[1997] OLRB REP. SEPTEMBER/OCTOBER 915
0282-97-R Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, Applicant v. Northam Development Corporation and/or Northam Construction Corp., Responding Parties
BEFORE: Kevin Whitaker, Vice-Chair, and Board Members W. N. Fraser and G. McMenemy.
DECISION OF THE BOARD; September 8, 1997
I
By decision dated July 9, 1997, an application for reconsideration in this matter was dismissed. Reasons for the dismissal comprise the balance of this decision.
The applicant sought reconsideration of a decision of the Board dated May 14, 1997 which dismissed an application for certification. In the decision of May 14, 1997, the Board determined that as there was no more than one person in the bargaining unit (having regard to the applicants position), the application for certification should be dismissed pursuant to section 9(1) of the Labour Relations Act, 1995 (the "Act").
The application for reconsideration filed on May 26, 1997 raised three separate arguments as to why the May 14, 1997 decision was made in error. By decision dated June 10, 1997, the Board dismissed two of the three grounds with reasons and invited the parties to make submissions only on the third outstanding ground.
The issue that the Board sought submissions on was whether it was an error to initially impose a "bar" of one year on the applicant.
II
The application for certification was made on April 22, 1997. A representation vote was ordered on April 28 and held on April 30, 1997. Ballots cast were segregated and not counted. Following the vote, the applicant took the position that there was only one person in the bargaining unit on the date of application. The responding parties assert that there were no persons in the bargaining unit on the date of application.
Before deciding the dispute between the parties, the Board issued the decision of May 14, 1997 in which the application was dismissed. In that decision, the Board imposed a "bar" of one year on the applicant.
III
The applicant argues that the Board is only obliged to impose a "bar" pursuant to section 10(3) of the Act where an application is dismissed pursuant to that section (section 10). A dismissal pursuant to section 10 of the Act can only occur where following a representation vote, the Board determines that 50 per cent or less of the ballots cast were in favour of the trade union. The applicant asserts that as the ballots cast in this application were not counted, the application cannot be considered to have been dismissed pursuant to section 10 of the Act.
The responding parties argue on this point that the application was in fact dismissed pursuant to section 10 of the Act. It is suggested that section 10(1) requires the Board to certify where more than "50 per cent of the ballots cast" are in favour of the trade union where ballots are cast by employees who are in a bargaining unit "that is determined by the Board to be appropriate for collective bargaining". If the Board determines as it has here, that ballots cast are by employees who are not in a bargaining unit appropriate for collective bargaining, then the prerequisite conditions for a certificate to be issued have not been met. This results in a dismissal pursuant to section 10 of the Act and therefore attracts the "bar" in section 10(3).
On this point we would agree with the responding parties. The question that must be answered in section 10 is the following; have more than 50 per cent of employees in a bargaining unit determined to be appropriate for collective bargaining, cast ballots in favour of the trade union? If the answer is "no", then the application must be dismissed pursuant to section 10. Accordingly, the provisions of section 10(3) apply and a "bar" of one year is required.
In this case, following the vote but before the single ballot was counted, the Board determined that the one ballot cast was by an employee who was not in a unit appropriate for collective bargaining. Even if the ballot was cast in favour of the trade union, the answer to the question posed in paragraph "9" above would be "no".
The responding parties also argue that even if the application was not dismissed pursuant to section 10 of the Act, the Board should exercise its discretion pursuant to section 11 1(2)(k) of the Act to impose a "bar" of one year in the circumstances. In support of this, the responding parties suggest that the true wishes of employees have been tested and for that reason a "bar" should be imposed. The applicant takes the position that the true wishes of the employees have not been tested as the single ballot cast remains uncounted.
Whether or not the true wishes of employees have been tested, in our view even if we are wrong in our finding that this application is dismissed pursuant to section 10 of the Act and for that reason the "bar" is mandatory, we would exercise our discretion in these circumstances to impose a "bar" of one year pursuant to section 111 (2)(k) of the Act.
Section 7(10) of the Act deals with circumstances where an applicant withdraws an application for certification after a representation vote is taken:
. . .
(10) If the trade union withdraws the application after the representation vote is taken, the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year has elapsed after the application is withdrawn.
Where an applicant withdraws an application in these circumstances, the Board is required to impose a "bar" of one year. This would apply generally whether the ballots were counted or not following the representation vote. In our view, it would be an absurd result if an applicant could avoid a 'bar" by having the application dismissed following the vote rather than seeking a withdrawal. In effect, an applicant would be in a better position with a dismissal following a vote as opposed to a withdrawal.
Having regard to the clear language of section 7(10), it would be inappropriate to permit a fresh application for certification from the applicant within a year of the date of application in this case.
For these reasons, the application for reconsideration was dismissed.