Labourers' International Union of North America, Local 183 v. B. G. Schickedanz Homes Inc.

[1999] OLRB REP. NOVEMBER/DECEMBER 1058

0023-98-R; 0118-98-U; 0205-98-U; 0948-98-R Labourers' International Union of North America, Local 183, Applicant v. B. G. Schickedanz Homes Inc. and Deeffield-Schickedanz and Kansun Homes Limited and My Building Corporation, Responding Parties; My Building Corporation, Applicant v. Labourers' International Union of North America, Local 183, Responding Party

Certification - Change in Working Conditions - Construction Industry - Interference with Trade Unions - Remedies - Representation Vote - Unfair Labour Practice - Board finding that employer violated the Act when it implemented a significant wage increase just prior to representation vote in connection with union's certification application - Board ordering new vote under section 11 of the Act and directing that voting constituency be confined to those employees at work on the certification application date

BEFORE: John Lewis, Vice-Chair

APPEARANCES: Jarvis K. Postnikoff and Steve Craib for the employer; S.B.D. Wahl, Jorge Valla and Luis Torres for the trade union.

DECISION OF THE BOARD; November 24, 1999

1. On April 1, 1998, Labourers' International Union of North America, Local 183 ("Local 183" or the "Union") filed an application for certification under the construction industry provisions of the Labour Relations Act, 1995 (the "Act") naming B.G. Schickedanz Homes Inc., Deerfield-Schickedanz and Kansun Homes Limited and My Building Corporation as the responding parties. The application for certification has been assigned Board File No. 0023-98-R.

2. My Building Corporation filed a reply to the certification application on April 3,1998 in which it asserted that My Building Corporation was the only properly named responding party. In its decision dated April 6, 1998, the Board (differently constituted) directed a representation vote to take place but ordered the ballot box sealed and the ballots to be individually segregated, pending the determination of the correct identity of the employer. The representation vote took place on April 8, 1998 and, as directed, the ballot box was sealed and the ballots individually segregated.

3. On April 7, 1998, Local 183 filed an application under section 96 of the Act alleging that B.G. Schickedanz Homes Inc., Deerfield-Schickedanz and Kansun Homes Limited and My Building Corporation violated various sections of the Act. A response on behalf of the responding parties was filed with the Board on May 6, 1998. This application has been assigned Board File No. 0118-98-U.

4. Board File No. 0948-98-R is an application under subsection 1(4) and section 69 of the Act filed by Local 183 on June 4, 1998. In this application, Local 183 seeks a declaration that B.G. Schickedanz Homes Inc., Deerfield-Schickedanz and Kansun Homes Limited and My Building Corporation constitute a single employer for the purposes of the Act. A response was filed on behalf of the responding parties on July 23, 1998.

5. Finally, Board File No. 0205-98-U is an application under section 96 of the Act in which A My Building Corporation alleges that Local 183 violated sections 76 and 77 of the Act. This matter was filed with the Board on April 16, 1998.

6. All of these matters were scheduled to be heard together on June 23, 1999. On the date of hearing, the parties agreed to adjourn the hearing and reschedule it for July 27, 1999. The parties also A agreed to count the ballots from the representation vote. Not more than fifty per cent of the ballots cast by the employees in the bargaining unit were in favour of the applicant.

7. These matters were heard by the Board on July 27, 28, August 23 and 24, 1999. At the commencement of the hearing, counsel for the responding parties sought leave of the Board to withdraw Board File No. 0205-98-U but to allow it to rely upon the allegations of misconduct found therein in defending against the allegations contained in the section 96 application filed by Local 183. The Board granted the request and accordingly Board File No. 0205-98-U is withdrawn with leave of the Board.

8. On the second day of hearing, counsel for the applicant requested the Board issue an order directing the responding parties to produce to the applicant various documents and records. The Board made such an order as reflected in its decision dated August 3, 1999. On August 18, 1999, the Board was advised that the responding parties were prepared to acknowledge that they are associated or related businesses or activities under common direction and control within the meaning of section A 1(4) of the Act constituting a single employer for the purposes of labour relations. In light of this acknowledgement, the responding parties did not produce the documents with respect to the related employer application. As a result of the non production, Local 183 requested the Board to record that no documentary disclosure was provided and that Local 183 has no knowledge of the existence of any other corporations, firms, syndicates, joint ventures and/or partnerships or any other manner of associations involving the ownership and /or participation of the principles of the responding parties.

9. Having regard to the agreement of the parties, the Board declares that B.G. Schickedanz Homes Inc., Deerfield-Schickedanz and Kansun Homes Limited and My Building Corporation are associated or related businesses or activities under common direction and control within the meaning of section 1(4) of the Act and constitute a single employer for the purposes of the Act. In making such a declaration, the Board notes that the responding parties did not provide to Local 183 the documents listed in the Board's decision dated August 3, 1999 and that Local 183 has no knowledge of the existence of any other corporations, firms, syndicates, joint ventures and/or partnerships or any other manner of associations involving the ownership and /or participation of the principles of the responding parties. In light of the Board's declaration, B.G. Schickedanz Homes Inc., Deerfield-Schickedanz and Kansun Homes Limited and My Building Corporation will hereinafter be jointly referred to as the "responding party".

