[1982] OLRB Rep. November 1720
0983-82-R Angela Lopardo, Applicant, v. The International Ladies' Garment Workers' Union, Respondent, v. The Sigal Shirt Company Limited, Intervener.
BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members C. G. Bourne and H. Kobryn.
DECISION OF THE BOARD; November 30, 1982
This is an application for reconsideration by the applicant with respect to a decision of the Board dated October 8, 1982 (reasons released November 2, 1982) wherein the Board dismissed her application under section 60 for a declaration that at the time a recognition agreement between the respondent and the intervener was entered into, the respondent was not entitled to represent the employees in the bargaining unit. In the alternative, the applicant requests that the Board order a "final representation vote" for the purpose of determining whether or not the respondent has "sufficient support" to represent the bargaining unit.
In support of this application was filed an undated petition which purports to be signed by 46 employees of the Sigal Shirt Company. These signatures appear below the following text:
We the undersigned, employees of the Sigal Shirt Company and members of the proposed bargaining unit hereby execute this Petition in support of an application to the Ontario Labour Relations Board for a reconsideration of the Board's determination that the application by Angela Lopardo for Termination of Bargaining Rights be dismissed and in the alternative we submit this Petition in support for a reconsideration by the Board for a further representation vote to determine whether the International Ladies' Garment Workers' Union has sufficient support to represent the employees of the proposed bargaining unit.
- The Board has reviewed the applicant's request for reconsideration and a representation vote, together with the supporting petition, and finds nothing contained therein which, even if presented prior to its decision of October 8th, would have led the Board to conclude that:
(i) as of June 25, 1982, the date the voluntary recognition agreement was entered into, the respondent did not enjoy the majority support of the employees in the bargaining unit; or
(ii) the Board should order a representation vote.
Section 60 is a means by which employees can contest the representation rights assumed by a union and recognized by an employer outside of the certification procedures laid down in the Act. The normal basis of certification under the Act is evidence of sufficient numerical support, either through a vote or membership cards, among employees in the bargaining unit. The acquisition of representation rights need not be accomplished through certification by the Board. It is still possible to have recognition agreements and/or collective agreements where no certification has taken place. The Legislature, anticipating that recognition agreements could be entered into where a trade union enjoys less support or support in a different form than would be necessary under the Act for certification and employees thereby could have their rights under section 3 of the Act denied, enacted section 60 to allow employees to dispute the entitlement of the trade union to represent them as of the date the recognition was entered into. Section 60 was not intended to be an opportunity to terminate properly acquired representation rights.
There is no merit or necessity in repeating here what was said in the Board's reasons dated November 2, 1982. The central issue in section 60 is whether, at the time of the entering into of the recognition agreement, the respondent was entitled to represent the employees in the bargaining unit. From the agreed facts before the Board it was clear that such entitlement existed on June 25, 1982. Indeed, it was conceded by the applicant at the previous hearing in this matter that the respondent's support as it existed on June 25, 1982 was not being challenged. Although the petition is undated, the text indicates that it was composed and circulated sometime after the Board's decision in this matter. It does nothing to unsettle the Board's conclusion regarding the strength of the respondent's support as of June 25, 1982.
With respect to the ordering of a vote, the Board has discretion under section 60(2) to hold a representation vote before disposing of an application under section 60(1). This section does not give the Board a general power to resort to a Board-supervised vote as an aid in resolving a question of employee wishes where the evidence shows that at the relevant time (June 25, 1982) the respondent was entitled (in this case majority support) to represent the employees in the bargaining unit. The signatories to the petition may well have wished to show they no longer support the respondent. However, this has no effect on a section 60 application in that the relevant time for determining the entitlement of the respondent to representation rights is the date when the recognition agreement was entered into. A representation vote can only be ordered where there is a lack of certainty as to the entitlement as of that date and a vote is necessary to resolve that uncertainty. In this case there is no uncertainty because the applicant, through her counsel, conceded that on June 25, 1982, the respondent had as members 46 of the 87 employees acknowledged to constitute the bargaining unit.
For all of these reasons the Board has decided to dismiss the request for reconsideration.