[1987] OLRB Rep. June 810
0347-86-R Richard Grandy, Applicant v. The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 527, Respondent V. City Plumbing (Kitchener) Limited, Inteiwener
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members I. M. Stamp and J. Redshaw.
APPEARANCES: Ian S. Campbell and Richard Grandy for the applicant; Stanley Simpson and Tom Crystal for the respondent; no one appearing for the intervener.
DECISION OF THE BOARD; June 26, 1987
1This is an application, under subsection 57(2) of the Labour Relations Act for a declaration that the respondent no longer represents the employees of the intervener in the bargaining unit for which it is the bargaining agent. By majority decision dated September 2, 1986 [reported at [1986] OLRB Rep. Sept. 1206], a differently constituted panel of the Board directed, pursuant to subsection 57(3), that a representation vote be taken of persons in the following voting constituency:
all plumbers and plumbers' apprentices, steamfitters and steamfitters' apprentices and welders in the employ of the intervener in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken.
By majority decision dated February 9, 1987, that same panel denied the respondent's request for reconsideration and affirmed its decision of September 2,1986.
2Subsequently, a voters list and the voting arrangements were agreed to, the latter at a meeting convened by a Labour Relations Officer on March 11, 1987. The representation vote itself was held on March 30, 1987. The sole ballot cast was by the applicant, Mr. Grandy, who, not surprisingly, marked his ballot against the respondent. By registered letter dated April 3, 1987, the respondent, through its counsel, wrote to the Board as follows:
Further to the vote held on March 30th, 1987, we wish to make representations with respect to the representation vote as follows:
The business agent for the union, Local 527, Tom Crystal arrived at the vote site at approximately 10:08 am. At that time, the sole ballot had been entered in the ballot box. The vote was then concluded in the presence of Mr. Crystal at 10:15 am. At that time, Mr. Crystal asked that any ballots be segregated on the basis that persons who voted were not entitled to vote since they were not employed in the ICI., Sector of the Construction Industry prior to the vote being taken. Crystal did not sign the report because of the refusal to segregate the ballot cast and because he was not there when the ballot was cast.
It will be our submission that the last return in the ICI. Sector which was received from City Plumbing (Kitchener) Limited was for August, 1986. No welfare remittance forms had been received for November, December, 1986 and for January, February and/or March, 1987. Accordingly, no one was employed by City Plumbing (Kitchener) Limited in the I.C.I. Sector prior to the vote being taken. It will be our submission that the applicant should not be able to bring about a termination of bargaining rights on a provincial basis which would cover all potential employees, if no one was employed by the employer, City Plumbing in the I.C.I. Sector for a period of six months prior to the vote being taken.
The hearing is requested by the respondent union to consider these representations. It is requested that before a hearing date be fixed that both the applicant, respondent and intervener by consulted so that the date is mutually satisfactory for all.
All of which is respectfully submitted on behalf of the respondent.
[emphasis added]
3Pursuant to the respondent's request, a hearing with respect to the matter was held in Toronto on May 11, 1987. At that hearing, counsel for the respondent argued that Mr. Grandy was not entitled to vote because it had not been established that he had been at work for the intervener in the industrial, commercial and institutional ("Id") sector of the construction industry during the times material to voting eligibility and because he was not representative of the intervener's ICI work force. Counsel also argued that it had not been established that there were no other employees of the respondent who were not eligible to vote and that this also vitiated the vote. Counsel asserted that he could adduce evidence that would consist of details of the contacts between the respondent and the intervener which would establish that the respondent had received none of the remittances or information required by the collective agreement with respect to persons employed by the intervener in the ICI sector of the construction industry since August 1986 and that this would, by inference, establish that there were no such employees and that, accordingly, there was no one in the voting constituency during the material times. He suggested that the material times include not only September 2, 1986 and March 30, 1987, but the period of time between those dates as well. Indeed, counsel emphasized the importance of that intervening period. Counsel did not suggest that the respondent had any affirmative evidence, either of its own or that had been subpoenaed, which supported his assertions. He submitted, however, that the lack of evidence either that the applicant was entitled to vote, or that there were no other employees entitled to vote should be sufficient to cause the Board to either dismiss this application outright, or direct that a new vote be taken at such time as there is a "representative" work force employed by the intervener in the ICI sector of the construction industry.
4After adjourning to consider the representations of the parties, the Board rejected the arguments of the respondent and ruled orally, with reasons to follow, that neither the vote, nor the results thereof, should, in the circumstances, be interfered with. The Board further ruled that, in the result, the standard Board decision reflecting the result of the vote would issue.
5The Board's practices with respect to voter eligibility in the representation votes that it directs be taken are well-established. It has developed a two-pronged voter eligibility rule based on two material dates; the date of the Board decision ordering the vote (or, on the terminal date fixed for a certification proceeding in which a pre-hearing vote has been requested) and the date the vote is taken. The object of the Board's practices is to provide certainty and finality in proceedings where representation votes are taken, and to reduce the likelihood of attempts to gerrymander the voters list in an effort to influence the outcome of a vote (see London District Crippled Children's Treatment Centre, [1980] OLRB Rep. April 461 and Crowle Electrical Limited, [1982] OLRB Rep. Oct. 1458).
