[1991] OLRB Rep. March 384

2045-90-R Bob Kennedy and other employees of Ro-Von Construction Limited, Applicant v. International Union of Operating Engineers, Local 793, Respondent v. Ro-Von Construction Limited, Intervener

BEFORE: K. G. 0'Neil, Vice-Chair, and Board Members J. A. Ronson and K. Davies.

APPEARANCES: George W. Priddle, James Blackburn, Bob Kennedy and Rick Barber for the applicant; B. Chercover, G. Palanuk and Ed Kaplanis for the respondent; Donald Laidlaw for the intervener.

DECISION OF K. G. O'NEIL, VICE-CHAIR AND BOARD MEMBER J. A. RONSON: March 18, 1991

1. The name of the respondent is amended to read: "International Union of Operating Engineers, Local 793".

2. This is an application for termination of bargaining rights in the construction industry.

I

3. The Board received the following documents from the applicant's solicitor together in one envelope:

(a) A Form 17 which gives "Bob Kennedy and other employees of Ro-Von Construction Limited" as the applicant, and is signed by Bob Kennedy.

(b) A Form 17 which gives "Bob Kennedy and other employees of Ro-Von Construction Limited" as the applicant, and is signed by six people, including Bob Kennedy.

(c) A petition bearing signatures of 60% of the bargaining unit.

These documents were sent under cover of a letter which reads in relevant part as follows:

The application herein is being made by Bob Kennedy and other employees. I am therefore enclosing to you one copy of the application signed by Bob Kennedy on behalf of them and another copy that bears other signatures as well.

Being aware of the Board's policy of trying to maintain anonymity in these matters, I would ask that the copy of the application that is used for circulation only contain the signature of Bob Kennedy.

4. Although he had been at work on the day he signed the application, Bob Kennedy was not at work on the application date. (The application date was the following day, the date it was mailed, which was a day off for Mr. Kennedy.) The respondent trade union asked the Board to dismiss the application because of his absence from work, and therefore the bargaining unit. The union submitted that only members of the bargaining unit have standing to bring applications to terminate bargaining rights. As a result of the applicant's request to maintain the anonymity of the signatories other than Bob Kennedy, the union was not made aware of the existence of the Form 17 signed by six people until disclosed to them by the Board during the course of argument on this motion. It became evident as a result of a query from the Board that two of the applicant's intended witnesses who were present in the hearing room, were among the six who signed the second Form 17. Their names are also on the list of people agreed to be in the bargaining unit.

5. On behalf of the union, Mr. Chercover argued that a person not in the bargaining unit has no status to bring an application for termination. In the construction industry it is well established that a person is not at work on the application date is not considered to be part of the bargaining unit. Counsel relied on Fred Jantz Masonry Construction Company Limited, [1986] OLRB Rep. August 1083 and the cases cited therein as well as Smale Bros. Company Limited, [1986] OLRB Rep. July 1019. After hearing of the second Form 17, counsel added that the only possible interpretation of the documents before us was that there was one applicant and a group of petitioners. The petitioners are entitled to anonymity but the applicant is not. Since the second Form 17 had not been processed, counsel argued that it was not before the Board and therefore we would be acting beyond our jurisdiction to deal with it and would be denying the union natural justice. It did not argue that it was prejudiced by not knowing of the second form or by not knowing the names of others than Bob Kennedy as applicants at an earlier time. It suggested as a practical matter that if we granted its request to dismiss the application, and processed the second Form 17, it would be bound by the determination of voluntariness on the evidence adduced at the hearing already held. It would then advise the Board if there were any remaining issues needing to be heard.

6. The applicant(s) argue that the applicant is a group, not the individual Bob Kennedy; there is only one application, not two, and that the fact that the Form 17 is signed by one person cannot be determinative. Counsel asks us to proceed on the second Form 17 if we agree with the union, but assert that nothing would change. He did not request an amendment of the applicant's name. Counsel also argued that the effect of the Labour Relations Officer report is an agreement that the only issue in dispute was the voluntariness of the petition and that it was unfair to allow union counsel to raise this issue with no notice to the applicants. Union counsel did not attend the meeting with the officer at which certain matters, such as the number of employees in the bargaining unit, had been agreed.

