International Woodworkers of America v. Kirouac Contracting Ltd., 1987 CanLII 3100

Ontario Labour Relations Board

[1987] OLRB Rep. October 1262

1362-87-R International Woodworkers of America, Applicant v. Kirouac Contracting Ltd., 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 D. A. McDonald and J. Sarra.

DECISION OF THE BOARD; October 16, 1987

1This is an application for certification in which the applicant, the International Wood-workers of America ("IWA") has requested that a pre-hearing representation vote be taken. The Canadian Paperworkers Union ("CPU") filed a subsequent application for certification by way of intervention in these proceedings, also requesting a pre-hearing representation vote. The Lumber and Sawmill Workers Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America ("LSWU") has intervened on the basis that it is an incumbent union by virtue of a two-page document dated April 29, 1971.

2A dispute has arisen with respect to the status of the employees of the respondent. To understand that dispute, it is necessary to refer to other proceedings before the Board with respect to Great Lakes Forest Products Limited ("Great Lakes") (Board Files 1283-87-R and 1253-87-R). In those proceedings, the IWA applied for certification requesting a pre-hearing representation vote and the CPU filed a subsequent application to the same effect. The LSWU intervened on the basis that it was an incumbent union by virtue of a collective agreement dated March 1st, 1985. These parties were in dispute with respect to the description of the appropriate bargaining unit and the voting constituency. The collective agreement in that case provided as follows:

3.01 (a) The Company recognizes the Union as the sole collective bargaining agency for all of its employees who are engaged in woods operations on the limits, and on the work sites, of the Company. For purposes of this article, Company employees shall be all those employed in the job classifications set out in the wage schedule attached to and forming a part of this Agree­ment, including those who are employed on job classifications which may be established and become part of the attached wage schedule during the term of this Agreement.

3.01 (b) The employees of contractors engaged by the Company on the limits and work sites of the Company shall be considered employees within the terms of this Agreement; save and except the employees of contractors and/or the contractors who are engaged to perform occa­sional special services not commonly performed by employees covered by the terms of this agreement, employees of contractors where such contractors are engaged for the purpose of erecting structures and where such a contractor is bound by an Agreement with a union or unions affiliated with a central labour body covering such work.

3The CPU took the position that all employees of contractors as defined by Article 3.01 (b) were included within the bargaining unit and thus should be included in the voting constituen­cy. The IWA and the LSWU argued that the current bargaining unit in actuality did not include many employees of contractors. They asserted that the bargaining unit established by the respon­dent in that case and the LSWU over many years included only those employees of contractors working "from stump to roadside". As a result of that dispute, the Board directed a pre-hearing representation vote be taken of all employees falling within a voting constituency reflecting the bargaining unit set out in the collective agreement, but ordered that the votes of certain employees be segregated and the ballot box sealed to preserve the parties' positions. (Great Lakes Forest Products Limited, unreported, Board Files 1253-87-R and 1283-87-R, September 2, 1987.) In accordance with the Board's decision, the pre-hearing representation vote was taken and the ballot box sealed.

4In this case, it appears that the respondent is a contractor who works for Great Lakes Forest Products Limited. The employees involved are among those whose inclusion in the bargain­ing unit is in dispute in the Great Lakes case. Consistent with their positions in those proceedings, the CPU asserts here that the employees of the respondent should be included in the Great Lakes bargaining unit and as a result, the applications with respect to this respondent should be either postponed pending the outcome of that case or in the alternative, consolidated for hearing with that case, pursuant to section 103(3). The IWA and LSWU argue that the employees of the res­pondent in this matter are excluded from the bargaining unit in the Great Lakes case, that they are therefore not "affected" by the original application within the meaning of section 103(3) and that consequently the applications should be processed independently in the normal manner without reference to the Great Lakes proceedings.

5Section 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.

We note that the Board has already made a determination under section 103(3) with respect to the two applications filed in the Great Lakes case, that is, that the subsequent application would be consolidated with the original application and treated as having been made on the date of the origi­nal application. What is left to be determined is whether the two applications in this file should be consolidated with each other, and whether these proceedings as a whole should be consolidated with the Great Lakes proceedings.

6Since all these proceedings involve prehearing votes, Section 103(3) must be read in the context of section 9 which provides as follows:

9.-(1) Upon an application for certification, the trade union may request that a pre-hearing rep­resentation vote be taken.

(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.

(3) The Board may direct that the ballot box containing the ballots cast in a representation vote taken under subsection (2) shall be sealed and that the ballots shall not be counted until the par­ties have been given full opportunity to present their evidence and make their submissions.

(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 the representation vote taken under subsection 7(2).

