the two most typical ways of achieving settlements - either the parties agree to something different from either of their original positions or one party simply accepts the position of another. Thus, despite the general rule, there ought to be no inherent obstacle to a party abandoning its position and accepting that advanced by another.

43. There is a peculiarity of the current certification process which can result in certain oddities. Since representation votes are now routinely taken prior to any final determination regarding the appropriate bargaining unit, the results of such votes can provide great temptation to the parties to revamp their positions in an effort to capitalize on the vote results. One can only hope that the spectacle of parties racing to be the first to adopt the other's position will be truly anomalous. Similarly, while not impossible (see for example Black Photo Corporation, unreported June 19, 1997, Board File No. 3612‑96‑R), it is difficult to imagine many situations in which new list challenges raised after the vote will be permitted by the Board. The Board's reluctance to entertain new list issues is likely to be matched, if not exceeded, by its sceptical [sic] response to efforts to raise new bargaining unit issues after the taking of the vote. The Labour Relations Officer's report has and continues to be a useful and important litigation marker for the parties. Parties looking to add new destinations to the roadmap will have to and may well encounter difficulties in persuading the Board that such detours are warranted.

44. As the Martha’s Garden decision indicates at paragraph 28, it is difficult for the Board to imagine situations in which it will be prepared to permit new list challenges raised after a vote has been held. In the case before me the employer was seeking to raise a challenge to the list after the ballots cast had been counted. It was attempting to change its position on the job classifications of two individuals it had itself identified to the Board as office staff so that it could argue they were actually persons who should be in the bargaining unit. It is simply too late to do that after ballots have been counted. The employer controls the workplace, what work it assigns to its employees, who it puts on its list of employees for the purposes of a certification application, and how it identifies those persons. An employee may call him or herself whatever s/he wants, but it is the employer who determines the employee’s title or job classification. In this instance the employer stated that the two individuals in question were office staff, and office staff are excluded from the bargaining unit description the parties have agreed to. In these circumstances the two individuals are excluded from the bargaining unit and while they may have been permitted to cast ballots, those ballots were segregated as belonging to office staff, and therefore cannot be counted.

45. Komtech’s alternate argument is that even if the parties are found to have agreed on the list and excluded Mr. Christofilakis and Ms. Clavet, that agreement is unenforceable under the Act because employees have a statutory right to vote. The employer provided the Board with nothing to ground this argument. It simply stated that sections 8 and 10 of the Act should lead the Board to adopt this view held by the employer.

46. Nothing in section 8 of the Act supports the employer’s argument. Section 10(1) may be what the employer is seeking to rely upon. It states:

47. (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.

48. Thus, in order to be certified as a bargaining agent by the Board, “more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit” must be cast in favour of the union. There is no mystery to this proposition. Historically, the way in which the composition of the bargaining unit is decided is by agreement of the parties, or the Board determines the status of the disputed individual as an employee or not. Parties may also agree to put off till bargaining whether one or more contested persons are employees in a bargaining unit.

49. As has been outlined above, an employer controls its workplace, and it determines who does what. It decides who is in management, and who is not, or who is an office worker and who works in a plant. An employee does not herself determine her title or place in the structure of a workplace. Thus, in a certification application the Board expects an employer to identify who it believes falls within or out of a proposed bargaining unit. The Board does not require that each employee in a workplace self-identify as to his or her job as he or she sees it. To do so would be both impractical and inefficient as it would lead to unnecessary litigation about what any individual employee thought he or she did. It would also have the potential of creating an untenable situation in which an employer or union could pressure individual employees to identify themselves in a particular way to benefit either the employer or union. Instead, the Board assumes that a union that wishes to be a bargaining agent for a particular group of employees will also have some idea of people who should be in the bargaining unit, and will therefor monitor who the employer is putting on or leaving off the employee list, and will therefore seek additions or exclusions from the employee list. Thus, it falls to the institutional parties to identify who should or should not be in a bargaining unit, with the Board acting as a referee when there are disputes.

50. In this case Komtech at first left the two individuals off the list entirely, thus signaling that they were not in the union’s proposed bargaining unit. It then put them on, but listed them as office workers. Not surprisingly the union did not challenge the employer on the status of these people since office workers are excluded from the unit, and the union did not apparently believe that the two held any other status. In such circumstances it is difficult to see how Mr. Christofilakis and Ms. Clavet have any independent status to assert the right to cast ballots. The employer was of the view they were office workers, the union did not object to that characterization, and the bargaining unit description excludes office workers. Even after Mr. Mathur began to change his mind about how he wished to characterize these two individuals, he decided to sign off on the Appendix indicating they were out of the bargaining unit, and he agreed that their ballots would not be counted. Pursuant to section 10(1) of the Act, the determination of support for a union is based on the ballots cast by employees in the bargaining unit, not people outside the bargaining unit. The Board therefore rejected Komtech’s argument that Mr. Christofilakis and Ms. Clavet would have some independent right to cast ballots in the representation vote, as the Board was of the view that they had been defined all along by the employer as office staff, and were therefore not employees in the bargaining unit.

51. For all of the above reasons the Board made the oral ruling it did and declined to permit the counting of the ballots cast by Mr. Christofilakis and Ms. Clavet.

52. Having regard to the agreement of the parties, the Board finds that:

all employees of Komtech Inc. in the Regional Municipality of Ottawa-Carleton, save and except group leaders and supervisors, persons above the rank of supervisor, office and sales staff,

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

45. 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.

46. A certificate will issue to the applicant.

47. 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.

48. 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 30 days from the date of this decision.

“Gail Misra”

for the Board