Labourers' International Union of North America, Local 1089 v. Catalytic Maintenance Inc., 1988 CanLII 3792

Labourers' International Union of North America, Local 1089 v. Catalytic Maintenance Inc.

[1988] OLRB Rep. December 1209

1693-87-R Labourers' International Union of North America, Local 1089, Appli­cant v. Catalytic Maintenance Inc., Respondent

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members G. O. Shamanski and B. L. Armstrong.

DECISION OF THE BOARD; December 5, 1988

Decision

1. This is an application for certification. The matters in dispute have already been set out in two earlier decisions of the Board; but, for ease of exposition, we will repeat them here. The facts are not in dispute.

2. The respondent employer, as its name suggests, is engaged in the industrial mainte­nance business. The applicant union has applied for certification as the bargaining agent for certain of the respondent's employees, in an agreed bargaining unit framed as follows:

All employees of the respondent at the Polysar Limited, Corunna site, at Corunna, Ontario, save and except foremen, persons above the rank of fore­man, office, clerical, technical, engineering and sales staff, and persons for whom any trade union had bargaining rights on September 21, 1987.

3. Following the application for certification, the Board appointed an Officer to inquire into and report upon the employee list and the composition of the bargaining unit. In particular, the Officer was authorized to inquire into the number and identity of the employees on the appli­cation date, and the date when they terminated their employment with the respondent. The Offi­cer was so authorized, because in at least two instances, a perusal of the union's membership evi­dence suggested that membership cards were signed after the worker's employment was terminated. The Board drew the parties' attention and requested representations with respect to the application of the policy enunciated in: Hardman Industries Limited, [1982] OLRB Rep. Mar. 388, and Amplifone Canada Ltd., [1967] OLRB Rep. Dec. 840.

4. After a meeting with the Labour Relations Officer, the parties verified and agreed that two individuals had signed union membership cards after their employment with the respondent was terminated. On their last day worked, they were told by a managerial employee of the respon­dent that they would be laid off permanently at the end of the day, and they were in fact perman­ently laid off. It was only after this permanent severance of employment that they signed union membership cards. However, these two membership cards are numerically significant. They were signed before the "terminal date" fixed pursuant to section 102(3)(j) as the time for ascertaining membership for the purposes of section 7 of the Act. Given the arithmetic requirement of section 7 for support among more than fifty-five per cent of the employees in the bargaining unit, it is appar­ent that if these two cards are "counted", the trade union is in a position to be certified without recourse to a representation vote, and if they are not counted, a representation vote will be neces­sary.

5. Essentially, then, the issue is this: in a certification application designed to establish a continuing collective bargaining relationship with a particular employer, should the Board give any weight to membership evidence signed by individuals after they have severed their employment relationship with the respondent and cannot, in any meaningful sense, be considered "employees in the bargaining unit". In our view, the answer is no; moreover, that view is entirely consistent with the Board's established practice of some 20 years standing. Even if we are wrong, we would not be disposed to issue a certificate, without the confirmatory evidence of a representation vote, where the union's entitlement to "automatic certification" depends upon the membership cards of workers who were no longer employees of the respondent at the time those cards were signed. Our opinion is consistent with, and we adopt, the opinion of the Board in Hardman Industries Limited, sup ra.

6. The Board is satisfied on the basis of all the evidence before it that not less than forty-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 2, 1987, 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.

7. A representation vote will be taken of the employees of the respondent in the bargain­ing unit. All those employed in the bargaining unit on the date hereof who are so employed on the date the vote is taken will be eligible to vote.

8. Voters will be asked to indicate whether or not they wish to be represented by the appli­cant in their employment relations with the respondent.

9. The matter is referred to the Registrar.