7. Counsel for the applicant argues that there can be no real surprise to the union because the two applications were identical except for the signatures. In the alternative, counsel submitted that if we found there were two applications we should be proceeding on the second one. Further counsel argues that because Bob Kennedy was working on the day he signed the application rather than the day it was mailed he should not technically fall afoul of the cases that say that a person not at work on the application date could not apply to decertify.

8. In reply Mr. Chercover characterized the matter not as a question of anonymity of the petitioners nor on whose behalf the application was made but rather a question of who was the applicant. After hearing the submissions, the panel reserved on the motion to dismiss.

II

9. The parties agreed that we should hear the evidence on the voluntariness of the petition in any event of the outcome of the above motion. Three witnesses, Bob Kennedy, James Blackburn and Rick Barber were called in support of the voluntariness of the petition. The evidence is summarized below. It was only considered as a basis for the decision on voluntariness, and not as a basis for deciding the motion to dismiss.

10. The union was certified by decision of the Board dated May 19, 1989. In that decision, the Board considered a petition in opposition to the certification and declined to rely on it, because of the signature of one of the foremen.

11. About a year and half passed. The collective agreement signed by the union and employer was to expire on December 31, 1990. James Blackburn and Bob Kennedy organized a meeting for November 1, 1990, and paid for a hotel meeting room for the purpose of presenting a petition to support an application to terminate the union's bargaining rights to members of the bargaining unit. Mr. Blackburn invited people by phone from his home and told them that he and Mr. Kennedy had seen a lawyer and wanted to see if a vote could be held on whether the people still wanted the union.

12. Mr. Priddle, counsel for the applicants, addressed the meeting, explaining in general terms what it meant to decertify a union. He then personally conducted a secret ballot as to whether or not those present wished to decertify the union. Mr. Priddle counted the ballots and, while not disclosing the count of that ballot, communicated to the meeting that there were enough ballots in favour to decertify the union. He read aloud a petition, which he had drafted on Messrs. Blackburn's and Kennedy's instructions, in the following form:

WE, the UNDERSIGNED employees of RO-VON CONSTRUCTION LIMITED, HEREBY SIGNIFY in writing that we no longer wish to be represented by the trade union International Union of Operating Engineers Local 793 and we are requesting termination of their bargaining rights.

THIS DOCUMENT is submitted by the applicants whose addresses are set out above and whose address for service is care of Messrs. PRIDDLE, PAWELEK AND LAWSON, Barristers and Solicitors, 645 Queen Street East, Ste. Marie, Ontario P6A 2A6.

13. Mr. Priddle explained to the meeting that no-one had to sign the document. Messrs. Kennedy and Priddle then witnessed all the signatures on the document in the washroom of the meeting room to ensure privacy. Mr. Blackburn testified he never discussed the matter with foremen or supervisors of the company; there was no evidence that anyone did. The men at the meeting were told to keep the matter to themselves. None of the foremen or the supervisors were invited to the meeting nor were union supporters. There are four or five people in the bargaining unit related to the owners who were invited. Two are sons and the others are brothers of the owners. Neither Messrs. Blackburn or Kennedy were of the view that who signed would get back to the owners because of the presence of these family members given past experience of their not "telling tales". People who came to the meeting were asked to chip in for the lawyer's fees. Some of the family members of the owner contributed.

14. At the meeting, which lasted approximately two hours including the time to conduct the ballot and receive signatures, no-one tried to persuade anyone to sign or not to sign. Mr. Kennedy signed as a witness to each signature but he nor any of the others who signed could see what was on the upper portion of the document because Mr. Priddle was covering it up to prevent the person signing from seeing who had signed before.

III

15. In argument as to the voluntariness of the petition, Mr. Priddle urged us to accept the petition as voluntary. He underlined that no evidence of management involvement had been brought and that the driving force behind the petition was discontent with the union's handling of negotiations. He argued that the petition had been handled in a scrupulous manner to protect anonymity.

16. As to the members of the bargaining unit who were relatives of the owners, Mr Priddle asserted that they had no opportunity to tell management because all of the signatures were taken at the meeting and they could not know who or how many signed because of the procedure used. He referred us to Domus Building Cleaning Co. Ltd., [1986] OLRB Rep. March 319 where a friend of management circulated a petition on company premises as the type of facts which the Board has found objectionable. He asserted that although we must look at perception the Board must not be over-protective to the point of making it impossible to decertify. A balance must be struck.

