[1987] OLRB Rep. December 1485
1054-87-R The International Brotherhood of Electrical Workers, Local Union 894, Applicant v. County Electric of Peterborough Limited, Respondent v. Group of Employees, Objectors
BEFORE: R. A. Furness, Vice-Chair, and Board Members J. Redshaw and G. O Shamanski.
APPEARANCES: N. W. Meikle, R. Hill, T. Kelsey and D. Cunningham for the applicant; Donald White and Edward Mdllwain for the respondent; Tim Perks for the objectors.
DECISION OF THE BOARD; December 14, 1987
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on December 12, 1977, the designated employee bargaining agency is the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario.
The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.
The Board further finds, pursuant to section 144(1) of the Act, that all electricians and electricians' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all electricians and electricians' apprentices in the employ of the respondent in all other sectors in the County of Peterborough (except for the geographic Township of Cavan), the County of Victoria (except for the geographic Township of Manvers) and the provisional County of Haliburton, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
The respondent requested the Board to refuse to entertain this application pursuant to the provisions of section 103(2)(i) of the Labour Relations Act on the grounds that the application had been made within ten months of the dismissal of an earlier application (see Board File No. 0327-87-R). The respondent also requested the Board to dismiss the instant application because it appeared that in the earlier application the same evidence of membership and declarations under Form 80 had been used in support of the instant applicant. It was the position of the respondent that since the previous material was found to be inadequate, the instant application ought to be dismissed for the same reasons. The applicant opposed the requests of the respondent and asked the Board to gra1.t certification to it on the basis of the evidence filed in the instant case.
The respondent argued that the earlier decision of the Board in File No. 0327-87-R made the issues before the Board with respect to the membership evidence and the Form 80 res judicata. The applicant argued that there was neither a taint non a cloud upon the membership evidence and that the earlier application had been dismissed by virtue of a deficiency in the Form 80. It was the position of the applicant that since new Form 80's had been filed and since there was no deficiency in the earlier membership evidence, the Board ought to rely upon the membership evidence before it in this instant application It was the position of the applicant that a simple mistake iliad been made by the business agent in the earlier application and that this ought not to lead the ~3oard to find that the conduct of the applicant was anything more than a simple mistake.
After entertaining the submissions of the parties, the Board ruled that there were no grounds for barring the instant application under the provisions of section 103(2)(i) of the Labour Relations Act. The Board also ruled at the hearing that the earlier decision was res judicata only with respect to the earlier Form 80 filed by the business agent of the applicant. The Board ruled also that there was no deficiency in the membership evidence found by the previous panel and that he previous decision had merely stated that since the proper inquiries had not been made by the Form 80 declarant that it could not place any weight on the applicant's evidence of membership. ['he Board informed the parties that two new Form 80's had been filed with the Board and that hey had been filed by different persons and not by the business agent of the applicant. The Board therefore informed the parties that it was prepared to rely upon both the evidence of membership and the new Form 80's which had been filed in the instant application.
There was filed in opposition to this application a document which contained the names )f six employees of the respondent. However, as the Board pointed out at the hearing, there was no overlap between the names of the persons who had signed evidence of membership and the persons who had signed the document in opposition to this application. In these circumstances, the Board announced that it was not material to this application and that the Board therefore was not prepared to inquire into the origination, preparation and circulation of the document filed in opposition to this application.
The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on October 23, 1978, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
The respondent and the objectors asked the Board to consider ordering a representation vote in this matter. Under the provisions of section 7 of the Labour Relations Act, the Board was a discretion whether or not to order a representation vote. In the circumstances of this application, there is neither taint nor cloud on the membership evidence which was filed in support of this application. In these circumstances, the Board finds no reason to direct, in the exercise of its discretion, the holding of a representation vote.
Section 144(2) of the Act, which states in pant as follows, provides for the issuance of none than one certificate if the applicant has the requisite membership support:
..,the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
[emphasis added]
Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph one above in respect of all electricians and electricians' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
- Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all electricians and electricians' apprentices in the employ of the respondent in the County of Peterborough (except for the geographic Township of Cavan), the County of Victoria (except for the geographic Township of Manvers) and the provisional County of Haliburton, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.