International Woodworkers of America v. Taiga Trucking (Ontario) 1980 Inc., 1987 CanLII 3136

[1987] OLRB Rep. November 1433

1612-87-R; 1613-87-R; 1614-87-R; 1615-87-R; 1616-87-R; 1617-87-R; 1618-87-R; 1619-87-R; 1620-87-R; 1702-87-R International Woodworkers of America, Applicant v. Taiga Trucking (Ontario) 1980 Inc., Respondent; International Wood-workers of America, Applicant v. Manroy Trucking Inc., Respondent; International Woodworkers of America, Applicant v. Atway Transport Inc., Respondent; International Woodworkers of America, Applicant v. Demers & Dargy Transport Inc., Respondent; International Woodworkers of America, Applicant v. Gosselin Trucking, Respondent; International Woodworkers of America, Applicant v. Paul Gagnon Trucking, Respondent; International Wood-workers of America, Applicant v. J. Bernard Trucking, Respondent; International Woodworkers of America, Applicant v. Contractors Cleanup Services Limited, Respondent v. Labourers International Union of North America, Local 706, Intervener; International Woodworkers of America, Applicant v. Kopka Transport Inc., Respondent; International Woodworkers of America, Applicant v. Paramount Transportation Limited, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. 0. Shamanski and B. L. Armstrong.

DECISION OF THE BOARD; November 4, 1987

1. These are 10 applications for certification in which the applicant has requested that the Board conduct a pre-hearing representation vote. The applicant has also filed an application for a declaration under subsection 1(4) of the Labour Relations Act ("the Act") that the respondents to these applications constitute one employer for the purposes of the Act (Board File No. 1633-87-R). The question to be addressed with respect to each of these certification applications is whether and in what manner the Board will conduct a pre-hearing representation vote or votes. Having regard to the issues raised by certain of the respondents, we begin by elaborating on the nature of that question and the purpose of the pre-hearing vote procedure provided for in section 9 of the Act.

2. Expedition is important in the adjudication of labour relations issues. As Chief Justice Estey (as he then was) observed Journal Publishing Company of Canada Ltd. et al v. The Ottawa Newspaper Guild, Local 204 et al, (unreported, Ontario Court of Appeal, March 31,1977):

In the law which has grown up around labour relations in the province, and indeed elsewhere where the common law is pursued, the overriding principle invariably applied is that labour relations delayed are labour relations defeated and denied.

This is particularly so in certification applications. Having committed their support to a union, employees' desire for collective bargaining will be frustrated if their union's right to engage in it on their behalf is not promptly acknowledged and enforced. The union's support will be eroded by delay.

3. The need for expedition must compete with the requirements of natural justice. All those affected by a certification application must be given notice of it and the opportunity of a hearing. The process of adjudicating any issue in dispute, whether genuine or vexatious, will delay disposition of the application. So far as it can be accomplished, it is desirable that certification applications be dealt with in such a way that the adverse effects of this delay on employees' desire for representation by the applicant do not influence the result. That goal is adequately served if employee wishes are assessed as of the date determined under clause 103(2)(j) of the Act (generally about two weeks after the application is filed) on the basis of membership evidence filed by that date. It is sometimes necessary or desirable, however, to determine employee wishes by means of a representation vote. If in that event the vote is not taken until after all other issues are adjudicated, delay will influence the result with respect to employee wishes.

4. Section 9 of the Act allows the Board to conduct a representation vote or votes relatively quickly after an application is filed, before determining any question which is or could be in dispute among the parties affected by the application. That section provides as follows:

(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).

As the Board noted in Emery Industries Limited, [1980] OLRB Rep. Mar. 316 at paragraph 5:

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.

5. Our function at this stage is to make the determinations contemplated by subsection 9(2) of the Act. We do not determine the appropriate bargaining unit or assess the weight to be given to the applicant's membership evidence. As appears from subsection 9(4) of the Act, those matters are only decided after the vote is conducted, when all interested persons will be notified in Form 71 of the contents of the Returning Officer's report and of their opportunity to make representations and have a hearing before the Board with respect to any issue affecting the certification application or the pre-hearing representation vote. Indeed, at this stage the Board does not attempt to resolve any dispute about its constitutional jurisdiction (Kenting Earth Sciences Limited, [1985] OLRB Rep. Feb. 293) or the applicant's "trade union status" (Emery Industries Limited, supra) or the identity of persons employed in any proposed bargaining unit at any relevant time (The Board of Education for the City of North York, [1984] OLRB Rep. July 989), or the application of subsection 1(4) of the Act (Satin Finish Hardwood Flooring (Ontario) Limited, [1984] OLRB Rep. Nov. 1602). These and any other issues affecting whether and how the results of a pre-hearing vote should affect the disposition of the application for certification are only resolved after any such vote is conducted.

