Ontario Labour Relations Board
[1983] OLRB Rep. March 318
2339-82-R Lumber and Sawmill Workers' Union, Local 2295 of the United Brotherhood of Carpenters and Joiners of America, Applicant, v. RioShell Inc., Respondent, v. Canadian Paperworkers Union, Intervener, v. Group of Employees, Objectors
BEFORE: Pamela C. Picher, Vice-Chairman, and Board Members W. H. Wightman and Stewart Cooke.
APPEARANCES: L. C. Arnold, P. Falzone and Marcel Lacroix for the applicant; W S. Cook, G. P. Metsala, G. Bellefeuille and Ross Pirrie for the respondent; David Watson and Andrew Foucault for the objectors.
DECISION OF THE BOARD; March 21, 1983
1This is an application for certification.
2There are two applications for certification before the Board: one filed by the applicant and one filed by the intervener, The Canadian Paperworkers Union.
3The Board is satisfied that both the applicant and the intervener are trade unions within the meaning of section l(l)(p) of the Labour Relations Act.
4Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Nellie Lake, Ontario save and except foremen, those above the rank of foreman, office and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
5At the hearing counsel for the applicant raised an objection relating to the membership evidence filed by the intervener.
6The applicant filed its application for certification on February 10, 1983. It did not request a pre-hearing vote. In the normal course, the Board fixed the terminal date for the application as February 24th. The terminal date is the date by which all evidence of membership and objection must be received by the Board. On February 24th, the C.P.U. filed an application for certification by way of intervention. In contrast to the applicant, the intervener requested a pre-hearing vote.
7Section 103(3) provides the Board with substantial discretion in dealing with an application for certification that is filed with the Board on behalf of employees in a bargaining unit subsequent to the filing of another application for certification relating to any of the same employees but prior to the Board issuing a final decision on the first application. Section 103(3) provides as follows:
103.-(3) Notwithstanding sections 5 and 57, where an application has been made for certification of a trade union as bargaining agent for employees in a bargaining unit ... and a final decision of the application has not been issued by the Board at the time a subsequent application for such certification ... is made with respect to any of the employees affected by the original application, the Board may,
(a) treat the subsequent application as having been made on the date of the making of the original application;
(b) postpone consideration of the subsequent application until a final decision has been issued on the original application and thereafter consider the subsequent application but subject to any final decision issued by the Board on the original application; or
(c) refuse to entertain the subsequent application.
8When a subsequent application is filed with the Board on or before the terminal date set for a previously filed application for certification, the Board, as in this case, regularly exercises the discretion set out in section 103(3)(a) and treats the subsequent application as having been made on the date of the making of the original application.
9Both the applicant and the intervener filed with the Board, as of the terminal date of February 24th, membership evidence on behalf of more than fifty-five percent of the employees in the bargaining unit on the applicant's application date. Counsel for the applicant, however, maintains that the only membership evidence that should be counted by the Board for the intervener is the membership evidence that it had obtained by the applicant's application date of February 10th. At that point the intervener had obtained membership evidence on behalf of less than thirty-five per cent of the employees in the bargaining unit.
10The objection of counsel for the applicant may be summarized by the following thought progression which counsel asks the Board to accept:
a. On the applicant's terminal date, the intervener filed an application for certification by way of intervention in which it requested the taking of a pre-hearing vote.
b. The Board, in the normal course and having regard to the provisions of section 103(3)(a), treated the intervener's application as having been made on the date of the applicant's application, that is, February 10th.
c. The intervener requested a pre-hearing vote. The provisions of section 9 of the Act, therefore, become relevant. Section 9 provides as follows:
- -(1) Upon an application for certification, the trade union may request that a pre-hearing representation vote be taken.
(2) Upon such a request being made, the Board may determine a voting constituency and, if it appears to the Board on an examination of the records of the trade union and the records of the employer that not less than 35 per cent of the employees in the voting constituency were members of the trade union at the time the application was made, the Board may direct that a representation vote be taken among the employees in the voting constituency.
