International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.) v. Tri Canada Inc., 1981 CanLII 1009

[1981] OLRB Rep. June 794

0493-81-R International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.), Applicant, v. Tri Canada Inc. Respondent, v. Tri-Canada Employees' Association, Intervener.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. D. Bell and O. Hodges.

DECISION OF THE BOARD; June 9, 1981

I. In this application for certification, the applicant is requesting that a pre-hearing representation vote be held. The intervener has filed an Application for Certification By Intervener (R.R.O. 1970, Reg. 551, Form 12) and does not request that a pre-hearing representation vote be held.

The intervener has not previously established in any proceedings before the Board that it is a trade union within the meaning of section l(l)(n) of The Labour Relations Act. Consequently, the applicant has asked the Board to defer directing the pre-hearing vote which the applicant is seeking until the Board has determined whether the intervener is a trade union within the meaning of the Act. The intervener submits that the Board should proceed with the vote and place the issue of its status before a hearing of the Board in due course.
Section 8 of the Act provides a prompt means for an applicant to have its request to represent employees tested by way of the pre-hearing representation vote. Under this section the Board has the discretion to decide whether to direct that a vote be held. Where the statutory prerequisites of the section are met, the Board will usually direct a vote. In order to avoid prejudicing the applicant by delaying the vote, if there are outstanding issues at the time of the vote, the Foard will put these on for hearing after the vote. (For a detailed discussion of the purpose of the section within the scheme of the Act, see Emery' Industries Limited, [1980] OLRB Rep. Mar. 316). In that case the incumbent trade union intervened in the application and disputed the Board's jurisdiction to direct a pre-hearing representation vote before it had made an affirmative finding that the applicant was a trade union within the meaning of the Act. The Board directed the vote and scheduled a hearing into the issue of the applicant's trade union status. In doing so, it was complying with the applicant's request and was satisfying the purpose of section 8. The case at hand is readily distinguishable from that case in that it is the intervener which has not established that it is a trade union within the meaning of the Act and it is the applicant which is requesting deferral of the vote until the intervener's status is decided. In effect, the applicant is consenting to a delay in having the representation question tested by a vote in a proceeding which it initiated. The Board dealt with similar circumstances in Brown Shoe Co., [1965] OLRB Rep. Dec. 584 and, at the applicant's request, decided the status issue. Therefore, the Board will grant the applicant's request and it will defer directing the vote until the Board has determined whether the intervener is a trade union within the meaning of the Act.
The Registrar is instructed, therefore, to list this matter for hearing at the earliest possible date to allow the intervener the opportunity to establish its status as a trade union and to hear the evidence and submissions of the parties on that issue.

DECISION OF BOARD MEMBER O. HODGES;

In the circumstances of this case and considering the representations of the applicant, I concur with the majority decision to defer directing the pre-hearing vote until the Board has determined whether the intervener is a trade union within the meaning of the Act.

With regard to Emery Industries Limited, [1980] OLRB Rep. Mar. 316, cited in this matter, I view with approval the dissenting decision of Board Member D. B. Archer in Ontario Hospital Association (Blue Cross) [1981] OLRB Rep. April 468, wherein he said in part:

"3. I also wish to disassociate myself from the majority's endorsement of the Emery Industries Limited principle, which is to the effect that a pre-hearing vote may be directed by the Board prior to the proof of trade union status by an applicant.

I disagree with the reasoning in the passage quoted from the Emery Industries Limited decision at para 29 of the majority decision, where it states that "there is no reason for according the 'status issue' a special significance which removes it from the ambit of a legislative scheme which specifically provides for a resolution of disputed issues after a vote is taken."
There is no question that section 8 of the Act contemplates that the resolution of issues be postponed until after the vote is held. However, in my view, the status of the applicant is so fundamental that that is not one of the issues that may be postponed under the scheme set out in section 8. Section 8(1) states that "a trade union may request a pre-hearing representation vote be taken." It is clear that before the Board has jurisdiction to direct a vote under section 8(2), it must be satisfied that the applicant requesting it indeed is a trade union within the meaning of the Act.
Besides, it concerns me that the Board is directing employees to vote for or against an entity, which may or may not be in existence. When employees cast their ballots, they will not have any assurance that the applicant is not employer dominated or engaged in discrimination practices. They will not know whether the applicant has a constitution or whether it has elected officials. On the other hand, there is always the possibility that, from the mere fact that a vote has been directed, employees may assume that the Labour Board has already recognized the applicant as a legitimate trade union.
I am of the view that the Emery Industries Limited case is wrongly decided. I would have required the applicant to prove status, prior to being entitled to any representation vote. In order not to deny new trade unions access to pre-hearing votes, the Board should devise a method of conducting a quick hearing to dispose of trade union status issues in these circumstances."
Absent a collective bargaining agreement or what may purport to be a collective bargaining agreement between the intervener and the respondent, I would not entertain the application of the intervener. I would instead proceed with the application for certification by way of the pre-hearing representation vote, with the ballot offering employees a choice between the applicant or no union.