Labourers International Union of North America, Local 506 v. Crete Flooring Group Limited

[1992] OLRB Rep. July 792

4150-91-R; 0243-92-U; 0782-92-U Labourers International Union of North America, Local 506, Applicant v. Crete Flooring Group Limited, Respondent v. Operative Plasterers and Cement Masons International Association of the United States and Canada Local 598, Intervener; Operative Plasterers' and Cement Masons International Association of the United States and Canada Local 598, Complainant v. Labourers' International Union of North America Local 506 and Crete Flooring Group Limited, Respondents; Labourers' International Union of North America, Local 506, Complainant v. Crete Flooring Group Limited and Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 598, Respondents

BEFORE: Robert Herman, Vice-Chair, and Board Members R. M. Sloan and K. Davies.

APPEARANCES: M. Pollock and Livio Balanzin for Cement Masons Local 598; Ronald Davis, Antonio Cornacchia and Michael Mihajlovic for Labourers Local 506; Antonio Disotto for Crete Flooring Group Limited.

DECISION OF THE BOARD; July 8, 1992

1. This is an application for certification (Board File No. 4150-91-R) arising in the construction industry, in which the applicant Labourers' Local 506 seeks to displace the intervener as bargaining agent and has requested that a pre-hearing representation vote be taken. The intervener Cement Masons' Local 598 has filed an unfair labour practice complaint (Board File No. 0243-92-U) against the Labourers' and the employer. In turn, the Labourers' has filed an unfair labour practice complaint (Board File No. 0782-92-U), and it relies upon the provisions of section 8 of the Act in support of its certification application.

2. Prior to the representation vote being directed, an issue arose over the question of voter eligibility. Because it appeared that application of the Board's customary voter eligibility rules would mean that no one could vote, and because the applicant requested it, a hearing was held prior to the vote. At the hearing, the Board reserved its decision, and directed that a representation vote be held, and that each ballot cast be segregated and the ballot box sealed, pending the agreement of the parties otherwise, or until the Board otherwise directed. We now provide our decision.

3. Ordinarily, when a pre-hearing representation vote is requested in a certification application, whether it arises in the construction industry or not, those eligible to vote will be those individuals who are considered to be employees in the voting constituency as of two different dates, both as of the terminal date and as of the date the vote is taken. (In pre-hearing applications, the appropriate bargaining unit is not determined until after the vote is held.) In non-construction prehearing vote certification applications, the voter eligibility requirements are described in terms of those employees who "are employed in" the voting constituency on the terminal date and the day the vote is taken, while in construction certifications, those eligible to vote are described as those "at work in" the voting constituency as of the same two dates. (See City Plumbing (Kitchener) Limited, [1987] OLRB Rep. June 810.)

4. Practice Note No. 9 describes voter eligibility requirements for pre-hearing representation votes. That Practice Note reads as follows:

APPLICATION FOR CERTIFICATION

PRE-HEARING REPRESENTATION VOTES

DATE FOR DETERMINING ELIGIBILITY OF VOTERS

1. Where a trade union, in applying for certification, requests a pre-hearing representation vote and the Board directs that such a vote be taken, it has been the practice of the Board, except in special circumstances, to direct that the employees in the voting constituency who are eligible to vote are those in the employ of the employer on the terminal date fixed for the application in accordance with Section 2 of the Board's Rules of Procedure.

2. If any party wishes to have eligibility determined as of some date other than the terminal date for the application, representations as to the reason therefor should be made to the Labour Relations Officer appointed to confer with the parties at the time of the Labour Relations Officer's meeting.

3. Practice Note No. 9 dates from August, 1964. It arose at a time when the Board applied similar practices to construction and non-construction certification applications. This is no longer true, and has not been the case for many years now. For that matter, the Practice Note itself does not reflect current practice, for it indicates that only one date is determinative, the terminal date, rather than the "two date" requirement.

4. The application date was March 27, 1992. There were employees of the respondent at work on that day. The terminal date was April 7, 1992. On April 8, 1992, the day after the terminal date, in accordance with the Board's customary practice in pre-hearing representation votes, the parties met with a Board Officer, in order to indicate their positions on the issues in the application, including the description of the voting constituency and the description of the appropriate bargaining unit, and in order to make vote arrangements, including addressing the question of who were employees on the terminal date. This meeting with the Officer is held shortly after the terminal date because one of its purposes is to make vote arrangements, and by holding the meeting then, the parties are better able to assess which employees will meet the requirements of the first qualification for voter eligibility, to be at work in the voting constituency on the terminal date. The parties will not, of course, be able to know which employees will be at work in the voting constituency on the date the vote is held, the second customary qualification to be entitled to vote.