17. On behalf of the union Mr. Chercover referred us to the Board's decision on the certification of the union for this bargaining unit, an unreported decision in Board File 1640-87-R dated May 19, 1989. The petition was found to be unworthy of being relied on because of the presence of a foreman's signature.

18. Mr. Chercover underlined that the onus was on the petitioners and that it had not been satisfied. He emphasized that the union supporters had not been invited to the meeting; the family and friends of the owners could have unduly influenced the people at the meeting. The situation under which people signed with Mr. Priddle and Kennedy is also prone to undue influence, counsel asserts. Counsel suggested that there were too many questions, all of which go to how satisfied the Board was as to the voluntariness of the petition. In the category of unanswered questions, counsel puts the fact that Mr. Kennedy did not actually see what the people signed. He said we should not accept that Mr. Kennedy actually witnessed the signing as he says he does not know what document they were signing. More importantly he asks how the Board can be assured that the people who signed knew what they were signing. He asserted that it would have been incumbent on the petitioners to produce any children of the owners who signed the petition to say it was not their father's money that was contributed to pay for the lawyer. Counsel argued that the jurisprudence is settled that the Board will not act on a petition unless it is satisfied on the evidence of the appearance of voluntariness. Counsel submits that with the history of an application for certification where the petition was rejected and the involvement of the family members, we should dismiss the application.

19. In reply, Mr. Priddle said there was no connection between the earlier petition and this one, and that the Board has on many occasions found petitions voluntary even if people involved were related to management. He urged us to put Mr. Kennedy's evidence that the petition was covered in the context of the meeting in which the whole process was explained to people, there had been a prior ballot as to whether the people wanted to decertify, and the fact that it was signed and witnessed in privacy.

IV

The Preliminary Motion to Dismiss

20. Section 57(2) of the Labour Relations Act provides as follows:

57....

(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be.

(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.

21. We agree that the issue to be decided is who is the applicant. The facts tending to support the motion are the fact that Mr. Kennedy is the only named applicant in the style of cause and the only person who signed the Form 17 which was processed. The facts going to the opposite conclusion are that the style of cause, "Bob Kennedy and other employees" as well as the paragraph at the bottom of the petition form demonstrate an intention of all the signators to be applicants. Both the style of cause and the wording of the petition were available to the union from the time they had notice of the application from the Board.

22. The respondent's motion to dismiss is supported by a number of cases in the construction industry where applications for termination of bargaining rights were dismissed after a finding that the applicant was not at work on the application date. These include the ones cited by Mr. Chercover, mentioned above, as well as Howard S. Clark Construction, [1968] OLRB Rep. April 62, Uni-Form Builders Limited, [1968] OLRB Rep. April 60 and T. E. Leroux Contracting Ltd., [1982] OLRB Rep. Aug. 1204. Supporting the opposite conclusion is Lakeview Sheet Metal (Orillia) Limited, [1979] OLRB Rep. June 537 which was specifically not followed in Smale Brothers Company Limited, supra. Many of the above cases are distinguishable on the facts. None of those cases involved a style of cause similar to the one before us in this case. As well many of them were circumstances in which if the applicant was not counted, there was nobody in the bargaining unit. See Smale Brothers Company Limited, T. E. Leroux, supra. On our facts, not counting Mr. Kennedy as one of the members of the bargaining unit does not leave an empty bargaining unit. In Howard S. Clark Construction, supra, the question was whether or not the trade union which had entered into a voluntary recognition agreement with the employer had been representative at the time the agreement was entered into. At that time the union claimed to represent only one employee; that person had not been at work in the bargaining unit on the date of the application. Thus the Board found that the applicant had not established that he was a person entitled to bring the application and that the union had not established it represented any employees at the time the agreement was entered into and dismissed the application. The report of Uni-Form Builders Limited, supra, does not disclose whether there were other people in the bargaining unit. In T. E. Leroux, supra, none of the applicants were employees in the bargaining unit. In Fred Jantz Masonry Construction Company Limited, supra, the Board found that at the time the application was made there were no employees in the ICI bargaining unit and hence no-one entitled to bring a termination application. There were workers outside the ICI sector who were entitled to bring the termination application and in respect of those employees the union indicated that it did not seek to maintain bargaining rights. Therefore pursuant to section 57(5) their bargaining rights were terminated.

