International Brotherhood of Electrical Workers, Local 353 v. General Signal Limited, 1993 CanLII 7851

[1992] OLRB Rep. June 509

0185-93-R International Brotherhood of Electrical Workers, Local 353, Applicant v. General Signal Limited, Responding Party v. Group of Employees, Objectors

BEFORE: Roman Stoykewych, Vice-Chair, and Board Members J. A. Rundle and K. Davies.

APPEARANCES: Bernard Fishbein, Graeme Aitken and Larry Venning for the applicant; David L. Brisbin, Neill Jeffrey, Geoffrey Bourne and David Pinto for the respondent; Ken Roach, Don Hickey, Gary Jones and Steve R. Gerber for the objectors.

DECISION OF THE BOARD; June 8, 1993

1. This is an application for certification filed with the Board on April 19, 1993. A hearing was held to determine a number of outstanding issues on May 17, 1993.

2. The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.

3. The applicant on March 12, 1993 had filed an earlier application for certification for a bargaining unit that although differently described, affected substantially the same employees as the present application (OLRB File No. 3730-92-R). In the course of proceedings in that applica­tion, the parties met with a Labour Relations Officer and reached agreement on numerous mat­ters. However, it appears that there was no agreement as to the inclusion of three employees per­forming certain technical functions in the otherwise agreed upon unit. Although the applicant challenged the inclusion of these employees on "community of interest" grounds, a determination by the Board that they are included in the unit for purposes of the "count" would have placed the union in a position where it could not demonstrate sufficient membership support for certification without a vote pursuant to section 9.1(2) of the Act.

4. According to counsel for the trade union, faced with the prospect of potentially pro­tracted proceedings during which the inclusion of the three employees would be determined, the trade union chose instead to obtain additional membership evidence, and to file a second applica­tion for certification. Thus, by letter dated April 19, 1993, counsel for the applicant trade union requested leave of the Board to withdraw the first application for certification and, on the same day, filed with the Board the present application. However, on April 20, 1993, a differently consti­tuted panel of the Board refused leave to withdraw the first application and instead determined that the application should be dismissed.

5. Finally, it should be noted that although no "statements of desire" indicating a retrac­tion of trade union membership were received by the Board in the interim period between the fil­ing of two applications, some evidence of that nature was sought to be filed subsequent to the sec­ond application date. At the hearing, it was agreed by all parties that such evidence could not be considered by the Board in the context of either application in light of the operation of section 8(4) of the Act. Section 8(4) of the Act reads as follows:

8.- (4) The Board shall not consider the following evidence if it is filed or presented after the certification application date:

1. Evidence that an employee is a member of a trade union, has applied to become a member or has otherwise expressed a desire to be represented by

a trade union.

2. Evidence that an employee who had become or had applied to become a member of a trade union has cancelled, revoked or resigned his or her membership or application for membership or has otherwise expressed a desire not to be represented by a trade union.

3. Evidence that an employee who had become or had applied to become a member of a trade union has done anything described in paragraph 2 but has subsequently changed his or her mind by becoming a member again, by reapplying for membership or by otherwise expressing a desire to be repre­sented by a trade union.

4. The responding party employer takes objection to the trade union's manner of proceed­ing, which counsel characterized as a manipulation of the Board's processes. It urged the Board to exercise its discretion pursuant to section 105(1)(i) of the Act and to not consider the present appli­cation on the basis that the trade union was, in effect, attempting to avoid the taking of a represen­tation vote. In support of its position in this respect, employer counsel argued that the principles outlined in Mathias Ouellette, 1955 CLLC ¶18,026 have application to the present circumstances and that the Board should, in effect, impose a bar to the subsequent application. In that decision, the Board stated at page 1556:

It seems to us that a trade union should not be permitted to anticipate defeat in a representation vote and escape the consequences of defeat by seeking to withdraw its application after such a vote has been directed by the Board but before the vote is taken.

7. In the the alternative, counsel for the employer argued that in light of the circumstances outlined above, the Board ought to exercise its discretion pursuant to section 8(3) of the Act and to direct that a representation vote be taken. Counsel for the employer argued that the combined effect of the union's filing of a second application and the provisions of subsection 8(4) of the Act created an unfairness to which the Board should respond by refusing to certify without a represen­tation vote. By withdrawing and then refiling its application with the knowledge that the applica­tion date was also the terminal date for the receipt of membership evidence, it was contended, the trade union was unfairly creating for itself a later terminal date and yet denying it to potentially objecting employees. Counsel urged us to exercise our discretion in a manner similar to that in Children's Air Society of Owen Sound and The County of Grey, [1984] OLRB Rep. July 995.

8. At the conclusion of the parties' argument, the Board rendered the following oral decision:

It is the Board's unanimous decision that these are not appropriate circumstances in which to impose a bar to the certification application. The Board is mindful that the imposition of a bar constitutes a significant curtailment of employees' statutory rights to organization in a trade union. Accordingly, the practice of the Board has been to limit the imposition of a bar to cir­cumstances in which a request for withdrawal is made at a stage of proceeding where the appli­cant must be anticipating defeat upon direction of a representation vote, or when there are some "special and extreme circumstances" present [see Belair Restoration (Ontario) Inc., [1992] OLRB Rep. Jan. 13 paragraphs 5 and 6]. The Board is satisfied that no such circumstances are present, and indeed, none are alleged. Accordingly, we are not of the view that the principles in Mathias Ouellette 1956 CLLC ¶18,028 have application to the present matter. Consequently, we decline to impose a bar and to not consider the present application.

Secondly, the Board is also unanimously of the view that there exists no basis upon which to exercise our discretion to order a vote in the present circumstances. The practice of filing an application is in itself by no means inappropriate, improper or otherwise colourable. Moreover, although the objecting employees' ability to voice their objection to the union in these proceed­ings would be limited, we are of the view that this effect results from the intended operation of section 8(4) of the Act, not from the action of the trade union. Accordingly, we do not find that rights have been affected in a prejudicial manner so as to require the Board to exercise its dis­cretion and to order a vote. (Board Member Rundle will provide a concurring opinion).

9. In addition, an issue arose as to the inclusion of "summer students" in the bargaining unit description. The point was fully argued, and at the hearing the Board advised the parties that it would reserve and provide its decision in writing at a later date.

10. The parties have otherwise reached agreement on all matters in dispute between them. The Board has determined that the applicant's right to certification cannot be affected by the inclu­sion of "summer students" in the bargaining unit description. Upon a joint request of both parties, the Board advised the parties that an interim certificate would issue.

11. On the basis of all the evidence before it, the Board is satisfied that more than fifty-five per cent of the employees of the responding party in the bargaining unit, at the time the applica­tion was made, were members of the applicant on April 19,1993, the certification application date, or had applied to become members of the applicant on or before that date.

12. Accordingly, the Board, pursuant to its discretion under section 6(2) of the Act, having regard to the agreement of the parties and pending the final resolution of the composition of the bargaining unit, certifies the applicant as the bargaining agent for:

all employees of General Signal Limited working at or out of the City of Mississauga, in its ser­vice division of its Edwards unit, save and except supervisors, persons above the rank of super­visor, office and sales staff, and pending the resolution of the status of these categories, exclud­ing as well students employed during the school vacation period.

Clarity Note: For the purpose of clarity, the parties agree that the bargaining unit does not include employees performing work for the International Division, which is not work for the Ontario market.