6. While we do not resolve such issues at this stage, we do need to know the immediate parties' positions on any issue which could affect the use to which the results of a pre-hearing representation vote may later be put. This is so that a meaningful voting constituency or constituencies can be struck and appropriate directions made concerning segregation of ballots cast by individuals or groups whose inclusion in or exclusion from the appropriate unit or units is in dispute. A pre-hearing vote is of little use unless one can later reconstruct from it a vote of the employees in the unit ultimately found appropriate by the Board. Accordingly, when an applicant requests a pre-hearing vote, the Board's practice is to authorize one of its Labour Relations Officers to examine the records of the applicant and of the respondent and to confer with the parties as to the description and composition of the appropriate bargaining unit, the description and composition of the voting constituency or constituencies, the list of employees as of the terminal date for the purposes of any vote which might be directed and all other matters relating to entitlement to and arrangements for such a vote, and to report to the Board thereon.

7. In accordance with that practice, an officer was authorized to make those inquiries in a coordinated fashion with respect to each of these applications. That officer met with the parties to these applications on October 7 and 8, 1987. His meeting continued on October 22, 1987. We have before us the officer's report on his meeting, which indicates that certain respondents requested additional time to elaborate their positions for the Board and that all parties were advised to have any additional written representations in the hands of the Board by October 29, 1987. Such additional representations as have been received from the parties are also before us.

8. In each of these applications, the applicant describes the unit of employees appropriate for collective bargaining as:

all employees of the respondent employed as truck and transport drivers in the Province of Ontario, save and except foremen and persons above the rank of foreman.

In their replies to the applications in which they are named respondent, all of the respondents except Atway Transport Inc., Paul Gagnon Trucking and Paramount Transportation Limited describe the appropriate bargaining unit as

all employees of the respondent employed as truck and transport drivers at and out of Thunder Bay, save and except foremen and persons above the rank of foreman.

In their replies to the applications in which they are named respondent, Atway Transport Inc. and Paramount Transportation Limited describe the appropriate bargaining unit as

all employees of the respondent employed as truck and transport drivers at and out of Paipoonge Township, save and except foremen and persons above the rank of foreman.

In its reply to the application in which it is named respondent, Paul Gagnon Trucking describes the appropriate bargaining unit as

all employees of the respondent employed as truck and transport drivers at and out of the Village of Hudson, save and except foremen and persons above the rank of foreman.

It does not appear (either from the material filed by the parties to these applications or the Labour Relations Officer's report on his meetings with them) that any of these disputes over the bargaining unit description affects the identity or number of persons actually employed in any appropriate bargaining unit on the relevant application date.

9. It is noteworthy that the applicant and all respondents agree that any appropriate unit is limited to "truck and transport drivers." In University of Ottawa, [1986] OLRB Rep. Mar. 353, the Board observed that:

While the scope of the parties' agreements over the description of the appropriate bargaining unit ordinarily establishes the range of likely determinations of that issue, that is not always so. The parties' agreement on a bargaining unit description does not relieve the Board of its statutory obligation to determine whether the agreed upon unit is appropriate. Parties' agreements on what would constitute an appropriate unit for the purposes of collective bargaining between them are ordinarily accorded considerable deference because they are presumed to reflect their special knowledge of the matters relevant to that determination. Such agreements are not determinative, however, and in certain circumstances the Board may decide not to accept the parties' agreement: Tamco Ltd., [1974] OLRB Rep. Nov. 764; North York Board of Education, [1982] OLRB Rep. June 918; St. Joseph's Hospital, supra, [1983] OLRB Rep. June 984. Accordingly, when determining a voting constituency, the Board must be sensitive to the possibility that language agreed to by the applicant and respondent may not be accepted by the panel which makes the post-vote determination required by subsection 9(4) of the Act.

No doubt with those considerations in mind, the Labour Relations Officer did attempt to assemble the information necessary to consider whether the voting constituency or constituencies for any pre-hearing vote(s) could or should be defined in "all employee" terms. He was not able to obtain the necessary information from all respondents, however. Accordingly, we have not pursued that option. Of course, that decision in no way fetters the panel which will ultimately deal with the application on its merits in its decision whether to accept this limited agreement of the applicant and respondents.

