Labourers' International Union of North America, Local 183 v. Amarcord Carpenters Ltd., 1989 CanLII 3236

[1989] 0LRB Rep. June 531

0302-87-R Labourers' International Union of North America, Local 183, Applicant v. Amarcord Carpenters Ltd., Respondent v. United Brotherhood of Carpenters and Joiners of America, Local 27 (formerly Local 1190), Intervener

BEFORE: Owen V. Gray, Vice-Chair, and Board Members W. H. Wightman and H. Peacock.

DECISION OF THE BOARD; June 6, 1989

1. This is an application for certification in which the applicant requested that a pre-hearing representation vote be conducted. There was a disagreement about the number of persons employed in the appropriate bargaining unit on the application date. The applicant said there were 7; the respondent said there were 11 and intervener said there were 12 or more. The applicant had filed membership evidence with respect to 4 employees, which is more than 35 per cent of 7 or 11, but less than 35 per cent of 12. In accordance with the approach described in Board of Education for the City of North York, [1984] OLRB Rep. July 989 and Scarborough Board of Education, [1985] OLRB Rep. July 1164, the panel which then dealt with the issues described in subsection 9(2) of the Act directed that a pre-hearing representation vote be conducted and that the ballot box be sealed and the ballots not counted pending the post-vote resolution of the issues in dispute. After the vote was taken and after some of the persons in dispute had been examined by a labour relations officer appointed for that purpose, the applicant sought leave to withdraw this application.

2. Having regard to the stage these proceedings had reached by the time the applicant made its request, leave to withdraw is refused and this application is hereby dismissed. The issue with which the balance of this decision deals is whether we will also impose a temporary bar on further applications by the applicant, pursuant to, clause 103(2)(i) of the Labour Relations Act ("the Act"), as the intervener submits we should.

3. The applicant's request for leave to withdraw was made in a letter from its counsel to the Registrar. That letter concluded with this explanation:

On the basis of all the information with which the Applicant has now been provided, it is clear that in the circumstances of this case the applicant did not have enough cards to even warrant a vote. The Applicant therefore requests the Board's permission to withdraw this application.

We take it that its reference to not having "enough cards to even warrant a vote" meant the applicant had concluded that the pre-hearing representation vote which had already been taken would not ultimately be given "the same effect as a representation vote taken under subsection 7(2)" under subsection 9(4) of the Act, because it would not be able to satisfy the Board that not less than thirty-five per cent of the employees in the bargaining unit were members of the trade union at the time the application was made.

4. The respondent and intervener were informed of the applicant's request and given an opportunity to make submissions in response. Only the intervener did. It submitted that it had always taken the position, and had repeatedly advised the applicant, that the applicant was "not in a vote position", which we take to have the same meaning as the applicant's reference to not having "enough cards to warrant a vote". After reciting the history of these proceedings, counsel for the intervener submitted that:

Having regard to the foregoing facts, it is clear that the Carpenters, the Respondent and the Board have been put to a colossal waste of time, effort and money. It is respectfully submitted that it ought to have been obvious to the Labourers from the outset that it was not in a vote position. Having insisted that the wishes of the employees be tested by a vote, and having put the other parties to the expense of Labour Relations Office proceedings, the Labourers now seek to painlessly extricate itself from the proceedings and to perhaps institute a fresh application for certification.

Under these circumstances, it is our respectful submission that the Board should not grant the Labourers permission to withdraw its Application. Rather, it is submitted that the Board ought to dismiss the Application and further that the Board ought to bar the Labourers for six (6) months, pursuant to Section 103(2)(i) of the Labour Relations Act. Alternatively, it is respectfully submitted that the Board ought to dismiss the Labourers' Application with a caution to the Labourers that in the event that it brings a new Application within six (6) months, it will bear the onus of establishing that special circumstances exist to warrant the new Application being heard.

In reply, counsel for the applicant made these submissions:

It is the position of Labourers, Local 183, that the bar ought not to be imposed. However, this issue may or may not be moot as it is at present only speculation as to whether or not the Labourers will make a fresh application for certification. Therefore, we respectfully submit that the Carpenter's request that a new application be barred should only be dealt with if and when a fresh application is brought and not now.

