[1992] OLRB Rep. May 535
0128-92-R International Union of Bricklayers and Allied Craftsmen, Local 2, Ontario, Applicant v. 419990 Ontario Ltd. c.o.b. as A.B.S. Masonry, Respondent v. Bricklayers Masons Independent Union of Canada Local 1, Intervener
BEFORE: Robert Herman, Vice-Chair, and Board Members F. B. Reaume and H. Kobryn.
DECISION OF THE BOARD; May 13, 1992
1The name of the respondent is amended to read: "419990 Ontario Ltd. c.o.b. as A.B.S. Masonry".
2This is an application for certification.
3The applicant has requested that a pre-hearing representation vote be taken.
4It appears to the Board on an examination of the records of the applicant and the records of the respondent 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.
5Having 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 bricklayers, bricklayers' apprentices, stonemasons and stonemasons' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all bricklayers, bricklayers' apprentices, stonemasons and stonemasons' apprentices in the employ of the respondent in all other sectors in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Township of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
all bricklayers' assistants in the employ of the respondent, in all sectors of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Township of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
6The parties remain in dispute over a number of matters, including the appropriate bargaining unit with respect to what will be bargaining unit #2, challenges to the list with respect to both the voting constituencies and their respective bargaining units, and over whether the instant application is a displacement application for certification or not (the applicant takes the position that the intervener does not have a valid collective agreement with the respondent employer). Their respective positions are set out in the officer's Pre-Hearing Vote Meeting Report.
7Because it takes the position that the intervener does not have a valid collective agreement, the applicant asserts that the instant application is not a displacement application. It asks that the ballot with respect to voting constituency #2, in addition to the standard question on a displacement application (whether the voters wish to be represented by the applicant or the intervener trade union) also ask whether or not voters wish to be represented by the applicant in their employment relations with the respondent. In this manner, the applicant submits, the correct question will have been asked on the ballot, regardless of the eventual resolution of the disputed issues. In turn, the intervener objects to the holding of a pre-hearing vote prior to a hearing to resolve these matters.
8As the Board has stated on numerous occasions, when the applicant files a certification application in which it requests that a pre-hearing representation vote be taken, the Board moves expeditiously to give effect to that request, and hold a representation vote, and it does so without resolving the disputes raised by the parties, unless absolutely essential to do so before the vote can be directed. In is only in extremely rare situations that an issue will be raised that must necessarily be resolved prior to the direction of the vote.
9Here, there is no reason to delay the vote in order to hold a hearing to resolve the issues raised by the parties. Although the issues they raise will lead us to segregate the challenged ballots, and direct that the ballot boxes in both voting constituencies be sealed pending further direction of the Board, they are not a reason to delay the ordering of the vote. Further, although there may be situations where votes are directed in more than one voting constituency (for example, see Grant Forest Products OLRB Reports [1990] Jan. 45), within a particular voting constituency, the ballot will generally only set out one question to be answered by voting employees. The applicant is understandably concerned that the vote it has requested ask all the questions that might, in the result, be necessary, depending on the resolution of the various disputes raised by the parties. But that is not the purpose of deciding on the appropriate voting constituency, voter eligibility, and the questions to be set out on the ballot. The applicant chose to file the instant application as a request for a pre-hearing representation vote, and is taken to know the practice of the Board, as directed by the legislation, when such a representation vote is requested. The vote is held prior to the resolution of the sorts of disputes raised in the instant application. It would be confusing and inappropriate to attempt to "cover all the bases" in the vote by asking voters a series of questions, in an effort to cover all the possible permutations that might result from the resolution of disputed issues. Rather, as this appears to be a displacement application, the usual question on a displacement application, and only that question, will be asked on the ballot with respect to voting constituency #2.
10All those employed in the voting constituency on April 23, 1992, who are so employed on the date the vote is taken will be eligible to vote.
11Voters, in each voting constituency, will be asked to indicate whether or not they wish to be represented by the applicant or the intervener in their employment relations with the respondent.
12The ballot boxes with respect to both voting constituencies will be sealed, until the Board otherwise directs. In addition, the ballots of those subject to challenge in voting constituency #1 will be segregated, and all the ballots in voting constituency #2 will be segregated, again until the Board otherwise directs.
13The matter is referred to the Registrar.