[1980] OLRB Rep. May 744
0186-79-R Christian Labour Association of Canada, Applicant, v. Master Insulation Company Limited, Respondent, v. International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Intervener.
BEFORE: R. A. Furness, Vice-Chairman, and Board Members O. Hodges and R. W. Redford.
APPEARANCES: Elizabeth Forster, John Adema, and Ed Vanderkloet for the applicant; W. G. Posthumus and Joe Bittenbinder for the respondent; B. Fishbein and J. Duffy for the intervener.
DECISION OF THE BOARD; May 21, 1980
1At the commencement of the hearing in this matter the intervener made a preliminary motion that the Board should stay proceedings in the instant application for certification until the Board had issued its decision on Board File 2925-79-M. The intervener informed the Board that in File 2925-79-M the intervener had referred a grievance to the Board pursuant to section 112a with respect to alleged violations of a collective agreement by the respondent. The intervener argued that persons who voted in the representation vote in the instant application might not be in the bargaining unit and that such persons might not have been hired pursuant to the collective agreement. The intervener argued that since certain evidence would be the same in both proceedings and that since the Board had heard two days of evidence in File 2925-79-M, the instant proceeding should be stayed in order to minimize expense to the parties and possible opposite findings being made by the Board in the two proceedings. The applicant and the respondent opposed any delay in the instant proceeding and urged the Board to conduct the hearing in the instant application without delay. A majority of the Board ruled, with Mr. 0. Hodges dissenting, that the Board would not stay the instant proceeding until a differently constituted panel in File 2925-79-M issued its decision. The majority noted that the hearing in File 2925-79-M was not completed and that, in any event, the parties were not the same in both proceedings.
2The parties signed the following agreed statement of facts:
"OLRB File No: 0186-79-R
Christian Labour Association of Canada
('the Applicant')
v.
Master Insulation Company Limited
('the Respondent')
v.
Int'l Association of Heat and Frost Insulators and Asbestos Workers, Local 95
('the Intervener')
AGREED STATEMENT OF FACTS
(1) A meeting was convened of all the parties at the office of Counsel for the Applicant, at 3:00 pm on March 6, 1980. The Intervener and its Counsel arrived after 3:00 pm. Before their arrival, there had been prior discussions between the Applicant and the Respondent as to voting arrangements satisfactory to them.
(2) Upon arrival, Counsel for the Intervener took the position, from the outset, that no voting arrangements could be discussed as there could be no vote pursuant to the Board's decision, dated February 1, 1980, because there were no employees in the voting constituency, i.e., employees as of the date of the Board's decision.
(3) After Counsel indicated that the Intervener would not discuss voting arrangements, Counsel for the Respondent would not answer questions as to where the employees were working and what they were doing, but the Respondent advised only that they were doing insulation work.
(4) Counsel for the Intervener was asked to follow the 'Registrar's Instructions Regarding Vote' for objecting to the Voter's List, but he refused in accordance with his previously stated position.
(5) The meeting then broke up. The time, date and place for the representation vote proposed by the Applicant and the Respondent were unknown to the Intervener and Counsel when they left the meeting.
(6) The letter to the Registrar of March 6, from Counsel for the Applicant
and the Respondent was forwarded to the Board after a discussion with the Registrar and pursuant to his instructions after the meeting. No copy of this letter was forwarded by the Applicant, nor apparently by the Board, to the Intervener. It was subsequently received by the Intervener from the Board on request.
(7) It is further agreed that the evidence of Joe Bittenbinder given before the Board on April 14, 1980, with respect to the subject employees was as follows:
a) They were hired March 4 and 6, 1980, and both were terminated March24, 1980.
b) They were hired as insulators in anticipation of an insulation job, the Respondent believed he would be awarded by Canada Packers. On March 29, the Respondent was notified that it did not get the said job despite prior notification that the Respondent was previously the low bidder. Accordingly, the Respondent terminated the said employees.
c) The said employees while waiting to work on the said project for Canada Packers were performing clean up as well as restorative work (painting and window caulking) on the Respondent's shop premises and did not leave those premises to perform insulation work on any construction site or project.
'E. J. Forster'
Counsel for the Applicant
'W. G. Posthumus'
Counsel for the Respondent
'B. Fishbein'
Counsel for the Intervener
3The intervener argued that the vote should be set aside for four reasons. Firstly, the intervener did not have knowledge of the time, date and place of the representation vote until March 13, 1980, when it received a letter from the Board which incidentally mentioned this. The intervener did not have notice of the imposition of the silent period until March 14, 1980, when the silent period was some three days away. The intervener neither had knowledge at the meeting of the parties of the time, date or place agreed to by the applicant and the respondent nor did the Board forward a copy of these arrangements to the intervener. In addition, the intervener did not know where the employees were working because such employees were not hired through the intervener's hiring hall. Accordingly, the intervener argued it did not have an opportunity to campaign or conduct electioneering with respect to the representation vote. Secondly, the intervener argued that the jurisdiction for this vote came from the decision of the Board dated March 10, 1980, which had amended a decision dated February 1, 1980. The intervener argued that the decision dated February 1,1980, could not be the authority for the vote because there were no employees of the respondent in the bargaining unit on February 1, 1980. The intervener reasoned that on March 6, 1980, there was no jurisdiction to hold a representation vote and that this was recognized by the Board in its decision dated March 10, 1980. The intervener adopted the position that on the basis of the decision dated March 10,1980, there was jurisdiction to order a representation vote but that the intervener was prejudiced because it went to the meeting and relied on the decision of the Board dated February 1, 1980. It was argued that the decision of March 10, 1980, was made without any evidence before the Board and the intervener pointed out that the respondent had refused to provide details about what the employees were doing. The intervener argued that as a result of the Board proceeding in this manner it had no opportunity to adduce evidence concerning whether there were employees in the bargaining unit and had been denied natural justice.