10. Local 183's allegations are two-fold. First, it is alleged that the responding party committed an unfair labour practice and violated the statutory freeze under section 86 (2) of the Act by instituting a significant (as high as 40%) wage increase two days before the representation vote was held. Secondly, Local 183 asserts that various threats were made by representatives of the responding party to the effect that, if the employees voted in favour of Local 183, the responding party would cease operations and / or subcontract the duties performed by its current employees and dismiss all of them. Counsel for Local 183 argues that either of these allegations is sufficient for a finding of a breach of the Act and the ordering of a second representation vote pursuant to section 11 of the Act. I will first deal with the allegations concerning the wage increase.

WAGE INCREASE ON APRIL 6, 1998

11. The responding party is engaged in the business of building residential housing projects in and around the Greater Toronto Area. On the date of application for certification, the responding party had two projects under construction; the Cannel project located on Derry Road in the City of Mississauga and the River Boat Landing project located on Weston Road in the City of Toronto. Both projects were low-rise residential housing sites. Steve Craib is the site manager for the responding party and has been for ten years. He is responsible for supervising the various sub-contractors engaged by the responding party as well as the direct employees. The responding party also had a site supervisor on each project.

12. The labourers working on the Carmel site were being paid $12.00 per hour. The labourers on the River Boat Landing site were being paid $10.00 per hour. According to Mr. Craib, the issue of a wage increase first arose during a meeting held sometime in January of 1998 between Mr. Craib, Bruno Schickedanz, part owner of the responding party, and Brian Femandes, controller for the responding party. Mr. Craib raised the issue of a wage increase because some of the labourers working on the sites were requesting more money from the site supervisors. Mr. Craib testified that Messrs. Schickedanz and Femandes decided at the meeting in January of 1998 to raise the wages for all labourers to $14.00 per hour. Mr. Craib further testified that he was instructed by Messrs. Schickedanz and Fernandes to advise the employees of the wage increase. Further to his instructions, Mr. Craib advised his two site supervisors of the wage increase and directed them to advise their respective employees.

13. Larry Cleveland was the site supervisor for the Cannel site. He testified that he was instructed by Mr. Craib to advise the men working on his project of the wage increase. Mr. Cleveland testified that he did this sometime in the month of January, as instructed. He did not advise the men as to when the increase was to take effect as he was not provided with that information.

14. When the wage increase would be implemented was not decided at the January meeting. Mr. Craib testified that he assumed that the decision as to when the wage increase would be implemented was made by Messrs. Schickedanz and Femandes. Neither Mr. Schickedanz nor Mr. Fernandes gave evidence and accordingly, the Board has no evidence before it as to when Messrs. Schickedanz and Fernandes decided that the wage increase would be implemented on April 6, 1998. Mr. Craib became aware of the wage increase when it appeared on the weekly pay cheques for the employees.

15. The weekly pay cheques for the responding party's employees disclose that the wage increase became effective for the work period of April 6, 1998 to April 10, 1998. No explanation was provided as to why this time period was chosen for the implementation of the wage increase. Mr. Craib testified that at no time did the responding party seek or obtain the consent of Local 183 for the wage increase.

16. According to Mr. Craib, even though notice of the wage increase was provided to all employees sometime in January and the implementation of the increase did not take place until April 6, 1998, neither he nor his site supervisors were confronted by the employees with inquiries/demands/ requests for the wage increase throughout the spring of 1998. If the employees were indeed notified of the wage increase in January, the Board finds it difficult to believe that the employees would not be making inquiries as to the timing of the increase in light of the significant amount of the increase, which was as high as 40% for some of the employees.

17. Mr. Craib visited both job sites on April 6, 1998, two days prior to the representation vote. His purpose for attending on the sites was to advise the men of the upcoming vote and that they should participate in the voting process. Mr. Craib testified that he did not advise the men of the wage increase at the meetings. On each site, Mr. Craib met with the men along with their respective site supervisor. On the Carmel site, Mr. Larry Cleveland was present for the meeting with the employees. Mr. Cleveland testified that Mr. Craib was not present for the full duration of the meeting and that it was he who advised the employees of the wage increase. Mr. Cleveland was not sure if the men were told during this meeting but was certain that he advised them prior to the representation vote, which took place on April 8, 1998.

18. The Board also heard from Donovan Foster, Todd Lewis and John Gosse, all of whom were employees of the responding party during the relevant period of time. On the issue of the wage increase, and in contrast to the evidence of Mr. Craib and Mr. Cleveland, the Board found these individuals to be credible and consistent in their testimony.

19. Mr. Foster commenced working for the responding party at the River Boat project in January of 1998. With respect to the wage increase, Mr. Foster was clear that he was never informed of the wage increase until just prior to the vote. Mr. Foster could not specify the date on which he was informed but it is apparent that all of the men on the River Boat site were advised on April 6, 1998 by either Mr. Craib who was on the site that day to speak with the men regarding the upcoming vote or by the site supervisor. Mr. Foster further testified that he had a number of conversations with Mr. Craib regarding an increase in wages during the spring of 1998. According to Mr. Foster, he would typically approach Mr. Craib requesting more money. Mr. Craib's usual response was that he was looking into it. Mr. Foster was clear that neither Mr. Craib nor any other official of the responding party advised him of either the decision to increase wages to $14.00 per hour nor the date of its implementation at any time other than immediately prior to the representation vote.