10. The applicant's position seems to be that if all or some of the respondents are declared to constitute a single employer under subsection 1(4) of the Act, then all of the drivers employed by respondents affected by that declaration would constitute a single appropriate bargaining unit for which it wishes to be certified. Obviously, the application under subsection 1(4) will have to be dealt with before or in conjunction with the determination of the appropriate bargaining unit(s) in these applications. As with the bargaining unit determination, the issues in the application under subsection 1(4) can only be decided after affording the parties the opportunity of a hearing. As with the bargaining unit issue, we do not make any determination under subsection 1(4) at this stage. Because of its potential effect on the bargaining unit issue, however, it is important for us to accommodate, if we can, all possible outcomes of that application in making our determinations under subsection 9(2).

11. Bearing in the mind that the objective in exercising jurisdiction under subsection 9(2) is to gather information on employee wishes in such a way that the Board can later reconstruct a vote or votes of those who were in the unit or units ultimately found appropriate, the practical response in this situation is to vote all drivers employed by the respondents, keeping ballots cast by employees of any one respondent separate from those cast by the others. This can be done by determining the following ten voting constituencies:

VOTING CONSTITUENCY #1

all employees of Taiga Trucking (Ontario) 1980 Inc. employed as truck and transport drivers in the Province of Ontario, save and except foremen and persons above the rank of foreman.

VOTING CONSTITUENCY #2

all employees of Manroy Trucking Inc. employed as truck and transport drivers in the Province of Ontario, save and except foremen and persons above the rank of foreman.

VOTING CONSTITUENCY #3

all employees of Atway Transport Inc. employed as truck and transport drivers in the Province of Ontario, save and except foremen and persons above the rank of foreman.

VOTING CONSTITUENCY #4

all employees of Demers & Darga Transport Inc. employed as truck and transport drivers in the Province of Ontario, save and except foremen and persons above the rank of foreman.

VOTING CONSTITUENCY #5

all employees of Grosselin Trucking employed as truck and transport drivers in the Province of Ontario, save and except foremen and persons above the rank of foreman.

VOTING CONSTITUENCY #6

all employees of Paul Gagnon Trucking employed as truck and transport drivers in the Province of Ontario, save and except foremen and persons above the rank of foreman.

VOTING CONSTITUENCY #7

all employees of J. Bernard Trucking employed as truck and transport drivers in the Province of Ontario, save and except foremen and persons above the rank of foreman.

VOTING CONSTITUENCY #8

all employees of Contractors Cleanup Services Limited employed as truck and transport drivers in the Province of Ontario, save and except foremen and persons above the rank of foreman.

VOTING CONSTITUENCY #9

all employees of Kopka Transport Inc. employed as truck and transport drivers in the Province of Ontario, save and except foremen and persons above the rank of foreman.

VOTING CONSTITUENCY #10

all employees of Paramount Transportation Limited employed as truck and transport drivers in the Province of Ontario, save and except foremen and persons above the rank of foreman.

12. On examination of the records of the applicant and respondents, it appears that not less than 35 percent of the employees in voting constituency #10 were members of the applicant on September 22, 1987 (the date the application in Board File #1702-87-R was made) and, with respect to each other voting constituency, not less than 35 percent of the employees in the voting constituency were members of the applicant on September 11, 1987 (the date each of the 9 other applications was filed). In those applications in which there is a dispute about the identity of persons employed in the voting constituency on the application date, the applicant has the requisite appearance of support in any event of the outcome of that dispute. Accordingly, it appears we have the discretion under subsection 9(2) of the Act to direct that a pre-hearing representation vote be conducted in each of these voting constituencies. Nevertheless, certain of the respondents take the position that the Board either does not have the jurisdiction to order a pre-hearing vote or should decline to do so in the exercise of its discretion under subsection 9(2) of the Act.

13. Counsel for Contractors Cleanup Services Limited ("Cleanup") argues that:

the Board does not have the jurisdiction to order a vote pursuant to s. 9(2) where there is more than one application date. So long as the Union is attempting to join Paramount Transportation Limited in a s. 1(4) declaration with our client, there are under the circumstances by definition two Application dates. The threshold test for there to be a vote pursuant to s.9 is whether the Union had 35% or more membership support in the bargaining unit identified in s. 9(2) on the date of application.

