National Automobile, Aerospace and Agricultural Implement Workers of Canada (CAW-Canada) v. Koehring Canada, A Unit of AMCA International Ltd.

2237-86-R; 2336-86-R National Automobile, Aerospace and Agricultural Implement Workers of Canada (CAW-Canada), Applicant, v. Koebring Canada, A Unit of AMCA International Ltd., Respondent, V. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO-CFL, Lodge #275, Intervener #1, v. International Association of Machinists and Aerospace Workers, Intervener #2; International Association of Machinists and Aerospace Workers, Applicant, v. Koehring Canada, A Unit of AMCA International Limited, Respondent

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.

DECISION OF THE BOARD; November 28, 1986

1. In Board File No. 2237-86-R, the applicant applied on November 4, 1986, for certification as exclusive bargaining agent for a unit of employees of the respondent presently represented in collective bargaining by intervener #1. In its application, the applicant in that file requested that a pre-hearing representation vote be taken. The terminal date fixed for that application was November 18, 1986.

2. On November 17, 1986, intervener #2 applied in Board File 2336-86-R for certification with respect to the same bargaining unit of employees of the respondent. It did not initially request in its application that a pre-hearing representation vote be taken. This latter application is a "subsequent application" within the meaning of subsection 103(3) of the Labour Relations Act ("the Act"), which provides:

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of a trade union as bargaining agent for employees in a bargaining unit or for a declaration that the trade union no longer represents the employees in a bargaining unit and a final decision of the application has not been issued by the Board at the time a subsequent application for such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 or for such a declaration 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.

3. When a subsequent certification application is filed on or before the terminal date fixed for the original certification application, and neither applicant requests a pre-hearing representation vote, the Board usually takes the approach described in paragraph (a) of subsection 103(3) and consolidates the processing and hearing of both applications, treating the subsequent application as though it were an application for certification by intervener under sections 10 and 11 of

the Board's Rules of Procedure. The same approach can be taken when both applications request that a pre-hearing vote be conducted. In both situations, each applicant's membership support is assessed with respect to persons employed in the appropriate unit as of the date the original application was filed, on the basis of written membership evidence filed by the terminal date fixed in the original application. When the applications are regular applications, membership support among those persons is assessed as of the date fixed under subsection 7(1) and clause 103(2)(j), which is usually the terminal date fixed in the original application. When the applications are "pre-hearing" applications, however, membership support must be assessed under subsections (2) and (4) of section 9 as of the date the original application was filed, and not the later terminal date. Simply put, cards signed after the application date do not count in a pre-hearing application, even if they have been filed by the terminal date. Because of this potentially critical timing difference, it is more likely in pre-hearing cases than in ordinary cases that a subsequent applicant might not want the Board to proceed under section 103(3)(a). The subsequent applicant's wishes are, of course, a relevant consideration in the exercise of the Board's discretion under subsection 103(3).

4. For reasons set out in Bio Shell Inc., [1983] OLRB Rep. Mar. 318, the Board would not exercise its discretion in the manner contemplated by paragraph (a) of subsection 103(3) to consolidate a proceeding in which there was to be a pre-hearing vote with one in which there was not. In Bio Shell, the original application was a regular application; the subsequent application, which had been filed before the terminal date in the original application, requested a pre-hearing vote. The Board exercised its discretion under subsection 9(2) not to direct a pre-hearing vote in the subsequent application, thereby converting it into a regular application, and consolidated the applications.

5. This case initially presented the reverse of the situation in Bio Shell: the original application requested a pre-hearing vote, while the subsequent application, as filed, did not. Had that remained so, we could have consolidated these proceedings only by denying the first applicant's request for a pre-hearing vote. Otherwise, we would have had to postpone consideration of the second application. While we would have been inclined to adopt the latter course, it became unnecessary to make that difficult choice. In response to the Board's request to it for submissions on these matters, intervener #2 asked to amend its application to request a pre-hearing representation vote and, further, asked that the Board exercise its discretion under subsection 103(3) in the manner contemplated in subparagraph (a) thereof. Both requests are hereby granted.

6. Having permitted the amendment of the subsequent application to include a request for a pre-hearing representation vote and exercised our discretion under 103(3) to treat the subsequent application as having been made on the date of the making of the original application, these two proceedings are hereby consolidated and shall hereafter continue under the style of cause in Board File 2237-86-R as though intervener #2 had made an intervener's application for certification therein. For reasons set out in the Board's decision in Starways Distributors, [19861 OLRB April 561, the employees affected by these proceedings are entitled to notice of the application for certification by intervener #2. The Registrar is directed to prepare a notice to employees of that application in Form 7, suitably modified, and to forward an appropriate number of copies thereof to the respondent for posting together with the notice of taking of vote with respect to the representation vote hereinafter directed.

7. 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 percent of the employees of the respondent in the voting constituency hereinafter described were members of the applicant at the time the application was made.

8. It also appears to the Board on an examination of the records of intervener #2 and the records of the respondent that not less than thirty-five percent of the employees of the respondent in the voting constituency hereinafter described were members of intervener #2 at the time the original application was made.

9. The parties agree that the appropriate voting constituency and bargaining unit in this matter is the unit of employees presently represented by intervener #1 in collective bargaining with the respondent. As that unit is described somewhat inelegantly in the existing collective agreement between intervener #1 and the respondent, the respondent and trade unions party to these applications agree that the unit represented by intervener #1 can be described as follows:

all employees of the respondent at Brantford, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff, field service representatives, field engineers, students employed during the school vacation period, and those employees covered by collective agreements between the respondent and the International Association of Machinists and Aerospace Workers.

For reasons set out in the Board's decision in Niagara South Board of Education, [1985] OLRB Rep. Jan. 90, the Board is disinclined to adopt exclusionary language such as "employees covered by collective agreements between the respondent and the International Association of Machinists and Aerospace Workers" in defining a voting constituency or bargaining unit. We prefer "employees in any bargaining unit for which the International Association of Machinists and Aerospace Workers held bargaining rights as of November 4, 1986."

10. In these circumstances, the 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 at Brantford, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff, field service representatives, field engineers, students employed during the school vacation period, and employees in any bargaining unit for which the International Association of Machinists and Aerospace Workers held bargaining rights as of November 4, 1986.

11. All employees of the respondent in the voting constituency on November 24, 1986, who have neither voluntarily terminated their employment nor been discharged for cause between that date 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, intervener #1 or intervener #2 in their employment relations with the respondent.

12. The matter is referred to the Registrar.