20. Mr. Lewis commenced employment with the responding party in October of 1997 as a service man/labourer. At all material times he was employed at the Carmel site and worked with Mr. Cleveland. While the Board has serious misgivings with respect to other areas of his testimony, on the issue of the wage increase Mr. Lewis' evidence was believable. Like Mr. Foster, Mr. Lewis was advised of the wage increase just prior to the representation vote. He was receiving $12.00 per hour and upon reviewing the weekly pay cheques, Mr. Lewis confirmed that he received a $2.00 per hour increase on April 6, 1998.

21. Mr. Gosse was employed for six weeks by the responding party from March to April in 1998. Mr. Gosse worked on the Cannel site and was receiving $10.00 per hour. Unlike his other co-workers, Mr. Gosse did not receive an increase in April as it was understood that he would only be working for the responding party for a short period of time. According to Mr. Gosse, the first time he heard of an increase was from Mr. Cleveland just prior to the representation vote.

A Does the implementation of the wage increase constitute an unfair labour practice?

22. Sections 70 and 72 of the Act read as follows:

23. No employer or employers' organization and no person acting on behalf of an employer or an A employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence

24. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) Shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) Shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) Shall seek by threat of dismissal, or by any other threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act. 1995, c.l, Sched. A, s.72.

23. The responding party maintains that the decision to increase wages was not motivated by anti-union animus as it was made in January of 1998, several months prior to receiving notice of the application for certification. The responding party further argues that the implementation of the wage increase is not contrary to the Act as it was not contingent upon the employees voting against Local 183 in the representation vote.

24. Upon considering all of the evidence presented at hearing, the Board finds that the wage increase implemented by the responding party on April 6, 1998 was implemented in an effort to persuade the employees to vote against the Union. The wage increase amounts to the use of undue influence by the responding party and was an attempt to interfere with the employees' right to select a trade union. Even if the Board accepts the evidence presented by the responding party that the decision to increase wages was made in January, 1998, months prior to the application for certification, the implementation of the wage increase was clearly motivated by a desire to influence the employees to vote against the Union, conduct prohibited by the Act. No other plausible explanation exists for implementing the wage increase two days prior to the representation vote other than to try and influence the employees in the bargaining unit to vote against Local 183.

25. In Tillotson-Sekisui Plastics Limited, [1979] OLRB Rep. Oct. 1027 the Board held that a decision to lay off 23 employees was made without regard to union activity. Nevertheless, the Board held that the company committed an unfair labour practice because its decision as to when to implement the layoffs was motivated by anti-union animus. At paragraphs 12 and 13 the Board writes:

26. The Board has reviewed the evidence in this case and is satisfied that the decision to lay off was devoid of anti-union motive. The evidence establishes that the financial state of the company was such that as of July 30, 1979 its future existence was at stake. Messrs. Maruyama and Shimomura were sent by Sekisui to investigate and make recommendations as to the running of the company well before July 16th when the company first became aware of trade union activity. They recommended the discontinuance of the wrap program which later formed a part of the operating plan put to Mr. Noda on July 20th. The Board is satisfied that the company devised an operating plan in response to its financial difficulties, and without regard to the trade union activity of its employees, which necessitated the lay off of 23 employees. The Board is further satisfied that the decisions as to which employees to lay off were made without regard to trade union activity. The decision to lay off and the decision as to who to lay off were not, therefore, in violation of the Act.

27. The Board is not satisfied, however, that the timing of the layoffs was devoid of anti-union motive. The evidence establishes that initially the company intended to lay off effective August 3rd. Mr. Aylesworth testified that the date Aylesworth's letter dated July 27th which was placed in the in the time card slots of all employees prior to Monday, July 30th, suggests that the decision to lay off on the Monday was made after the letter was written. It strains credibility to suggest that the letter was intended to elicit "continued support" from employees who were about to be laid off that day. Regardiess of the precise moment of the decision, the decision-makers were aware of the application for certification at the time a decision was made which, if allowed to stand, will markediy effect the membership position of the applicant as of the date of its application for certification.

28. In this case, the responding party clearly was attempting to unfairly influence the representation vote by implementing the wage increase two days prior to the vote. The fact that the increase was provided and maintained even though the responding party did not know the results of the vote until June 1999 is irrelevant with respect to the analysis under sections 70 and 72. The crucial element is not that the wage increase was maintained over a period of time, but rather that it was provided at all so close to when the vote was being conducted. Accordingly the Board finds that the responding party breached sections 70 and 72 of the Act.

Was the implementation of the wage increase a violation of the "statutory freeze" under section 86(2) of the Act?

