[1986] OLRB Rep. September 1214
1269-86-R Great Lakes Fishermen and Allied Workers' Union, Applicant, v. F. Causarano Fishery Limited, Respondent
BEFORE: Patricia Hughes, Vice-Chairman, and Board Members D. A. MacDonald and D. A. Patterson.
DECISION OF THE BOARD; September 4, 1986
This is an application for certification in which the applicant has requested a pre-hearing vote.
The name of the respondent is amended to read "F. Causarano Fishery Limited".
In accordance with its usual practice, the Board, by order dated July 30, 1986, appointed Labour Relations Officers to examine the records of the applicant and of the respondent and to confer with the parties as to the description and composition of an appropriate bargaining unit, the description and composition of the voting constituency, the list of employees as of the terminal date for the purposes of any vote which might be directed and other matters relating to entitlement to and arrangements for such a vote. The officers so appointed met with the parties on August 14, 1986.
Pursuant to the direction of the Officers, the respondent has made written submissions with respect to the description and scope of the bargaining unit and the location and time of the pre-hearing vote. The applicant's position is that the pre-hearing vote should be held regardless of the respondent's submissions and the ballot box sealed.
The parties disagree on the description and scope of the bargaining unit. The applicant proposes the following unit: "all employees of the respondent engaged in fishing on Lake Erie, save and except those above the rank of Boat Captain". It further submits that the unit include only those employees working on the fishing boat. The respondent's proposed unit is: "all employees of the respondent employed in its commercial fishing operation at Wheatley, Ontario, save and except those above the rank of Boat Captain".
The Board does not decide the appropriate bargaining unit in a pre-hearing vote application, but assesses the appearance of support on the basis of the union's proposed unit. The Board therefore determines that the voting constituency will be "all employees of the respondent engaged in fishing on Lake Erie, save and except those above the rank of Boat Captain."
The applicant challenges the inclusion in the bargaining unit of John Causarano (Boat Captain) and Francesco Causarano (deckhand). The respondent's position is that both individuals should be included in the unit.
Regardless of the status of the disputed individuals, it appears to the Board, having examined the records of both the applicant and the respondent, that not less than thirty-five per cent of the employees of the respondent in the voting constituency were members of the applicant at the time the application was made.
If either John Causarano or Francesco Causarano attends to vote, he is to be allowed to vote and his ballot segregated.
The respondent's submissions with respect to the location and time of the vote are directed to the attention of the Registrar.
A blank Form 9 was filed with this application. In The Halton Roman Catholic Separate School Board, [1986] OLRB Rep. July 962, the Board was required to determine whether a Form 9 prepared for one application could be transferred to a subsequently filed application. In holding that the Rules require a fresh Form 9, the Board referred to Northridge Plastics Limited, [1986] OLRB Rep. July 1012 in which the Board stated that "[n]either the absence of a From [sic] 9 declaration nor the presence of a defective one can diminish either the character of cards as records or the appearance of membership they create". The Board does not require a completed Form 9 in Order to determine whether a pre-representation vote should be held. However, the Board indicated that the ballot box should be sealed "unless and until an apparently proper Form 9 declaration is filed on consent of the parties or with leave of the Board". We repeat and adapt the comment of the Board in The Halton Roman Catholic School Board, supra, that the blank Form 9 does riot prevent our acting on the appearance of the membership evidence to direct a pre-hearing vote, 'however fatal that omission may be if it remains unremedied when this application comes on for “hearing".
This application is one of several made by the applicant with respect to respondents engaged in fishing in the same general geographical location as the respondent herein. It may therefore be appropriate to comment here on the role of the Board in pre-hearing vote appli~ations. A pre-hearing representation vote is intended to expedite the certification process. To that ~nd, the Board will normally direct that a vote be taken to determine the level of the union's support prior to resolving any disputes between the parties where there is an appearance of sufficient union support in accordance with section 9(2) of the Labour Relations Act: see The Board of Education for the City of North York, [1984] OLRB Rep. July 989. In ordering a pre-hearing vote, the Board will not reach a decision on any matters in dispute and, indeed, if it is of the view that certain matters must be resolved, because "they are so complex that there is no reasonable utility in 9onducting a vote before resolving those concerns or issues", it has the discretion not to order a pre-hearing vote: St. Clair College of Applied Arts and Technology, [1984] OLRB Rep Dec. 1776. However, some issues may affect the applicant's entitlement to a pre-hearing vote and where these rise, the Board may determine that a pre-hearing vote is appropriate, but order that the ballot box be sealed: St. Clair College of Applied Arts and Technology, supra and Noranda Metal Industries Limited, [1985] OLRB Rep. Sept. 1397. No such issues arise in this application. Nevertheless, because of the nature of the objections made by respondents to other of the applications referred to herein, and because of the potentially prejudicial effect of revealing the outcome of some votes and not others, the Board directs that the ballot box in this application, as in the others, be sealed and not opened until further order of the Board.
The Board hereby directs the taking of a pre-hearing representation vote. All employees of the respondent in the voting constituency on August 8, 1986, who have not voluntarily terminated their employment or who have not been discharged for cause between August 8, 1986 and the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether they wish to be represented by the applicant in their relations with the respondent.
This matter is referred to the Registrar.