Ontario Labour Relations Board
[1983] OLRB Rep. November 1936
0711-81-R; 0759-81-R United Brotherhood of Carpenters and Joiners of America - Local 1190, Applicant, v. Two Star Construction Ltd., Respondent, v. Labourers' International Union of North America, Local 183, Intervener; Labourers' International Union of North America, Local 183, Applicant, v. Two Star Construction Ltd., Respondent, v. United Brotherhood of Carpenters and Joiners of America, Local 1190, Intervener
BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: M. Mitchell and C. De Toni for Labourers' International Union of North America, Local 183; D. Wray and D. McKee for United Brotherhood of Carpenters and Joiners of America, Local 1190; no one appearing for the respondent.
Decision of the Board; November 1, 1983
1In a letter datej October 25, 1983, the United Brotherhood of Carpenters and Joiners of America, Local 1190 ("Local 1190") informed the Board that it was withdrawing from these applications and that the Board might deal with the application for certification by the Labourers' International Union of North America, Local 183 ("Local 183") as it relates to the respondent. jLocal 1190 added that it was its understanding that its application for certification and its application for certification by intervention would be dismissed by the Board.
2Local 1190 appeared at the hearing and Local 183, after considering its position, informed the Board that it was neither making representations with respect to continuing with regard to its allegations of improper or irregular conduct nor asking for costs. Local 183 further informed the Board that it was content to have Local 1190 withdraw and to proceed. The Board did not hear further evidence and at the hearing dismissed the application and the intervention by Local 1190.
3In making submissions, Local 183 argued that it was entitled to be certified. In a decision dated September 16, 1981. the Board directed a representation vote. In that decision the Board recited that more than fifty-five per cent of the employees of the respondent were members of Local 183 and Local 1190. The representation vote was conducted by the Board on September 29,1981. The ballot box was sealed pending a further direction by the Board. Subsequently, Local 183, even though the Board had not completed hearing its allegations of improper or irregular conduct, withdrew its request that the ballot box be sealed. Local 1190 withdrew its allegations of improper or irregular conduct. In a decision dated April 26, 1983, the Board directed the Registrar to cause the unsegregated ballots to be counted.
4The unsegregated ballots were counted on May 2, 1983. Seventeen ballots were cast. One ballot was spoiled, twelve ballots were cast in favour of Local 1190, three ballots were cast in favour of Local 183 and one ballot was segregated and not counted. The Board continued to hear evidence with respect to Local 183's allegations of improper or irregular conduct until the scheduled hearing on October 26, 1983.
5Local 183 argued that the result of the vote was irrelevant and that since Local 1190 had withdrawn from these proceedings and had withdrawn its membership evidence, Local 183 should be entitled to a certificate. Local 183 further argued that any other result would reward the improper or irregular collusive behaviour of the respondent and Local 1190.
6Local 183 did not cite any authority for its claim to certification. The Board directed a representation vote pursuant to section 7(2) of the Labour Relations Act and upon the taking of the representation vote not more than fifty per cent of the ballots cast were cast in favour of Local 183. The representation vote was directed upon the apparent membership position of Local 183 and Local 1190. The argument of Local 183 that to deny it a certificate would be to reward the improper or irregular collusive behaviour of the respondent and Local 1190 is not persuasive. There were no allegations concerning the conduct of the vote and the Board did not hear all of the evidence regarding the allegations of Local 183 with respect to improper or irregular conduct. In these circumstances, the Board is not prepared to make any finding regarding the allegations of Local 183 with respect to improper or irregular conduct.
7The application and intervention of Local 183 are hereby dismissed. The Board has the power under section 103(2)(i) of the Act to bar an unsuccessful trade union for any period not exceeding ten months from the date of the dismissal of the unsuccessful application. Following a representation vote in a certification proceeding the Board normally imposes a bar of six months on an unsuccessful trade union. In the circumstances of these applications, however, and bearing in mind the periods of time which have elapsed between the direction of the representation vote, the period during which the ballot box was sealed and the time which has elapsed since the counting of the ballots; the Board is of the view that this is not an appropriate occasion on which to impose a bar.