27. Local 183 also asserts that the responding party breached section 86(2) of the Act by providing a wage increase on April 6, 1998, two days prior to the conduct of the representation vote. Section 86 of the Act is often referred to as the "statutory freeze", and reads this way:

[Freeze while bargaining is ongoing]

86. (1) Where notice has been given under section 16 or section 59 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any tight, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,

(a) until the Minister has appointed a conciliation or a mediator under this Act, and,

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or

(ii) 14 days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been terminated, whichever occurs first.

[Freeze while certification application is pending before the Board]

(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other item or condition of employment or any right, privilege or duty of the employer or the employees until.

A' (a) the trade union has given notice under section 16, in which case subsection (1) applies; or

A' (b) the application for certification by the trade union is dismissed or withdrawn by the trade A' union.

28. The present case involves the application of section 86(2) - the freeze that applies while an application for certification is pending before the Board. In determining the content of section 86(2) of the Act, it should be noted that this provision operates in addition to the unfair labour practice sections which prohibit behaviour that is motivated by anti-union animus. By way of contrast, a breach of section 86(2) does not require a finding of anti-union animus to establish a breach of the Act. The freeze captures something that other unfair labour practices do not; bona fide business behaviour that is not motivated by anti-union considerations. Section 86(2) is intended to limit unilateral action on the part of an employer that is at the starting point in establishing a collective bargaining relationship with its employees.

29. Even if the Board accepted the proposition that the implementation of the wage increase was not motivated by anti-union animus, it is clear that the responding party breached section 86(2) of the Act by unilaterally amending the wage rates of its employees in the bargaining unit, pending the determination of the application for certification, without obtaining the consent of Local 183.

30. Counsel for the responding party relies upon the decision of the Board in Ottawa General Hospital, [1981] OLRB Rep. Oct. 1461 for support in asserting that the responding party was acting in an entirely appropriate manner as it was merely implementing a decision to increase wages made months prior to receiving notice of the application for certification. To do otherwise, it was argued, may in itself have given rise to a breach of the Act. Reference is made to the following passage found at paragraph 23 and 24:

31. Having regard to all of the evidence, the Board finds that the decision to pay the retroactive increase on May 28, 1981 was made by the respondent before it received notice of the union's application for certification on May 1, 1981. Moreover, we are satisfied that the decision to pay the retroactive increase to employees on May 28, 1981 or June 11, 1981 was communicated by management to many of the employees affected by this application before the respondent received such notice.

32. In view of the Board's jurisprudence, we are of the view that (in the absence of consent by the applicant to a delay in the implementation of the increase) the respondent was required by section 79(2) to pay the 10.5% retroactive increase to non-unionized employees on May 28, 1981 or on June 11, 1981, since the amount and timing of that retroactive increase had been promised to employees prior to the onset of the freeze. Moreover, we cannot accept the applicant's contention that to avoid breaching section 64, the respondent should have delayed payment until after the vote by paying the retroactive increase on June 11, 1981 rather than on May 28, 1981. Although we are not called upon to express a final view on the matter in the instant case, there appears to be some merit in the respondent's contention that it might have contravened the Act if it had intentionally delayed the implementation of the increase until after the vote...

33. The reasoning of the Board in Ottawa General, supra is simply an extension of the "business as before" doctrine which the Board has routinely utilized in such cases. In Spar Aerospace Products Limited, [1978] OLRB Rep. Sept., 859, the Board described the impact of the "business as before" concept as follows at paragraph 23:

34. The "business as before" approach does not mean that an employer cannot continue to manage its operation. What it does mean is simply that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of the employees by a trade union. The right to manage is maintained, qualified only by the condition that the operation be managed as before...

35. Although the Chair of the Board has recently questioned the validity of the "business as usual" doctrine as it applies to the interpretation of section 86(1) (see Royal Ottawa Health Care Group Institute of Mental Health Research, [1999] OLRB Rep. July/August 711, this analysis is still relevant in interpreting section 86(2).

36. The position put forward by the responding party, however, is not supported by the evidence presented at hearing. At best, the responding party has established that a decision to increase wages in a general sense was made in January, 1998. The responding party did not present any evidence as to when a decision was made to implement the wage increase on April 6, 1998. Even if the Board was prepared to accept that at some point prior to receiving the application for certification the responding party had decided to increase wages on April 6, 1998, the responding party still can not rely upon the "business as before" doctrine. In order to succeed with this argument, and in accordance with the reasoning of the Board in Ottawa General, sup ra, the responding party must establish not only that the decision to increase wages predates the application for certification but also that the decision was communicated to its employees. The Board finds that the decision to increase wages was never communicated to the employees until immediately prior to the vote. In making this finding the Board prefers the evidence of Messrs. Lewis, Foster, and Gosse that they were never informed of the wage increase until April 6, 1998, immediately prior to the representation vote. The Board finds it difficult to accept the evidence of Messrs. Craib and Cleveland that a wage increase was announced in January, 1998 and not one employee in the bargaining unit inquired further regarding its implementation even after a number of months had passed. The more likely scenario is that there was no announcement of a wage increase until April 6, 1998 as that is when the decision to increase wages was made. Finally, the Board accepts the testimony of Mr. Craib that the responding party never sought nor obtained the consent of Local 183 to increase wages on April 6, 1998. Accordingly, upon considering all of the evidence, the Board finds that the responding party breached section 86(2) of the Act.