5. There were no employees in the voting constituency on the terminal date, as the employer had no work force that day. If the Board's usual eligibility rules were applied, the applicant would never be able to obtain a representation vote, a vote it is clearly entitled to by law, as no one would ever be eligible to vote. The matter was listed for hearing to address this problem.

6. The parties agreed, for purposes of this issue only, that there was at least one employee

(not necessarily the same one) at work for the employer on each of May 5, May 8, and May 13, 1992.

9. The applicant Labourers' submitted that the customary dual voter eligibility dates for pre-hearing representation votes could not be applied here, as this would result in no vote being held at all. The applicant submitted that in the construction industry, it was not appropriate to use two voter eligibility dates. To have dual voter eligibility dates, both of which arise after the employer is made aware of the application, is an invitation to employers to gerrymander or in some fashion unduly influence which employees will be eligible to vote. The applicant submitted that there should be only one date for voter eligibility, the application date itself. Focusing on the application date would be consistent with the Board's general approach in construction representation proceedings (whether certifications or decertifications). In such proceedings, the Board considers the application date, for purposes of determining whether an applicant is entitled to automatic certification, or a representation vote. Focusing on only one date is consistent with the practice and reality in the construction industry. Further, submitted the applicant, picking the application date as the sole date for voter eligibility would eliminate any potential for employer gerrymandering of voter eligibility.

10. Alternatively, should the Board decide that two different dates for voter eligibility are appropriate, the applicant agreed that the second date should remain the date the vote is taken. Since no one was at work on the terminal date, it submitted that the first date should be the application date. Although the potential for gerrymandering by the employer would remain, since the employer could improperly hire people to work the day the vote is held, at least picking the application date as the first date would substantially reduce the likelihood of gerrymandering. The applicant acknowledged that the Board has historically looked to the application date for purposes of determining the "count" (the level of membership support amongst the total number of employees in the bargaining unit), or for purposes of determining the apparent level of support in prehearing applications, but where votes have been directed, the Board has traditionally looked to dates subsequent to the application date for purposes of determining voter eligibility. The applicant submitted there was no valid rationale for utilizing different dates for these purposes. To the contrary, submitted the applicant, it was more rational and more sensible, since the Board already focuses on the application date for purposes of determining whether a vote is held, to also focus on that date in order to determine which employees are eligible to cast ballots.

11. The intervener Cement Masons asserted that no vote ought to be held, since no employees were at work in the voting constituency both as of the terminal date and the date the vote is taken. When the Board at the hearing indicated some difficulty with this proposition, the intervener did not press the point.

12. Alternatively, the intervener asserted that the Board ought to continue to determine voter eligibility with reference to two different dates. If the Board were to insist on only a single date as determinative of voter eligibility, it submitted, the potential for gerrymandering, either by the employer or the applicant union, which gets to choose the application date, would be too great. The insistence on two different dates itself reduces the gerrymandering potential. If there is a suggestion of employer gerrymandering, the intervener submitted that such matters can best be dealt with by the filing of an unfair labour practice complaint. The concern for such abuse ought not to lead the Board to abandon its historical approach to voter eligibility rules. Further, submitted the intervener, the reason for picking two different voter eligibility dates is to increase the likelihood that those voting are substantially representative of the employees of the respondent. If the Board only allowed those employees at work on a single date to vote, there would be less chance that the voters would be a representative group of employees. By looking only to one date for eligible voters, submitted the intervener, the success of the application could more likely be determined by a non-representative group.

13. The intervener further submitted that the first of the two voter eligibility dates ought not to be the application date, as it would give an unfair advantage to the raiding union. It would give an applicant, in regular or displacement certifications, too great an opportunity to gerrymander, to strategically pick a particular date to file its application when it knew its members were present in significant, perhaps disproportionate numbers. Further, picking the application date would nullify the historical distinction between using the application date for purposes of the count and a subsequent date, here the terminal date, for purposes of determining voter eligibility. Accordingly, submitted the intervener, the Board ought still to use two dates for voter eligibility, the second being the date the vote is taken. The first date ought to be any one of the dates on which employees were at work in the voting constituency: May 5, May 8, or May 13, 1992. The intervener submitted that by picking one of those dates, after they have passed, the Board will have avoided any potential for gerrymandering, since the employer would have been unaware at the time that those at work on that date might form the group of employees who would be eligible to vote. Picking one of these dates would be fairest, in all the circumstances, to all the parties.

