Ontario Labour Relations Board
0705-00-U International Union of Operating Engineers Local 772 and Robert Walter Hogan, Applicants v. DSM Engineering Plastics Ltd., Responding Party.
1129-00-R International Union of Operating Engineers Local 772, Applicant v. DSM Engineering Plastics Ltd., Responding Party.
BEFORE: David A. McKee, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; September 5, 2000
Board File No. 0705-00-U is an application filed under section 96 of the Labour Relations Act, 1995, S. O. 1995 ch. 1 ("the Act"). The applicant alleges that its chief organizer in the responding party’s employ was discharged at the beginning of the union’s organizing campaign, and further that the responding party has committed other unfair labour practices designed to thwart the union’s organizing drive among its employees. The application was filed on June 1, 2000.
Board File No. 1129-00-R is an application for certification filed on July 13, 2000 in respect of the same group of employees. The applicant stated that there were 27 employees in the bargaining unit and the applicant submitted membership evidence on behalf of more than 40% of that number. The responding party raised a timely notice under section 8.1 of the Act, alleging that there were 44 employees in the bargaining unit. A representation vote was conducted and the ballot box sealed.
The parties ultimately agreed that there were 43 employees in the bargaining unit. The membership evidence filed constituted evidence for less than 40% of them.
At the commencement of the hearing, the responding party made a motion to the Board to dismiss the application for certification under section 8.1(5), para. 7. It argued that whatever the results of the vote, and whatever the relief, if any, granted under section 11, the provisions of section 8.1 are mandatory and the Board has no discretion or option to do anything other than dismiss the application. The responding party agreed that in this circumstance no bar to a subsequent application should be imposed by the Board.
The applicant argued that section 11 must include the ability to override section 8.1. He argued that if the Board orders a subsequent vote under section 11, and the applicant is successful on that vote, the Board will certify the applicant regardless of section 10(2). Further, he argued that the language of section 96 is sufficiently broad to give the Board the power to certify the union if it were successful on a subsequent representation vote, as a remedy to an unfair labour practice. According to counsel, in order to be able to grant an effective remedy under section 11, the Board must have the ability to override section 8.1.
The Board agrees with counsel for the responding party. Section 8.1 contemplates that the results of the representation vote, even if known and even if they are in favour of the union, are irrelevant if the applicant lacked the requisite support to file the application: see Renaissance Fallsview Hotel, [1999] OLRB Rep. Dec. 1086. Even if a series of unfair labour practices were proved and even if the Board were to conclude that they were sufficiently egregious to be the cause of the union’s failure to obtain the necessary membership evidence, those facts do not change the options available to the Board. Section 11(4) specifically overrides section 10(2) if the Board orders a subsequent vote under section 11. There is no such provision with respect to section 8.1. The statutory history of section 11 and section 8.1 are clear; the general language of section 96 does not permit the Board to certify the applicant in these circumstances. In any event, section 96(8) specifically deprives the Board of the power to grant a certificate as a remedy under that section.
The application for certification is dismissed. No bar to a subsequent application will be imposed. Board File No. 0705-00-U is scheduled to be heard on November 28, December 4, 11 and 12, 2000. This panel is not seized of this application.
“David A. McKee”
for the Board