ALLEGATIONS OF THREATS

34. The Board observes that much of the evidence with respect to the allegations of threats was less than compelling and in many instances, not credible. In light of this observation and as the Board has found that the responding party violated sections 70 and 86 of the Act and, as set out below, has ordered a second vote to be conducted as well as other forms of relief, the Board declines to issue any directions with respect to the allegations of threats made by representatives of the responding party.

REMEDY

35. Section 11 of the Act allows the Board to order another representation vote in certain circumstances. Section 11 provides as follows:

36. (1) Upon the application of a trade union, the Board may order another representation vote in the following circumstances:

37. An employer, employers' organization or person acting on behalf of an employer or employers' organization has contravened the Act.

38. The result of the contravention is that a prior representation vote did not likely reflect the tme wishes of the employees in the bargaining unit about being

represented by the trade union.

4. The trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board to be appropriate for

collective bargaining. 1995, c.l, Sched. A, 5.11(1); 1998, C.8, S.5 (1-3)

(2)Upon the application of an interested person, the Board may order another representation vote vote in the following circumstances: A

1. A trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions has contravened the Act.

2. The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union. 1995, c.l, Sched. A, s.ll(2): 1998, c.8, s.5 (4-6)

(3) The Board may consider the results of a prior representation vote when making a decision under this section.

(4) Subsections 10(1) and (2) do not apply with respect to a prior representation vote if a new representation vote is ordered under this section.

(5) Without restricting its power under section 96, the Board may do anything to ensure that a new representation vote ordered under this section reflects the true wishes of the employees in the bargaining unit. 1998, c.8, s.5(7)

36. As a result of the violations of sections 70, 72 and 86(2) of the Act, the Board finds that the true wishes of the employees were not ascertained in the representation vote held on April 8, 1998. Accordingly, pursuant to section 11 of the Act, the Board directs that a second representation take place in order to determine the true wishes of the employees in the bargaining unit as to whether they want to be represented by Local 183 for the purposes of collective bargaining.

37. At hearing, the responding party presented an intriguing argument as to the appropriate voting constituency if a second vote was to be ordered by the Board. I will now address this issue.

38. Counsel for the responding party maintained that the appropriate voting constituency is all employees in the bargaining unit as of the date of the Board's ordering of a second vote and not the original date of application. The responding party argued that most of the employees at work for the responding party on the date of application no longer are employed and would have little interest as to the outcome of a representation vote. Conversely, the responding party's current employees, many of whom were not employed on the date of application, have a real and direct interest in the representation vote. To detennine the voting constituency based upon the original date of application, it was argued, would disenfranchise the current employees as they would not be permitted to participate in a vote which will have a real and immediate impact upon them. The applicant argued that the application date was the appropriate date upon which to base the voting constituency.

39. Although counsel for the responding party raised a compelling argument, it cannot succeed in light of the wording of the Act and the broader policy considerations. Neither party provided any case law to support their respective position on the determination of the voting constituency on a second vote ordered pursuant to section 11 of the Act. Counsel for the applicant referred me to the case of Ken Anderson Electric Inc., [1996] OLRB Rep. Sept./Oct. 846 which provides an exhaustive review of the Board's jurisprudence and analysis with respect to the limiting of voter eligibility to those employees at work in the bargaining unit on the certification application date. While Ken Anderson Electric Inc., supra, and the cases cited therein do not deal with a second representation vote ordered pursuant to section 11, it is helpful to briefly review the Board's analysis on the issue of determining the appropriate voting constituency on an application for certification in the construction industry.

40. Most of the cases in which the Board has addressed the issue of voter eligibility involved a question of fairness, posed invariably by the respective employer, in using the application date for determining eligibility. Typically the affected employer argues that the voting constituency, as determined using the date of application, is inherently unfair as it excludes from the certification process, key, long term employees or, conversely, includes employees who may have been working on only that one day. In response, the Board has drawn a distinction between certification applications in the construction industry and those in the non-construction industry. Upon examining the uniqueness of the typical employment relationship in the construction industry, the Board has routinely confirmed its practice of utilizing the application date for determining the voting constituency. The Board's approach has also been consistent under the pre-Bill 7 legislative framework and most recently under the post-Bill 7 mandatory vote regime.