14. It is necessary to understand and appreciate the construction industry context in which this application arises in order to determine the appropriate voter eligibility requirements. In Diplock Durable Floor Company Limited, [1982] OLRB Rep. Aug. 1159, the Board had before it an application for certification in the construction industry. The Board wrote, as follows:

15. Unlike the situation in other industries, the Board's general practice in the construction industry is to count as employees of an employer only those persons actually at work for the employer on the day in question. This applies both when the Board determines who was an employee on the application date for the purposes of the "count", and also who was an employee on the date set to determine eligibility to vote in a representation vote. The Board's practice arises out of the transient nature of the work force in the construction industry as well as a resulting need for a clear set of practices regarding construction industry certification applications. Individual tradesmen frequently move from employer to employer. Further, when a tradesman is laid off, even for a short period of time, he often obtains alternate employment with another firm. In this regard, it is instructive to note that one of the individuals who worked for the respondent during most of March, namely Mr. Gomes, was included on the voters' list in the Metro Concrete Floors Inc. case, File No. 2657-81-R (which involved a contest between the same two unions as in this case) on the basis of his employment by that firm during part of March, including March 31, 1982, the date set to determine voter eligibility.

16. We are not prepared to depart from the Board's practice of regarding as employees in the construction industry only those persons actually at work for an employer on the date in question. We would note that the policy is one that avoids uncertainty and lengthy disputes concerning who should be counted as an employee. In this regard, we would adopt the reasoning of the Board in the Keystone Contractors Limited case [1966] OLRB Rep. Feb. 821, where in denying a request that it not dismiss a construction industry certification application due to the fact that no one was at work on the application date because of a snow storm, the Board noted that its policy respecting who it will view as a construction industry employee is basically equitable to all parties and also lends itself to the expeditious disposition of certification applications which is a primary consideration in the construction industry. In the instant case, the Board set March 16, 1982 as the date for determining voter eligibility. In that the five individuals in question did not work for the respondent on March 16, 1982, we are satisfied that on that date they were not employed within the voting constituency. Accordingly, the segregated ballots of Messrs. Iwasjuk, Gomes, Fritas, G. Whie and I. White are not to be counted.

17. And in City Plumbing (Kitchener) Limited, [1987] OLRB Rep. June 810, a decertification application arising in the construction industry, the Board wrote as follows:

18. The Board has also long recognized that there is a difference between employment in the construction industry and non-construction employment. A major difference between the two is that employment in the construction industry tends to be intermittent and transitory relative to non-construction employment. A great deal of construction work is seasonal or subject interruption due to inclement weather. When they do work, construction employees tend to work in small crews and continuous employment with any given employer is often measured in weeks or months rather than years. In recognition of the differences between them, the Board has established a practice of approaching the two situations differently. For example, in both applications for certification and termination proceedings, the employer involved is required to file with the Board a list of employees in the bargaining unit so that the Board can, as it must, ascertain the level of employee support of the application before it. In proceedings relating to the construction industry, the Board counts only these persons actually at work in the bargaining unit on the date of application in determining the number of employees in the bargaining unit. In contrast, in non-construction proceedings, the Board does not require an individual to be at work in the bargaining unit on the date of application for purposes of the count so long as s/he was an employee in the unit on that day, and did actually work in it on at least one day in the thirty day period prior to and one day in the thirty day period subsequent to the date of application. Similarly, when a representation vote is held in the course of proceedings involving the construction industry, a person is entitled to vote if s/he was at work in the voting constituency on the date of the Board's decision directing the vote (or, where a pre-hearing vote is requested in a certification application, on the terminal date), and the day of the vote. In non-construction matters, on the other hand, an individual is entitled to vote if s/he was employed in the voting constituency on those two material dates. Being "at work in" the voting constituency requires an individual to be physically on the job. Being "employed in" the voting constituency does not require a person's physical presence at work so long as s/he has not been permanently removed from employment in the voting constituency. This distinction illustrates the Board's practice of focusing on specific dates in construction industry proceedings and on periods of time in non-construction matters, and it reflects the Board's attempt to accommodate the differences between the two employment situations.