23. Closer to the facts of our case are a line of other cases which support the proposition that the application in this case is not defective and should be acted upon by the Board. Dominion Stores Ltd., [1970] OLRB Rep. Nov. 853 was a case in which the person who signed the application for termination on behalf of the part-time unit was a member of the full-time unit. The Board noted that the style of cause was "R. Forget and a group of Employees". The Board said at paragraph 4:

In our opinion, whatever may be said of Forget's status as an applicant, the employees who identify themselves as such on the statement accompanying the formal application are prima facie entitled to bring the application and are entitled to employ Forget as their representative as indicated in the covering letter and Forget's testimony.

See also City Parks Apartment Ltd., [1964] OLRB Rep. June 147 where there was a dispute as to whether the applicant was a member of the bargaining unit. Although the Board eventually found the applicant to be within the bargaining unit it said the following in the concluding paragraph of its decision:

In the circumstances of this case having regard to the fact that this application was made by "the. employees of City Park Apartments Ltd. represented by S. Bell", even if we had found that S. Bell was not included in the bargaining unit because of some special arrangement between the parties to the collective agreement, the fact that he represented the employees who are the applicants in this matter, would not be fatal to this application since we have found that S. Bell does not exercise managerial functions....

24. This approach has been supported in more recent cases among which include Huntsville I. G.A., [1987] OLRB Rep. Dec. 1517, Lakeview Sheet Metal (Orillia) Limited, [1979] OLRB Rep. June 537, St. Michael's Shops of Canada Limited, [1979] OLRB Rep. Oct. 1023, Cara Operations Limited, [1984] OLRB Rep. Oct. 1378. In Huntsville I. G.A., the applicant brought an application for termination on behalf of three bargaining units when he was a member of only one. The Board, after making reference to some of the cases referred to above, including Smale Brothers, supra, indicated its willingness to look beyond the mere form of the application and the technicality of the nominal applicants in order to determine who the "true applicants were". Citing evidence of a petition which clearly expressed the employees' wish to terminate the union's bargaining rights and the designation of the applicant to represent them, the Board acted on the petitions for the three bargaining units. The Board said at paragraph 10:

10. In our opinion we should not take an unduly 'technical" view of applications such as these, and we are supported in that approach by cases such as Gardiner's Supermarket Limited, [1985] OLRB Rep. Dec. 1737; St. Michael Shops of Canada Limited, [1979] OLRB Rep. Oct. 1023; Thomas Construction (Gait) Limited, [1982] OLRB Rep. Nov. 1727 and Cara Operations Limited (Retail Stores Division) ,[1984] OLRB Rep. Oct. 1378. Indeed, the situation in Cara Operations Limited is very similar to the present one because, there, the nominal applicants were members of a full-time bargaining unit, but the termination application and the related anti-union petition encompassed employees in the part-time bargaining unit as well. The Board found that the nominal applicants were making application both on their own behalf, and on behalf of the employees in the other bargaining unit. That approach was approved and followed by the Board in Economy Fair, [1985] OLRB Rep. Sept. 1357.

11. We are inclined to take the same view. In the instant case it is evident from the documentary and other evidence before us that the majority of the employees in each bargaining unit wish to terminate the respondent(s) bargaining rights, and have designated Mr. DeHaan to take such steps as are necessary to accomplish that objective. Indeed, had Mr. DeHaan framed his application as being on his own behalf and on behalf of the signatories to the supporting petition there would be no issue. But when the application and the petition document are read together, that is obviously the employees' intention, and we find nothing fatal in the omission of those words from the application's style of cause. While the nominal applicant (Mr. DeHaan) is a member of the meat department bargaining unit, we find that this application is, in fact, being made by a majority of employees of each of the three bargaining units, and that the documentary and other evidence before us warrants the taking of a representation vote to test the union's continued support.

25. In Selinger Wood Ltd., [1979] OLRB Rep. May 434 the employee named as the applicant in the style of cause advised the Board at the hearing he was withdrawing. The Board proceeded to hear and to determine the application when the two employees who were signatories to the document and present at the hearing made it known that they wished the Board to proceed.

26. In St. Michael Shops of Canada Ltd., the Board treated a petition which contained signatures of both full and part-time employees to be sufficient to support an application for termination of bargaining rights in two separate bargaining units. The Board was thus satisfied that the application had been made by employees in the part-time unit even though the named applicants were full-time employees. The Board read all the documents together and was satisfied that an application had been made by employees in the part-time unit. A similar result was obtained in Cara Operations Limited, supra.

