Ontario Labour Relations Board
[1982] OLRB Rep. April 483
2339-82-R Lumber and Sawmill Workers' Union, Local 2995 of the United Brotherhood of Carpenters and Joiners of America, Applicant, v. BioShell Inc., Respondent, v. Canadian Paperworkers Union, Intervener, v. Group of Employees, Objectors
BEFORE: Pamela C. Picher, Chairman and Board Members W. H. Wightman and Stewart Cooke.
DECISION OF THE BOARD; April 27, 1983
This is an application for certification. Both the applicant and intervener have applied to be certified for a group of employees who are not presently represented by a trade union.
By a decision dated March 21, 1983 the Board ordered that a representation vote be taken among the employees in the bargaining unit to determine whether the applicant or the intervener union should be certified as the exclusive bargaining agent.
No representations were made at the hearing concerning the options that should be made available to the employees on the voting ballot. The parties did not address the issue of whether the ballot should provide employees with a choice between the two competing unions only or whether it should include as well a no union choice. In the absence of representations, the Board directed that the ballot include a no union option in addition to a choice between the two competing unions.
Following the issuance of the Board's decision the applicant union requested that the Board reconsider its decision and direct that the employees be given a choice between the two competing unions only, thereby eliminating the no union option from the ballot. The Board is in receipt of representations from the intervener union endorsing the applicant's request for reconsideration; counsel for the respondent company submits that the Board should maintain the no union option.
A review of the jurisprudence reveals that the Board has not taken a single approach to the structure of the ballot when directing representation votes in non-displacement applications for certification where two applications have been consolidated and processed together.
In Wholesale Homes Ltd., [1971] OLRB Rep. Dec. 818 the Board directed that the voters be given a choice between no union and the two competing unions. In that case the applications for certification both requested pre-hearing votes. If the applicant's application had not been consolidated with the intervener's application and had been processed on its own, the employees would have been given a no union choice in the pre-hearing representation vote. In addressing the question of the appropriate structure of the ballot, the Board stated that the voters should not be deprived of the no union choice they would otherwise have had simply because the Board had consolidated the two applications for certification. At pp. 820—821 the Board said,
If the Board had postponed the Labourers' application pursuant to the provisions of section 92(3)(b) until after the Carpenters' vote was conducted, the ballot on the carpenters' vote would have offered the employees an opportunity to indicate that they did not wish to be represented by the Carpenters. That opportunity should therefore not have been denied the employees merely because the two applications were consolidated by the Board's decision of October 13, 1971.
... Where an opportunity is not provided employees to participate as parties and where, as in this case, two unions have applied to represent employees who are not currently represented by any trade union, the Board should formulate the ballot in order to offer the voters an opportunity to express their wishes with respect to the question whether they wish no trade union to represent them.
In H.D. Lee Company of Canada Limited, [1974] OLRB Rep. Nov. 812 the Board, on somewhat different facts, followed the approach it had taken in Wholesale Homes Ltd., supra. The applicant had membership support of more than 65 per cent of the employees in the bargaining unit. The intervener had membership support of not less than 35 per cent. In these circumstances and relying on its decision in Wholesale Homes Ltd., the Board included a no union option on the ballot in the ensuing representation vote.
A similar situation arose in Medi Park Lodges Inc., [1977] OLRB Rep. Oct. 635. The applicant union had more than 55 per cent membership support from among the employees in the bargaining unit. The intervener union which had applied by way of pre-hearing vote had less than 45 per cent but not less than 35 per cent support. The Board reviewed the membership cards filed on behalf of each union and noted that a substantial number of employees had signed cards in both unions. The Board included a no union option in the resulting representation vote.
The Board has not always directed that the employees be given a no union option in a representation vote ordered in a non-displacement application for certification which has been processed with a second application. In both TR.S. Food Services Limited, [19761 OLRB Rep. Apr. 154 and, coincidentally, TR.S. Food Services Limited, [1980] OLRB Rep. Mar. 360 the Board directed that in the representation vote the employees should be given a choice between the two unions only; a no union option, therefore, was not included on the ballot. In contrast to the cases noted above, both the applicant and intervener in each of these two cases had membership support in excess of 55 per cent, a possibility which obviously results from some overlap in the membership evidence. Some employees had signed membership cards in both unions.
The present situation before the Board is parallel to the circumstances in the two TR.S. Food Services cases. Both the applicant and intervener union submitted membership evidence in excess of 55 per cent. In Wholesale Homes, supra, the Board noted that if the applicant's application for certification had been processed by itself, the employees would have been entitled to a no union option in the representation vote. The Board stated that in such circumstances it did not feel that the employees should be deprived of the no union option simply because the Board, in the due exercise of its discretion, had processed both applications together.
