Canadian Brotherhood of Railway, Transport & General Workers v. Northridge Plastics Limited
Citation: [1986] OLRB Rep. July 1012 File No.: 0691-86-R Applicant: Canadian Brotherhood of Railway, Transport & General Workers Respondent: Northridge Plastics Limited
Before: Owen V. Gray, Vice-Chairman, and Board Members I. M. Stamp and R. Wilson.
Decision of the Board: July 8, 1986
Reasons for Decision
1This is an application for certification in which the applicant has requested that a pre-hearing vote be taken. By order dated June 13, 1986, the Board (differently constituted) authorized a Labour Relations Officer to confer with the parties as to their positions on the description and composition of an appropriate bargaining unit and a voting constituency for the purposes of this application, to examine the records of the applicant and of the respondent for the purpose of obtaining the information required by the Board under subsection 2 of section 9 of the Labour Relations Act ("the Act") and to confer with the parties with respect to a voter's list and vote arrangements for the purpose of any vote that might be directed by the Board and to report to the Board. Having now received the report of the Labour Relations Officer on her meeting of June 25, 1986 with representatives of the parties, we must now make the determinations and exercise the discretion contemplated by subsection 9(2) of the Act, which provides:
9(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.
2The applicant has filed 21 combination applications for membership and receipt cards, along with a Form 9 declaration which refers to documentary evidence of membership submitted on behalf of 20 persons. The opening words of the form, as completed by the applicant, read:
I, Dave Tilley, the Representative of the applicant herein, declare that, to the best of my knowledge, information and belief:
The signature line at the foot of the declaration is completed in the following manner:
"Cyril Hoadley"
(signature)
Cyril Hoadley
For: D.A. Tilley, Representative
3Before any effect will be given to it, a Form 9 declaration must be signed by the declarant named in it. A declaration in the form tendered by the applicant does not satisfy the requirement of Rule 6 of the Board's rules of procedure, which provides:
- The applicant shall, not later than the second day after the terminal date for the application, file a declaration concerning membership documents in Form 9.
Rule 82(2) empowers the Board to enlarge the time prescribed for filing a Form 9 declaration. In applications other than those in which a pre-hearing vote has been requested, the Board has generally permitted filing of the Form 9 declaration at any time up to and including the hearing of the application: The Intelligencer, [1976] OLRB Rep. Mar. 120, Wiltshire Catering Division of J. V. Wiltshire Ltd., [1975] OLRB Rep. Dec. 916; Westgate Nursing Home Inc., [1981] OLRB Rep. Apr. 503. When the application reaches the point at which the Board must determine whether it is "satisfied" that a particular percentage of employees in the appropriate bargaining unit were members of the applicant trade union at a particular time, the Board will not act on membership evidence which is unsupported by a properly completed Form 9 declaration. In an application of this sort, that question arises after a pre-hearing representation vote is conducted, as appears from subsection 9(4) of the Act:
9(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 7(2).
4The question we must address at this stage is not whether we are "satisfied" that the applicant enjoys a particular level of membership support, but only whether it "appears" to us that there is membership support for purposes of subsection 9(2) of the Act sufficient to permit taking the administrative step of conducting a pre-hearing representation vote. The test in subsection 9(2) is whether the requisite appearance emerges from "an examination of the records of the trade union and the records of the employer..." Combination application for membership and receipt cards are "records of the trade union." Neither the absence of a Form 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. Accordingly, subsection 9(2) does not appear to require that the Board examine or even have before it a Form 9 declaration at the time it determines whether to direct a pre-hearing representation vote. Of course, if no Form 9 declaration is filed or accepted for filing before the Board makes its determination under subsection 9(4), or if the Board then finds that the Form 9 declaration filed by the applicant is unreliable, the application will be dismissed at that point, and that is so even if a majority of votes were cast in favour of the applicant in the pre-hearing representation vote: W. &. H. Voortman Limited, [1975] OLRB Rep. Aug. 605. Thus, while the Board can and should direct a pre-hearing representation vote in an otherwise appropriate case when a Form 9 declaration has not yet been filed or, if filed, is obviously defective, it would be prudent in such circumstances for the Board to direct that the ballot box be sealed unless and until an apparently proper Form 9 declaration is filed on consent of the parties or with leave of the Board.
5Accordingly, it appears to the Board on an examination of the records of the applicant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent in the voting constituency hereinafter described were members of the applicant at the time the application was made.
6The Board directs that a pre-hearing representation vote be taken of the employees of the respondent in the following voting constituency:
All employees of the respondent in the Municipality of Gosfield North, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff, students employed during the school vacation period and persons employed for not more than