Labourers International Union of North America, Ontario Provincial District Council v. Stephens and Rankin Inc.

[1992] OLRB Rep. June 762

3174-90-R Labourers International Union of North America, Ontario Provincial District Council, Applicant v. Stephens and Rankin Inc., Respondent v. Christian Labour Association of Canada, Intervener

BEFORE: Ken Pet ryshen, Vice-Chair, and Board Members J. Trim and J. Kurchak.

APPEARANCES: S. B. D. Wahl, J. Varricchio and M. Popovich for the applicant; W. J. McNaugh­ton for the respondent; Elizabeth Forster and Hank Beekhuis for the intervener.

DECISION OF THE BOARD; June 11, 1992

1. This is an application for certification pertaining to the construction industry in which the applicant requested the taking of a pre-hearing representation vote.

2. The pre-hearing vote was held on April 9. 1991 and the ballot box sealed. A number of hearings have taken place in order to resolve voter eligibility issues. In a decision dated June 10, 1991, the Board determined that the voter eligibility rule which the Board normally utilizes in applications for certification pertaining to the construction industry where a pre-hearing vote is requested would be applied in this case. In other words, the Board decided that those persons working in the bargaining unit on the terminal date and on the date the vote is held would be eligi­ble to vote. In a decision dated October 16, 1991, the Board ruled that the applicant would not be permitted to pursue certain challenges since they were not raised in a timely fashion. The Board indicated that the only issue remaining is whether employees were at work on the two relevant dates. In its decision, the Board directed the parties to meet with a Labour Relations Officer for the purpose of reaching agreement on which employees were eligible to vote having regard to the Board's decisions. Since the parties were unable to finally resolve the issue after meeting with a Labour Relations Officer, the Board set the matter down for a third hearing on April 6, 1992 in order to hear evidence and representations from the parties concerning which employees were at work on March 20, 1991 and April 9, 1991.

3. Prior to the April 6, 1992 hearing, the applicant filed another application for certifica­tion ("the second application") for essentially the same bargaining unit of employees of the respondent. This application was filed on February 21, 1992, requested a pre-hearing vote, and was not filed under the construction industry provisions of the Act. By letter dated March 25, 1992, counsel for the applicant raised certain allegations, requested section 8 relief, requested the Board to again reconsider its voter eligibility rulings, and also requested that this application be consoli­dated with the second application. At the hearing on April 6,1992, the Board dealt with the request and representations of the applicant as set out in counsel's letter of March 25, 1992. The Board assumed the facts which the applicant relied on were true. After recessing to consider the applicant's representations, the Board ruled orally at the hearing on April 6, 1992 as follows:

(1) The Board would not exercise its discretion in favour of consolidat­ing this application with the second application. The second applica­tion was filed almost a year after the terminal date of this applica­tion. In these circumstances, the Board was unable to discern any labour relations basis for consolidating the two applications. Under section 105(3) [formerly 103(3)], the Board determined it was appro­priate in the circumstances to postpone consideration of the second application.

(2) The Board would not entertain a request for section 8 relief in the first application, having regard to the timing of the request. The Board noted that the facts relied on by the applicant in support of its section 8 request for the most part were related in time to the second application.

(3) The Board again advised the applicant that there was no basis for the Board to reconsider its earlier rulings on voter eligibility.

4. After advising the parties of the above rulings, the Board proceeded to entertain the evidence and submissions of the parties concerning which employees worked on the two relevant dates. After recessing to consider the evidence, the Board ruled at the hearing on April 6, 1992 that 31 employees worked on the relevant dates and were eligible to vote. In the Board's view, the evidence did not demonstrate that 4 persons worked on the day the vote was held. After providing the parties with its ruling, the Board directed that the ballots be counted. Of the 31 eligible voters, 30 employees voted for the intervener and no one voted for the applicant. There was one spoiled ballot. The results demonstrate that even if the applicant had succeeded on all of its 26 challenges, it would still have lost the vote.

5. The respondent and the intervener advised the Board on April 6, 1992 that they would request that the Board impose a bar or refuse to entertain the second application. Given the time of day, the parties agreed to make their submissions in writing. After reviewing the parties' sub­missions, the Board has decided not to impose a bar and not to refuse to entertain the second application.

6. Section 105(2)(i) provides as follows:

105.-(2) Without limiting the generality of subsection (1), the Board has 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 the employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application.

7. In essence, the respondent and the intervener want the Board to bar or to refuse to entertain the second application. The second application was filed almost one year after the first application. Although the second application was filed as a regular application as opposed to a con­struction application, the respondent is clearly engaged in a construction industry business. It is evident that the workforce fluctuates in a way that is not uncommon in the construction industry, although it is fair to say that a more stable employee complement exists with this respondent than with most employers in the construction industry. Nonetheless, having regard to the competing interests and the nature of employment in the construction industry, the Board is satisfied that it would not be appropriate to impose a bar or to refuse to entertain the second application having regard to the circumstances before us.

8. No statement of desire to make representations has been filed with the Board within the time fixed under subsection 2 of section 70 of the Board's Rules of Procedure following the taking of the pre-hearing representation vote pursuant to the Board's direction of April 3, 1991.

9. On the taking of the pre-hearing representation vote directed by the Board not more than fifty per cent of the ballots cast were cast in favour of the applicant.

10. The application is therefore dismissed.

11. The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.