Ontario Labour Relations Board
[1987] OLRB Rep. October 1286
1430-87-R International Woodworkers of America, Applicant v. Lecours Lumber Company Limited, Respondent
BEFORE: Owen V. Gray, Vice-Chair, and Board Members J. A. Rundle and J. Redshaw
DECISION OF THE BOARD; September 28, 1987, as amended October 13, 1987
Reasons for Decision
1This is an application for certification in which the applicant has requested that a pre-hearing representation vote.
2The respondent and the Lumber and Sawmill Workers Union Local 2995, of the United Brotherhood of Carpenters and Joiners of America (hereafter referred to as "the incumbent") are said to have been parties to a collective agreement signed August 11, 1987, with effect from September 1,1984 to August 31, 1987. The respondent is described in the collective agreement as "Lecours Lumber Company Limited", and that is how it was named in the application. In its reply, the respondent says its name is "Lecours Lumber Co. Limited". It does not appear from the Labour Relations Officer's report on his meeting with the parties that this difference was discussed or the correct name of the respondent resolved at that meeting. Accordingly, that is an issue which will have to remain outstanding. In the meantime, we will describe the respondent by the name in which it contracted with the incumbent trade union.
3Although duly notified of this application, the incumbent trade union has not filed a formal intervention, nor did it attend the meeting with the Labour Relations Officer. Equally, it has not advised the Board that it has abandoned its bargaining rights with respect to employees affected by this application. Accordingly, this is a displacement application and account must be taken of the existence and scope of the incumbent's bargaining rights. Article 3.01 of the aforesaid collective agreement provides:
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.
The report of the Labour Relations Officer indicates that employees of the respondent at its sawmill are covered by a separate contract with an unidentified trade union. That trade union may be the incumbent.
4The applicant initially took the position that the appropriate bargaining unit in this application would be described as:
all employees of the respondent, Lecours Lumber Company Limited (Woods), Calstock, Ontario, save and except foremen, persons above the rank of foremen, office and sales staff.
The respondent's initial position was that the unit should be described as:
Employees engaged in woods operations on the limits and on the work sites of the Company.
The Labour Relations Officer's report indicates that the applicant and respondent agreed on the following description:
all employees of the respondent in Calstock, save and except foremen, persons above the rank of foreman, scalers, office and sales staff, and persons in bargaining units for which the trade union held bargaining rights as of August 26, 1987.
5Section 9 of the Labour Relations Act provides:
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).
Our function at this stage is to deal with the matters referred to in subsection 9(2) of the Act. The first such matter is determination of the voting constituency. When the parties agree on a description of the appropriate bargaining unit, the Board ordinarily adopts that description as the description of the voting constituency. It may not do so, however, if there is some possibility that the panel which determines the appropriate bargaining unit after the vote under subsection 9(4) may not accept that agreement. As the Board observed in University of Ottawa, [1986] OLRB Rep. Mar. 353 at paragraph 4:
- It is not our function at this stage to determine the composition of the appropriate bargaining unit. As appears from subsection 9(4) of the Labour Relations Act, that determination is only made after the vote is conducted, after all interested persons have had the opportunity of a hearing before the Board. Nevertheless, as the Board observed in Scarborough General Hospital, [1984] OLRB Rep. Dec. 1765 at paragraph 5:
Although the appropriate bargaining unit is not determined by the Board until after a pre-hearing vote has been conducted, the likely outcome of that determination is a factor considered in striking the voting constituency or constituencies at the pre-vote stage, because a pre-hearing vote is of little use unless one can reconstruct from it a vote of the employees in the unit ultimately found appropriate by the Board.
While the scope of the