[1989] OLRB Rep. May 524
0096-89-R Labourers' International Union of North America, Local 183, Applicant v. Victor Carpentry Limited, Respondent v. United Brotherhood of Carpenters and Joiners of America, Local Union 27, Intervener
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members J. A. Rundle and H. Kobryn.
DECISION OF THE BOARD; May 3, 1989
The applicant is a trade union within the meaning of section l(l)(p) and 117(f) of the Labour Relations Act.
This is an application for certification within the meaning of section 119 of the Labour Relations Act and is made pursuant to section 144(3). As such, it is does not relate to the industrial, commercial and institutional sector of the construction industry.
In accordance with the Board's usual practice in such applications, the Board (differently constituted in part), by decision dated April 17, 1989, authorized a Labour Relations Officer to examine the records of the applicant and the respondent and to confer with the parties with respect to the description and composition of the appropriate bargaining unit, the description and composition of the voting constituency, the list of employees as of the terminal date for the purposes of the vote, and any other matters related to the applicant's entitlement to and arrangements for the vote requested, and to report to the Board with respect thereto. An Officer convened a meeting of the parties on April 26, 1989.
The respondent has failed to file a reply, a list of employees or any other material, either within the time fixed therefore in accordance with the Act and the Board's Rules of Procedure or at all. Nor did any representative of the respondent appear at the meeting of the parties convened by the Officer. Consequently, the Board does not, at this point, have the benefit of the respondent's views or information with respect to this application.
At the meeting convened by the Officer on April 26, 1989, the intervener took the position that the list of employees for this application should not be finalized in the absence of the respondent and the respondent's records, and purported to "reserve the right" to "amend" its position with respect to the list of employees and the vote arrangements. The applicant and the intervener subsequently made written representations in this respect as well.
In its written representations, the intervener asserts that it has had considerable difficulty in enforcing its bargaining rights with the respondent and that one result of this is that of the intervener, through no fault or lack of diligence of its own, does not know where the respondent is working or who the respondent is employing. The intervener submits that, in the circumstances, it cannot be expected to know who was employed by the respondent on the date of application in the bargaining unit with respect to which this application is made. The intervener further submits that the Act requires that the applicant demonstrate an appearance of "membership evidence in respect to the persons in the bargaining unit" [sic], and that it would be pure speculation to assess the applicant's membership position in the absence of the respondent. Accordingly, submits the intervener, the Board should not direct a pre-hearing vote in this case. Further, the intervener submits that it is unfair and unreasonable to require it to finalize its position on the list of employees and that it is not possible to make suitable vote arrangements. The intervener submits that the application should be dismissed or, in the alternative, that the Board ought to convene a hearing to hear argument on the issues raised.
In its written representations, the applicant submits that the Board should follow its practice of assessing the situation in matters like this on the basis of the information provided by the parties.
Section 9 of the Labour Relations Act provides that:
9.-(1) Upon an application for certification, the trade union may request that a pre-hearing representation vote be taken.
(2) Upon such a request being made, the Board may determine a voting constituency and, if it appears to the Board on an examination of the records of the trade union and the records of the employer that not less than 35 per cent of the employees in the voting constituency were members of the trade union at the time the application was made, the Board may direct that a representation vote be taken among the employees in the voting constituency.
(3) The Board may direct that the ballot box containing the ballots cast in a representation vote taken under subsection (2) shall be sealed and that the ballots shall not be counted until the parties have been given full opportunity to present their evidence and make their submissions.
(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 the representation vote taken under subsection 7(2).
The Act permits an applicant for certification to request a pre-hearing representation vote. It is also evident from section 9 that a pre-hearing representation vote is intended to be just that: a vote conducted before any hearing is held to determine any issues in dispute (see Kenting Earth Sciences, [1985] OLRB Rep. Feb. 293; The Board of Education for the City of North York, [1984] OLRB Rep. July 989). The purpose of the pre-hearing provisions of the Act is to provide an expeditious mechanism for the taking of a representation vote in an application for certification. That would not be achieved if the taking of the vote was delayed while one or more of the issues raised in the proceeding was adjudicated by the Board.
