[1981] OLRB Rep. May 546
0186-79-R Christian Labour Association of Canada, Applicant, V. Master Insulation Company Limited, Respondent, v. International Associatiort of Heat and Frost Insulators and Asbestos Workers, Local 95
BEFORE: R. A. Furness, Vice-Chairman, and Board Members O. Hodges and R. W. Redford.
DECISION OF THE BOARD; May 8, 1981
I. In a letter to the Board dated March 2,1981, the applicant has advised the Board that in view oft he fact that the respondent is no longer in business it has decided not to proceed with this application for certification. In response to this letter the intervener, in a letter to the Board dated March 6, 1981, has requested that the application for certification made by the applicant be dismissed and a time bar imposed in accordance with the provisions of section 92 of the Act.
- In a letter to the Board dated March 11, 1981, the applicant stated:
Thank you for your letter of March 9, 1981. I would respectively suggest that this is not an appropriate case for an Order to be made under Section 92 of The Labour Relations Act. The application for certification in this matter was filed on April 27, 1979. By Order of The Ontario Labour Relations Board dated February 1, 1980, a representation vote was ordered to be taken of all employees in the bargaining unit. Since that time two votes have been taken. The Intervener was successful in having the first vote set aside on the grounds that the Board was not satisfied that the employees who voted were members of the bargaining unit. A second vote was taken on June 25, 1980 and the Intervener has made an application to have that vote set aside as well. This application is still outstanding.
We have now been advised by the Respondent that Master Insulation Company Limited has wound-up its affairs and that it no longer has any employees. My clients have been litigating this matter for almost two years and have been put to a great deal of expense not only because of the time involved but because of the number of appearances we had to make before the Board. Under the circumstances, it is a matter of common sense that they should not wish to proceed.
If the Intervener is successful in their application to have the latest vote set aside, the Board generally orders that a new vote be taken. As there are no employees in the bargaining unit, a new vote obviously cannot be taken. If the Intervener is unsuccessful and the ballots are counted the Christian Labour Association of Canada will at best have bargain [sic] rights for a now defunct company. In any event, it would appear to be a useless exercise to continue with this application.
I would, therefore, respectfully suggest that under the circumstances this is not a proper case for the exercise of the Board's discretion under section 92 of The Labour Relations Act.
- In a letter to the Board dated March 19, 1981, the intervener has stated:
I. Counsel for CLAC confirms that it is the intention of her client not to continue with the Application for Certification. In these circumstances, and in view of the stage of the proceedings have reached, the Board has no choice but to dismiss the Application for Certification and Local 95 once again requests that the Application be dismissed.
As counsel has pointed out, and the Board is well aware, a representation vote has been directed and held in which the ballots remain uncounted. Where the Applicant Union no longer wishes to proceed with its certification after the Board has directed a representation vote, it is the customary practice of the Board since the Mathias Ouellette Case, 56 C.L.L.C., para. 1555, to impose a time bar pursuant to Section 92 of the Act, notwithstanding that the ballots may not have yet been counted. See also The Bristol Place Hotel [1979] O.L.R.B. Rep. 486 (June); Devon Dairy' Limited [1961] O.L.R.B. Rep. 313 (December). Accordingly, Local 95 reiterates its request that the Board impose a time bar pursuant to Section 92 of the Act herein.
The respondent has not made any representations with respect to the positions adopted by the applicant and the intervener concerning the disposition of this application. The Board notes that none of the parties dispute the proposition that the respondent is no longer in business.
It is the practice of the Board to impose a bar pursuant to section 92(2)(i) where a representation vote has been conducted in a certification application and a trade union has failed to obtain the necessary support. As the Board pointed out in Watson Manufacturing Company of Paris Limited, [1968] OLRB Rep. Aug. 441, one of the reasons for imposing a bar is to provide a cooling off period during which the employees may assess their position with respect to their desire to be represented by a particular trade union. Another reason, as set forth in Campbell Soup Company Ltd., [1968] OLRB Rep. Feb. 1091, is because repetitious applications, where the evidence of membership has been fully tested by a representation vote, are not in the interest of sound labour relations.