In the alternative, if the Board is not in agreement with deferring argument on this issue if and when a new application is brought, we respectfully ask that the Board schedule a hearing for the purpose of determining whether or not the Carpenter's request for the imposition of a bar should be granted a this time. Granting the Carpenter's request would require the Board to make a determination regarding the Labourers' motivation in its conduct of the present application and it is our submission that this matter cannot properly be dealt with by way of written submissions.

5. Under clause 103(2)(i) of the Act, the Board has the power

to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing such employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application.

The Board's approach to the exercise of its powers under this clause was described in general terms in Repac Construction and Material Limited, [1978] OLRB Rep. Jan. 91, at paragraph 7:

As a general principle the Board is quite reluctant to either bar, or refuse to entertain, a subsequent application for certification filed by a previously unsuccessful applicant. Indeed, such action is usually only taken either where employee desires have been tested by a representation vote in which the union failed to receive sufficient support to be certified (See: Campbell Soup Company Ltd., 1976) OLRB Rep. Feb. 1091), or where the union has sought to avoid an unfavourable vote result by withdrawing its application following the ordering of such a vote. (See: Mathias Ouellette 56 CLLC ¶18,026). Exceptional circumstances may, however, also lead to the Board invoking the provisions of section 92(2)(i) in other situations. The leading example of this is the J. W. Crooks Company case, [1972] OLRB Rep. Feb. 126, where "in light of the special and extreme circumstances confronting the Board", namely four unsuccessful applications for certification made by the same applicant in a little over three months, the Board imposed a six month bar on any future applications by the same applicant. In its consideration of any request pursuant to section 92(2)(i), the Board, concerned that the wishes of employees be given effect to, has always been careful not to use its authority under that section merely to punish an unsuccessful applicant union, even in those instances where the union may have engaged in previous irregular or improper conduct. (See Fruehauf Trailer Company of Canada Limited [1974] OLRB Rep. Jan. 6.).

The rationale for imposing a bar was explained this way in General Freezer Limited, 63 CLLC ¶16,294:

A bar to future applications for certification is usually imposed following a dismissal after a representation vote is taken, due to the fact that in such cases, all of the employees in the bargaining unit have had the opportunity to express their wishes with respect to their choice of a bargaining agent by means of a secret ballot, and therefore the true wishes of the employees have been fully tested. It is not the Board's usual practice to impose a bar to future applications for certification where an applicant fails to submit sufficient evidence of membership to entitle it to a representation vote where there is no incumbent bargaining agent. The success of an applicant union's organization campaign is dependent on many factors and its failure to acquire sufficient membership has not the same evidentiary value with respect to the wishes of the employees as a representation vote.

6. From its references in these and other decisions to employees' desires having been tested by a representation vote or to employees' having had an opportunity to express their wishes in a representation vote, it appears that the Board had in mind a representation vote whose outcome was or would have been determinative of the outcome of the certification application. This impression is reinforced by the language used in the opening sentence of an often quoted passage from Mathias Ouellette, 56 CLLC ¶18,026:

Where, after the taking of a representation vote directed by the Board, an application is dismissed because not more than 50 per centum of the ballots of all those eligible to vote were cast in favour of the applicant, the Board usually [imposes a bar].

The same impression is created by the approach taken by the Board in The Watson Manufacturing Company of Paris Limited, [1968] OLRB Rep. Aug. 441. There, a prior application had been dismissed when the Board found there had been no money payment in respect of one of the membership documents submitted. When the unsuccessful applicant filed a fresh application a month later, a rival trade union argued that it should not be entertained. In that context, the Board made these observations:

5. If the Board's jurisdiction were extended so that the Board had punitive powers, there would be merit in the argument made by the intervener. However, the Board's jurisdiction under the Labour Relations Act in an application for certification is confined to ascertaining the true wishes of employees with respect to the trade union's right to represent them in an appropriate bargaining unit. Where the true wishes of employees have been established with the certainty permitted by a representation vote, the Board, under the authority of section 77(2)(1), imposes a bar of six months on future applications by that union. The Board imposes a bar with the view to promoting a sound employer-employee relationship by avoiding the confusion and turmoil of repetitive applications by a union which has been given full and complete opportunity to establish its right to represent the employees through a representation vote. In the exercise of its discretion under section 77(2)(1), the Board endeavours to provide a cooling off period during which the employees may assess their position with respect to their desire to be represented by the applicant union by temporarily postponing repetitive applications for certification by that union.

