[1996] OLRB Rep. November/December 996
1446-96-R Labourers' International Union of North America, Local 837, Applicant v. Metric Contracting Service Corporation, Responding Party
BEFORE: Robert Herman, Alternate Chair, and Board Members W N. Fraser and C. McMenemny
DECISION OF THE BOARD; November 7, 1996
This is an application for certification pertaining to the construction industry.
A representation vote relating to this application took place on August 23, 1996. At the time of the count, there was one segregated ballot, and three unchallenged ballots. A hearing was held on October 9 and 10, 1996 before a different panel to hear the evidence and representations of the parties with respect to the challenge to the one segregated, and uncounted, ballot.
The Board concluded that the employee who had cast the challenged ballot was eligible to vote, but also ruled that it would not count his segregated ballot, since to do so would reveal how he voted. Accordingly, the Board directed the taking of a second representation vote. The list of eligible voters remained unchanged.
On the day prior to the scheduled date of the taking of that second representation vote, the applicant wrote to the Board requesting leave of the Board to withdraw the application. The representation vote scheduled for the next day accordingly did not take place, although there was no written decision of the Board to that effect.
Both parties have now written to the Board with respect to how the Board ought to exercise its discretion under the Labour Relations Act, 1995, and whether or not the Board ought to impose a bar upon the applicant, pursuant to section 7(9) of the Act. Section 7(9) of the Act reads as follows:
(9) If the trade union withdraws the application before a representation vote is taken, the Board may refuse to consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year or such shorter period as the Board considers appropriate has elapsed after the application is withdrawn.
The Board has had recent occasion to comment upon section 7(9) of the Act. In Sara Lee Bakery Canada, [1996] OLRB Rep. May/June 480, the Board wrote in part as follows:
As stated earlier, the Act contemplates that bargaining rights can be acquired primarily by obtaining the support of the majority of the employees voting. The Act also contemplates a period of repose, following the testing of the wishes of the employees in the bargaining unit by means of a vote. The focus of the bar provisions is on whether the wishes of the employees have been tested by means of a representation vote. It is only after the wishes of the employees have been tested by means of a representation vote, that a bar of one year will be imposed. In our view, this reinforces our view that section 7(9) gives the Board a discretion whether or not to impose a bar, before a vote is taken. Subject to our comments below, prior to the taking of the vote, the wishes of the employees have not been tested with sufficient certainty to justify the imposition of a bar against a further application by the applicant trade union.
The legislative scheme of the Act with respect to the imposition of a bar in certification application cases does not deviate significantly from the Board's approach to that issue under the previous Act. In the past, the Board had a discretion to decide whether or not to impose a bar and the length of bar, following an unsuccessful certification application. The Board's approach in the past was twofold. The Board generally imposed a bar following an unsuccessful representation vote. This approach, has now been codified in section 10(3) of the Act. In keeping with that approach, the Board also imposed a bar where the trade union sought to withdraw its application for the purpose of avoiding an unfavourable result at the vote. In those cases, the certification process had advanced sufficiently so that the Board was satisfied that the wishes of the employees were clear. The focus of the Board's inquiry was whether the wishes of the employees to be represented by the applicant trade union l~ad been clearly tested. Section 7(10) may be seen as a codification of that approach. Where the representation vote has been taken, a withdrawal by the applicant will still trigger the one year bar. Finally, in the past, the Board has imposed a bar where the applicant trade union made repeated, unsuccessful certification applications in a short period of time. Again, the focus of the Board was on the wishes of the employees, which had been tested with some degree of certainty through the mechanism of repeated, unsuccessful applications. The purpose of the bar, the Board has stated, is to foster orderly labour relations by means of a period of repose, after the wishes of the employees have been tested. (See Amarcord Carpenters Ltd., and R.J.R. MacDonald Inc., supra).
The Board's jurisprudence is still useful in guiding the Board in the exercise of the discretion in section 7(9) of the Act. In our view, the Act contemplates that the focus of our inquiry should be on whether the wishes of the employees on the issue of representation by the applicant have been tested with sufficient certainty so as to give rise to the need for a period of repose on that issue. The Board must also be satisfied that the union is not abusing the Board process by, for example, making repeated applications.
Here, there was a representation vote, in which four ballots were cast. Three of the ballots were not challenged and were counted, with the remaining ballot segregated. That ballot was the subject of challenge, and the Board subsequently ruled that it was cast by an eligible voter. However, the Board concluded that a new vote should be held, since to count the single segregated ballot would in the circumstances necessarily reveal the wishes of that individual employee.
In the second representation vote, the eligible voters would have remained the same (since in the construction industry, those employees eligible to vote are those who were employed in the bargaining unit on the application date). The day before the representation vote was to have taken place, the applicant withdrew the application.
The Board is satisfied that section 7(9) is the applicable section to these circumstances. Although a prior representation vote was held, the Board subsequently concluded that the vote had to be taken again, and the first vote was effectively nullified or cancelled. In these circumstances, for purposes of the bar, it is as if a representation vote has not been held.
There still remains the question of how the Board ought to exercise its discretion with respect to the imposition of a bar. In exercising our discretion, the Board agrees with the approach described in Sara Lee Bakery Canada (set out above). As the Board stated in that case, "the Act contemplates that the focus of our inquiry should be on whether the wishes of the employees and the issue of representation by the applicant have been tested with sufficient certainty so as to give rise to the need for a period of repose on that issue".
II. Realistically and practically, the wishes of employees have been fully tested in the instant application. There was an initial representation vote, the three unchallenged ballots wet-c counted, and the results were disclosed to the parties. Only a single ballot remained the subject of challenge. The employer asserted that the individual who had cast that ballot was eligible to vote, and the applicant union took the contrary position. The employer's position prevailed, and the Board determined that the individual in question was eligible to vote. The Board directed that a second representation vote be held, at which only the same four people who had previously voted were eligible to vote.
In these circumstances, it is much more probable than not that the parties were aware of the wishes of the challenged employee, and that the wishes of employees have truly been tested. And as the Board indicated in Sara Lee Bakery Canada, once this has been done, there ought to be a period of repose.
Under section 7(10) of the Act, where an applicant union withdraws a certification application after a representation vote has been taken, the Board is required to impose a bar of one year. Employee wishes would have been tested by a vote, and given this, the Legislature has determined that a fresh application is to be barred for one year. Where the Board has a discretion under section 7(9) to impose a bar for up to one year, as the Board noted in Sara Lee Bakery Canada, the focus of the Board's inquiry is similarly on whether the wishes of the employees to be represented by the applicant union have been tested.
Since we have concluded that the wishes of employees have been effectively tested in the instant application, it is appropriate in our view for a bar to be imposed and for it to be one year in length, reflecting a period of repose similar to the period that results after a vote has been held.
Therefore, the Board will not consider another application for certification by the applicant trade union as the bargaining agent of the employees in the proposed bargaining unit until one year has elapsed from the date in which the application was withdrawn, which was October 15, 1996.