The reference here is to the fact that the application in Board File No. 1702-87-R ("the Paramount application") was filed on September 22, 1987, while the other applications were filed on September 11, 1987. The potential significance of that fact is best explained by considering the consequences of one possible outcome in these matters and the companion application under subsection 1(4): a declaration that all ten respondents constitute a single employer for the purposes of the Act coupled with a finding that all truck and transport drivers of all respondents constitute one appropriate bargaining unit. That would then be the appropriate bargaining unit in each of the ten applications. Only one of the applications filed on September 11, 1987 would be "considered" in those circumstances, as each of the other nine applications would then be a "subsequent application" within the meaning of subsection 103(3) of the Act. In order to satisfy subsection 9(4) in the application then considered, the applicant would have to show, on the basis of the written evidence which it has already filed with the Board, that more than 35 percent of the employees in this unit were members on September 11, 1987, the application date in that application: Board of Education for the City of North York, [1987] OLRB Rep. Jan. 116; Domtar Inc., [1987] OLRB Rep. Sept. 1132. All but one of the cards submitted with the Paramount application is dated after September 11, 1987 and, therefore, would not count in a subsection 9(4) assessment in those circumstances. Obviously, the same problem arises if employees of Paramount and any other respondent are found to constitute an appropriate unit following a declaration that Paramount and one or more other respondents constitute a single employer for the purposes of the Act. Membership evidence submitted with the Paramount application and dated after September 11, 1987 will "count" for the purposes of subsection 9(4) only if the Paramount application is "considered", which will happen only if Paramount employees are not included in a bargaining unit with employees of any other respondent or if all other applications affecting Paramount employees are dismissed.

14. Although not relevant to our jurisdiction to direct votes in the voting constituencies described in paragraph 11, it is noteworthy that, on the material before us, it appears that not less than 35 percent of all drivers employed by all respondents were members of the applicant on September 11, 1987. There are some combinations of respondents (Paramount together with any one or more of Manroy Trucking Inc., Demers & Dargy Transport Inc. and Contractors Cleanup Services Limited, for example) about which it cannot be said that the applicant had the requisite membership support as of September 11, 1987 in a single unit consisting of all drivers of those respondents. If one of those combinations is ultimately found to be the appropriate unit in some of the applications filed September 11, 1987, those applications may be dismissed for failure to meet the membership test in subsection 9(4). That would not be the end of the matter, however, because then the "subsequent" Paramount application could be considered. We do not know whether or not the applicant would fail the subsection 9(4) membership test in those combination units as of September 22, 1987, the application date in the Paramount application, as we do not have lists of persons employed by the other respondents as at that date. It is not inconceivable that the subsection 9(4) test could be satisfied in those circumstances. In any event, none of this is critical to our jurisdiction to order a vote in the ten voting constituencies described in paragraph 11; the appearance test is satisfied with respect to each of those voting constituencies, as we have noted in paragraph 12. The possibility of some outcome in which the membership test in subsection 9(4) may not be met does not warrant a refusal to conduct a vote, although it may warrant a direction that all ballot boxes be sealed pending the decisions contemplated by subsection 9(4): see The Board of Education for the City of North York, supra; and, Satin Finish Hardwood Flooring (Ontario) Limited, supra.

15. Counsel for Atway argues that certain persons whom the union has added to the voters list in Voting Constituency #3 are "independent contractors" and not employees. If they are employees by virtue of being "dependent contractors", he argues, that must be established before a vote can affect them. In effect, he argues that disputes about the voters list have to be settled before the vote can be conducted. That is not so. If someone says that a driver falls within a voting constituency, that driver may cast a ballot; if someone says that driver does not fall within the voting constituency, his or her ballot will be segregated and not counted pending resolution of the dispute after the vote, as is contemplated by subsection 9(4).

16. Counsel for Atway also complains that the applicant has not said whether the persons in dispute are dependent contractors, but has merely noted that "employee" is defined by clause 1(1)(e) of the Act to include a dependent contractor. He argues, that

Insofar as dependent contractors are prima facie entitled to a separate bargaining unit, the Union has entirely circumvented the provisions of the Labour Relations Act which require 35 per cent Union membership prior to the holding of a pre-certification vote.