6The Board has also long recognized that there is a difference between employment in the construction industry and non-construction employment. A major difference between the two is that employment in the construction industry tends to be intermittent and transitory relative to non-construction employment. A great deal of construction work is seasonal or subject interruption due to inclement weather. When they do work, construction employees tend to work in small crews and continuous employment with any given employer is often measured in weeks or months rather than years. In recognition of the differences between them, the Board has established a practice of approaching the two situations differently. For example, in both applications for certification and termination proceedings, the employer involved is required to file with the Board a list of employees in the bargaining unit so that the Board can, as it must, ascertain the level of employee support of the application before it. In proceedings relating to the construction industry, the Board counts only these persons actually at work in the bargaining unit on the date of application in determining the number of employees in the bargaining unit. In contrast, in non-construction proceedings, the Board does not require an individual to be at work in the bargaining unit on the date of application for purposes of the count so long as s/he was an employee in the unit on that day, and did actually work in it on at least one day in the thirty day period prior to and one day in the thirty day period subsequent to the date of application. Similarly, when a representation vote is held in the course of proceedings involving the construction industry, a person is entitled to vote if s/he was at work in the voting constituency on the date of the Board's decision directing the vote (or, where a pre-hearing vote is requested in a certification application, on the terminal date), and the day of the vote. In non-construction matters, on the other handy an individual is entitled to vote if s/he was employed in the voting constituency on those two material dates. Being "at work in" the voting constituency requires an individual to be physically on the job. Being "employed in" the voting constituency does not require a person's physical presence at work so long as s/he has not been permanently removed from employment in the voting constituency. This distinction illustrates the Board's practice of focusing on specific dates in construction industry proceedings and on periods of time in non-construction matters, and it reflects the Board's attempt to accommodate the differences between the two employment situations.
7Contrary to what counsel for the respondent suggests, so long as employment in the voting constituency is not terminated, in neither case does the Board require an individual to be at work in it for any minimum period of time, or at all, during the period between the two material dates in order to be eligible to vote. It would be impractical and unrealistic to impose any such requirement. It is to be expected that some employees will not be at work, or if at work not be performing work within the voting constituency, during some part, or all, of the period between the date of the Board decision directing the vote (or the terminal date in the case of a pre-hearing vote), and the day the vote is taken. That is particularly true in the construction industry where the vagaries of employment are such that it is possible, even likely, that imposing a requirement that an individual perform work in the voting constituency during that intervening period would, in many cases, result in there being no one entitled to cast a ballot. The Labour Relations Act provides employees with an opportunity to join and be represented by a trade union in their employment relations with their employer, and also permits them to terminate that trade union's right to represent them, if they see fit to do so. It would be inappropriate for the Board to adopt procedures which would effectively deny either right. Furthermore, such a requirement could create uncertainty and invite protracted litigation, neither of which is desirable in labour relations matters, particularly those relating to representation rights.
8The purpose of the Board's practices is to ensure that the persons affected by the outcome of a vote; that is, the employees in the bargaining unit affected, have an opportunity to participate in a representation vote where one is directed. To achieve that goal, the Board has formulated different approaches to employment in the construction industry and non-construction industry employment in response to the differences between the two employment situations. Some of those differences in approach have already been discussed. They are also reflected in the difference in the meaning that the Board has ascribed to the standard language it has long used to describe voter eligibility in representation votes in the construction industry compared to that in non-construction votes. In the result, in non-construction matters, a person need not be "at work in" the voting constituency at any time so long as s/he is "employed in" it. In construction matters, the same eligibility terminology has been made equivalent to "at work in" so that a person must be at work in the voting constituency on both of the material dates; that is, the date of the Board decision ordering the vote (or the terminal date in the case of a pre-hearing vote), and the day the vote is taken in order to be eligible to vote (see Crowle Electrical Limited, supra). This reflects the Board's attempt to strike a balance between the vagaries of employment in the construction industry and the object of affording affected employees an opportunity to vote.
9Accordingly, the effect of the Board's decision dated September 2, 1986 in this proceeding is that an individual was entitled to cast a ballot by the Board if s/he was at work for the intervener as a plumber, plumbers' apprentice, steamfitting steamfitters' apprentice, or welder in the Id sector of the construction industry on both September 2, 1986 and March 30, 1987.
10In this case, the respondent did not deny that Mr. Grandy was at work in the voting constituency on either September 2, 1986 or March 30, 1987. The respondent alleges only that Mr. Grandy was not at work in the voting constituency prior to the vote being taken. It is noteworthy that at no time prior to the taking of the representation vote did the respondent make any challenge to the voters list or to Mr. Grandy's right to cast a ballot. Indeed, Mr. Crystal, business agent for the respondent, specifically agreed to a voters list upon which only Mr. Grandy's name appeared. It was not until after the vote had been taken, when Mr. Crystal knew that only Mr. Grandy had cast a ballot and therefore knew what the result would be, that there any objection made on behalf of the respondent.
