In this decision written by Vice-Chair Patrick Kelly on behalf of the Ontario Labour Relations Board, the United Food and Commercial Workers Canada, Local 175 (“the Union”) successfully defended against a motion brought by Canada Royal Milk (“the Employer”) alleging that the Union had waived its right to challenge a voter in a unionization vote on the grounds that the voter was a member of management and not properly included in the bargaining unit.
The employee in dispute was on maternity leave at the time the vote was held, and as a result, another employee was covering some of the disputed employee’s duties. The employee covering those duties was a bargaining unit member and was identified as holding a position properly within the bargaining unit on the voters list provided by the Employer prior to the vote.
The Employer argued that, since the Union did not challenge the employee covering the disputed employee’s duties, the Union waived its right to challenge the disputed employee who was off on maternity leave at the time of the vote. The Employer further argued that it could not provide evidence for the relevant period, which was determined by the Board in a previous decision to be the three months prior to the vote, as the disputed employee was off on maternity leave.
The Union argued in response that the Employer identified the employee covering the disputed employee as holding a position in the bargaining unit, and the parties had agreed on this employee’s status at the time of the vote, so it was not available to the Employer to argue two years later that the employee covering the maternity leave was not a bargaining unit employee, but was actually occupying the position as the disputed employee. With respect to the evidence that should be heard about the disputed employee’s duties, the Union proposed that the Board hear evidence for a period prior to the commencement of the disputed employee’s maternity leave.
In the result, the Board dismissed the Employer’s motion and agreed with the Union that it should hear evidence from the period that it proposed.