[1987] OLRB Rep. November 1402
0923-86-R International Union of Operating Engineers, Local 796, Applicant v. Les Ingenieries Consbec Inc., Respondent v. Labourers' International Union of North America, Ontario Provincial District Council, Labourers' International Union of North America, Local 607, Intervener
BEFORE: Patricia Hughes, Vice-Chair, and Board Members F. W. Murray and H. Kobryn.
APPEARANCES: Jack J. Slaughter, Celine Castonguay and Edward Kaplanis for the applicant; Daniel I. Shields, Tim Murphy and Archie Cameron for the respondent; C. M. Mitchell, T. Connoly and B. Kuazah for the intervener.
DECISION OF THE BOARD; November 27, 1987
- In a decision dated December 9, 1986 and confirmed in decision dated March 6, 1987, denying a request for reconsideration by Labourers' International Union of North America, Ontario Provincial District Council, Labourers' International Union of North America, Local 607 ("the Labourers"), the parties in this matter were requested to make submissions on the following three issues related to whether we should grant the Labourers intervener status in this application for certification by International Union of Operating Engineers, Local 796 ("Local 796"):
(a) do dues check-off lists constitute membership evidence for the purpose of determining intervener status in a certification application, particularly when there is a closed shop involved;
(b) when is the appropriate time for determining whether a union seeking intervener status represents one or more of the employees in the bargaining unit (that is, must an employee the union claims to represent be a member of the bargaining unit on the application date, fall within the 30-30 rule or can the employee be a member at any time up to the date of hearing); and
(c) when is the union seeking intervener status required to file membership evidence in support of that claim, particularly if notice has not been sent to the union prior to the terminal date?
A union may be granted intervener status in an application for certification if it is the bargaining agent for the employees in the bargaining unit or if it represents one or more employees in the bargaining unit: Atlantic Packaging Product Ltd., [1980] OLRB Rep. Jan. 4; Abitibi-Price Inc., [1984] OLRB Rep. Sept. 1155. In this case, the Labourers relied on the second part of the test.
On the first day of hearing, November 20, 1986, the Labourers filed one certificate of membership, a Local 607 Membership Ledger Card and two dues check-off lists as evidence that they represented employees in the bargaining unit. Subsequently, on January 26, 1987, they filed three Local 607 Membership Ledger Cards. In total, they submitted evidence of membership for four persons. Of the four, three were agreed by the parties on an inquiry by a Labour Relations Officer into the status of individuals the Labourers had sought to be added to the employer's list (see the December 9th decision, paragraphs 6 and 7) to not be within the 30-30 rule. The fourth individual was on the list filed by the employer as someone eligible for the count.
The Board applies strict rules to membership evidence filed for purposes of a certification application (see Rule 73 of the Board's Rules of Procedure). Effectively, the Board accepts only applications for membership and a signed receipt or certificates of membership as evidence in a certification application. In an application for intervener status, however, the Board is willing to accept other forms of evidence which show that the union seeking status does represent the employees it claims to represent. In Spring Plastering Limited, [1967] OLRB Rep. Dec. 887, the Board had to determine whether the applicant had status to seek a declaration that the respondent union was not entitled to represent the employees of the intervener in the bargaining unit. To bring such an application, a trade union must "represent[] any employee in the bargaining unit". The evidence of representation does not have to be the same as in a certification application. The respondent was required to show it was entitled to represent employees at the time the first collective agreement between it and the intervener was entered into. The respondent submitted evidence that, although it would not satisfy the requirements of membership evidence in an application for a certification, was accepted by the Board which explained at paragraph 10 that
[e]vidence that the trade was entitled to represent the employees may well take a different form from the evidence of membership required on an application for certification. It must be remembered that any documentary evidence of the right of a trade union to represent employees was not necessarily prepared with a view of applying for certification and accordingly could reflect the desire of the employees to have the union represent them without complying with the Board's stringent tests of membership.
This approach was cited with approval in Wardet Limited, [1984] OLRB Rep. Jan. 153 where the intervener submitted its computer membership records and was granted status to intervene in the certification application. We are satisfied the evidence submitted by the Labourers is adequate to establish it represents those persons on whom the Labourers base their claim to status.
Similarly, the Board is rigorous in requiring that all membership evidence in a certification application be filed by the terminal date, while establishing a specific temporal point in a request for intervener status is not as necessary: we adopt the position expressed in Runneymede Development Corporation Limited, [1987] OLRB Rep. Oct. 1305 that "documentary evidence of membership upon which an intervention ... is based, is filed in a timely manner so long as it is before the Board at the time the issue the intervener's right to participate is being dealt with [citation omitted]". The evidence in this case was therefore filed in a timely manner.
As indicated, three of the persons in relation to whom the Labourers assert their claim to intervene in this application would not be employees for the purpose of the count. In Runneymede, supra, the Board indicates that an employee who is not "on the list" is not an "affected" employee and could not intervene in the application; a union basing its claim to intervene on its representation of that person, therefore, could also not intervene. To the extent that that means an employee must satisfy the 30-30 rule to be an "affected" employee, we have some concern with the statement. The 30-30 rule applies for a specific purpose, just as does the terminal date and the nature of membership evidence acceptable in a certification application. Whether an employee is at work on a specific date or during a specific period does not seem to us relevant to whether he or she is affected by the application for the purpose of permitting the employee to raise issues of relevance to the application as an intervener. We do not have to determine that issue, however, since one of the employees for whom evidence was filed is on the employer's list (and has not been challenged) and was represented by the Labourers when the hearing began.
Accordingly, we find that the Labourers have status to participate as intervener in this application.
At the outset of the hearing, counsel for Local 796 filed a letter with the Board, dated November 12, 1987, seeking particulars of the allegations filed on November 19, 1986, by the Labourers. After some discussion of the matter, it became clear that the allegations related to the relationship between International Union of Operating Engineers, Local 793 ("Local 793") and Local 796. Local 793 had previously filed an application for certification for these same employees which was dismissed by a differently constituted panel in Board File No. 2992-85-R dated July 15, 1986 because of employer involvement. The Labourers had intervened in that application. Counsel for the Labourers stated that he did not have evidence of employer involvement in the actual application before us at the time of hearing. On that understanding of the allegations, counsel for Local 796 was therefore satisfied he has sufficient particulars, subject to any further allegations with respect to employer involvement in this application.
This matter is to be set down for hearing to deal with all outstanding matters in this application. The first issue to be addressed by the parties is the allegations filed by the Labourers.