6. In the case where non-pay has been established and the Board is placed in the position where it can place no reliance on the union's evidence of membership, the Board is unable to find that the union enjoys the support of at least forty-five per cent of the employees and therefore has no jurisdiction to direct a representation vote. In making the finding that it is unable to place reliance on the evidence of membership submitted, such finding is concerned only with respect to the evidentiary value of the membership documents. It is not a finding made following a test of the actual support that the union enjoys among all the company's employees.

7. While a union, which has been found guilty of non-pay, has by its own activities destroyed the evidentiary value of its membership evidence, either in whole if a union official is involved, or in part if a rank and file employees has perpetrated the fraud, it cannot be said that the Board in making such finding has ascertained the true wishes of the employees. On the contrary, the Board is unable to ascertain the wishes of the employees since the evidence of their wishes has been cast in doubt. Where the true wishes of employees have not been ascertained, it is not the Board's practice to impose a bar on future applications by the unsuccessful union.

The Board went on to hold that it would not be a proper exercise of its powers either to bar or refuse to entertain subsequent applications when it was the applicant's irregular conduct which led to dismissal of the initial application.

7. The passages we have quoted from General Freezer Limited, Mathias Ouellette and Watson Manufacturing make a distinction between a dismissal which results from employees' rejection of the applicant at the polls and dismissal which results from an applicant's failure to satisfy the Board that its documentary evidence of membership is of sufficient quantity and quality to entitle the applicant either to outright certification or to have its right to certification determined by the outcome of a representation vote. In our view, the same distinction should be made when dealing with a request for withdrawal made at a stage when it is said that the applicant must be anticipating defeat, so that a bar or refusal to entertain a new application would follow if the anticipated defeat was one which would have been caused by the results of a representation vote, but not if the anticipated defeat was one which would have resulted from a failure to satisfy the Board that its documentary evidence of membership was qualitatively and quantitatively sufficient even to permit the outcome to be determined by the results of a representation vote.

8. When an application is made under Section 7 of the Act, a representation vote cannot be directed unless the Board is satisfied that the applicant had the requisite membership support among employees in the appropriate bargaining unit at the relevant time. Once a certification application reaches the stage at which a representation vote has been directed under subsection 7(2), the results of that vote will ordinarily determine the outcome of the application. If such a vote has been conducted but not yet counted when an applicant requests leave to withdraw the application then, in the absence of any allegations of impropriety in connection with the conduct of the vote, one might fairly infer that the request was made because the trade union anticipated defeat at the hands of the employees whom it was seeking to represent. The analysis is not so simple, however, when a trade union requests leave to withdraw an application after a pre-hearing representation vote has been conducted.

9. Under section 9 of the Act, the Board does not determine the appropriate bargaining unit or satisfy itself with respect to the requisite level of membership support among employees in that unit before directing that a pre-hearing representation vote be taken. Under subsection 9(2), a pre-hearing representation vote can be taken if an applicant merely "appears" to have the requisite support in a voting constituency which may not ultimately be found to be co-extensive with the appropriate bargaining unit. The merits of the application are only dealt with after the vote, at the hearing contemplated by subsection 9(4) of the Act, which reads:

(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 representation vote taken under subsection 7(2).

The corollary of subsection 9(4) is that a pre-hearing representation vote does not have the same effect as a representation vote taken under subsection 7(2) if the trade union does not establish the requisite level of employee support in the hearings which follow the taking of the vote. There is a substantial difference between having the appearance of support required by subsection 9(2) and satisfying the more stringent test imposed by subsection 9(4). It is entirely possible for a certification application to be dismissed despite the applicant's having had a majority of ballots cast its favour in a pre-hearing representation vote, as occurred in W. & H. Voortman Limited, [1975] OLRB Rep. Aug. 605 (where the application failed because the applicant's membership evidence was found to be unsatisfactory). That is one of the reasons why, when there is any serious question whether the applicant's membership evidence will establish the level of support required by subsection 9(4), the ballots cast in a pre-hearing representation vote are not ordinarily counted until the Board has determined that question.