If the disputed individuals are "dependent contractors", subsection 6(5) of the Act requires that they be placed in a separate bargaining unit unless the Board is satisfied that they wish to be included in a unit with other employees. This latter issue is sometimes addressed in a separate "vote", in which individuals who are dependent contractors are asked to indicate, by secret ballot, whether or not they wish to be included in a unit with other employees. The applicant has not requested such a vote and, in the circumstances, we do not propose that one be conducted at this time. A separate vote is not necessarily the only way that the requirement in subsection 6(5) could be satisfied if these persons are ultimately found to be dependent contractors. In any event, the ballots of voters alleged to be dependent contractors can be segregated and these issues can all be dealt with after the votes are conducted. The applicant could not later be certified for a separate unit of dependent contractors, no matter how many of them voted in its favour, unless the membership test in subsection 9(4) were satisfied with respect to that unit. As we have not defined the disputed persons as a separate voting constituency, the level of apparent membership support in that group is irrelevant at this stage. As a matter of interest, however, we note that support for the union among these disputed persons is well in excess of 35 percent.

17. Both before and after the officer's meeting of October 22, 1987, counsel for Atway took the position that

If the Application for Certification includes dependent contractors, there are many other contractors whose names are not on the voting list who have identical relationships (or a lack thereof) with Atway Transport Inc. as those which the Union has sought to place on the voting list. As a result, the voting constituency in no way reflects the constituency of those individuals who may ultimately be brought into the bargaining unit as a result of certification.

The officer's report indicates that counsel declined the opportunity to name these persons, despite being advised to do so. Similarly, counsel for Cleanup took the position that:

There are other corporate entities which, it is submitted, should be joined in a s. 1(4) declaration in the event the current Respondents are joined. The Union should not be permitted to "pick and choose" which organizations it seeks to join and thereby affect the constituency. That would be an abuse of process.

Counsel has not named these "other corporate entities", either in the reply he filed on behalf of Cleanup in the application under subsection 1(4) or in his submissions to the officer or in written submissions to the Board in connection with these applications. The existence of such other entities is irrelevant unless it can be said that their employees would also form part of an appropriate bargaining unit. All parties were called upon to state their positions on the appropriate bargaining unit in these applications at the meetings conducted by the Labour Relations Officer. We are at a loss to understand how either of these respondents can argue that a vote should not be directed because of matters which they have declined to particularize. We need not decide now whether these specific matters can be particularized after votes are conducted so as to defeat the utility of those votes. We do note the Board's observations in Simpsons Limited (Board File No. 1876-84-R, decision dated October 28, 1985, unreported) at paragraph 14:

One of the important objects of a Labour Relations Officer's preliminary meeting with the parties in these cases is to ascertain their position on the appropriate bargaining unit issue and define (and narrow, if possible) the nature of any disagreement on that issue. The pre-hearing vote process would be subverted if a respondent or intervener could advance for the first time at hearing a position or allegation which would, if accepted, render meaningless a pre-hearing vote which could have been conducted in a meaningful way if that position or allegation had been disclosed in an appropriate and timely fashion before the vote was conducted. Accordingly, if a respondent or intervener proposes later to argue that the bargaining unit proposed by the applicant is inappropriate, it must give full particulars of its challenge, and of the description of the unit it considers appropriate, before the Officer's meeting with the parties concludes.

(See also Kenting Earth Sciences Limited, supra, at paragraph 9).

18. Counsel for Cleanup argues that a vote or votes should not be conducted because

Employees cannot know whether they would be voting for a bargaining unit consisting of employees of Contractors Cleanup Services Ltd. alone or of employees of a composite employer of which Contractors Cleanup Services Ltd. would be but a small part.

In addition, counsel for Contractors Cleanup and counsel for Atway Transport Inc. ("Atway") both argue that the applicant's communications with affected employees have so misrepresented the nature and possible results of the subsection 1(4) application that, to use the words of counsel for Atway, "the employees of the various parties will not know what they are voting for."

19. Employees are not ordinarily asked to vote for or against a bargaining unit when the Board conducts a representation vote (although such a vote can be conducted under subsection 6(1)). When there is no incumbent or competing applicant, each eligible voter is asked to answer "yes" or "no" to a question in the form "Do you wish to be represented by the applicant in your employment relations with your employer?" It is open to argument that answers to this question are an unreliable basis for a certification decision if they are given at a time when the identity of the employer for purposes of collective bargaining is uncertain. It may be said, however, that in the scheme prescribed by the Labour Relations Act, evidence of membership in the union is treated, in effect, as a vote by the member for certification of the union with respect to any bargaining unit of employees of any employer in which the member may then or thereafter be employed. Accordingly, it is also open to argument that ballots cast in favour of a trade union should be treated in a similar manner. On this latter view, it may be argued, uncertainty about the employer or bargaining unit should not vitiate the effectiveness of the signification of desire to be represented by the union in employment relations.