11The respondent did not suggest that the information that it had for the period subsequent to the preparation of the voters list and the voting arrangements being made, and to which it specifically agreed, was different from the information it had for the preceding period. Indeed, the respondent did not suggest that it had any information or evidence to suggest either that the applicant was not eligible to vote or that any other person both was eligible to and did not have the opportunity to vote. It merely stated that it had no information to confirm either that Mr. Grandy was eligible to vote or that there was no one else who was eligible but was not given the opportunity to do so. In our view, the onus is on the party challenging or objecting to the voting process to satisfy the Board that there is substance to its challenge or objection. In the absence of any indication by the respondent that it wished to adduce any affirmative evidence in support of its assertions, and having regard to the circumstances, including the timing and circumstances under which its objections were made, we were satisfied that, even if the respondent established that it had not received the appropriate remittances from the intervener, there was no cogent reason for doubting Mr. Grandy's eligibility to vote.
12Neither did we find any merit to the respondent's submission that the vote was invalid because Mr. Grandy was not representative of the intervener's ICI work force. Mr. Grandy is the intervener's ICI work force for the purposes of this proceeding. It appears that Mr. Grandy has been the only employee in the bargaining unit to which this application relates for some time and there was no suggestion that that situation is likely to change in the future. We were unable to appreciate how Mr. Grandy could not be representative of himself. Further, to accept the respondent's submission that there must be a "more representative" work force would effectively and unjustifiably deny Mr. Grandy his rights under the Labour Relations Act. In rejecting an analogous argument that there must be more than one employee in the bargaining unit on the date an application for a declaration terminating bargaining rights is made, the Board held, at paragraph 7 of its September 2, 1986 decision in this matter [reported at [19861 OLRB Rep. Sept. 1206], that:
- The decision in Stuart Riel Masonry Contractor does not advance the argument of the respondent. It does not address the issue raised by the respondent. However, that decision does state at page 1634:
In the construction industry, because of the short term nature of the employment relationship, it has been the consistent policy of the Board over many years to count as employees only those employees at work on the application date. This applies equally to the applications for certification and for termination of bargaining rights.
The Board has entertained applications to terminate bargaining rights where there has been only one employee in the bargaining unit on the date of the application. For example, in A. R. Milne Electric Ltd., [1982] OLRB Rep. June 911, the Board was faced with this situation and after reviewing the provisions of section 57(2) stated at page 912:
In the instant case, there is only one employee in the bargaining unit, and for this reason the respondent union argues that no termination application can be brought. The union points out that on a certification application, the Act prevents the Board from determining an appropriate bargaining unit unless such unit consists of more than one employee; moreover, the term "bargaining unit" is defined in section 1(1)(b) to mean a "unit of employees (plural) appropriate for collective bargaining". The union argues, by analogy, that if two employees were required for a bargaining unit to be certified, bargaining rights cannot be extinguished unless there are at least two employees in the unit. The union also questions whether there is a bargaining unit at all in this case, when the definition of that term appears to require a collectivity.
We cannot accept these contentions. In the construction and related industries, the number of employees in a bargaining unit can fluctuate substantially, and from time to time, the bargaining unit may even be vacant. Indeed, section 121 of the Act contemplates that the parties can negotiate a collective agreement even if there are no employees in the bargaining unit at the time the agreement is entered into. It is inconsistent to assert as the union does that there is no "bargaining unit", while at the same time maintaining that it continues to represent the applicant employee; and, we would not lightly embrace an interpretation which could conceivably lock an employee, unwillingly, into a bargaining unit with no possibility of escape, even in the "open period" prescribed in section 57(2)(a). In our view, such submission is entirely inconsistent with the scheme and purpose of the Act. Section 57(2) provides that any of the employees in the bargaining unit may make a timely application to terminate bargaining rights, and we are satisfied that the applicant has properly done so here.
The same reasoning is equally applicable in the instant application and the Board finds that it has jurisdiction to entertain the instant application to terminate the bargaining rights of the respondent.
We agree, and we find that rationale equally applicable to the representation vote that arises out of such applications. Accordingly, we rejected the respondent's argument in that respect as well.
13On the taking of the representation vote directed by the Board, more than fifty percent of the ballots cast were cast in opposition of the respondent. The Board therefore declares that the respondent no longer represents the employees of City Plumbing (Kitchener) Limited for whom it has heretofore been the bargaining agent. Pursuant to subsection 57(6) of the Labour Relations Act any collective agreement in operation between the respondent and City Plumbing (Kitchener) Limited that is binding on the employees in the bargaining unit now ceases to operate.
14The Registrar is directed to destroy the ballot cast in the representation vote taken in this matter following the expiration of thirty days from the date of this decision unless a request that it not be destroyed is received by the Board from one of the parties before that thirty day period expires.