10. In this case, there was a serious dispute about the number of persons employed in the appropriate bargaining unit on the application date. That put in question the ability of the applicant to satisfy the membership evidence requirements of subsection 9(4) of the Act. While there was an appearance of support sufficient to warrant conducting a pre-hearing representation vote, there was from the outset a question whether that vote could ultimately be given the same effect as a representation vote taken under subsection 7(2). The intervener's position was that the ballots in the pre-hearing representation vote should not be counted, that the application should be dismissed because the applicant's membership evidence is insufficient to warrant treating the results of the vote as dispositive of this application. If this application were dismissed on that basis, the dismissal would not be "because not more than 50 per centum of the ballots all those eligible to vote were cast in favour of the applicant", to use the language of the Mathias Ouellette decision.

11. If this were an "ordinary" application under section 7 and the request for withdrawal had been made in circumstances in which it appeared the application would be dismissed for want of sufficient membership evidence, the dismissal would not ordinarily be accompanied by a bar. Why should the result for this applicant be different because a pre-hearing vote was conducted?

12. It might be said in answer to that question that the conduct of a vote is a disruption which ought not to be repeated. If a major objective of the Board in exercising its power under clause 103(2)(i) were to minimize disruption caused by votes, however, one would expect the Board to refuse to entertain any trade union's application if it were filed soon after the post-vote dismissal of another trade union's application. That has not been the Board's practice when there is no incumbent trade union. The Board's willingness to entertain one trade union's application immediately after another's has been dismissed following a vote cannot be explained by focusing on the first applicant's having caused the disruption, as that explanation would have the Board exercising the discretion under clause 103(2)(ii) in a punitive fashion, contrary to the approached described by the Board in Hydro Electric Commission of Hamilton, [1958] 58 CLLC ¶18,120, and The Watson Manufacturing Company of Paris Limited, supra.

13. With respect to its disruptive tendencies, moreover, the simple taking of a representation vote pales in comparison with the disruptive effect a complex and acrimonious certification application may have over a lengthy period, even if no vote is ever conducted. The Board has not treated the disruptive effects of other aspects of a certification application as a reason to impose a bar at the time of dismissal of the application. It is not apparent why the disruptive effect of a vote should be given any special weight, particularly when the ballots have not been counted. Again, he feature of representation votes on which the Board has focused in explaining why a bar would be imposed is not the isruptive effect of conducting the vote but the fact that employee wishes has been fully tested by means of the vote, as may be further illustrated by the following passage from the Board's decision in Campbell Soup Company Ltd., [1968] OLRB Rep. Feb. 1091, at paragraph 17:

17. . . Except in very extenuating circumstances, the Board's practice with respect to the imposition of a bar against an unsuccessful applicant is exercised only where a representation vote is held and the applicant fails to obtain the necessary majority to be entitled to certification. In such a case, the support enjoyed by the applicant among the employees of the company would be fully tested by a representation vote and the Board will not entertain a new application by the same applicant until such time as the employees have had a chance to properly reconsider their position. The Board does not consider repetitious applications where the membership evidence has been fully tested by a vote to be in the interest of sound Labour Relations.

14. We are aware of decisions in which the Board has responded to a request to withdraw following the conduct of a pre-hearing representation vote and the sealing of the ballot box by both dismissing the application and imposing a bar on further applications: Devon Dairy Limited, [1961] OLRB Rep. Dec. 313; The Bristol Place Hotel, [1979] OLRB Rep. June 486; The Wentworth County Board of Education, [1988] OLRB Rep. Oct. 1132. None of those decisions considered the distinction to which we have referred in paragraph 7 above. Those decisions may be contrasted with the Board's decision in Sunnybrook Hospital, [1974] OLRB Rep. Aug. 552, in which the Board refused to impose a bar when an applicant sought to withdraw after a pre-hearing representation vote had been conducted.