The purpose of a prehearing vote is to provide a "quick vote" procedure, and as a result, it is crit­ical that the vote not be delayed by litigation. As the Board said in Emery Industries Limited, [1980] OLRB Rep. Mar. 316:

5. It is axiomatic that in labour relations matters "time is of the essence"; but this is especially the case in respect of representation votes. If the trade union's certification application, and its status as bargaining agent, are not resolved expeditiously (i.e., if we cannot engage in collective bargaining, or perform the other representational functions for which it was selected) there may be discontent amount its supporters and a possible erosion of that support. This might not only make the union's certification more difficult, but could also complicate its collective bargaining task. The purpose of the pre-hearing, or "quick vote" procedure is to facilitate a prompt resolu­tion of representation questions, by permitting the Board to test employee wishes as soon as possible following the application date. This avoids the potential prejudice which might arise if a representation vote had to await a decision following a formal certification hearing. Some delay is inevitable, but the pre-hearing vote procedure is a legislative attempt to remove some of the problems, and prejudice, associated with delay while, at the same time, ensuring that all of the parties will be given a full opportunity to make their submissions with respect to any matters in dispute.

To accommodate the need for expedition but also provide parties with the opportunity to have a hearing on contested issues which may arise, the scheme of section 9 contemplates the deferral of decisions on contentious matters until after the vote. Thus the Board is required only to strike a voting constituency and make an assessment with respect to whether an applicant has the appearance of membership support of not less than 35% before directing the vote. It is not until after the vote that the Board determines the appropriate bargaining unit and assesses the actual level of membership support. Where there are matters in dispute, the Board can seal the ballot box until the parties have had an opportunity to present their cases in this regard.

7This approach has been more fully developed in the Board's jurisprudence under sec­tion 9. While a wide variety of contested issues have arisen in cases where prehearing votes have been requested, the Board pointed out in The International Nickel Company of Canada, [1961] OLRB Rep. Dec. 324 that it is implicit in the use of the term "pre-hearing representation vote" that a vote be taken before a hearing is held. As a result, such disputes will be deferred until after the vote. To protect the parties' rights to have their differences adjudicated by the Board and still maintain the expedition which is integral to the pre-hearing vote process, the Board will structure the vote and segregate ballots to try and ensure that the vote will be meaningful in any event of a dispute. The Board has handled many kinds of disputes in this fashion, including questions relating to whether an applicant has trade union status, disputes with respect to employee status and voter eligibility, and a variety of problems associated with the composition of the bargaining unit.

8It is clear from the scheme of section 9 and the Board's jurisprudence that by directing the vote, the Board makes no assumptions about the ultimate disposition of the application. Thus, for example, should an applicant subsequently be found not to have actual membership support of at least 35%, the application will be dismissed, regardless of the fact that a vote has been held. Similarly, an applicant who subsequently fails to establish its status as a trade union will gain noth­ing from the pre-hearing vote. This scheme permits the vote to be taken despite the fact that a number of significant issues may be in dispute.

9In this case, however, the issue in dispute is the exercise of the Board's discretion under section 103(3), a matter normally determined prior to the taking of the representation vote. This is possible in part because the Board's decisions under this provision are usually uncontroversial. No guidelines are set out in the Act with respect to the exercise of the discretion under section 103(3) and as a result, the Board has developed some rules of thumb in this regard. For example, where a subsequent application is filed on or before the terminal date of the original application, the Board will normally consolidate the applications under section 103(3)(a). Where a subsequent application is filed after the terminal date of the original application, the Board will usually postpone the sub­sequent application under section 103(3)(b) (see The Watson Manufacturing Company of Paris Limited [1968] OLRB Rep. Aug. 441).

10Although the Board's decisions under section 103(3) are normally routine, it is clear that they may have significant implications for the parties. Under section 103(3)(a) if the Board consolidates a subsequent application, that subsequent application will be treated as having been made on the date of the original application. Since under section 9(2) the level of membership sup­port is assessed as of the application date, a different application date may mean that an appli­cation may be dismissed without a vote where an applicant is no longer able to show the appear­ance of membership support of at least 35%. (See Domtar Inc., [1987] OLRB Rep. Sept. 1132). Similarly, when the Board orders a subsequent application to be treated as having been made on the date of the original application under section 103(3), it will normally impose the terminal date of the first application on the subsequent one. This may have certain repercussions for the parties because of the role of the terminal date with respect to the filing of membership evidence and voter eligibility. As a result, the parties occasionally may wish to make representations with respect to the appropriate exercise of the Board's discretion under section 103(3). In those cases the Board will usually require the parties to make those representations by way of written submissions to be filed within a strict and short time frame.

11In this case, however, there is a very significant dispute with respect to the Board's sec­tion 103(3) discretion which is sufficiently complex that we do not feel it would be appropriate to make the decision on the basis of the material filed to date. At the same time, it is essential that the dispute under section 103(3) not delay the taking of the vote. For these reasons, we are inclined to defer the section 103(3) decisions both as between these applications and between the two sets of proceedings until after the vote when the matter can be listed for hearing. At that time, the parties' evidence and representations with respect to the section 103(3) decisions can be received along with those on other contested issues in the same manner that the Board would han­dle disputes with respect to trade union status, voter eligibility and so forth.

