Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America v. Skoko Aluminum Ltd., 2000 CanLII 12115

4507-97-R Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, Applicant v. Skoko Aluminum Ltd., Responding Party.

BEFORE: D. L. Gee, Vice-Chair, and Board Members G. Pickell and A. Haward.

APPEARANCES: James Robbins, David Watson and Harold Biso for the applicant; Jay Rider and Sonja Skoko for the responding party.

DECISION OF THE BOARD; March 27, 2000

1This matter is an application for certification that was filed on February 24, 1998. A representation vote was conducted on March 4, 1998. On March 13, 1998 the applicant filed an application under section 96 of the Labour Relations Act (“the Act”) seeking automatic certification pursuant to section 11 of the Act in effect at the time. A hearing was set for November 16, 1998, however, prior to the hearing commencing, section 11 was amended so as to remove the Board’s power to grant the applicant automatic certification. The parties entered into Minutes of Settlement dated November 17, 1998 that were incorporated into a Board decision dated November 23, 1998.

2The parties agreed that a new vote would be conducted “among the employees as listed in Schedule A attached hereto”. The agreement further stipulated as follows:

The Applicant hereby reserves all and any rights to challenge the inclusion and eligibility to vote of #s 21, 22 as not being employed in the representative period and the agreement to others is without prejudice to this position.

3Number 21 and 22 on Schedule A to the Minutes of Settlement were Gordon Jurkovic and Peter Stipic respectively. Mr. Jurkovic commenced employment with Skoko Aluminum Ltd. (“Skoko”) on or about August 10, 1998 and was employed on the date the Minutes of Settlement were entered into. Mr. Stipic commenced employment with Skoko on or about May 29, 1998 and was employed on the date the Minutes of Settlement were entered into. Amongst the individuals on the Schedule A who were agreed to by the parties without prejudice to the union’s challenge to Messrs. Jurkovic and Stipic were two individuals who were not employed with the employer on the date of application but commenced work with the employer on May 4 and May 14, 1998. All of the individuals who were on the voters list for the first vote were also on the list.

4A second vote was conducted and all of the ballots, except for those cast by Messrs. Jurkovic and Stipic, were counted. The vote results are such that the two challenged ballots are numerically relevant and accordingly it is necessary to determine whether or not Messrs. Jurkovic and Stipic were entitled to vote.

5A determination of whether the two individuals are entitled to vote does not turn on an application of the Board’s usual approach with respect to who is entitled to vote in a subsequent representation vote. The parties do not dispute that an application of the Board’s usual approach with respect to who is entitled to vote in a subsequent representation vote would result in only those individuals at work in the bargaining unit on the date of application being entitled to vote. Given the Minutes of Settlement entered into by the parties, whether the two individuals are entitled to vote is dependent upon whether they were “employed in the representative period”.

6The parties are agreed that the Minutes of Settlement were entered into in the hopes that the issue of whether Messrs. Jurkovic and Stepic were entitled to vote would never have to be determined. The parties were never ad idem on what the term “representative period” means. The parties agreed that neither party would take the position before the Board that the words are ambiguous. No evidence would be called. Rather, each party would assert that the words of the agreement are clear and support its interpretation of the agreement. The Board would then determine which parties’ position was to prevail.

7The union asserts that the representative period is the date of application. In the alternative, the union asserts that the representative period must be a period that includes the application date and would not be long enough to include either Mr. Stepic, who started work over three months after the application date, or Mr. Jukovic, who started work over five months after the application date. Skoko asserts that the representative period ought to be referable to the date on which the Minutes of Settlement were entered into at which time both Mr. Stipic and Mr. Jurkovic were employed.

8The union urges the Board to consider this matter in the context of prevailing Board principles and jurisprudence. Relying on: Johnson-Kiewit Subway Corporation, [1966] OLRB Rep. June 182; Des-Build Development Limited, [1983] OLRB Rep. Nov. 1793; Di Marco Plumbing and Heating Company Limited, [1985] OLRB Rep. May 659 and Gilvesy Enterprises Inc., [1987] OLRB Rep. Jan. 220, the union asserts that, when the Board used to consider a representative period for the purpose of determining whether an individual was employed in the bargaining unit, the representative period was always a period of time prior to the application date and never exceeded a period of one month. Thus, when the term “representation period” was used by the Board in the context of determining construction industry voters lists it was used as term of art to describe a period of time immediately prior to the application date of not greater than one month.

