[1989] OLRB Rep. September 972
0250-87-R; 0484-87-U United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant v. Mollenhauer Limited, Respondent v. Labourers' International Union of North America, Local 183, Intervener #1 v. Metropolitan Toronto Apartment Builders Association, Intervener #2; United Brotherhood of Carpenters and Joiners of America, Local 27, Complainant v. Mollenhauer Limited, Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and P. V. Grasso.
APPEARANCES: Douglas J. Wray and Tony Bucci for the applicant/complainant; Walter Thornton and J. A. Whyte for the respondent; no one appearing for either intervener at the hearings with respect to this stage of the proceedings.
DECISION OF THE BOARD; September 13, 1989
The name of the respondent in Board File No. 0484-87-U is amended to "Mollenhauer Limited".
Subsequent to the Board's decisions dated December 8, 1988 ([1988] OLRB Rep. Dec. 1254) and March 7, 1989 ([1989] OLRB Rep. March 234), with respect to this and other related proceedings, the applicant sought to convert the application for certification herein from one in which a pre-hearing representation vote had been requested to a "regular" application; that is, one in which no pre-hearing representation vote had been requested. The respondent opposed this request.
After hearing the representations of the parties~ the Board (orally) denied the applicant's request for the following reasons.
The applicant argued that it had originally requested a pre-hearing representation vote because it was aware that there were serious issues which would have to be litigated before the application for certification herein could be disposed of. It was therefore concerned that a vote, if one was necessary, should be taken at the earliest possible time having regard to the often transient nature of employment in the construction industry. The applicant points out that it reserved the right to make the request it was making in the application as filed and submitted that no one would be prejudiced if the request was granted.
The respondent argued that the applicant was seeking to change its application after the time it was entitled to do so and that the applicant was doing so in response to the Board's decisions as aforesaid. It submitted that the applicant had a choice to make when it made the application and that it ought not be permitted to now resile from its decision to request a pre-hearing representation vote. It submitted that the applicant could not reserve a right to convert the application as it had purported to do. In that respect, the respondent relied upon Board Practice Note No. 3 and the Board's decision in Imperial Tobacco Products (Ontario) Limited, [1972] OLRB Rep. Oct. 868 (application for judicial review dismissed (1973) 3 O.R. 309 Div. Ct.). The respondent also suggested that permitting the conversion requested could prejudice the employees or itself in that either or both might have filed material in support of a request that a representation vote be held had not a pre-hearing representation vote been requested in the application.
The Board agreed with the respondent's submissions. Faced with a similar request in Imperial Tobacco Products (Ontario) Limited, supra, the Board held that:
However that may be, the applicant wrongly assumes that the Board will "continue to process this application for certification in the usual way". It is the Board's regular practice to deny an applicant's request to amend an application for a pre-hearing vote (which is made under section 7 of the Act) and convert such application to an application under section 7 of the Act. The different procedures adopted by the Board under section [6] and under section [9] of the Act are mutually exclusive. Once the Board processes such applications and notifies the other parties that the application has been made, the procedures followed are not interchangeable. The Board will not permit leave to amend the application so that the type of application is changed. In this regard see Practice Note No. 3 published in the office consolidation of the Board's Rules of Procedure, Regulations and Practice Notices.
The notice of the application given to employees where a pre-hearing representation vote is requested is in Form 6 of the Board's Rules and no invitation is given to the employees to file a statement of objection in such notice, since a representation vote has been requested by the applicant. However, where a pre-hearing representation vote is not requested, notice of the application is given to employees in Form 5 of the Board's rules. Form 5 instructs employees how they may give notice of their opposition to the application. Accordingly, even if the Board were not to take into consideration the rights of the respondent and the intervener and were to grant the applicant's request to amend its application in this matter, a new terminal date would have to be fixed so that notice of the reconstituted application (in Form 5) could be given to employees in order that an opportunity be afforded them to object to the application. If the applicant had made a new application for a certification it could be processed more expeditiously than the applicant's request in this matter since a new application would not require the Board to make and issue a decision concerning a new terminal date since such decision would require the Board to obtain the representations of the other parties prior to the Board making that decision.
The Board found that reasoning to be equally apposite to this case. We note that Practice Note No. 3 indicates (as it did in 1972) that, in the absence of some cogent reason to "cancel" the vote, the Board will not grant leave to convert an application for certification in which a prehearing vote has been requested to one in which no such vote is requested unless the request in that respect is received by the Board prior to the giving of notice of the application to other interested persons. In our view, an applicant for certification does have a choice which it must make when it files its application; namely, whether it is or is not seeking a pre-hearing representation vote. That choice is one which must be made, failing which an applicant will be deemed (as the application forms themselves and the Board Practice Note No. 3 indicate) to have chosen to not request a pre-hearing representation vote. An applicant does not have a right to delay making that choice other than as contemplated by Practice Note No. 3 and it is therefore not possible for an applicant to reserve a right (which is non-existent) to do so. Consequently, in the absence of extraordinary circumstances, which the Board was not persuaded existed in this case, conversions of the kind sought by the applicant herein ought not be permitted in the absence of consent from all those affected by the application.