20. We do not suggest that either argument is more likely to succeed than the other, or that there are no other relevant arguments. The issue has to be dealt with on the basis of all the relevant evidence and argument which any affected party wishes taken into consideration. It can only be decided after such parties have been afforded the opportunity of a hearing. We would be effectively deciding this point in the respondents' favour without a hearing, however, if we were to refuse the applicant a pre-hearing vote because of the mere possibility that, at the post-vote hearing contemplated by subsection 9(4), the Board would conclude that the results of the vote are not reliable. If the Board were to come to that conclusion, it would not be obliged to act on the results of that vote. As in its other aspects, the decision to be made at this stage should accommodate the range of possible outcomes on this issue. Conducting the vote best accomplishes that objective. From a labour relations perspective, the prejudice caused by conducting a vote which is later found useless is vastly outweighed by the prejudice caused by failing to conduct a vote which would later have been found useful.

21. The only thing we decide at this point is a matter of procedure: whether and how to conduct a pre-hearing representation vote. We do not decide what use, if any, will be made of the results of the vote. That decision is made later, after the parties have had the opportunity of a hearing. We are only determining what procedure will be followed in assembling potentially relevant information prior to hearing. We are not determining any aspect of the merits of these certification applications or the related application under subsection 1(4). From that perspective, the complications introduced by the subsection 1(4) application do not warrant our refusing to conduct a pre-hearing representation vote, nor do the allegations of misrepresentation. Whether they warrant a refusal to act on the results of such a vote is a matter to be determined after the vote is conducted.

22. Having afforded the respondents a full opportunity to indicate the grounds of their opposition to the conduct of pre-hearing representation votes in these applications, we are not persuaded that this is one of those exceedingly rare situations in which the applicant's requests should be declined in the exercise of our discretion under subsection 9(2) of the Act. The arguments of counsel for Atway and Cleanup go to the question whether effect could or should later be given to the results of any pre-hearing representation votes conducted in connection with these applications. That is a matter which can be addressed, after the votes are conducted, on any ground which may fairly be raised at that time, bearing in mind the opportunity the parties have already had to make representations both through the Board's Labour Relations Officer and otherwise. If the Board is then persuaded that no effect can or should be given to any or all of the votes directed herein, then they will have no effect.

23. We direct that pre-hearing representation votes be conducted in each of the voting constituencies described in paragraph 11. Each person employed in a voting constituency on October 5,1987 who is employed on the date the vote in that constituency is conducted will be eligible to cast a ballot in that vote. In each vote, voters will be asked whether or not they wish to be represented by the applicant in their employment relations with the employer named in the voting constituency description.

24. In order to accommodate the parties' disputes over bargaining unit description, ballots cast

a) in Voting Constituency #3, by persons alleged to be dependant or independent contractors on either October 5, 1987 or the date of the vote;

b) in Voting Constituency #6, by persons who were not employed "at and out of the Village of Hudson" on both October 5, 1987 and the date of the vote;

c) in Voting Constituencies 3 and 10, by persons who were not employed "at and out of Pairpoonge Township" on both October 5, 1987, and the date of the vote; and

d) in all other Voting Constituencies, by persons who were not employed "at and out of the City of Thunder Bay" on both October 5, 1987, and the date of the vote

shall be segregated and not counted.

25. Having regard to the matters discussed in paragraphs 14 and 18 through 21 hereof, the ballot boxes in each of the votes shall be sealed and none of the unsegregated ballots shall be counted except upon agreement of the applicant and all respondents.

26. The Board is in receipt of the following letter from Labourers' International Union of North America, Local No. 607:

Re: OLRB File No.'s 1612-87-R

and #1702-87-R

At the Labour Relations Officer meeting held October 7, 1987 in Thunder Bay, the applicant International Woodworkers of America (Canada) stated that the bargaining rights sought were not in the construction industry. Enclosed please find a copy of a written understanding to this effect, dated October 7, 1987.

We request that the Ontario Labour Relations Board endorse its record in these files with this understanding and upon doing so, our interest in these matters will be resolved.

If what is sought is a limitation on the scope of any certificate which might otherwise issue to the applicant, that is a matter to be raised in the appropriate way after the votes are conducted.

27. All matters concerning the conduct of these votes are referred to the Registrar under section 68 of the Board's Rules of Procedure.