[1985] OLRB Rep. July 1180
3477-84-R Labourers International Union of North America, Local 506, Applicant, v. The Board of Education for the City of Toronto, Respondent, v. Operative Plasterers' and Cement Masons' International Association of United States and Canada, Local 598, Intervener
BEFORE: Harry Freedman, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
APPEARANCES: Chris G. Paliare, Tony Neil and Michael Michalovic for the applicant; Brent Dykeman, Nikki Dimson and Ron Schriber for the respondent; John Marchildon and Giovanni Balanzin for the intervener.
DECISION OF THE BOARD; June 18, 1985
1The Board, by decision dated April 18, 1985, directed the taking of a pre-hearing vote, and ordered that the ballot box be sealed in view of the submissions filed by the applicant and intervener.
2The hearing in this matter was convened to deal with all the issues in dispute between the parties. Counsel for the respondent advised the Board that the respondent withdrew its objections to the application based on the applicant's undertaking relating to the pattern of bargaining between the respondent and the Building Trades Council that is set out in the applicant's letter to counsel for the respondent dated April 16, 1985, a copy of which was filed with the Board by counsel for the respondent by letter dated April 30, 1985.
3The Board then received the intervener's submissions with respect to the intervener's request to dismiss the application on the ground that the applicant should have been barred from making the application. The respondent did not make any submissions to the Board on that issue and the Board did not find it necessary to call on counsel for the applicant. The Board, after a brief recess, delivered the following oral ruling:
ORAL RULING
The intervener submits that the Board should exercise its discretion under section 103(2)(i) of the Labour Relations Act and refuse to entertain this application for certification because the Board dismissed an earlier application for certification filed by the applicant.
Both this application for certification and the earlier application are attempts to displace the intervener as the bargaining agent for the employees in the bargaining unit for which the intervener holds bargaining rights.
The first application for certification was dismissed by a decision of the Board (differently constituted) dated March 26, 1985, by reason of the applicant's failure to ifie a declaration concerning membership documents in Form 9. (See Board File No. 3260-84-R.) The Board did not direct a pre-hearing vote in that proceeding.
The Board's exercise of discretion to refuse to entertain a subsequent application has generally followed the principles set out in Patchoque Plymouth Hawkesbury Mills, a division of Amoco Canada Petroleum Company Limited, [1972] OLRB Rep. July 747 at page 749:
"The Board has on previous occasions imposed a bar of six months duration of an unsuccessful application for certification by a trade union. The effect of this bar is that the Board will not entertain a further application for certification with respect to any of the employees of a respondent affected by the unsuccessful application for certification for the stated period of six months.
In almost every instance where the Board has imposed such a bar, a representation vote has been directed and conducted even though the ballots may not have been counted, see, for example, The Stanley Steel Company Limited case, OLRB Rep. February 1972, p. 181. Where the Board has directed a representation vote and a trade union requests leave to withdraw its application for certification before the representation vote is conducted, the Board has in the past dismissed the application for certification and has not imposed a bar to further applications but has drawn the attention of the parties to the principle enunciated in the Mathias-Ouellette case, 56 CLLC 18,026; C.L.C. 76-485. This principle places the burden on the applicant of showing why the Board should entertain a subsequent application for certification by the same trade union with respect to any of the employees affected by the earlier unsuccessful application for certification. A third example of the type of situation where the Board has imposed a bar is to be found in the J. W. Crooks Company case, OLRB Rep. February 1972, p. 126, where a trade union made four unsuccessful applications for the same unit of employees in a period of a little more than three months."
The Board in the Ontario Hospital Association (Blue Cross) case, [1981] OLRB Rep. April 468 indicated that the Board would ordinarily impose a bar or refuse to entertain a subsequent application where the first representation application is dismissed in situations where there is an incumbent bargaining agent except in special circumstances. Those special circumstances were discussed in the Ontario Hospital Association (Blue Cross) case at 481:
"Finally, the cases reveal that where special circumstances cause the dismissal of an initial application the Board may be willing to entertain an immediate second application. These cases can also be seen as an attempt by the Board to balance employees wishes against stability in collective bargaining. Where an initial application is dismissed because of 'a technical irregularity', it has been the Board's view that a second application ought to be entertained to determine effectively the real representation issue before it. Initial cases so dismissed are usually dispatched quickly and cause little adverse impact on any ongoing bargaining by the incumbent. However, just what constitutes a technical irregularity is not easily defined. The filing of 'stale-dated' cards by mistake even when 'fresh' cards pre-existed the first application has been held not to raise a special circumstance avoiding the application of section 92(2)(i) [now 103(2)(i)]. See Windsor Lumber Co. Ltd., supra. On the other hand, the dismissal of a first application because of the impact of section 92(2)(a) on the membership support of an applicant forced to accept the application date of a competing but earlier application has been held not to prevent a second application. It was thought that any other result would be 'unfair and unduly technical'. See Du Pont of Canada Limited, [1967] OLRB Rep. Nov. 737. The Board has also allowed a second termination application where a first application was dismissed because an applicant did not know enough to call available evidence regarding the circulation of a petition or because a principal witness was on vacation out of the country and the necessity of his attendance was not appreciated. See also Soo Dairies Limited, [1971] ORLB Rep. July 439 and Calvin W. Golbeck, [1978] OLRB Rep. June 543. However, the cases also make it clear that where there is an ongoing bargaining relationship an application need not result in an actual representation vote to cause the Board to refuse to entertain a second application under section 92(2)(i). For example, an application for certification dismissed because the applicant could not establish itself as a trade union within the meaning of the Act has provided a basis to the invocation of section 92(2)(i). See Filey-Hall Paper Box Co. Ltd., supra. A similar result has followed where a certification application was dismissed at a hearing because of clearly insufficient membership evidence support. See Trinidad Leaseholds (Canada) Ltd., supra. The same end can befall a second termination application where the first is dismissed because the Board is not satisfied that at least 45% of the employees in the bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the incumbent trade union. See Seven-Up (Ontario) Limited, [1971] OLRB Rep. Dec. 791; Continental Can Company of Canada Limited, [1964] OLRB Rep. Dec. 459 (the second application dismissed June 25, 1964)."
See also Browning-Ferris Industries Ltd., [1982] OLRB Rep. Sept. 1253.
In our view, the failure to file a declaration concerning membership documents in Form 9 is clearly a technical defect which was fatal to the first application. There has been no assessment of the wishes of the employees in this case in relation to their desire to be represented by the applicant or the intervener in collective bargaining. Therefore, having regard to the reason for dismissing the applicant's first application for certification and the Board's concern about the balancing of competing interests discussed in the cases referred to, the intervener's motion to dismiss this application is dismissed.
[Balance of decision omitted: Editor]