Ontario Labour Relations Board
File No.: 3279-95-R Date: January 24, 1996
Local Union 47 Sheet Metal Workers' International Association, Applicant v. Maverick Mechanical Contractors Limited, Responding Party
BEFORE: Lee Shouldice, Vice-Chair, and Board Members W. N. Fraser and G. McMenemy.
DECISION OF THE BOARD; January 24, 1996
This is an application for certification. On Friday, December 8, 1995, a representation vote was held in accordance with a decision of the Board (differently constituted) dated December 6, 1995. The ballot box was sealed after the vote was conducted. Subsequent to the taking of the representation vote, counsel for the applicant wrote to the Board identifying certain concerns he had regarding the voting arrangements set by the Board. On December 20, 1995, this panel of the Board rejected the request by the applicant for a second representation vote or for a hearing on the merits of his concerns. By way of letter dated January 10, 1996, supplemented by correspondence dated January 12, 1996, counsel for the applicant requests that the Board reconsider its decision of December 20, 1995.
This application for certification was filed with the Board by means of Priority Courier on November 30, 1995. The application was physically received by the Board on December 1, 1995. The applicant asserted in its application that the responding party had employed three individuals in the proposed bargaining unit on the date of application. It is not clear from the responding party's response whether the employer asserts there to have been three or five individuals at work in the applicant's proposed bargaining unit on the certification application date. In any event, on the basis of the materials filed by the applicant with the Board, there was sufficient membership evidence to satisfy the Board that 40% or more of the employees in the applicant's proposed bargaining unit had applied for membership in the applicant. Accordingly, the Board directed that a representation vote be taken on December 8, 1995, of those individuals in the voting constituency. At the time that the representation vote was taken, only one individual cast a ballot. The ballot box was sealed. The applicant now asserts that the employees of the responding party do not work on Fridays, and that therefore the representation vote ought not to have been scheduled for December 8, 1995, which was a Friday.
In support of his request for a second representation vote, counsel for the applicant notes that the requirement that representation votes be taken in each application for certification is "still quite new to all parties", and observes that "a certain amount of time and learning is needed before a proper voting system is developed". Counsel further asserts that to hold a vote on a date on which the eligible voters are not scheduled to work is a denial of their right to vote.
Furthermore, counsel for the union asserts that the applicant is not responsible for the failure of four of the five eligible voters to cast their ballots on the grounds that the application form (which, it is observed, was filled out by the applicant without the aid of legal counsel) does not request preferred days for the holding of the vote, and does not ask the applicant to identify which days are not appropriate for the holding of the vote. It is submitted that, should the application form have contained the latter question, the applicant would have been alerted to determining which days were not appropriate for a vote. Counsel observes that the applicant did not learn until the evening of Thursday, December 7, 1995 that employees of the responding party did not work on Friday.
Finally, counsel states that, as the right to freely join a trade union of one's choice is a right protected under the Charter of Rights and Freedoms, the issue raised in this proceeding is serious enough to warrant an oral hearing before a panel of the Board, and that to deny such a hearing would be "a denial of natural justice".
Dealing with counsel's latter submission first, we disagree that the applicant is entitled to an oral hearing before the Board can determine the issue that is raised in this proceeding. Section 110(16) of the Labour Relations Act, 1995, S.O. 1995, c. 1 (hereinafter "the Act") provides that the Board is to determine its own practice and procedure, but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions. Here, we accept as true and provable all of the factual propositions asserted by counsel for the applicant. It is, accordingly, unnecessary to entertain oral evidence from the applicant. Decisions of significance to the immediate parties (and the community at large) are regularly made by the Board without entertaining oral submissions from the parties. Quite simply, it would be impossible for the Board to schedule oral hearings in all proceedings in which "serious" matters or issues were raised, assuming that some objective determination of the "seriousness" of issues could be relied upon which would consider factors beyond the narrow interests of the parties to the particular proceeding. Counsel for the applicant has argued his client's position quite ably, in writing, and in our view an opportunity for him to call evidence and to re-argue his written submissions in person before this or another panel of the Board would be of little assistance to the Board. The determinations made by the Board in these circumstances do not deny the applicant natural justice.