19. Contrary to what counsel for the respondent suggests, so long as employment in the voting constituency is not terminated, in neither case does the Board require an individual to be at work in it for any minimum period of time, or at all, during the period between the two material dates in order to be eligible to vote. It would be impractical and unrealistic to impose any such requirement. It is to be expected that some employees will not be at work, or if at work not be performing work within the voting constituency, during some part, or all, of the period between the date of the Board decision directing the vote (or the terminal date in the case of a pre-hearing vote), and the day the vote is taken. That is particularly true in the construction industry where the vagaries of employment are such that it is possible, even likely, that imposing a requirement that an individual perform work in the voting constituency during that intervening period would, in many cases, result in there being no one entitled to cast a ballot. The Labour Relations Act provides employees with an opportunity to join and be represented by a trade union in their employment relations with their employer, and also permits them to terminate that trade union's right to represent them, if they see fit to do so. It would be inappropriate for the Board to adopt procedures which would effectively deny either right. Furthermore, such a requirement could create uncertainty and invite protracted litigation, neither of which is desirable in labour relations matters, particularly those relating to representation rights.

20. The purpose of the Board's practices is to ensure that the persons affected by the outcome of a vote; [sic] that is, the employees in the bargaining unit affected, have an opportunity to participate in a representation vote where one is directed. To achieve that goal, the Board has formulated different approaches to employment in the construction industry and non-construction industry employment in response to the differences between the two employment situations. Some of those differences in approach have already been discussed. They are also reflected in the difference in the meaning that the Board has ascribed to the standard language it has long used to describe voter eligibility in representation votes in the construction industry compared to that in non-construction votes. In the result, in non-construction matters, a person need not be "at work in" the voting constituency at any time so long as s/he is "employed in" it. In construction matters, the same eligibility terminology has been made equivalent to "at work in" so that a person must be at work in the voting constituency on both of the material dates; that is, the date of the Board decision ordering the vote (or the terminal date in the case of a pre-hearing vote), and the day the vote is taken in order to be eligible to vote (see Crowle Electrical Limited, supra). This reflects the Board's attempt to strike a balance between the vagaries of employment in the construction industry and the object of affording affected employees an opportunity to vote.

21. Because of the nature of the construction, in certification applications arising in the construction industry the Board takes a "snapshot" of the state of affairs on the application date of the application. Focusing solely on the employee complement on that date, the Board determines the number of employees in the bargaining unit, and the level of membership support filed by the union amongst those employees. The Board does not have regard to all the principles or rules that apply in non-construction certifications. For example, the Board does not include in the bargaining unit those who meet the requirements of the "30-30" rule. It does not apply the principles of "build-up", where the Board defers consideration of the number of employees in the bargaining unit, or defers directing a vote, until such time as the employer work force is more stabilized, regular, or representative. In this respect, section 121(2) of the Act reflects the different context and approach to construction industry applications, stipulating that the Board need not have regard to any increase in the number of employees in the bargaining unit after the application was made. The legislation specifically encodes the right of the Board in construction applications to focus solely on the application date.

22. This practice is not new. In determining whether a certificate will issue automatically, or a vote be directed, the Board, in construction applications, has long considered the wishes of only those employees at work in the bargaining unit on the application date. The Board does not consider the wishes of those employees at work the day before, the day after, or any day other than the application date, for to do so would be inconsistent with how construction works, and would more likely be less fair and less representative. In E & E Seegmiller Limited, [1987] OLRB Rep. January 41, the Board clarified and reemphasized the extent to which the Board looks only to the employees at work on the application date. And see Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220. Whether the employees who were at work on the application date had ever worked for the employer before, or ever would again, it is only those employees at work on the application date whose wishes are taken into account in determining the merits of the certification application. It does not matter why a given individual might not have been at work on the application date, whether for reasons of illness, lay-off, or whatever. If that individual was not in fact at work in the bargaining unit on the application date, then his/her wishes are not taken into account in determining whether the union is entitled to automatic certification, or, if the level of membership support is not sufficient for automatic certification (or if a pre-hearing representation vote is requested), is entitled to a vote.

23. In this context, where the Board looks to the "snapshot" of the application date already, and appropriately so, it is difficult to see why the Board should apply a two-date voter eligibility rule or why it should not also look only to the application date for voter eligibility.

24. The intervener submitted that the use of two different dates, with some meaningful interval between them, will increase the likelihood that a representative group of employees will be eligible to vote, and that those who must live with the vote results will be those voting. As already noted, this is not generally true in construction matters. To take other than a single representative day to determine voter eligibility is inconsistent with the historical reality of how the construction industry operates. And it is more consistent, fair, and representative to apply a practice whereby the group of employees that gets to determine whether the union gets certified without a vote, (if enough memberships are signed and filed for automatic certification), or whether it gets certified after a vote (where the level of support requires a vote, or where a pre-hearing vote is requested) is the same group of employees that gets to participate in any vote. Since the work force is so transitional and quickly changing, focusing on a different date or dates for purposes of voter eligibility will ordinarily result in a different group of employees getting to vote on the application than the group of employees that secured the right to the vote.