Where a representation vote has been directed and a trade union seeks leave to withdraw its application, the Board will dismiss the application without imposing a bar. In such circumstances, the Board will draw to the attention of the parties the decision in Mathias-Ouelette, 56 CLLC ¶ 18, 026. The effect of this decision is to put the trade union on notice that a future application made within six months might be barred if the trade union had sought the withdrawal because it feared defeat in the representation vote.
The facts in the instant application are not similar to the facts which were present in the Mathias-Onelette case, supra. In addition, the facts in the instant application are not similar to the facts in The Bristol Place Hotel, [1979] OLRB Rep. June 486, and in Devon Dairy Limited, [1961] OLRB Rep. Dec. 313. In those two cases the Board dismissed applications for certification and imposed a bar of six months where pre-hearing representation votes had been directed, conducted and the ballot box sealed when the trade union in each case made the request to withdraw its application for certification.
In the instant application the Board directed the taking of a representation vote on February 1, 1980, based upon the evidence of membership of the respondent's two employees who were at work on April 27, 1979. A representation vote was conducted by the Board on March 21, 1980 and the ballot box was sealed pending a further direction by the Board. The intervener raised an issue as to whether the two persons who cast ballots were employees within the bargaining unit. The Board, in a decision dated May 21, 1980, determined that neither of the two persons who cast ballots in the representation vote was entitled to cast ballots. The ballots cast in the representation vote were not conducted and a new representation vote was ordered to be conducted at an unspecified future date.
In a decision dated June 17, 1980, the Board directed the taking of a new representation vote. This new representation vote was conducted on June 25, 1980, and the ballot box was sealed pending a further direction by the Board. The intervener again raised issues with respect to the new representation vote and the Board listed this application for continuation of learning in order to consider these issues. This continuation of hearing was adjourned on more than one occasion at the request of the parties. Before the intervener's issues with respect to the new representation vote were heard by the Board, the applicant informed the Board in its letter dated March 2, 1981, of its decision not to proceed with this application for certification.
There is no doubt that it has been the Board's practice to dismiss an application for certification where an applicant informs the Board that it does not wish to proceed with the application where the Board has already entertained the application and has conducted hearings with respect to the application. The Board finds no reason to treat this application in any other way. There remains the question as to whether the Board should impose a bar. Section 92(2)(i) provides:
Without limiting the generality of subsection 1, the Board has power,
(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing such employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application.
The wishes of the employees of the respondent in the bargaining unit have not been ascertained by the Board and the applicant does not wish to proceed with this application in circumstances where the respondent is no longer in business. This is an application under the construction industry provisions of the Act and the concerns expressed in Watson Manufacturing Company of Paris Limited, supra, are not usually applicable to applications for certification under the construction industry provisions of the Act. In non-construction industry applications the work force is usually a settled group of employees who are employed on a regular and ongoing basis. In the construction industry, employment relationships are typically of a short term nature with fluctuations in the number of employees who are at work on any given day. While the Board expresses no opinion as to the causes in the instant application, it is noted that on the date of the making of this application there were two employees at work, at the time of the holding of the first representation vote two different employees were at work and at the time of the holding of the second representation vote two entirely new employees were at work. In addition, it cannot be said that the applicant's evidence of membership has been fully tested as contemplated in Campbell Soup Company Ltd., supra, because the Board has not had an opportunity to make a determination on the issues raised by the intervener.
While it would be possible to make a determination on the issues raised by the intervener in the absence of the respondent, such a determination would not necessarily finally dispose of this application. It might well be that a third representation vote would be ordered by the Board. In all the circumstances, while this application is dismissed, the Board, in the exercise of its discretion, is not prepared to impose a bar on future applications for certification by the applicant.