27. Having considered all the above jurisprudence and the submissions of the parties, it is our view that it would be unduly technical to dismiss this application given the specific facts of this case. The style of cause and the form of petition make it clear that Mr. Kennedy was not the only applicant. Reading the documents submitted as a whole, we find that all of the petitioners intended to be applicants in this matter. We emphasize that this is not a case where prejudice to the applicant was argued or shown in not being informed of the names of other applicants. In coming to this conclusion that others besides Mr. Kennedy are applicants, we are not departing from the now well-established jurisprudence pertaining to the construction industry to the effect that a person not at work in the bargaining unit on the application date is not a member of the bargaining unit for the purposes of the count. Bob Kennedy is not to be counted as a member of the bargaining unit for the purposes of determining whether forty-five percent of the employees in the bargaining unit have voluntarily signified that they no longer wish to be represented by the union.

V

The Voluntariness of the Petition

28. We have carefully reviewed the evidence and submissions and are of the view it is more likely than not that the petition represents the voluntary views of those who signed it. The Board has given particular attention to the evidence about the presence of family members of the owners at the meeting where the signatures were obtained. The possibility exists that they could have unduly influenced the people at the meeting to be seen to be in favour of ridding themselves of the union. However, there is no evidence of such influence, and we are not prepared to draw such an inference from their presence alone. In any event, we are of the view that the double secret ballot in this case and the facts that no numbers were disclosed, to any of the participants at the meeting are sufficiently weighty factors to outweigh any concern about the effect of their presence. Further, this is not a case where the family members were circulating the petition as in many of the cases where a family relationship has been a factor in deciding that a petition was not voluntary. Although Mr. Blackburn was a cousin of a foreman as well, this fact alone is insufficient to warrant a finding that the petition was not voluntary. There was no evidence that this fact is known or that it warranted the inference that people signed with a concern that he would let his cousin or other members of management know if they signed or not. Further none of the employees other than Mr. Kennedy knew who else had signed before they signed. As well, the Board has often stated that it will not lightly deprive employees, including the relatives of management, of their rights under the Labour Relations Act. We view their participation in the process, including their contribution to the legal fees, as part of the exercise of these rights, and in the absence of evidence which convinces us that their mere presence would create a perception in the employees that management would learn if they signed or not, we do not find it fatal to the application.

29. We have reviewed the decision of the Board dated May 19, 1988 certifying the union in this matter and its remarks on the petition circulated at that time. We do not see anything in it which would prevent us from finding the more recent petition to be a voluntary expression of current employee wishes. There was no evidence to connect the two in a way which would taint the latter. The fact that there was evidence that at least one person signed both is not enough to warrant an inference of involuntariness given the very different circumstances of the two petitions. Underlining the difference is the fact that this is a termination application, not a certification application, and the Board is more reluctant to draw inferences of involuntariness where there is not the sudden change of heart of those who have recently signed a union card as there would have been in the certification application situation.

30. We also do not find merit in the submission that we cannot be assured that the employees knew what they were signing because the top part of the document was covered so as to avoid knowledge of who had signed before. The document had been read aloud at the meeting and the purpose of the meeting explained both when the employees were invited and during the course of the meeting. The purpose of signing the petition after the secret ballot to indicate whether there was adequate support for an application to terminate was also explained by Mr. Priddle at the meeting. As to the fact that known union supporters were not invited, the Act imposes no obligation to solicit opposing points of view when preparing an application for termination.

VI

31. On the basis of the evidence and representations before it, the Board is satisfied that not less than forty-five per cent of the employees of Ro-Von Construction Limited in the bargaining unit, at the time the application was made, had voluntarily signified in writing that they no longer wish to be represented by the respondent trade union on November 20, 1990, 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 the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent trade union under section 57(3) of the said Act.

32. The Board directs that a representation vote be taken of the employees of Ro-Von Construction Limited in the following bargaining unit:

All employees of Ro-Von Construction Limited in all sectors of the construction industry in that portion of the District of Algoma south of the 49th parallel of latitude, excluding the industrial, commercial and institutional sector, engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman.

All those employed in that bargaining unit on the date of this decision who are so employed on the date the vote is taken will be eligible to vote.

33. Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Ro-Von Construction Limited.

34. In the result it is unnecessary to determine the issue raised by the applicant as to the effect of the Labour Relations Officer's meeting or the Form 17 signed by the six people or the Form 17 filed on December 6, 1990 (which has not been processed, and in the result need not be.)

35. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER KAREN S. DAVIES; March 18, 1991

1. I have read the decision of the majority and with respect I cannot agree.

2. I cannot agree that in the circumstances of this case that the petitioners are the applicants. Further, I have serious concerns about the effect of the majority ruling on the application of section 103(2)(i) should the majority employees vote against termination of the union's representation rights.

3. Form 17 requires that the applicant provide a name, address and telephone number and a copy of Form 17 is sent to the respondent union. The union is required to reply on Form 20.

4. In accordance with Rule 72, if the union intends to adduce evidence that there has been improper or irregular conduct in the gathering of written evidence which signifies the employees no longer wish to be represented by the trade union, the union must file those facts on which it intends to rely prior to the hearing. It must be recognized that Form 17 requires that there be an applicant and the union is entitled to know who the applicant is in order to prepare its case at the Board. Section 111(1) of the Labour Relations Act prohibits the disclosure without the consent of the Board, of whether a person does or does not wish to be represented by a union.

5. In short, Form 17 requires the applicant to provide a name and a union is provided with a copy of Form 17. However, the union is not entitled to know the names of the petitioners. Accordingly, the Labour Relations Act does not contemplate that petitioners are applicants.

6. The jurisprudence of the Board must be read in light of this fundamental nature of the Act and its Regulations.

7. In Howard S. Clark Construction, [1968] OLRB Rep. Apr. 62 an application was made under what is now section 60(1). The Board determined that as the applicant was not in the bargaining unit on the date of the application, the applicant was not an employee and therefore the application was dismissed.

8. In Uni-Form Builders Limited, [1968] OLRB Rep. April 60 an application was made under what is now section 57(1) of the Act. The Board stated at paragraph 4:

If a person is not employed in the bargaining unit on the date an application for certification is made under the construction industry sections, he is not considered to be an employee of the company and the bargaining unit for the purpose of determining the union's membership position."

The Board went on to conclude that:

5. Since the applicant was not an employee of Uni-Form Builders Limited in the geographic area described in the certificate, on the date of this application, the applicant was not an employee of the company in the bargaining unit as required by section 96(1) (now section 57(1)) of the Act and therefore had no status to bring this application...

9. In Saint Michael's Shops of Canada Limited, [1979] OLRB Rep. Oct. 1023, an application was made for termination of the bargaining rights of a union for two bargaining units at one employer. The application was made by two employees who were employed in only one of the bargaining units. At paragraph 10, the Board stated:

The respondent trade union represents both the full-time and part-time employees of the intervener employer and the terms and conditions of employment for each of the two categories of employees is contained in the single collective agreement. In the application before us, the unit defined is the sum of the two bargaining units defined in that collective agreement so there can be no doubt that the application was filed to cover both units. The schedules filed by the intervener identified employees as either full-time or part-time, so the Board is able to identify the employees' names on the petition with each of the two units. Thus the application when taken together with the statement, and having regard to the heading note on the petition, establishes that the employees of both bargaining units defined in the collective agreement between the respondent and the intervener are applying for declaration that the respondent no longer represents them as their bargaining agent. Having regard to these circumstances, we are satisfied in this case that an application within the meaning of section 49(2) has been made by employees in the part-time unit …….

10. It should be noted that the application and petition treated the employees as one group and did not differentiate between the full and part-time bargaining units.

11. The next in the line of cases is rather bewildering. Lakeview Sheet Metal (Orillia) Limited, [1979] OLRB Rep. June 537 cited no cases and stated that the considerations of speed and expediency which apply to certifications in the construction industry do not apply to terminations. The Board found that individuals who were not employed on the date of the application were still employees entitled to bring an application for termination of bargaining rights. The subsequent case of T.E. Leroux Contracting Limited, [1982] OLRB Rep. Aug. 1204 takes an entirely opposite approach. Regarding section 57(2) the Board states "the legislation is clear, an application for termination can only be brought by employees in the bargaining unit".