4Thirdly, the intervener argued that the employees who voted in the representation vote were not entitled to cast ballots because they were hired in violation of a collective agreement which was binding on the respondent. The intervener maintained that any employees in the bargaining unit ought to have been hired through the intervener's hiring hall. The intervener argued that this was tantamount to support under section 12 of The Labour Relations Act. Fourthly, the intervener argued that even if the persons who did cast ballots were employees of the respondent they were not employees within the bargaining unit and were for that reason ineligible to cast ballots. The intervener stressed that the two employees who cast ballots in the representation vote had not left the respondent's office, had not been present on a construction site to do any insulation work and had actually been engaged in clean-up, painting and caulking windows. While the intervener conceded that the two employees who cast ballots may have been hired as insulation workers in anticipation of work, they did not perform insulation work.
5The respondent argued that the bargaining unit defined in the decision dated February 1, 1980, defines the worker and not the work being performed and that the two employees were within the bargaining unit and therefore eligible to cast ballots in the representation vote. The respondent argued that to do otherwise would mean that the Board would have to determine the work of all voters. The Board was urged to consider the basis on which the two employees were hired by the respondent. The respondent argued that once the Board had decided to proceed it would be unfair if the respondent was in double jeopardy and that the question of the hiring should be dealt with by a differently constituted panel in the referral pursuant to section 112a of The Labour Relations Act. It was stressed that any advantage which had been lost by the intervener was as a result of its own conduct in that it did not follow the steps outlined in the Registrar's instructions to the parties. The respondent argued that the intervener had disregarded the Registrar's instructions to meet and make the voting arrangements and that there was no obligation on the respondent to advise a party, which has stated that it would not make arrangements for a representation vote, where and when the employees are working. The respondent pointed out that the intervener had been shown the names of the two employees at the meeting. The respondent attributed all of the intervener's problems to its failure to challenge the names on the list of voters and to underline their names in red. The respondent referred to an earlier statement by the Board that a representation vote would be held at such time when there were employees in the bargaining unit.
6The applicant stated that it agreed with most of the respondent's submissions. Any prejudice which the intervener suffered came about as a result of the refusal of the intervener to follow the Registrar's instructions and meet with the other parties. The applicant emphasized that all of the parties were notified of the voting arrangements at the same time. It was pointed out that it was within the Board's jurisdiction to change its order and that in the context of fluctuations in employment in the construction industry it was feasible to conduct representation votes when there were employees available. The applicant joined the respondent in urging that a breach of a collective agreement ought not to concern this application. The applicant asked the Board to count the ballots cast in the representation vote and in the alternative to direct the taking of a new representation vote at such time when there are employees in the bargaining unit.
7In the construction industry, applications for certification which require the Board to conduct a representation vote are arranged as quickly as possible. Where it is not possible to conduct such a representation vote immediately, the Board postpones the taking of the representation vote until there are employees in the bargaining unit. In these circumstances, it is often necessary to expedite the voting arrangements due to the nature of the construction industry where periods of employment are frequently brief. To this end, the positive co-operation of all parties is necessary. In the event that a party objects to certain arrangements for a representation vote, such objections should be made to the Board. Similarly, where any person, whose name appears on a list of eligible voters, is challenged by any party to the representation; such a person casts his ballot as a segregated ballot and the Board will investigate the challenge after the representation vote has been conducted. It is important for all parties to remember that usually time is very much of the essence in representation votes in the construction industry. In the instant application, the proper procedure would have been for the intervener to have participated in the arrangements for the representation vote and then to have filed its objections to the Board. In walking out of the meeting between the parties, the intervener has been the author of its own misfortune. Once the parties have made the arrangements for the representation vote, the Board may then direct the taking of the representation vote and may also define who is eligible to vote. The Board did not lack the jurisdiction to direct the taking of the representation vote once there were apparently employees in the bargaining unit.
8There is no basis for finding that section 12 is applicable to this application. There is no evidence before the Board that any employer has participated in the formation or administration or has contributed financial or other support to either of the trade unions in this application. With respect to the alleged violations of a collective agreement by the respondent, the Board is of the view that the division of the Board which is in the process of hearing the referral under section 112a of The Labour Relations Act is the appropriate panel to consider such allegations and not the present panel of the Board.
9In order to be eligible to cast ballots in the representation vote, the two persons who cast ballots must have been employees within the bargaining unit and the eligibility to vote depends on what an employee was doing not what he was hired to do. See the Canadian Westinghouse Company Ltd. case, [1966] OLRB Rep. Sept. 372; and the Wragge Shoes Ltd. case, [1969] OLRB Rep. Nov. 961. In the instant case the two persons who cast ballots were at no time performing the work of insulation mechanics or insulation mechanics' apprentices. The intentions of the respondent in the light of future work which appeared to be available is not determinative of the issue of eligibility to cast ballots in a representation vote.
10The Board finds that neither of the two persons who cast ballots in the representation vote were entitled to cast ballots. The ballots cast in the representation vote will be destroyed unless a request is received within the next thirty days that the ballots be preserved.
11A new representation vote will be conducted at a future date. The parties are directed to inform the Registrar at such time when the respondent employs persons in the bargaining unit.