12One problem with this procedure is that directing the vote and listing the matter for hearing may be thought to be such a substantial part of an application for certification requesting a prehearing vote that it could no longer be said that the Board had not in actuality made a decision with respect to how it would handle the subsequent application. In other words, if we hold a repre­sentation vote and list the matter for hearing, are we still free to decide at a later point to postpone consideration of the application or to refuse to entertain it under sections 103(3)(a) and (b), or have we already in essence decided to proceed with it?

13In our view, it is both consistent with the Board's approach to disputes in pre-hearing representation vote cases and a tenable interpretation of section 103(3) to defer the section 103(3) decision until after the vote is held. In the unique scheme of section 9 where major decisions affect­ing the disposition of an application are usually made after the vote, and where the decision to direct the vote is not predicated on assumptions about the ultimate entitlement of the applicant to certification, we do not think that directing the vote or listing the matter for hearing can be said to be "considering" or "entertaining" the application. We note in this regard that there is some authority for the proposition that "consider" and "entertain" may not in some circumstances mean merely processing or contemplating an application. Rather, in certain contexts these words suggest a final adjudication or disposition of a matter on its merits: see, for example, Carrigan v. lllinois Liquor Control Commission (1958), 153 N.E. 2d 473 (Ill. App. Ct.) rev'd on other grounds (1960), 166 N.E. 2d 574 Terrill v. Auchauer 14 Ohio St. 80 (1862); Brown v. Allen, 73 5. Ct. 397 (1953); Mitchell v. United States (1961), 293 F. 2d 161 (D.C. Cir.); Ribauda v. Citizens National Bank of Orlando (1958), 261 F. 2d 929 (5th Cir.). This interpretation is a sensible way of reading section 9 and section 103(3) together, and indeed, the Board itself appears to have anticipated this conclu­sion in The Board of Education for the City of Hamilton [1987] OLRB Rep. June 847. In this man­ner we can preserve the speed necessary to the pre-hearing vote, and at the same time protect the parties' rights with respect to a section 103(3) decision.

14In other words, while the taking of a vote on a prehearing vote certification application may appear at first glance to be the heart of the application, in legal terms it is only one step in the handling of an application prior to a disposition on its merits. The application itself is one for certi­fication as a bargaining agent for a group of employees, and the holding of the vote is a procedure which may well come to nothing, depending on the ultimate disposition of matters in dispute. We note that our analysis is reinforced by the Board's practice of sealing the ballot box pursuant to sec­tion 9(3) in appropriate cases. Thus in many cases the results of a vote will not even be counted unless an applicant is successful with respect to related matters in the application.

15We emphasize that it is the unusual case where a decision under section 103(3) will be deferred. In most cases either the Board's rules of thumb or expedited written submissions will allow the Board to address this decision before the vote. However, the option of deferring its deci­sion under section 103(3) is available in cases where the usual procedure is unsatisfactory, at least in the context of applications for certification requesting prehearing votes.

16Obviously the deferral of the section 103(3) decision has some implications for the assessment under section 9(2) of the appearance of a level of 35% of membership support. How­ever, the Board handles that type of problem with respect to other disputes by making its determi­nation on the basis that the union is entitled to be assessed as of its "best position" (see Satin Fin­ish Hardwood Flooring (Ontario) Limited [1984] OLRB Rep Nov. 1602). On that basis, it appears to the Board on an examination of the records of the IWA, the records of the CPU 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 and that not less than 35% of the employees of the respondent in the voting constituency hereinafter described were members of the CPU at the time these applications were made respectively.

17Having 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 in the Vermillion Bay Woodlands Opera­tions, save and except foremen, and persons above the rank of foreman.

We note the parties' agreement for the purpose of clarity that the employees in the voting constitu­ency are the same persons in the bargaining unit currently represented by the LSWU.

18All employees of the respondent on the agreed upon voters list who have not voluntar­ily terminated their employment or have not been discharged for cause as of the date the vote is taken will be eligible to vote. To allow for the different possible dispositions of this application, each and every ballot shall be segregated and the ballot box shall be sealed. Voters will be asked to indicate whether they wish to be represented by the International Woodworkers of America, the Canadian Paperworkers Union or the Lumber and Sawmill Workers Union in their relations with the respondent.

19We note that correspondence has been received recently from the parties relating to the Great Lakes files and this matter. However, it is apparent that all parties are still not in agreement in regard to the appropriate course of action for the Board. As a result, following the taking of the vote, this matter will be listed for hearing along with the Great Lakes applications in Board files 1283-87-R and 1253-87-R. This matter is referred to the Registrar.