(4) After a representation vote has been taken under subsection (2), the Board shall determine the unit of employees that is appropriate for collective bargaining and, if it is satisfied that not less than 35 per cent of the employees in such bargaining unit were members of the trade union at the time the application was made, the representation vote taken under subsection (2) has the same effect as a representation vote taken under subsection 792).
[emphasis added]
d. When the Board processes an application for certification which requests a pre-hearing vote, the Board, under section 9(2) of the Act, assesses the records of the union and employer to determine whether not less than thirty-five per cent of the employees in the voting constituency were members of the trade union at the time the application was made.
e. In the circumstances of this case, having regard to the exercise of the Board's discretion under section 103(3)(a) of the Act, the intervener's application has been deemed to have been made on February 10th, the date of the applicant's application for certification, rather than February 24th, the date of its own application.
f. Accordingly, counsel for the applicant argues, the Board must assess whether the intervener had membership evidence of not less than thirty-five per cent as of February 10th because that is the date upon which the intervener's application has been deemed to have been made rather than on February 24th, the actual date of its application for certification. The applicant's counsel maintains that since the intervener did not have thirty-five per cent membership support on February 10th, the intervener is not entitled to a vote at the same time as the applicant and its application for certification must stand down to be heard after the applicant's.
11The applicant's position is based on the assumption that when the Board entertains two applications for certification pursuant to its discretion under section 103(2)(a) of the Act, it will maintain a hybrid situation and simultaneously consider one as a regular application for certification if that is the way it was filed with the Board (the applicant's in this case) and the other as an application requesting a pre-hearing vote if it was filed as such (the intervener's in this case). To do so, however, would create an anomalous result in the assessment of the membership support required for a representation vote and in the timing of the determination of the bargaining vote and in the timing of the determination of the bargaining unit. In the hybrid situation, to become entitled to a representation vote, the applicant union, because it filed a regular application for certification, would require membership support from not less than forty-five per cent of the employees in the bargaining unit while the intervener, because it requested a pre-hearing vote, would need only thirty-five per cent support to become entitled to the same representation vote. Moreover, for the applicant, the vote would be a vote of the employees in a bargaining unit already determined by the Board to be appropriate. Pursuant to section 9(2), however, the vote for the intervener would be a vote of employees in a voting constituency with the bargaining unit determination to be made according to section 9(4) after the representation vote. In the Board's assessment, anomalies of this sort were not anticipated by the Legislature when it clothed the Board with its discretion under section 103(3)(a) of the Act. The Board cannot order a single representation vote that may be characterized for one union as a regular representation vote, to which certain procedures and sections of the Act apply, and for the other as a pre-hearing vote to which certain other procedures and sections of the Act apply.
12When an application for certification requesting a pre-hearing vote is filed with the Board by the terminal date fixed for a previously filed application for certification in respect of which no request for a pre-hearing vote has been made, the Board, if it exercises its discretion under section 103(3)(a) of the Act and hears the two applications together, will treat the subsequent application as a regular application for certification. The two applications will then proceed on the same footing and under the same sections of the Act.
13In the instant matter, therefore, the Board views both applications for certification as regular applications for certification rather than one as a regular application and the other as one requesting a pre-hearing vote. The relevant date for assessing the membership evidence filed by each union, therefore, is the terminal date of February 24th which was fixed following the Board's receipt of the applicant's application.
14The Board is satisfied on the basis of all the evidence before it that not less than forty-five per cent of the employees of the respondent in the bargaining unit, at the time the applications were or were deemed to have been made, were members of both the applicant and the intervener on February 24, 1983, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act. Accordingly, both the applicant and the intervener are entitled to participate in a representation vote.
15The Board orders, therefore, that a representation vote be taken forthwith among the employees in the bargaining unit. All employees of the respondent in the bargaining unit or the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.
16Voters will be asked to indicate whether they wish to be represented by the applicant or the intervener or no union in their employment relations with the respondent.
17The matter is referred to the Registrar.