41. In Smiths Construction Company, [1984] OLRB Rep. Mar. 521, the Board framed its analysis in the following manner at paragraphs 9 and 10:

42. The construction industry poses special problems. Employment is necessarily transitory. Employees are quite literally "here today and gone tomorrow". A constmction project is completed in phases, so on any given day the mix of tradesmen on a site may be different. Moreover, there are always the exigencies of the market, collective bargaining difficulties, the weather, and the proverbial "snafu". Collective bargaining problems, jurisdictional disputes, controlled subcontracting arrangements, the availability of financing, and the dispersement of mortgage monies will effect the level of employment in any given trade at any particular time. So will the weather. A period of intense cold or rain will interfere with constmction work and reduce the number of employees on the site until weather conditions improve. Likewise, bottlenecks, problems, or the possibility of missing a time limit or deadline may require the employment of more tradesmen to resolve the difficulties or get the project back "on the rails" even though such employment may only be on a short-term basis. For all of these reasons an employer's complement of employees may vary markedly from day to day so that, in the constmction industry, it is very difficult to pin down with any precision those individuals who should be treated unequivocally as "employees" for the purposes of the Labour Relations Act. That is why, in the constmction industry, the Board need not have regard for any increase in the employer's work force after the application for certification. And, of course, this inevitable fluctuation in the employee complement underlines the importance of the expeditious resolution of applications for certification. If there is any significant delay there will be a real possibility that any certificate ultimately issued will affect employees who were not even there when the application for certification was made. The union's support will have evaporated and bargaining rights will be largely academic. This possibility also exists in manufacturing enterprises but is minimized by the relative stability of employment over the time frame when a certification application is likely to be before the Board. Such is not the case in the construction industry.

43. To cope with these special problems in the constmction industry, the Board has developed a particular rule of thumb as to the way in which it should ascertain the number of employees in the bargaining unit at the time the application was made. The Board determines the employee complement to be that which exists on the application date - fully realizing that the number may well be different the day before, or the day after and that, for example, if the application date is a rainy day, the union may find that its members are not at work so that its application may be dismissed. This "rule of thumb" has been accepted and applied by unions and employers in the construction industry for thirty years - and for a very practical reason: anything else would lead to costly and time-consuming litigation on every constmction application causing delay which would severely prejudice the establishment of bargaining rights purportedly guaranteed by the statute. If time is of the essence generally in labour relations, that maxim is particularly true in the construction industry. That is why the Act expressly empowers the Board to issue certificates without a hearing where it considers it advisable to do so, and, as we have already noted, the Board need not have regard for a build-up of the work force after the application is made. Technically, a union may conclude a collective agreement even though there are no employees at the time it is entered into (see section 121), although as a practical matter, if there are no employees, there maybe no bargaining leverage to induce an employer to do so.

44. In Crete Flooring Group Limited, [1992] OLRB Rep. July 792 the Board reviewed its approach with respect to pre-hearing representation votes as they then existed. Ordinarily, when a pre-hearing representation vote was requested in a certification application, whether it arose in the construction industry or not, those eligible to vote would be those individuals who were considered to be employees in the voting constituency as of two different dates, both as of the terminal date and as of the date the vote is taken. In abandoning its dual eligibility test with respect to pre-hearing votes for construction industry certification applications, the Board maintained its traditional approach in focusing solely on the application date as demonstrated by the following excerpt starting at paragraph 16:

45. Because of the nature of the construction, in certification applications arising in the constmction industry the Board takes a "snapshot" of the state of affairs on the application date of the application. Focusing solely on the employee complement on that date, the Board determines the number of employees in the bargaining unit, and the level of membership support filed by the union amongst those employees. The Board does not have regard to all the principles or rules that apply in non-construction certifications. For example, the Board does not include in the bargaining unit those who meet the requirements of the "30-30" rule. It does not apply the principles of "build-up", where the Board defers consideration of the number of employees in the bargaining unit, or defers directing a vote, until such time as the employer work force is more stabilized, regular, or representative. In this respect, section 121(2) of the Act reflects the different context and approach to construction industry applications, stipulating that the Board need not have regard to any increase in the number of employees in the bargaining unit after the application was made. The legislation specifically encodes the right of the Board in constmction applications to focus solely on the application date.

46. This practice is not new. In determining whether a certificate will issue automatically, or a vote be directed, the board, in construction applications, has long considered the wishes of only those employees at work in the bargaining unit on the application date. The Board does not consider the wishes of those employees at work the day before, the day after, or any day other than the application date, for to do so would be inconsistent with how construction works, and would more likely be less fair and less representative. In E & E Seegmiller Limited, [1987] OLRB Rep. January 41, the Board clarified and reemphasized the extent to which the Board looks only to the employees at work on the application date. And see Gilvesy Enterprises Inc. [19871 OLRB Rep. Feb. 220. Whether the employees who were at work on the application date had ever worked for the employer before, or ever would again, it is only those employees at work on the application date whose wishes are taken into account in determining the merits of the certification application. It does not matter why a given individual might not have been at work on the application date, whether for reasons of illness, lay-off, or whatever. If that individual was not in fact at work in the bargaining unit on the application date, then his/her wishes are not taken into account in determining whether the union is entitled to automatic certification, or, if the level of membership support is not sufficient for automatic certification (or if a pre-hearing representation vote is requested), is entitled to a vote.

47. In this context, where the Board looks to the "snapshot" of the application date already, and appropriately so, it is difficult to see why the Board should apply a two-date vote eligibility rule or why it should not also look only to the application date for voter eligibility.

