[1981] OLRB Rep. January 22
1554-80-R Labourers' International Union of North America — Local 183, Applicant, V. Duracon Precast Industries Ltd., Respondent
BEFORE: R.A. Furness, Vice-Chairman, and Board Members H.J.F. Ade and N. Wilson.
APPEARANCES: B. Fishbein for the applicant; Joseph Carrier and Paul Greer for the respondent.
DECISION OF THE BOARD; January 22, 1981
The Board finds that the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Mississauga, save and except foremen, persons above the rank of foreman, office and sales staff and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
In As reply the respondent made the following statements:
We refer the Board to O.L.R.B. File No. 0997-80-R being an Application for Certification between the same parties. That Application was still alive and active at the time of the within application. Accordingly, this application is untimely.
In view of the apparent irregularities in the earlier Application, it is the respondent's position that there is a heavy onus on the Union to satisfy the Board that the membership evidence filed in support of this Application is fresh and entirely without irregularity.
- At the hearing on November 21, 1980, the respondent acknowledged that in Board File No. 0997-80-R the Board had issued the following decision on October 19, 1980:
The applicant has requested leave of the Board to withdraw this application for certification. Having regard to the stage of the proceedings at which this request was made, however, this application is hereby dismissed.
At the hearing the respondent also informed the Board that a hearing of the application for certification in Board File No. 0997-80-R was held on September 5, 1980, and that in a letter from the Board dated October 21, 1980, the respondent was advised:
During the course of the Board's normal signature check based on membership evidence filed by the applicant and specimen signatures provided by the employer, it appeared to the Board that a discrepancy existed between the signature appearing on the application for membership card filed on behalf of Giuseppe Bissola.
Following its usual practice, the Board caused a preliminary investigation to be made. As a result of that investigation, the Board intends to hold a hearing for the purpose of inquiring into the circumstances surrounding the signing of a membership card purportedly on behalf of Mr. Giuseppe Bissola.
The following persons whom the Board believes may have knowledge of the facts surrounding this issue are being summonsed by the Board to attend at the hearing scheduled for Thursday, October 30th, 1980.
Vitorio Ferrari
G. Bissola
L. Castaldo
Enclosed herewith is a formal Notice of Continuation of Hearing.
On October 22, 1980, the Board received a letter from the applicant in Board File No. 0997-80-R requesting leave of the Board to withdraw its application for certification and also requesting the return of the membership and receipts to the applicant. On October 29, 1980, the Board issued the decision referred to in paragraph four herein. The applicant and the respondent in the instant application are the same as in Board File No. 0997-80-R. While the applicant and the respondent are the only parties in the instant application, in Board File No. 0997-80-R Labourers' International Union of North America, Local 506, intervened and one employee was an objector. The instant application was filed on October 22, 1980.
The respondent argued that the applicant had avoided an irregularity with respect to membership evidence by simply requesting leave to withdraw its application for certification in Board File No. 0997-80-R. The respondent further argued that the Board's letter of October 21, 1980, may have indicated a fraud on the Board and that the Board should examine this matter of apparent forgery. The respondent also argued that in allowing this to take place, the Board is permitting an abuse of its procedures and was declining to exercise its powers under section 93 of the Act. The respondent also argued that there was a flow through of a taint on the evidence of membership from the application in Board File No. 0997-80-R which reflected upon the ability of the person who completed the Form 8, Declaration Concerning Membership Documents. The respondent characterized the filing of the instant application as an attempt by technical moves to avoid embarrassment and prevent forgery from being uncovered.
The applicant informed the Board that there was a discrepancy in its membership evidence in Board File No. 0997-80-R which led to the request to withdraw that application on October 22, 1980. The applicant stressed that the evidence of membership in Board File No. 0997-80-R had been recovered and new evidence of membership had been obtained for the instant application. The applicant argued that where a request to withdraw an application for certification i~ motivated by a membership irregularity, there ought not to be a bar to the instant application. The applicant informed the Board that the irregularity in the evidence of membership consisted of the signing of a membership application on behalf of one employee by another employee and the subsequent approval of this act by the employee whose name appeared on the membership application.
The instant application for certification was filed on October 22, 1980, and the Board postponed consideration of the instant application until the application for certification was dismissed on October 29, 1980. This consideration by the Board is consistent with the provisions of section 92(3)(b) of the Act and no question of timeliness arises with respect to the instant application.
As the Board pointed out in The Ontario Hospital Association case, [1979] OLRB Rep. March, p. 243, in the circumstances of the instant application, the central question to be considered by the Board is whether the conduct of the applicant with respect to evidence of membership in an earlier application may cause the Board to seek the confirmatory evidence of a representation vote in a subsequent application for certification which invokes the same employer, the same trade union and, to all intents and purposes, the same bargaining unit.
The applicant has disclosed to the Board the nature of the irregularity with respect to the evidence of membership in Board File No. 0997-80-R. The nature of the irregularity arose because of the conduct of an employee which subsequently became known to the applicant. There is nothing to indicate that the applicant attempted to mislead the Board. The respondent relied on decisions of the Board in the Hydro Electric Commission of Hamilton case, 58 CLLC ¶18,120, and in the Echlin United of Canada Limited case, [1965] OLRB Rep. May, p. 91, in support of its proposition that a representation vote should be conducted by the Board. Those two cases involved attempts to mislead the Board and the Board directed a representation vote in each case. These two cases are distinguishable from the instant application in that there has not been a finding by the Board of any intention to mislead the Board. In addition, on the representations before it, the Board is not prepared to find that the applicant had any intention of misleading the Board in the earlier application for certification in board File No. 0997-80-R.
The respondent has stated that there is a heavy onus on the applicant to satisfy the Board that the membership evidence is fresh and entirely without irregularity. The applicant has filed fresh evidence of membership in the instant application. The respondent has not suggested how the applicant would satisfy the requirement of being "entirely without irregularity" having regard to the provisions of section 100 of the Act. The respondent has not alleged, and the Board's examination does not disclose, any irregularity in the evidence of membership filed by the applicant. The Board is not prepared to find in the circumstances of the instant application either that there has been an abuse of the Board's procedures by the applicant or that there is a taint in the evidence of membership in the instant application.
The applicant has filed a duly completed Form 8, Declaration Concerning Membership Documents. This declaration has been completed on the basis of fresh evidence of membership and there is no indication before the Board that the declarant either in the earlier application or in the instant application did not complete the declaration to the best of his knowledge, information and belief.
Having regard to the foregoing, the Board is satisfied that it is not necessary for the Board to seek the confirmatory evidence of a representation vote in this application. The Board notes that the applicant has withdrawn its request that the Board invoke its powers pursuant to section 7a of the Act.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on November 12, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.