12. Cara Operations Limited, [1984] OLRB Rep. Oct. 1378 had similar facts to St. Michael's. The two individuals named on the application were members of a full-time bargaining unit. The employer had a part-time and full-time bargaining unit and the petitioners were from both bargaining units. At paragraph 11, the Board stated:

The question to be determined is, on the facts before the Board, who is or are the true applicants and whether they are the employees referred to under section 57(2) The respondent represents both bargaining units of the employees of the intervener in two similar but separate collective agreements. The applicants have defined in the application the two bargaining units. The Board was able to make the preliminary counts at the hearing with respect to both bargaining units so as to cause the Board to inquire into the voluntary signification of the employees in writing in support of this application. The statements of desire have been signed by the employees in both bargaining units. While Mrs. Young and Ms. Gaitwald are the nominal applicants in this application, in our view, when the formal application in Form 17 and the statements of desire are considered together, the application has been made by employees in both bargaining units and employees in both bargaining units have applied for a declaration that the respondent no longer represents them as their bargaining agent. See St. Michael's Shops of Canada Limited, supra.

13. In Stuart Riel Masonry Contractor, [1984] OLRB Rep. Nov. 1630 at para. 10 the Board stated:

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 its employees as only those employees at work on the application date. This applies equally to applications for certification and for termination of bargaining rights.

[emphasis added]

14. A similar result for similar reasons occurred in Smale Brothers Co. Ltd. [1986] OLRB Rep. July 1019.

15. In Fred Jantz Masonry Construction Co. Ltd., [1986] OLRB Rep. Aug. 1083, an application was made by employees in the ICI sector for termination of the bargaining rights in both the ICI sector and the non-ICI sector of the employer. The Board found that there were no employees in the non-ICI sector and therefore there were no employees entitled to bring an application for termination. The fact the ICI sector employees brought an application for termination of rights in both sectors would not allow the ICI sector employees to apply for termination of non-ICI sector bargaining rights. This, of course, is to be contrasted with the above cases where the "nominal applicants" (i.e. those whose names appeared on the application) were members of a full-time bargaining unit and the application was for termination of bargaining rights in both full-time and part-time bargaining units.

16. In Huntsville IGA, [1987] OLRB Rep. Dec. 1517, an application was made for termination of bargaining rights in three bargaining units by a "nominal applicant" who was a member of only one unit. In the petitions submitted by all employees, they stated that they had appointed the applicant to represent them in the matter before the Board. In examining prior cases from the Board that determined that an individual who was not an employee on the day in question could not bring an application on behalf of other employees, the Board stated a paragraph 9:

None of these cases involve documentary or other evidence of the kind before us: a petition which clearly expresses the employees' wish to terminate their union's bargaining rights and a designation that the applicant ... will represent them in this matter. The plain meaning or natural implication of those words is that the employees are authorizing ... (the applicant) to file a termination application on their behalf. The reading of the petition document is entirely consistent with the evidence concerning the discussion with the employees which led to their signing of the petition document.

The Board stated at paragraph 10:

In our opinion we should not take an unduly "technical" view of applications such as these Indeed, the situation in Cara Operations Limited is very similar to the present one because, there, the nominal applicants were members of a full-time bargaining unit, but the termination application and the related anti-union petition encompassed employees in the part-time bargaining unit as well. The Board found that the nominal applicants were making applications both on their own behalf, and on behalf of the employees in the other bargaining unit.

17. From the above review of the jurisprudence, it is clear that the Board departs from its general rule that an applicant must be an employee in the bargaining unit on the day of the application only in certain circumstances. One example of such circumstances is when there are two bargaining units and the "nominal applicant" is from only one bargaining unit. Another example is where the employees explicitly authorize the applicant to file on their behalf. Neither example is analogous to the present case.

18. As noted above, the union is entitled to know who is the applicant: Form 17. If all the petitioners are considered to be applicants the trade union is entitled to know the identity of all the applicants. Section 111(1) of the Labour Relations Act protects the identity of the petitioners unless they so choose to waive this protection and thereby reveal their identity. The majority here has decided that all petitioners are applicants and in so doing gives cause to reveal to the union the identity of all the petitioners as a matter of natural justice.

19. The union is entitled to know who all the parties to the proceedings are as a matter of natural justice. This knowledge determines how the union will proceed. Unless there are exceptional circumstances, such as identical bargaining units consisting of full and part-time employees, the union is denied natural justice when the concept of "nominal applicants" is used. As stated in De Smith's Judicial Review of Administrative Action, 4th ed. by J. M. Evans:

Natural justice generally requires that persons liable to be directly affected by ... decisions or proceedings be given adequate notice of what is proposed, so that they may be in a position:

(a) to make representation on their own behalf, or

(b) to appear at a hearing or inquiry ...; and

(c) effectively to prepare their own case and to answer the case "if any" they have to meet.