48. The intervenor submitted that the use of two different dates, with some meaningful interval between them, will increase the likelihood that a representative group of employees will be eligible to vote, and that those who must live with the vote results will be those voting. As already noted, this is not generally true in construction matters. To take other than a single representative day to determine voter eligibility is inconsistent with the historical reality of how the construction industry operates. And it is more consistent, fair, and representative to apply a practice whereby the group of employees that gets to determine whether the union gets certified without a vote, (if enough memberships are signed and filed for automatic certification), or whether it gets certified after a vote (where the level of support requires a vote, or where a pre-hearing vote is requested) is the same group of employees that gets to participate in any vote. Since the work force is so transitional and quickly changing, focusing on a different date or dates for purposes of voter eligibility will ordinarily result in a different group of employees getting to vote on the application than the group of employees that secured the right to the vote.

49. Picking a single date for voter eligibility would also serve to reduce the potential for gerrymandering, and reduce lengthy and expensive litigation over a number of issues, promoting certainty and finality. The potential for gerrymandering continues to exist when a date for voter eligibility has not yet arrived at the time the employer becomes aware of the application. To repeat, the work force in constmction is often fluid, transitional and rapidiy changing. Where the first date of voter eligibility is the terminal date, a date the employer is advised of when it receives notice of the application, the employer will be able, if it chooses, to significantly influence which employees are at work on that date, just as it can influence who is at work on the date the vote is held. We do not suggest that most employers gerrymander, only that some do and the current practice creates a significant potential for such abuse.

50. An employer's actions are subject only to the union's right to file an unfair labour practice complaint if it asserts that the employer breached the Act in its conduct in this respect (as, indeed, the Labourers' assert here). (See, for example, P & R Concrete Finishing, [1978] OLRB Rep. Oct. 944; London District Crippled Children's Treatment Centre, [1980] OLRB Rep. Apr. 461). Such an approach is not particularly satisfactory. First, this approach engenders litigation (as it has here) both over whether an unfair labour practice has been committed and over the list of eligible voters. Where a representation vote is to be held, it is important that the vote be held quickly. In regular certification applications, litigation may occur over a variety of issues with the sole purpose of delaying the vote in order to ensure that a new group of employees get to cast ballots. Prejudice caused by delay is particularly acute in the construction, given the constant turnover of employees and the transitional nature of the work force. The community, and the Board, have long been aware that delay in holding a vote in the constmction industry will almost always be to the prejudice of an applicant union. Even when the vote is still held quickly, as here, litigation will delay the resolution of the application. Voter eligibility rules ought to reduce the potential for litigation delay, by providing greater certainty and clarity, and by reducing the potential for gerrymandering. A two date eligibility requirement, where both dates occur after notice has been provided to all parties, can only increase the likelihood of less fair representation votes. Much of the type of litigation that has been occurring in this area would likely disappear if it were clear that only those at work on the application date will be eligible to vote, if a vote should be directed. Second, events may occur subsequent to the application date which cannot be shown to be an unfair labour practice, yet influence or affect who may vote. This might not be a problem if it were otherwise appropriate to allow those who are employees on a subsequent date to vote. But the fact remains that the appropriate group of employees to determine the success or failure of the application are those who were at work in the bargaining unit on the application date.

51. We do not agree that in a displacement application, as here, use of the application date for voter eligibility provides an unfair advantage to the raiding union. The incumbent union will have represented the employees during the term of the collective agreement, and the employees will generally be members of the incumbent union. Given these facts, it is neither apparent nor likely that a union attempting to replace the incumbent as bargaining agent will be unfairly advantaged by being able to choose, within the limited open period under the Act for bringing such applications, when to file the application. The applicant will have no influence on who the employees are on the application date. It only gets to select that date, within the open period. In any event, in constmction applications there is nothing new in this. The applicant already gets to choose the application date, and the Board already focuses on the employees at work that day. On occasion, this no doubt results in tactical advantages to the applicant but there is nothing untoward or unfair in this.

52. Practice Note No. 9 indicates that the terminal date will be looked at for voter eligibility. That Practice Note was formulated and became effective approximately twenty-eight years ago, and does not appear to reflect the Board's current practice. The Practice Note recognizes that there may be "special circumstances" where use of the terminal date in pre-hearing votes will not apply. In our view, the traditional approach, reflected in the Practice Note, ought not to apply in the special circumstances of the construction industry.

53. Accordingly, in pre-hearing constmction applications, as here, those eligible to vote will be those at work in the voting constituency on the application date, and in regular constmction applications, those eligible to vote, if a vote is directed, will be those at work in the bargaining unit on the application date.

54. The passage of Bill 7 and the requirement of a vote in every application for certification has not altered the Board's position to determine the voting constituency as of the date of application. The Board in Ken Anderson Electric Inc., supra, reviewed the amendments to the Act under Bill 7 and concluded that no change in the Board's approach was required. At paragraph 30 the Board writes:

55. The Legislature must be taken to have been aware of the Board's approaches and practices under the pre-Bill 7 legislation, including the Board's approach in issue herein, when it passed the Labour Relations Act, 1995. Yet there is nothing in the present Act which suggests that the Board should alter its approach to voter eligibility in constmction industry applications for certification. Other than requiring that there be a representation vote "in every case" and the provisions relating to this requirement, the Labour Relations Act, 1995 contains no substantive changes to the construction industry provisions. In that respect, it is significant that now as under the Bill 40 Act and the pre-Bill 40 Act before that, the Board need not have regard to an increase in the number of employees in the bargaining unit after a construction industry application for certification is made in dealing with such an application.