Proceeding, then, to the substantive issue at hand, it is evident that only one of five eligible voters for the representation vote actually cast a ballot at the designated date and time of the vote. It would appear, based on the correspondence filed by applicant's counsel, that the date of the taking of the vote was not a working day for the employees of the responding party affected by the application for certification. Assuming this to be so, we are not satisfied that it is appropriate to direct that a second representation vote be taken in this proceeding.
We start our consideration of this issue from the premise that, although the requirement that representation votes be held on every certification application is quite new to the labour relations community, the concept of the "representation vote" is hardly new. Although not the primary method of determining membership strength for the purposes of an application for certification prior to the advent of the Act, the representation vote has been a known commodity in the labour relations community for decades. Furthermore, voluntary applications for a declaration terminating bargaining rights have, for years, been determined solely by the vehicle of a representation vote. Trade unions (particularly, but not exclusively, those in the construction industry) regularly have had to urge those not scheduled to work on the date of the taking of a representation vote to attend at the worksite and cast a ballot. In the construction industry, this has been particularly so since the decision of Crete Flooring Group Limited [1992] OLRB Rep. July 792. Accordingly, although there is some truth in the submissions made by counsel regarding the "novelty" of the new certification structure contained in the Act, the preparations historically required by the parties to a certification application which is to be determined by a representation vote are applicable to current day proceedings. That is to say, the applicant can hardly be said to be unaware of how a representation vote is effected, and what is required to succeed upon the taking of a vote.
There is no doubt that the current certification application form utilized by the Board for applications in the construction industry does not ask the applicant (or the responding party) to identify "preferred" dates or "inappropriate" dates for the taking of the vote. Historically, the Board has canvassed with the parties convenient dates for the taking of representation votes. It is infinitely preferable for the vote to be held at a convenient date and time that permits as many of the eligible individuals to vote as is possible. The time constraints built into the Act now preclude the Board from canvassing the parties for convenient and inconvenient dates for the taking of the vote.
As a practical matter, and in the absence of special circumstances, the applicant is usually in the position of being able to anticipate roughly when the Board will be directing the taking of the representation vote. The applicant should make inquiries of its members to determine if there are one or more reasons why the taking of a representation vote is inappropriate on any particular day. If so, the Board must be made aware of the dates, and the reasons for the inappropriateness, by the applicant at or immediately after the application is filed with the Board. If the responding party wishes to assert that a particular day is inappropriate for the taking of a vote, it must do so, at the very latest, on the response form which is filed with the Board. Quite simply, it is the responsibility of the party desiring the vote to be scheduled (or not scheduled) on a particular date to advise the Board of its desire. After considering the request or requests of the parties, a panel of the Board will determine the date and time of the vote. The absence of a particular space on the certification application form for such information does not relieve the parties from that responsibility. As the form currently reads, there is more than adequate space on the pleading documents (under the heading "Other Relevant Statements") for such information to be brought to the attention of the Board. We note here that the fact that the form was completed by the applicant rather than its counsel is of no significance; the applicant can hardly be put in a better position than the responding party by not retaining legal counsel to complete its application for certification.
It may well be that the inclusion, in the certification application forms, of a request for the information identified by counsel for the applicant would have alerted the applicant to the difficulty of having the vote held on a Friday. On the other hand, it may not have had that effect. Either way, it is the responsibility of any applicant which desires to maximize its chance of success in a representation vote to ensure that its supporters are in attendance at the vote and cast their ballots. There is no dispute that the applicant was aware of the date, time and place of the vote no later than Wednesday, December 6, 1995. It had plenty of time to contact its supporters prior to the vote scheduled for the following Friday. If it did not become aware of the nature of the employer's scheduling of work until the Thursday night such lack of knowledge is hardly the fault of the Board. Furthermore, the failure of the individuals eligible to vote to attend at the worksite is hardly the result of a denial by the Board of their right to cast a ballot. Each individual had the right to attend at the worksite and cast a ballot. Four of the five chose not to attend to do so. The mere election by a group of employees not to exercise their rights under the Act does not raise an inference that the vote is not a true reflection of the desires of the employees (see Ottawa General Hospital [1973] OLRB Rep. Oct. 506).
For these reasons, we are of the view that it is not appropriate to schedule a second voting day in this proceeding, and the request for reconsideration is hereby denied.