15. There is also Stanley Steel Company Limited, [1972] OLRB Rep. Feb. 181, where a pre-hearing representation vote had been conducted and the ballot box had been sealed, perhaps because of the existence of the non-pay allegation with which the reported decision ultimately dealt. That allegation was sustained at hearing, leading the Board to reject the applicants' membership evidence and dismiss the application. The Board also imposed a bar without giving any particular reason for doing so. The matter does not appear to have been the subject of any argument. There is no reference to Watson Manufacturing, nor any explanation why the only distinction between the two cases - the fact that a pre-hearing representation vote was conducted - should lead to different results. We note that a bar was not imposed in W. & H. Voortman Limited, supra, where the dismissal was also due to rejection of the applicants' membership evidence.

16. When a trade union commences an organising campaign, it does not know with precision how the Board will define the unit in which it will be required to establish membership support, nor is there a mechanism by which the union can determine in advance the identities or even the numbers of persons whom the employer will say fell within that unit at any particular time. It is not uncommon for trade unions to discover, during the hearing of an application on its merits, that they have underestimated the size of the unit or have been unaware of and not approached a group of employees whose wishes will be taken into account by the Board. If this occurs in the course of an application filed under section 7, the Board's response to a request to withdraw is ordinarily dismissal without a bar. It does not appear to us that an applicant for certification should be put in a worse position merely because a pre-hearing representation vote was conducted at its request. There are, we think, good policy reasons why trade unions should not be discouraged from making such requests: see U-Need-A Cab, [1989] OLRB Rep. Mar. 301 at paragraph 5; and, Goldcrest Furniture Ltd., [1989] OLRB Rep. Apr. 355 at paragraphs 11 and 12.

17. No bar is ordinarily imposed when an applicant under section 7 fails to establish sufficient membership support in the bargaining unit to entitle it to a vote or who seeks to withdraw in the face of the possibility of such a failure. In our view, no bar should be imposed on an applicant under section 9 who is in a similar position, even though a pre-hearing representation vote has been conducted in the meantime. The fact that a pre-hearing representation vote has been conducted should only trigger a bar if it was clear when the request for withdrawal was made that the wishes expressed in the vote would have determined the success or failure of the application. No bar should be imposed by reason of the conduct of a vote where, as here, the applicant seeks to withdraw at a stage when its opponents are saying that it cannot be certified even if a majority of the ballots cast in the vote were cast in its favour.

18. We note that the fact there is an incumbent trade union would ordinarily be given weight (in the industrial context, at least) if a subsequent application were filed and the Board were asked to refuse to entertain it: see the decisions reviewed in Ontario Hospital Association (Blue Cross), [1981] OLRB Rep. Apr. 468. (That factor may or may not be applicable in the construction industry: Master Insulation Company Limited, [1981] OLRB Rep. May 546). The weight to be given to this factor can only be assessed in the circumstances which exist at the time a subsequent application is filed, however. Despite the caveat in the passage we quoted earlier from General Freezer Limited, supra, it does not appear that the existence of an incumbent has ordinarily influenced the Board's decision whether to impose a bar when an application is dismissed.

19. There may be cases, as in "ordinary" applications, in which some further enquiry must be made about the circumstances in which withdrawal was sought before one can say how the Board's discretion ought to be exercised under clause 103(2)(i). Once a request to withdraw is made, however, it makes little sense to engage in a further evidentiary enquiry in order to determine whether to bar further applications. If the propriety of a bar is not clear at the time the request is made, any further enquiry in that regard is best left to be pursued only if and when a subsequent application is filed: Mathias Ouellette, supra; Mount Sinai Hospital, [19851 OLRB Rep. Dec. 1780. We say this recognizing that if a pre-hearing vote were requested in a subsequent application and the prerequisites of subsection 9(2) were satisfied, the Board would ordinarily conduct the vote and seal the box before entertaining evidence and argument with respect to the application of clause 103(2)(i): The Corporation of the City of Glouchester, [1989] OLRB Rep. Apr. 352.

20. This application is dismissed without imposition of a bar to further applications and without prejudice to the right of any party affected to rely upon clause 103(2)(i) in the event any further application is filed.