The Board then proceeded with a hearing in which it received the evidence and representations of the parties with respect to all remaining matters arising out of and incidental to them.
The applicant and the respondent agreed that there were three employees in the bargaining unit on the date the application for certification herein was made; namely, Brian Ogden, Rudy Pilgrim, and Manuel Rodrigues. In support of its application, the applicant filed three pieces of documentary membership evidence in the form of certificates of membership. Each certificate contains the original signature of the member to whom it relates and indicates that monthly dues of $20.00 were paid by each for at least one month within the six-month period immediately preceding the terminal date fixed for the application. Each certificate is checked and certified correct by an officer of the applicant. The applicant also filed a Form 80, Declaration Concerning Membership Documents, Construction Industry which attests to the regularity and sufficiency of its membership evidence.
On the basis of the evidence before it, the Board is satisfied that not less than thirty-five percent of the employees in the voting constituency in this application were members of the applicant trade union at the time the application was made. Consequently, the applicant was entitled to the pre-hearing representation vote it had requested.
There was a dispute, however, with respect to who was entitled to vote in that pre-hearing representation vote. (As a result of the issues in dispute in the application for certification, the Board ordered that all ballots cast be segregated and that the ballot box be sealed.) The parties agreed that Brian Ogden was entitled to vote. However, the respondent asserts that Rudy Pilgrim and Manuel Rodrigues were not at work in the bargaining unit on May 8, 1987 and that, in accordance with paragraph 11 of the Board's decision dated May 25, 1987 in the certification application herein, they were therefore not entitled to vote. The applicant agrees that they were not at work in the bargaining unit on May 8, 1987 but asserts that the respondent acted in a manner contrary to sections 64, 66, 70 and 79 of the Labour Relations Act when it transferred them out of the bargaining unit. The applicant submits that, in the circumstances, Pilgrim and Rodrigues were entitled to vote and that their ballots, if they or either or them voted, should be counted.
William Mitchison, the respondent's superintendent at its Hampton Green condominium job site (the only job site relevant to this application) was the only witness to testify before the Board with respect to the applicant's allegations that the respondent had breached the Act. There is nothing in the evidence before the Board or in Mitchison's demeanour to suggest that he was anything other than a credible witness.
The evidence reveals that Mitchison was the respondent's site superintendent at Hampton Green from the outset of that project. He experienced some difficulty in obtaining a crew to do the necessary layout work on that site. However, in accordance with a practice which is common in the industry, he was able to "borrow" three employees (Ogden, Pilgrim, and Rodrigues) from an industrial, commercial and institutional job site of the respondent known as "A. C. Nielson" pending the anticipated arrival of two other employees; namely, Jack Van Walraven and Laurence Shepard, beginning in early May 1987. Ogden, Pilgrim and Rodrigues are all regular, long term employees of the respondent.
Between the week ending March 21, 1987 and the week ending May 2,1987, Ogden, Pilgrim and Rodrigues alternated between the Hampton Green and A. C. Nielson job sites on an irregular basis. May 4, 1987 was the last day which either Pilgrim or Rodrigues worked at the Hampton Green site. Van Walraven was assigned to that site beginning May 5, 1987 and Shepard started there on June 1, 1987.
We are satisfied that although the respondent received notice of this application for certification at its head office on May 1, 1987, Mitchison had no knowledge of it until May 5, 1987, the day after he determined that Pilgrim and Rodrigues were no longer needed at the Hampton Green site and could return to the A. C. Nielson site from which they had come. It had also been determined by then that he would retain Ogden at Hampton Green in order to familiarize Van Walraven with the job site.
On the evidence before the Board, it appears that the transfer of Pilgrim and Rodrigues from the Hampton Green job site and the retention of Ogden there was done in the normal course of the respondent's operations in the circumstances. There was no suggestion in the evidence before the Board that the transfer of Pilgrim or Rodrigues was unexpected by anyone or that it was unreasonable for the respondent to have retained Ogden at the Hampton Green site in the circumstances.
Further, it is now well established that the Board will examine all of the circumstances surrounding the actions of a respondent employer in a context of an application for certification in order to ascertain whether any part of the motivation for actions taken by that employer were improperly motivated. We are satisfied that the conversations which Mitchison had with various employees at the job site on May 4, 1987 were innocent and had nothing to do with the application for certification herein. We are also satisfied that neither these conversations nor the transfers of Pilgrim and Rodrigues were tainted by any desire to frustrate this application for certification.
In the result, we are satisfied that the respondent did not breach sections 64, 66, 70 and 79, or any of them, of the Labour Relations Act as alleged by the applicant. Consequently, the complaint in Board File No. 0484-87-U is dismissed.
Consequently, as the parties agreed would be the case if the complaint was dismissed, Rudy Pilgrim and Manuel Rodrigues were not entitled to vote in the pre-hearing representation vote held in the application for certification.
It therefore appears that Brian Ogden was the only employee of the respondent eligible to vote. The Board will therefore direct that the ballot box be unsealed and Ogden's ballot, if he cast one, be counted unless, within fourteen days of the date hereof, any party objects, in writing, to that ballot, if any, being counted. The basis for any such objection should be fully particularized.