Labourers' International Union of North America, Local 837 v. Cooper Construction Company Limited, 1982 CanLII 951

[1982] OLRB Rep. August 1142

2694-81-R Labourers' International Union of North America, Local 837, Applicant, v. Cooper Construction Company Limited, Respondent, v. Operative Plasterers and Cement Masons International Association, Local 598, Intervener.

BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members J. Wilson and H. Kobryn.

APPEARANCES: B. Fishbein and D. McGregor for the applicant; Fred B. Reaume for the respondent; Giovanni Balanzin and John Marcmildon for the intervener.

DECISION OF THE BOARD; August 4, 1982

I. This is an application for certification in which the Board, differently constituted, directed that a pre-hearing representation vote be held. Prior to that decision issuing, there had been a meeting between the parties to the application and a Board Officer, as is customary when the applicant has requested that a pre-hearing representation vote be held. The Board's record reveals that each of the three parties was represented at the meeting either by an agent or legal counsel, and in the case of the applicant it was represented by counsel. The record also reveals that the parties were not in agreement on two matters. These were whether the bargaining unit sought by the applicant was an appropriate one, and whether Angelo Lovalente was eligible to vote. The persons affected by the application would be the same regardless of which of the three unit descriptions proposed by the parties was adopted. Lovalente's eligibility to vote was challenged by the intervener on the grounds that he was not a member of the intervener. These issues caused the Board to direct that Lovalente be allowed to cast a segregated ballot, that the ballot box be sealed following the taking of the vote and that the Registrar list the application for hearing following the conduct of the vote. The purpose of the hearing was to receive ". . . the evidence and representations of the parties with respect to all matters arising out of and incidental to these applications.

2. The vote was held as directed and following the balloting, the Returning Officer issued his report to the parties in Form 72, "Notice of Report of Returning Officer Where Board Has Directed That Ballot Box Be Sealed". That form contains, inter alia, the following directions to the parties:

3. TAKE NOTICE that if you desire to make representations,

(a) as to any matter relating to the representation vote; or

(b) (where a pre-hearing representation vote has been held) in connection with the application;

you shall send to the Board a statement of desire to make representations which shall,

i. be in writing and signed by the persons making the statement or his representative,

ii. contain the names of the parties to the application,

lii. contain a return mailing address, and

iv. contain a statement as to whether you desire a hearing before the Board.

Your statement of desire must contain a summary of the representations you wish the Board to consider.

4. A statement referred to in paragraph 3 shall be sent to the Board so that,

(a) it is received by the Board; or

(b) if it is mailed by registered mail addressed to the Board at its office, 400 University Ave., Toronto, Ontario, M7A 1V4, it is mailed; not later than the 29th day of APRIL, 1982.

*5 IF NO STATEMENT OF DESIRE TO MAKE REPRE— SENTATIONS IS SENT TO THE BOARD IN ACCORDANCE WITH PARAGRAPHS 3 AND 4, THE BOARD MAY DISPOSE OF THE APPLICATION UPON THE MATERIAL BEFORE IT ON ALL MATTERS EXCEPT AS TO THE RESULT OF THE VOTE WITHOUT FURTHER NOTICE TO THE PARTIES OR THE EMPLOYEES.

*If you do not request a hearing but wish the Board to consider your representations without a hearing, your statement of desire must contain all the representations you desire the Board to consider.

The applicant, through its solicitors, duly filed written representations containing the following statement:

On behalf of the Applicant, we submit that the appropriate bargaining unit is that set out in the Application for Certification. Further, we submit that all employees who cast ballots were properly in the bargaining unit and therefore entitled to vote. Accordingly, we submit that the ballot box be unsealed and the ballots counted forthwith so that the Application for Certification may be disposed of in accordance with the wishes of the subject employees.

Pursuant to the Board's original direction, formal Notice of Hearing (Form 8) was issued to the parties giving the purpose of the hearing as "hearing the evidence and representations of the parties with respect to all matters arising out of and incidental to these applications.". Subsequent to that notice issuing and prior to the hearing, solicitors for the applicant made further representations in writing as follows:

000

As no party, other than the Applicant, made representations after Notice of the Report of the Returning Officer, it appears that there are no issues other than the description of the bargaining unit.

Therefore the Applicant is prepared to adopt the bargaining unit description proposed by the Respondent and the Intervener, which we understand to be the bargaining unit as described in the existing Provincial Collective Agreement binding upon both the Respondent and the Intervener. Accordingly, as this is a displacement application for certification, the Applicant requests that the bargaining unit be amended to that proposed by the Respondent and the Intervener, namely:

"all working foremen, journeymen and apprentice cement masons and waterproofers in the employ of the Respondent in the industrial commercial and institutional sector of the construction industry in the province of Ontario".

There now appears to be no other issues with respect to this application for certification, and we request that the hearing scheduled for May 21, 1982 be cancelled and the ballot box be unsealed and the ballots counted forthwith.