20. The union will be unable to make representations on its own behalf and to effectively prepare its own case if it is faced with the phantom of a nominal applicant.

21. In my opinion, the style of cause on Form 17 must give the name of an employee entitled to bring the application. A phrase such as "Group of Employees" is insufficient as counsel may sign the application.

22. The only logical conclusion is that the Act and applicable jurisprudence demand that an application for termination must contain the name or names of an employee entitled to bring the application unless there are exceptional circumstances such as described above. No such exceptional circumstances have been presented to the Board. Therefore the applicant is not an employee and cannot bring the application.

23. My second concern regards section 103(2)(i) on the effect the ruling of the majority -that a petitioner is an applicant - may have on either on a bar or a refusal by the Board to entertain an application.

The section reads as follows:

103(2) - Without limiting the generality of subsection (1), the Board has the power,

(i) 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 a period not exceeding ten months from the date of the dismissal of the unsuccessful application.

24. If, as the majority argues, any individual who has signed the petition requesting a termination vote is in fact an applicant, then all such petitioners would be subject to the Board's power to bar an unsuccessful applicant. If the majority of the employees of Ro-Von vote to continue the representation rights of the union, and the Board exercises its power to bar an unsuccessful applicant, then any of the petitioners/applicants from the original application would not be allowed to have their signatures counted towards the 45 percent of employees in the bargaining unit required for a termination vote. In short, if all petitioners are applicants, then no petitioner from the first application would be allowed to have their signature on a second petition be counted towards the 45 percent required for a vote.

25. With regard to this section, the Board in K-Mart Canada Limited, [1983] OLRB Rep. Dec. 2039 at para. 9 stated:

There is one final piece to the legislative framework for determining the timeliness of termination applications. The legislature decided that in some circumstances a restriction ought to be placed on repeat applications made during the open season. Rather than enact in detail statutory rules, the Board was granted a discretion to refuse to entertain a second or subsequent application, pursuant to section 103(2)(i). In other words, the Act delegates to the Board the task of striking an appropriate balance between employee free choice and stable and best relations in the context of successive termination applications.

26. After examining cases where the termination application had not resulted in a vote, the Board stated at paragraph 17:

In all of these cases the Board refused to permit a second application until a reasonable time for collective bargaining had elapsed, even though the wishes of employees had not been tested. By contrast, the Board has on at least three occasions allowed a second application on the heels of the first in the course of an open season.

The Board, at paragraph 20 stated:

These two lines of authority assigned differing relative weight to the competing policy objectives of employee free choice and continuity of collective bargaining.

The Board went on to state at paragraph 21:

In the absence of any other considerations, we would balance these conflicting goals by refusing to entertain this second application in the case at hand. As the evidence called by the first applicant did not demonstrate that the petition was a voluntary expression of those who sign it, that application was dismissed without directly testing the wishes of employees. Employee free choice would be served by allowing a second application. But to permit another challenge to the union's bargaining authority would be to seriously impede negotiations for a new contract to the detriment of those who favoured collective bargaining.

27. The upshot of the above is that where a bar has not been imposed on the first application but rather the respondent seeks to have the Board refuse to entertain the second application, there is a conflicting line of authorities. My concern is that if the employees of the employer vote to continue having the union represent them in their relations with their employer, a second application will be filed where the same issues which troubled the Board in K-Mart will have to be relitigated. If the majority is firm and sincere in their belief that all petitioners are applicants then the majority should also be prepared to rule, in the event that the termination vote is unsuccessful, that all the petitioners are barred from being applicants in a subsequent application. If the petitioners wish to reap the benefits of being applicants they must also be prepared to pay the cost.

28. I am not unmindful that section 103(2)(i) allows the Board to "... refuse to entertain a new application ... by any of the employees affected by an unsuccessful application ...". This however, only reinforces my belief that petitioners are not applicants in the circumstances of this case. If, for purposes of this section, the petitioners are only "employees affected by an unsuccessful application" then they cannot have been applicants for an unsuccessful application.

29. To summarize, I disagree with the majority that in the circumstances of this case the petitioners are also applicants; however, the majority must be prepared to follow through its logic by being prepared to bar the petitioners from being involved in any subsequent application if an application bar is imposed against the applicant.

30. In the interest of natural justice I would have dismissed the application.