56. In applying the analysis for determining the voting constituency with respect to the ordering of a second representation vote under section 11 of the Act, the Board finds a compelling rationale for maintaining that it should be on the basis of the application date. The Board's jurisprudence, as set out herein, is a full answer to the responding party's assertion that its current employees, who were not employed as of the application date are unfairly being deprived of a chance to participate in the certification process which could have an immediate effect on them. That sort of unfairness argument has been dealt with routinely by the Board and has been found to be a consequence not of the certification process but rather of the uniqueness of the construction industry itself. Further, and for the reasons as set out in Crete Flooring Group Limited, supra, the use of the application date creates a less litigious process that promotes finality and certainty.

57. It needs to be repeated that it was the activities of the responding party which vitiated the results of the first vote as the participating employees were prevented from freely exercising their rights under the Act. It would be counterintuitive to allow the responding party to obtain a benefit as a result of violating the Act, which necessitates the ordering of the second vote under section 11 of the Act. The relief available under the Act is aimed primarily at the disenfranchised employees who were unable to freely exercise their rights under the Act in the representation vote. It is the rights of those employees that take precedence and guide the Board in fashioning appropriate remedies under the Act. Indeed, under subsection 11(5) of the Act, the Board is empowered to do anything to ensure that the employees are in a position to indicate their true wishes as to whether they want to be represented by a union for the purposes of collective bargaining. To find a voting constituency on any basis other than the application date would have the effect of condoning the activities of the employer as it may prevent some and potentially all of the employees who originally were entitled to vote from being able to participate in new vote, free from the mischief occasioned by the responding party.

58. The Board has recently addressed this issue in the case of Megatech Electrical Ltd. [1999] OLRB Rep. Sept./Oct. 858 (File No. 1601-98-R, October 8, 1999). In that case, the Board ordered a further representation vote and rejected the employer's argument that a new and more representative voting constituency should be ordered. At paragraphs 36 and 37 the Board writes:

59. As the Board has already noted: in construction industry certification applications the Board "takes a snapshot" of the state of affairs on the application date - fully recognizing that the composition of the bargaining unit may change thereafter. The Board does that for the policy reasons articulated in its original decision, and in the various cases mentioned above; moreover, as I have already noted, the statute specifically recognizes this possibility and provides that, in the construction industry, the Board need not take into account the influx of new employees after the application is made (see section 128(2) of the Act). In the constmction industry, variability is a fact of life - which makes it all the more necessary to have a fixed point from which to carry out the processes contemplated by the statute.

60. For reasons of practical administration, and in accordance with the thrust of the statute itself, the Board focuses on the situation which obtains when the certification application is filed; and, in my view, that should remain the benchmark for processing the application and dealing with whatever issues might subsequently arise. If it were otherwise, not only would one party or another inevitably be prejudiced in a wholly idiosyncratic way, but there might be some encouragement to provoke precisely that result. And the tricky issue of bargaining unit composition faced at the front end of a certification application could be repeated at later stages of the proceeding.

61. Having regard to the Board's findings as set out above, the Board hereby directs the Manager of Field Services to make the necessary arrangements for the conduct of a second representation vote. The representation vote shall be conducted at a neutral location to be determined by the Vote Coordinator.

62. The Board directs that the second representation vote be taken of the individuals in the following voting constituency:

all construction labourers in the employ of B.G. Schickedanz Homes Inc., Deerfield-Schickedanz and Kansun Homes Limited and My Building Corporation in all sectors of the construction industry in the City of Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foreman and persons above the rank of non-working foreman.

49. All individuals who were employed by B.G. Schickedanz Homes Inc., Deerfield-Schickedanz and Kansun Homes Limited and My Building Corporation and at work in the voting constituency on April 1, 1998 are eligible to vote.

50. The Board further directs the responding party to grant access to representatives of Local 183 and enable such representatives to speak privately with the employees in the bargaining unit for an uninterrupted period of one hour at the responding party's premises during regular working hours. The responding party shall pay the employees their regular wages for the meeting which shall take place two days prior to the conduct of the representation vote.

51. At the request of Local 183, the Board shall mail a copy of this decision to all employees in the bargaining unit at their last known addresses, which were provided by Local 183. The Board also directs the responding party to bring this decision to the attention of its employees by posting it for a period of thirty days at conspicuous locations at its premises and on any job sites on which it is presently working.

52. Local 183 requested the Board to order the responding party to pay each employee who is entitled to vote, the equivalent of a full day's pay to compensate for lost time as a result of participating in the vote. The Board declines to make such an order. There was no evidence before the Board that all of the affected employees are otherwise employed and would be so on the new voting date. Secondly, a full day's pay seems excessive for taking part in a vote, which may only take a few minutes along with some travel time.

53. This panel of the Board shall remain seized should there be any issues arising from this decision or the implementation of any of the directions found herein.