3. Counsel for the applicant at the hearing raised the preliminary issue of whether the intervener was entitled to pursue its challenge of Lovalente's eligibility to vote, since the intervener had made no written representations to the Board either following the pre-hearing meeting with the Board Officer or following the issue of Form 72. The applicant contends that the intervener's failure to make such written representations, particularly with respect to the requirements of Form 72, that it has waived its right to a hearing on its challenge with respect to Lovalente. After hearing the representations of the parties on the preliminary issue, the Board reserved its decision and heard the evidence and representations of the parties on the two issues of voter eligibility and the appropriate bargaining unit. Before the Board can determine those two issues on their merits, it first must decide the preliminary issue raised at the hearing by the applicant.

4. Applicant counsel contends that Form 72 expresses clear directions to be satisfied by any party seeking to make representations about the conduct of the vote or, in the case of a pre-hearing representation vote, as this was, about the application itself. Counsel also argues that it is up to the Board to enforce its Forms, Rules of Procedure, and directions made under the Act and its Regulations if it expects them to have any meaning. Furthermore, counsel contends that it is insufficient for a party which is seeking a hearing merely to raise an issue without specificity or particularity at a pre-hearing meeting, since the prime purpose of the meeting is to make arrangements for the vote.

5. This Board cannot agree with counsel on the purpose of the pre-hearing meeting. Board Officers appointed to enquire into pre-hearing applications are authorized:

(1) to confer with the parties as to the description and composition of an appropriate bargaining unit;

(2) to examine the records of the applicant and of the respondent for the purpose of obtaining the information required by the Board under subsection 2 of section 8 of the Labour Relations Act;

(3) to confer with the parties as to the description and composition of the voting constituency, the list of employees as of the terminal date in this matter to be used for the purposes of any vote that may be directed by the Board, the form of the ballot, the date and hour for the taking of the vote, and the number and locations of the polling places;

(4) upon consent of the parties to investigate any other matter relating to the application; and

(5) to report to the Board.

The primary purpose of the meeting between the parties and the Board Officer is to obtain information which may allow the Board to determine a voting constituency and whether the applicant appears to have the requisite membership support to be entitled to a pre-hearing representation vote. A meeting may also serve to identify matters relative to the application on which the parties disagree and these are reported to the Board by the Officer. Typically these matters often involve issues about the appropriateness of the bargaining unit being sought, and the eligibility of persons to vote. They may also include issues of whether persons are employees for purposes of determining the applicant's membership support, charges relating to the reliability of the membership evidence and even status of the applicant as a trade union within the meaning of section l(l)(p) of the Act.

6. The pre-hearing vote provisions in section 9 of the Act provide for a speedy test of the applicant's membership support without having to resolve such issues before that test can be taken. Such remaining issues can be resolved by a post-vote hearing. Depending on the nature of the issues, the Board may include in its vote direction decision, a direction that a hearing be held following the vote, as it did here, or it may await the outcome of the vote and see if the parties file statements of desire and representations before directing that a hearing be held. The Board's experience is that the parties frequently withdraw challenges or settle the issues once the vote has been taken, particularly if the circumstances allow the counting of the ballots. In the instant case, there were only two persons on the list for the purpose of determining the applicant's membership support and on the list of eligible voters, one of whom had been challenged. The parties were also in disagreement with the bargaining unit proposed by the applicant and it appears that the Board considered these two issues sufficient to direct that a hearing be held without awaiting the holding of the ballot before making such direction.

7. The Board is no less concerned than applicant counsel with the need to enforce its rules, directions and forms, and in the appropriate circumstances the Board has consistently done so by refusing to hear an issue on which there has not been due notice to the parties or by restricting the scope of the evidence and representations where a stated issue has been lacking in specificity or particularity. In the case at hand, the parties were fully aware of the issues raised at the pre-hearing vote meeting with the Board officer, and they were fully aware of the Board's direction that a hearing be held. Since a hearing had already been directed, it was unnecessary for the intervener to make representations pursuant to Form 72 in order to be entitled to a hearing. That is not to say, however, that the intervener, having failed to make any written representations with respect to its challenge, was without any risk in having its challenge heard. It clearly ran the risk of being limited in the scope of the evidence which it could call in support of that challenge by its failure to set out its challenge in writing in more specific and particular terms. While the applicant cannot be said to have been caught by surprise by the challenge, it having been made at the pre-hearing meeting and the Board having directed that Lovalente's ballot be segregated, the applicant would have been entitled to request particulars of the challenge from the intervener. It did not.

8. The Board sees no prejudice to the applicant by allowing the intervener to pursue its challenge, having been made in a timely fashion. Were the Board to deny the intervener a hearing on the issue of Lovalente's eligibility to vote having directed a hearing for purposes which would include that issue, the intervener would be prejudiced. In all of these circumstances, the Board is not prepared to find that the intervener has waived its right to a hearing on the issue in question. The Board will determine that issue, therefore, on its merits.

9. In the course of hearing the evidence and representations of the parties, particularly those of the intervener, it became apparent that its challenge to Lovalente's eligibility to vote "because he was not a member of the intervener" was based on the allegation that Lovalente was at work in the bargaining unit on the date of application contrary to the provisions of the provincial agreement to which the intervener and respondent are bound. More specifically, the intervener alleges that Lovalente either was hired to work in the bargaining unit in violation of the agreement's hiring provision or was hired for work not within the scope of the intervener's bargaining unit and later was placed on that work contrary to the provisions of the provincial agreement. In either event, the intervener contends that, but for the alleged violation of the collective agreement, Lovalente would not have been at work in the bargaining unit on the date of the application.

