Ontario Labour Relations Board
[1987] OLRB Rep. October 1208
1721-87-R Sheet Metal Workers' International Association, Applicant v. Black & McDonald Limited, Respondent
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members D. A. MacDonald and J. Redshaw.
DECISION OF THE BOARD; October 22, 1987
1In this application for certification the applicant filed two combination applications for membership and receipts. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of $1.00 has been made within the six-month period immediately preceding the terminal date of the application. The money was collected by more than one person. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
2The respondent filed a reply, a list of employees and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure. The reply was completed in paragraph 14(3) so as to request a hearing before the Board.
3The respondent's reasons for requesting a hearing of the application were set out in an attachment to the reply and are as follows. This application was made when the respondent had engaged two sheet metal workers on a single project for a brief period of time because of a singular set of circumstances. According to the respondent, the fabrication and installation of sheet metal work "... has not and will not be a part of [the respondent's] ongoing business." and the respondent has no intention "... now or in the foreseeable future ..." of pursuing such work. The respondent submits that, because of the singular circumstances which caused it to undertake sheet metal work on one project and because the respondent previously has not engaged in such work and has no intention of being engaged in such work in the future, "... the application for certification is unjustified ... and should be dismissed.".
4The Board has the discretion under section 102(14) of the Act to decide the merits of an application for certification made under the construction industry provisions without the need to hold a hearing. Assuming to be true everything in the respondent's stated reasons for requesting a hearing, the Board finds it unnecessary to hold one into this application. The need for a hearing usually arises when there is a dispute about some material fact or one of the parties to the application raises an issue about which the Board requires further submissions from the parties before it can decide the issue. The materials filed by both the applicant and the respondent contain the facts which are essential for the Board to decide the application without a hearing and they are not in conflict.
5The fact that the respondent does not usually employ sheet metal workers as part of its ongoing business and had employed two only for a brief period of time and only because of a singular set of circumstances are of no consequence or relevance in an application for certification. When an application for certification is brought properly under section 144(1) of the Act, as this one is, that section and section 7 of the Act require the Board to determine the unit of employees that is appropriate for collective bargaining, ascertain the number of employees in the unit and the number of those employees who are members of the applicant, all at a particular point in time. The composition of the bargaining unit in the instant case is mandated by section 144(1). Because employment attachments in the construction industry fluctuate and characteristically are relatively short-lived, the Board makes these determinations based on employees who were at work on the date of the making of the application. In view of the fact that the Act requires the Board to make them at a particular point in time, the Board does not consider matters of the duration of employment or the chances of future employment to be relevant to those determinations.
6Nor do the factual circumstances on which the respondent seeks to rely affect the question of whether the applicant should be certified. Subsection 2 of section 7 of the Act requires the Board to direct the taking of a representation vote if not less than forty-five per cent and not more than fifty-five per cent of the employees in the bargaining unit are members of the trade union, and gives it the discretion to direct the taking of a representation vote if more than fifty-five per cent of the employees are members of the trade union [section 7(2)]. The Board must certify the trade union if a representation vote has been taken and more than fifty per cent of the ballots cast are cast in favour of the unit or if no representation vote has been taken and the Board is satisfied that more than fifty-five per cent of the employees in the bargaining unit are members of the union.
7The remaining ground for requesting a hearing, then, is whether the respondent's claim that "... the application for certification is unjustified ... and should be dismissed" in the circumstances summarized above at paragraph 3, and set out more particularly in the statement appended to the reply, is an issue on which the Board requires to hear and consider the submissions of the parties. The claim clearly is not relevant to the questions posed by sections 144 and 7 referred to in paragraphs 5 and 6 above. The factual basis for the claim does not raise any ground which would give the Board a legal basis for dismissing the application as requested. The question then is whether the claim that the application for certification is unjustified has any relevance to the exercise of the Board's discretion whether to direct the taking of a representation vote in circumstances where it is satisfied that more than fifty-five per cent of the employees in the bargaining unit are members of the trade union. The Board normally would exercise its discretion to direct a representation vote where more than fifty-five per cent of the employees were members of the trade union if there were circumstances which caused it to want confirmation that the members of the trade union still wished to be represented by it; in other words, in circumstances where the Board for some reason was not prepared to rely entirely on the membership evidence.
8The claim that the application for certification is unjustified and the basis on which the claim has been made do not raise that kind of question. The respondent seems to be saying the applicant should be prevented from being certified under the Act because of the singular circumstances which caused the respondent to employ sheet metal workers when it has not done so before and does not intend to do so again. The Act gives employees the freedom "... to join a trade union of [their] own choice and to participate in its lawful activities." It also gives trade unions the right to seek certification on behalf of employees who are exercising their choice. To deprive the applicant of certification because the employees whom it seeks to represent were only briefly employed and might not be employed again by the respondent would be improper and unjustified. Nor would it be proper or justified to prevent the employees from being represented by the applicant, if that is their wish, because of those circumstances. To the extent that the respondent's claim arises out of its concern for the future impact of certification on the conduct of its business, it is not the Board's function to consider such future impact in fulfilling the requirements of sections 144 and 7 of the Act, except possibly in deciding the description of the appropriate bargaining unit. See Sinclair Cut Stone and Construction Company Limited, 52 CLLC ¶17,009 and, more recently, Guelph Beef Center Inc., [1977] OLRB Rep. March 184, at paragraph 20.
9In all of these circumstances and for the reasons set out above, the Board is satisfied that the reply does not disclose a dispute over any material fact or any issue about which the Board needs the submissions of the parties before deciding, which would be reason for the Board to hold a hearing into the application. The Board is satisfied also that the reply does not disclose any useful purpose which would be served by holding a hearing. Therefore the Board will determine the merits of this application for certification without holding a hearing into it pursuant to its discretion under section 102(14) of the Act.
[Remainder of decision omitted. Editor]