In contrast to the circumstances in Wholesale Homes, however, it cannot be said in the instant situation that if the applicant's application had been processed on its own, the employees would have been entitled to a vote with a no union option. If the Board had not consolidated the two applications for certification and the applicant's application had been considered on its own, the employees would not have had a vote; the membership support for the applicant in excess of 55 per cent would have, in the circumstances of this case, enabled it to be certified outright, without a representation vote.
To follow the two TR.S. Food Services decisions and conclude in the instant situation that the representation vote should be a vote between the two unions alone would not be inconsistent with the Board's reasoning in Wholesale Homes even though the outcome would be different. The employees would not be deprived of a choice they would have had if it had not been for the intervention application. In the instant situation the employees would not even have been entitled to a representation vote, quite apart from a no union option, if the applicant's application had been processed alone. Moreover, the objecting employees did not appear at the Board's hearing to speak to their statement of desire so the employees would not have become entitled to a vote and a no union option through the petition.
Eliminating the no union option in the circumstances before us responds more directly to the expressed views of the employees. When two unions come before the Board with membership evidence in excess of 55 per cent such that each, on its own, has a level of membership support that would normally enable it to be certified outright, the contest is properly viewed as a contest between the unions. The unresolved question is not whether the employees want a union but rather which union they want.
The existence of overlapping membership support, where some employees have signed membership cards in both unions does not, in the Board's view, run counter to the conclusion that the outstanding question is which union the employees want. In an ordinary application for certification the Board does not consider whether a person has signed a membership card in another union. The Board assesses how many employees have signed membership cards in the union whose application is under consideration. Evidence that the person also belongs to another union has never been viewed by the Board as a factor casting doubt on the reliability of the membership cards submitted to the Board to support the application under review.
Similarly, in the instant circumstances, the Board is satisfied that the overlapping membership evidence between, the applicant and the intervener does not raise a doubt about the reliability of the membership cards as evidence of the employees' desire for representation by a trade union. It may simply raise a question as to which union they want as their bargaining agent.
16 The situation of overlapping membership cards should be distinguished from a numerically relevant and voluntary petition. When an employee voluntarily signs a statement of desire against an application for certification after he has previously signed a membership card in the union, he has at one point shown the desire to be represented by a union and shortly thereafter displayed the opposite desire. The change of heart casts some doubt on the reliability of the membership card as an expression of the true wishes of the employee. To resolve the doubt, if the petition is numerically relevant, the Board orders a representation vote. The doubt that is created by an employee voluntarily signing a petition against the union subsequent to signing a membership card in the union is whether the employee wants to be represented by the applicant union or would rather have no union. In the resulting representation vote, therefore, the employee is given the choice between the union and no union.
On the other hand, when an employee signs a membership card in both the applicant and intervener unions, the doubt that is created is a doubt as to which union the employee wants, not a doubt about whether he wants to be represented by a trade union. That doubt may be resolved by a representation vote giving employees a choice between the two unions only. To include a no union option would cloud the real issue remaining in dispute.
The discretion provided the Board in section 103(6)(a) of the Act indicates that the Legislature anticipated that there would be occasions when the Board would consider it appropriate in a representation vote to provide employees with a choice between two unions only. Section 103(6) reads as follows:
103.—(6) Where in the taking of a representation vote, the Board determines that the employees are to be given a choice between two or more trade unions,
(a) the Board may include on a ballot a choice indicating that an employee does not wish to be represented by a trade union; and
(b) the Board, when it decides to hold such additional representation votes as may be necessary, may eliminate from the choice on the ballot the choice from the previous ballot that has obtained the lowest number of votes cast.
[emphasis added]
19 Relying on the considerations set out above the Board draws the following conclusion: When a non-displacement application for certification making no request for a pre-hearing vote is filed with the Board and the Board, pursuant to its discretion in section 103(3)(a), treats a subsequently filed application for certification as having been made on the date of the making of the original application, thereby processing them together, and both unions have membership support in excess of 55 per cent, the representation vote ordered by the Board will normally provide the employees with a choice between the two unions only. Where, however, objecting employees establish a numerically relevant and voluntary petition, the Board will normally include a no union option in the representation vote since the employees would have been presented with that option if the union's application had been processed on its own. Moreover, in a given situation, there may be additional factors which do not exist in the instant matter, such as charges against union membership evidence, which might, depending on the circumstances, cause the Board to include a no union option notwithstanding membership cards in excess of 55 per cent.
In the instant application, however, there were no charges against either union's membership evidence. Moreover, although a statement of desire was filed with the Board no objecting employee appeared at the hearing to give evidence in support of the petition. Accordingly, the Board, following its normal practice, gave the petition no weight. The Board, therefore, has before it clear membership evidence from both the applicant and the intervener of more than 55 per cent of the employees in the bargaining unit.
For the reasons set out above, the Board, in the exercise of its discretion under section 106(1) of the Act amends its decision dated March 21, 1983 and directs that the voters be asked to indicate whether they wish to be represented by the applicant or the intervener in their employment relations with the respondent.
The matter is referred to the Registrar.