Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local Union 172 Restoration Steeplejacks v. Belair Restoration (Ontario) Inc., 1992 CanLII 6796

Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local Union 172 Restoration Steeplejacks v. Belair Restoration (Ontario) Inc.

[1992] OLRB Rep. January 13

2364-91-R Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local Union 172 Restoration Steeplejacks, Appli­cant v. Belair Restoration (Ontario) Inc., Belair Restoration (Ottawa), Respon­dents

BEFORE: S. Liang, Vice-Chair, and Board Members D. A. MacDonald and H. Kobryn.

DECISION OF THE BOARD; January 6, 1992

I. This is an application for certification. By endorsement dated November 14, 1991, the Board appointed a Labour Relations Officer to inquire into and report to the Board on the list and composition of the bargaining unit. The parties met pursuant to that order with a Labour Relations Officer on November 27th, and December 3rd, 1991. Following the discussions, the applicant wrote to the Board on December 10th requesting leave of the Board to withdraw its application. The respondent, in turn, requests that the Board dismiss the application and impose a six months bar, stating in a letter of December 11th:

……I would point out to the Board that the Applicant had previously filed an Application for Certification under Board File No. 1234-91-R on July 9, 1991. In that matter the Union with­drew its Application, and the Board dismissed the Application. Given the proximity in time of the Board's Order to this current Application which the Applicant seeks to withdraw, the Respondent is requesting that the Board dismiss the instant Application and impose a six-month bar.

2. As noted in the letter, the applicant had previously filed an application (Board File No.

1234-91-R) for the same bargaining unit of employees employed by the respondent. In the previous application, the applicant also sought leave of the Board to withdraw its application. The request was made after the parties had met with a Labour Relations Officer and reviewed the list of employees and prior to the announcement by the Labour Relations Officer of the applicant's mem­bership status ("the count"). The respondent took the position that the application should be dis­missed by the Board. Having regard to the terms of settlement filed by the parties, the Board dis­missed the application for certification.

3. When the Board receives a request from an applicant for leave to withdraw an applica­tion for certification, the Board may, instead of granting leave, dismiss the application. Practice Note #7 of the Board's Practice Notes sets out the circumstances in which a dismissal will issue. Having regard to that Practice Note, the Board hereby dismisses the current application.

4. Somewhat different considerations are applied when the Board determines whether or not, in addition to dismissal, to impose a bar to further applications. The rationale for imposing a bar was reviewed by the Board in Amarcord Carpenters Ltd., [1989] OLRB Rep. June 531. Under section 103(2)(i) of the Labour Relations Act, the Board has the power:

103.-(2)

(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 any period not exceeding ten months from the date of the dismissal of the unsuccessful application.

5. In Amarcord Carpenters Ltd., the Board identified two general circumstances in which a bar may be imposed. First, a bar may be imposed where a request for withdrawal is made at a stage of the proceedings where the applicant must be anticipating defeat at a request of a represen­tation vote. The bar is imposed in order to provide employees who have been given their opportu­nity to express their wishes through a representation vote, with a cooling- off period.

6. The Board has also stated that it may impose a bar in "special and extreme circum­stances": J. W. Crooks Company, [1972] OLRB Rep. Feb. 126. In J. W. Crooks Company, the special and extreme circumstances involved four unsuccessful applications made by the same appli­cant in a little over three months.

7. In our view, the facts of this application do not fall within either of the circumstances identified in Amarcord Carpenters Ltd. The imposition of a bar in the current application would be merely punitive and serve no labour relations purpose. We therefore decline the respondent's request to impose a bar on future applications for certification by this applicant.