International Woodworkers of America v. Domtar Inc., 1987 CanLII 3079

[1987] OLRB Rep. September 1132

1252-87-R; 1457-87-R International Woodworkers of America, Applicant v. Domtar Inc., Domtar Forest Products, Woodlands Division, Respondent v. Lum­ber and Sawmill Workers Union, Local 2693 of the United Brotherhood of Car­penters and Joiners of America, Intervener #1 v. Canadian Paperworkers Union, Intervener #2

BEFORE: Judith McCormack, Vice-Chair, and Board Members J. F. Davidson and C. A. Ballentine.

DECISION OF THE BOARD; September 4, 1987

1. This is an application for certification by the International Woodworkers of America ("IWA") in which the Canadian Paperworkers Union ("CPU") has filed a subsequent application for certification by way of intervention. Both the IWA and the CPU have requested that pre-hear­ing representation votes be taken of employees in the respondent's Woodlands Division, Red Rock.

2. The Board addressed its practice in these circumstances in Bio Shell Inc. [1983] OLRB Rep. Mar. 318 as follows:

3. Section 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:

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of a trade union as bargaining agent for employees in a bargaining unit or for a declaration that the trade union no longer represents the employees in a bargaining unit and a final decision of the application has not been issued by the Board at the time a subsequent application for such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

8. When 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.

Where the Board exercises its discretion in this manner, and pre-hearing representation votes have been requested in both applications, membership support will be assessed under section 9(2) and (4) as of the date of the original application (Koehring Canada, [1986] OLRB Rep. Nov. 1530).

3. In this case, however, counsel for the CPU urges us to use the actual date of its subse­quent application to assess the level of membership support under section 9(2). If the date of the original application is used, it appears that the CPU will not have membership support of at least 35% of employees in the voting constituency, a requirement under section 9(2) for a pre-hearing representation vote. In support of this position, counsel for the CPU alleges that the IWA and the incumbent Lumber and Sawmill Workers Union ("LSWU") intend to merge shortly. As a result, counsel argues that the dismissal of the CPU's application because it does not appear to have the requisite membership support will render the subsequent two-way vote meaningless. Regardless of which of the IWA or the LSWU wins the vote, the employees involved will eventually be repre­sented by the same union. In this "friendly raid" situation, the CPU argues that employees are not being given a meaningful choice in selecting a bargaining agent.

4. Alternatively, CPU asks leave of the Board to withdraw its request for a pre-hearing vote with the result that its application will be treated as a regular application. Counsel then requests that the Board decline to order a vote in the IWA's application, thereby converting it to a regular application as well. The result would be that the IWA and the CPU would be required to have membership support of 45% before the Board would direct a vote, but that support would be assessed as of the terminal date rather than the application date. Counsel for the CPU cites Rio Shell, supra, in support of this request.

5. We are not persuaded by either of the CPU's arguments. The Board recently dealt with a similar situation in the Board of Education for the City of North York, [1987] OLRB Rep. Jan. 116, where an application for certification requesting a pre-hearing vote was filed, followed by an application for certification by way of intervention in which a pre-hearing vote was also requested. The Board directed that the subsequent application be treated as having been made on the appli­cation date of the original application and found that there was the appearance of membership sup­port for each applicant of not less than 35% of employees in the voting constituency. A vote was therefore directed pursuant to section 9(2). After the vote was held, the Board made its assessment under section 9(4) and found that in fact the subsequent applicant did not have membership sup­port of at least 35% of employees in the bargaining unit on the deemed date of application. The subsequent applicant then came before the Board to request that the Board use the actual date of its application as the time for assessing membership support under section 9(4), rather than the deemed date flowing from section 103(3)(a). In rejecting this argument, the Board made the fol­lowing observations which are pertinent to this case:

In our view, a reading of section 103(3) confirms its remedial thrust. It gives a tardy applicant something that it would not otherwise have: a right to participate, as an applicant, in another union's certification proceeding rather than having to wait until the earlier application has been disposed of. But the right of a latecomer to participate may carry with it certain disabilities -namely that its application will be treated as having been made on the date of the making of the original application. That is what happened here, and it is evident that the first Board panel used June 13, 1984, as the date for assessing the unions' appearances support, and directed a vote on that basis. We do not think that it would be consistent with the earlier Board decision or the interpretation of section 9(4) if the phrase "the time the application was made" were now given a different meaning. If this creates something of an anomaly or leads to a result based upon a fiction, it is only because of the way in which section 103 recognizes but also limits the rights of latecomers who file "intervener" applications for certification.