With respect to any issue regarding the applicant's entitlement to a pre-hearing vote, we note that section 9(2) contemplates that such a vote will be held where it appears that not less than thirty-five percent of the employees in the voting constituency were members of the applicant at the time the application was made, and section 9(4) contemplates that the applicant's actual entitlement to such a vote will be one of the issues determined after is has been taken. Further, we agree with and adopt the views expressed in The Board of Education for the City of North York, supra, at paragraphs 7 and 8, as follows:
The purpose of the pre-hearing vote procedure is to test the question of representation as quickly as possible after the application date. This avoids the prejudice which inevitably occurs when the conduct of a representation vote must await the determination of factual and legal issues which can only be resolved after a hearing in which each of the affected parties can participate. Often those disputed issues include the appropriate description of the bargaining unit, voter eligibility and employee status of challenged individuals. If the existence of such disputes could stand in the way of a pre-hearing vote, the procedure's efficacy would be destroyed. That is why the Legislature required only that the Board strike a voting constituency and prescribed as the vote prerequisite only that the applicant have the appearance of the requisite support within the voting constituency. (See generally Emery Industries Limited, [1980] OLRB Rep. March 316 at paragraphs 5, 6 and 7.) Where determination of the actual prerequisites level of support depends on a resolution of contested factual or legal issues, the Board assesses the appearance of support on the assumption that the union's position on the matters in dispute is correct. A prehearing vote is normally directed if, on that assumption, the requisite appearance of support is present. The contested issues are dealt with after the vote is held. However, the results of a prehearing vote are of no effect unless it is later demonstrated that not less than 35 per cent of the persons ultimately found to have been employees in the appropriate bargaining unit on the application date were members of the applicant on that date. If that demonstration depends on contested issues being later resolved in the applicant's favour, the Board will normally defer counting any ballots until it can resolve those issues which bear on the propriety of counting at all, or any, of the ballots.
As access to the pre-hearing vote procedure is a function of the matters of fact and law put in issue by the parties, there is a risk that frivolous allegations and arguments may be made. The same risk exists whenever entitlement to launch and prosecute proceedings depends only on the assertion of a prima facie case. However, a trade union which gains access to the process by asserting unfounded and frivolous allegations and arguments only does itself harm. If it cannot ultimately demonstrate that it had the requisite support, it will never know how many ballots were cast in its favour, because unless the requisites of subsection 9(4) are met, there will be no reason to unseal the ballot box. The application having been pressed past the meeting with the officer, dismissal of the application will normally carry with it a bar imposed under section 103(2)(i). If it becomes apparent to the Board that the assertions which led to the vote were frivolous when made, then the Board may take that into account in determining the length of the bar.
[emphasis added]
We also note that it is particularly important to test the question of representation quickly in applications for certification in the construction industry because of the generally more transient nature of employment in it.
In our view, there is nothing in the Act which requires the Board to somehow force a respondent to an application for certification in which a pre-hearing vote has been requested to either file a list of employees or otherwise "take a position" with respect thereto. Nor is the applicant, or any other party, in any worse position that it would be in an application in which no prehearing vote is requested and in which the respondent employer has failed to file any material or otherwise take a position with respect to the list of employees.
In the result, any having regard to the purpose and provisions of section 9 of the Act, and to the Board's practice of holding a hearing with respect to all matters arising out of and incidental to an application for certification in which a pre-hearing vote has been requested after that vote is taken, we are satisfied that there is nothing in the circumstances of this application which makes it necessary or appropriate to hold a hearing prior to the taking of the pre-hearing vote requested.
Upon examining the records of the applicant and assessing the information available, and assuming, without finding, that the applicant's position with respect to the issues in dispute is correct, it appears to the Board that not less than thirty-five percent of the employees of the respondent in the voting constituency described below were members of the applicant at the time the application was made.
Consequently, and having regard to the agreement of the applicant and intervener, the Board directs that a pre-hearing representation vote be taken in the following voting constituency:
all carpenters and carpenters' apprentices in the employ of the respondent in all sectors of the construction industry, excluding the industrial, commercial and institutional sector, in Board Area 8, save and except non-working foremen and persons above the rank of non-working foreman.
All persons employed in the voting constituency on April 25, 1989 who are so employed on the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether they wish to be represented by the applicant or the intervener in their employment relations with the respondent.
In the circumstances, the Board directs that ballots cast by any person whose right to vote is challenged by any party be segregated and further that the ballot box be sealed until further order of the Board.
This matter is referred to the Registrar for the purposes of taking the pre-hearing representation vote. The Registrar is further directed to schedule this application for hearing after the vote is taken for the purpose of hearing the evidence and representations of the parties with respect to all matters arising out of and incidental to it.