25. Picking a single date for voter eligibility would also serve to reduce the potential for gerrymandering, and reduce lengthy and expensive litigation over a number of issues, promoting certainty and finality. The potential for gerrymandering continues to exist when a date for voter eligibility has not yet arrived at the time the employer becomes aware of the application. To repeat, the work force in construction is often fluid, transitional and rapidly changing. Where the first date of voter eligibility is the terminal date, a date the employer is advised of when it receives notice of the application, the employer will be able, if it chooses, to significantly influence which employees are at work on that date, just as it can influence who is at work on the date the vote is held. We do not suggest that most employers gerrymander, only that some do and the current practice creates a significant potential for such abuse.

26. An employer's actions are subject only to the union's right to file an unfair labour practice complaint if it asserts that the employer breached the Act in its conduct in this respect (as, indeed, the Labourers' assert here). (See, for example, P & R Concrete Finishing, [1978] OLRB Rep. Oct. 944; London District Crippled Children's Treatment Centre, [1980] OLRB Rep. Apr. 461). Such an approach is not particularly satisfactory. First, this approach engenders litigation (as it has here) both over whether an unfair labour practice has been committed and over the list of eligible voters. Where a representation vote is to be held, it is important that the vote be held quickly. In regular certification applications, litigation may occur over a variety of issues with the sole purpose of delaying the vote in order to ensure that a new group of employees get to cast ballots. Prejudice caused by delay is particularly acute in the construction industry, given the constant turnover of employees and the transitional nature of the work force. The community, and the Board, have long been aware that delay in holding a vote in the construction industry will almost always be to the prejudice of an applicant union. Even when the vote is still held quickly, as here, litigation will delay the resolution of the application. Voter eligibility rules ought to reduce the potential for litigation delay, by providing greater certainty and clarity, and by reducing the potential for gerrymandering. A two date eligibility requirement, where both dates occur after notice has been provided to all parties, can only increase the likelihood of less fair representation votes. Much of the type of litigation that has been occurring in this area would likely disappear if it were clear that only those at work on the application date will be eligible to vote, if a vote should be directed. Second, events may occur subsequent to the application date which cannot be shown to be an unfair labour practice, yet influence or affect who may vote. This might not be a problem if it were otherwise appropriate to allow those who are employees on a subsequent date to vote. But the fact remains that the appropriate group of employees to determine the success or failure of the application are those who were at work in the bargaining unit on the application date.

27. We do not agree that in a displacement application, as here, use of the application date for voter eligibility provides an unfair advantage to the raiding union. The incumbent union will have represented the employees during the term of the collective agreement, and the employees will generally be members of the incumbent union. Given these facts, it is neither apparent nor likely that a union attempting to replace the incumbent as bargaining agent will be unfairly advantaged by being able to choose, within the limited open period under the Act for bringing such applications, when to file the application. The applicant will have no influence on who the employees are on the application date. It only gets to select that date, within the open period. In any event, in construction applications there is nothing new in this. The applicant already gets to choose the application date, and the Board already focuses on the employees at work that day. On occasion, this no doubt results in tactical advantages to the applicant but there is nothing untoward or unfair in this.

28. Practice Note No. 9 indicates that the terminal date will be looked at for voter eligibility. That Practice Note was formulated and became effective approximately twenty-eight years ago, and does not appear to reflect the Board's current practice. The Practice Note recognizes that there may be "special circumstances" where use of the terminal date in pre-hearing votes will not apply. In our view, the traditional approach, reflected in the Practice Note, ought not to apply in the special circumstances of the construction industry.

29. Accordingly, in pre-hearing construction applications, as here, those eligible to vote will be those at work in the voting constituency on the application date, and in regular construction applications, those eligible to vote, if a vote is directed, will be those at work in the bargaining unit on the application date.

30. As there are other outstanding issues, including the unfair labour practice complaints filed by the Cement Masons and the allegations contained therein, the ballot box will remain sealed, pending the agreement of the parties otherwise. The complaint filed by the Labourers' (Board File No. 0782-92-U) will be listed together with the other proceedings. These matters will be relisted for hearing, to consider all matters, including whether the box ought to be unsealed and the ballots counted, and those matters raised in the submissions on the Officer's Report of the Vote.

31. This panel is not seized.

32. The matter is referred to the Registrar.