[emphasis original]

6. Moreover, while we acknowledge the concerns of the CPU with respect to the antici­pated merger between the IWA and the LSWU, there is no allegation that the merger has actually occurred. It is also far from clear from the submissions made what procedures will be adopted in this regard, when the merger is expected to occur, and what form the merger will take. Until events take place establishing that the IWA and the LSWU are no longer separate entities, it is premature to make a determination based on this assumption. In this regard, we adopt the Board's views in Abitibi Price Inc.. unreported, Board File 1060-87-R, August 10,1987.

7. We note as well that section 103(3) provides the Board with three options in this situa­tion: we can treat the subsequent application as having been made on the date of the original appli­cation, we can postpone consideration of the subsequent application or we can refuse to entertain it. Here, the CPU asks us to consider its application and the original application simultaneously, but not treat the former as having been made on the date of the original application. We are not convinced that this course of action is authorized by section 103(3). However, if we have the juris­diction to grant the CPU's request, we are not prepared to do so for the reasons and in the circum­stances described above.

8. Turning to the CPU's second argument, while we might be prepared to consider allow­ing the CPU to withdraw its request for a pre-hearing representation vote, we do not read Bio Shell, supra, as authority to handle the IWA's application in the manner suggested. In that case, the Board dealt with an application for certification in which a pre-hearing vote was not requested, and a subsequent application where a pre-hearing vote was requested. To address the hybrid situa­tion which resulted, the Board denied the request for the pre-hearing vote on the second appli­cation so that both applications could be processed together as regular applications.

9. In the first place, we would be reluctant to apply the Bio Shell approach which was developed to address a hybrid situation in circumstances like those before us where no such hybrid situation exists. What counsel for the CPU suggests is that his client would be prepared to manu­facture a hybrid situation. However, if we permitted the CPU to withdraw its request for a pre­hearing vote, these circumstances would resemble more closely those addressed by the Board in Koehring Canada, supra, where the original applicant for certification had requested a pre-hearing vote and a subsequent applicant did not. While the Board did not have to decide the matter because the subsequent applicant in that case ultimately asked to amend its application to request a pre-hearing vote, the Board indicated it would have been more inclined to postpone consideration of the second application under section 103(3) than to deny the original applicant's request for a pre-hearing vote to eliminate the hybrid problem. The Board's inclination in that case makes con­siderable sense to us in this matter as well. The fact is that the CPU is the tardy applicant in this case which has brought itself before the Board by intervening in the IWA's proceedings. In these circumstances we are reluctant to allow the CPU to transform those proceedings in the manner suggested, particularly since the more onerous threshold of membership support on a regular application might cause the defeat of the original applicant in some cases.

10. We therefore determine pursuant to section 103(3) that the CPU's application will be treated as having been made on the date of the making of the IWA's application. It appears to us on an examination of the records of the IWA and the records of the respondent that not less than 35% of the employees of the respondent in the voting constituency hereinafter described were members of the IWA at the time the application was made. It also appears to us on an examination of the records of the CPU and the records of the respondent that less than 35% of the employees of the respondent in the voting constituency hereinafter described were members of the CPU at the time the application is deemed to have been made. As a result, the CPU's application is dis­missed.

11. Having regard to the agreement of the parties, 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 its Domtar Forest Products, Woodlands Division at Red Rock who are engaged in woods operations on the limits and on the worksites of the respondent.

For the purpose of clarity, the Board notes the parties' agreement that the employees in the voting constituency are the same persons as those in the bargaining unit currently described in the collec­tive agreement between the LSWU and the respondent.

12. All employees of the respondent in the voting constituency on August 20, 1987 who have not voluntarily terminated their employment or who have not been discharged for cause between August 20, 1987 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 International Woodworkers of Amer­ica or by the Lumber and Sawmill Workers Union in their employment relations with the respon­dent.

13. This matter is referred to the Registrar.