Ontario Labour Relations Board
[1991] OLRB Rep. July 805
0767-91-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant v. Associated Toronto Taxi-Cab Co-Operative Limited, Respondent
BEFORE: Judith McCormack, Vice-Chair, and Board Members J. A. Rundle and J. Redshaw.
DECISION OF THE BOARD; July 12, 1991
Decision
This is an application for certification.
The applicant has requested that a pre-hearing representation vote be taken.
The parties are in dispute with respect to whether a number of employees are to be included or excluded in the bargaining unit and the voting constituency. In addition, the respondent takes the position that none of the individuals set out on its lists are employed by it.
The respondent has also requested that we reserve our discretion to decline to order a vote until a hearing has been held to hear evidence with respect to this latter position. In the alternative, it wishes to have an opportunity to file written submissions in this regard.
In Kirouac Contracting Ltd., [1987] OLRB Rep. Oct. 1262, the Board reiterated its views on the purpose and application of section 9:
The purpose of a pre-hearing vote is to provide a "quick vote" procedure, and as a result, it is critical that the vote not be delayed by litigation. As the Board said in Emery Industries Limited, [1980] OLRB Rep. Mar. 316:
- It is axiomatic that in labour relations matters "time is of the essence"; but this is especially the case in respect of representation votes. If the trade union's certification application, and its status as bargaining agent, are not resolved expeditiously (i.e., if it cannot engage in collective bargaining, or perform the other representational functions for which it was selected) there may be discontent among its supporters and a possible erosion of that support. This might not only make the union's certification more difficult, but could also complicate its collective bargaining task. The purpose of the pre-hearing, or "quick vote" procedure is to facilitate a prompt resolution of representation questions, by permitting the Board to test employee wishes as soon as possible following the application date. This avoids the potential prejudice which might arise if a representation vote had to await a decision following a formal certification hearing. Some delay is inevitable, but the pre-hearing vote procedure is a legislative attempt to remove some of the problems, and prejudice, associated with delay while, at the same time, ensuring that all of the parties will be given a full opportunity to make their submissions with respect to any matters in dispute.
To accommodate the need for expedition but also provide parties with the opportunity to have a hearing on contested issues which may arise, the scheme of section 9 contemplates the deferral of decisions on contentious matters until after the vote. Thus the Board is required only to strike a voting constituency and make an assessment with respect to whether an applicant has the appearance of membership support of not less than 35% before directing the vote. It is not until after the vote that the Board determines the appropriate bargaining unit and assesses the actual level of membership support. Where there are matters in dispute, the Board can seal the ballot box until the parties have had an opportunity to present their cases in this regard.
This approach has been more fully developed in the Board's jurisprudence under section 9. While a wide variety of contested issues have arisen in cases where pre-hearing votes have been requested, the Board pointed out in The International Nickel Company of Canada, [1961] OLRB Rep. Dec. 324 that it is implicit in the use of the term "pre-hearing representation vote" that a vote be taken before a hearing is held. As a result, such disputes will be deferred until after the vote. To protect the parties' rights to have their differences adjudicated by the Board and still maintain the expedition which is integral to the pre-hearing votes process, the Board will structure the vote and segregate ballots to try and ensure that the vote will be meaningful in any event of a dispute. The Board has handled many kinds of disputes in this fashion, including questions relating to whether an applicant has trade union status, disputes with respect to employee status and voter eligibility, and a variety of problems associated with the composition of the bargaining unit.
It is clear from the scheme of section 9 and the Board's jurisprudence that by directing the vote, the Board makes no assumptions about the ultimate disposition of the application. Thus, for example, should an applicant subsequently be found not to have actual membership support of at least 35%, the application will be dismissed, regardless of the fact that a vote has been held. Similarly, an applicant who subsequently fails to establish its status as a trade union will gain nothing from the pre-hearing vote. This scheme permits the vote to be taken despite the fact that a number of significant issues may be in dispute.
[emphasis in the original]
In this case there is no reason to depart from the Board's normal practice as the respondent's interests are adequately protected by the procedure outlined above. If the respondent wishes us to reconsider our decision in this regard, it must file written submissions in accordance with Practice Note #17 on or before July 19th, 1991.
In accordance with that practice and consistent with the Board's jurisprudence in Satin Finish Hardwood Flooring (Ontario) Limited, [1984] OLRB Rep. Nov. 1602 and Kirouac Contracting Ltd., supra, we conclude for the purposes of directing the vote under section 9(2) that on the basis of the applicant's position it appears that not less than thirty-five per cent of the employees of the respondent in the voting constituency hereinafter described were members of the applicant at the time the application was made.
Having regard to the agreement of the parties, the Board directs that a pre-hearing representation vote be taken of the employees of the respondent in the following voting constituency:
all employees of the respondent operating under the roof sign "Co-Op" in Metropolitan Toronto, save and except supervisors, persons above the rank of supervisor, inspectors, dispatchers, call takers, maintenance staff, office and clerical staff, and multiplate/multicar owners/leasees.
All those listed on the voters' list will be eligible to vote. However, in light of the fact that the above-noted disputes may affect our eventual determination with respect to the actual level of support under section 9(4), the ballot box will be sealed and the ballots not counted except upon the agreement of the parties or by further order of this Board. In addition, the ballots of all those individuals whose eligibility to vote is in dispute shall each be segregated and remain uncounted except upon the agreement of the parties or by further order of this Board.
The parties are also in dispute as to whether the respondent should be permitted to add or delete names from the lists of individuals alleged to be employees after the date of the Labour Relations Officer's meeting with the parties. The ballots of any voters contested as a result of this dispute will also be segregated and remain uncounted except upon the agreement of the parties or by further order of the Board.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
The parties are also in dispute with respect to certain aspects of the vote arrangements. That dispute is referred to the Registrar for resolution. In addition, the Registrar is directed to list this matter for hearing on all outstanding issues after the vote is held.