10. The Board is satisfied on the evidence before it that, for at least five years prior to this application, the respondent employed only one person in the bargaining unit set out in the provincial agreement to which it and the intervener are bound. The Board is further satisfied that Article 3 of that agreement requires the employer to hire persons for work in that unit through the intervener's hiring hall and that Lovalente was not hired pursuant to those provisions of the collective agreement. When the intervener became aware of Lovalente, it filed a grievance under section 124 of the Act against the respondent, but settled the grievance in its favour without the matter coming to a hearing before this Board. The Board finds on the evidence that Lovalente was employed in the bargaining unit on the date of this application contrary to the provisions of the collective agreement binding upon the intervener and the respondent.

II. The intervener argues that, because Lovalente was at work contrary to the provisions of the provincial agreement, he was not an employee at work in the bargaining unit for purposes of either the count or the vote. Since there were only two persons at work in the unit on the date of the application, if the board accepts the intervener's argument, there would be only one employee left in the unit. Section 6(1) of the Act requires that an appropriate unit consist of more than one employee. Therefore, there would be no appropriate unit and the application would be dismissed. In support of its argument, the intervener is relying on the Board's decision in April Waterproofing Ltd., [1980] OLRB Rep. Nov. 1577. That was an application for certification in which another local of the Labourers' International Union of North America was also seeking to displace the incumbent herein as bargaining agent for the employees in question. There were four employees in the bargaining unit and the Board found that three of them had been employed in violation of the hiring provisions of the intervener's collective agreement. The Board in that case, while acknowledging that a common-law employee-employer relationship existed between the respondent and the three individuals, held that relationship not to be determinative of their status as bargaining unit employees. In this respect it stated:

"In our view, the bargaining unit is comprised of employees employed under the terms of the applicable collective agreement. To be so employed, an employee must have been hired in accordance with the provisions of the agreement. The three individuals in dispute were not hired in accordance with the provisions of the collective agreement and accordingly, in our view, they do not come within the bargaining unit covered by the collective agreement. This being so, we are satisfied that in ascertaining the numbers of employees in the bargaining unit for purposes of section 7(1) of the Act, the three individuals in dispute should not be taken into account."

12. Counsel for the applicant argues that, to the extent that the Board might find the April Waterproofing decision analogous to the circumstances of this case, the Board should not follow that decision because:

(a) there is no authority for the decision in the specific language of the Labour Relations Act,

(b) it is a policy decision which failed to take into account earlier decisions of the Board which counsel contends are in conflict with the April Waterproofing decision.

The Board disagrees with the proposition that it has no statutory authority for its decision in April Waterproofing, supra, that persons who had not been employed in accordance with the 1158 applicable collective agreement were not employees in the bargaining unit for purposes of section 7(1) of the Act. That section mandates the Board to "... ascertain the number of employees in the bargaining at the time the application was made. . . .". Section 106(1) gives the Board the ". .. exclusive jurisdiction . . . to determine all questions of fact ... that arise in any matter before it " The determination of whether the persons challenged were employees in the bargaining unit in question was a factual determination essential to ascertaining the number of employees in the bargaining unit at the time the application was made. Therefore the Board was clearly acting within its jurisdiction when it decided the status of the challenged employees in April Waterproofing.

13. The decisions referred to in item (b) above are the Board's decisions in Master Insulation Company Limited, [1980] OLRB Rep. Feb. 242; Master Insulation Company Limited, [1980] OLRB Rep. May 744; and Kilgoran Hotels Limited carrying on business as Ye Olde Brunswick Tavern, [1975] OLRB Rep. May 431. With all due respect to counsel, the Board does not see a conflict between the April Waterproofing decision and the three decisions on which counsel is relying. The Board did not have to decide in any of those three cases whether certain persons whose eligibility to vote had been challenged were employed in the bargaining unit contrary to the provisions of the relevant collective agreement. It follows, therefore, that neither did the Board have to decide whether persons hired contrary to the provisions of a collective agreement were employees in the bargaining unit for purposes of determining voter eligibility. In the April Waterproofing decision, those were precisely the issues before the Board and the issues which it determined.

14. The Board considers the circumstances in the April Waterproofing decision to be quite analogous to those in the instant application and, therefore, having found that Angelo Lovalente was at work in the bargaining unit on the date of the application contrary to the provisions of the collective agreement to which the intervener and respondent are bound, the Board further finds that he was not an employee in the bargaining unit for purposes of section 7(1) of the Labour Relations A ct. Accordingly, there is only one person who is an employee for purposes of that section and, pursuant to section 6(1) of the Act, there is no unit of employees that is appropriate for collective bargaining.

15. This application, therefore, is dismissed. In view of this result, it is unnecessary for the Board to determine the other issues with respect to the appropriate bargaining unit which were before it.

16. The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.