9The union further relies on Crete Flooring Group Limited, [1992] OLRB Rep. July 792, in which the Board reconsidered its practice of looking at a representative period and determined that only those actually at work on the date of application would be entitled to vote. In Crete Flooring, the Board indicated that the voters list ought to be comprised of those who were at work on the application date as, to do so, ensured that applications for certification could be dealt with in a timely manner, avoided the potential for the employer to gerrymander the list, reduced litigation relating to potential unfair labour practices, and ensured that those employees who invoked the right to vote got to participate in the vote. In Crete Flooring, the Board found that the relevant period of time to look at was a “representative day”, namely the application date.

10Finally, the union referred to Board cases including Metric Contracting Service Corporation, [1996] OLRB Rep. Nov. 996; Megatech Electrical Ltd., [1999] OLRB Rep. April 257, request for reconsideration denied [1999] OLRB Rep. Oct. 858; The Brick Warehouse Corporation, [1996] OLRB Rep. Dec. 921; The Great Canadian Pizza Company, [1980] OLRB Rep. Feb. 216; and Maverick Mechanical Contractors Limited, [1996] OLRB Rep. April 289, all of which involved the ordering of a second representation vote and used the date of application to compile the voters list, to support its argument that a representation period, whatever it may be, must be referable to the date of application.

11Skoko acknowledges that the principles cited in the cases referred to by the union apply in normal circumstances. However, in the instant matter, the second vote is to be conducted according to the terms of the Minutes of Settlement and not the Board’s usual principles.

12In the instant case, Skoko points out that the parties have obviously departed from an application of the Board’s principles. The parties did not agree to create the voters list based on who was at work on the date of application. Rather, the parties agreed that Messrs. Jurkovic and Stipic could be challenged as “not having been employed in the representative period”. Thus, the Board’s usual principles do not apply.

13Skoko disputes that “representative period” can refer to the application day. Skoko asserts that the case law makes a distinction between a representative period and the application date. The parties were aware of the distinction and could easily have referred to the application date had such been their intention. In Skoko’s submission, “representative period” must mean a period of time longer than a single day.

14Skoko urges the Board to consider that the parties had clearly stepped outside of an application of the Board’s usual practice. Further, the Board is urged to consider the context of the Minutes of Settlement. They were entered into nine months after the initial vote. The Minutes of Settlement were entered into after the enactment of Bill 31 which meant that the best the union could have hoped to obtain was a second vote of the individuals on the original voters list. Skoko queries why, in such a case, the employer would have agreed to a vote of the same list as a settlement.

15Skoko points out that as of the date of the Minutes of Settlement, Messrs. Stipic and Jurkovic were employed with Skoko for five and a half and three months respectively. Thus, as at the date of the Minutes of Settlement, Messrs. Stipic and Jurkovic had a regular relationship with the employer. Skoko points out that, having regard to the Minutes of Settlement, which contain a provision whereby the union was to meet with the employees, that the concern expressed in Megatech Electrical Ltd. that the list be comprised of individuals the union had a chance to approach, was not in issue.

16Skoko argues that the Minutes of Settlement were an opportunity for the parties to craft a voters list comprised of a representative group of people without compromising expedition or creating concerns about gerrymandering. Where a more representative group can be constituted without compromising the concerns the Board has concerning deviating from the application date, such should be done. Skoko urges the Board to establish a representative period that would canvass the most representative group of employees and points out that, doing so in the instant matter would not constitute a precedent for other matters at the Board as it would be done pursuant to Minutes of Settlement.

17Counsel for the union and Skoko both did a commendable job of representing their respective clients’ interests in this matter. Their submissions were thorough and helpful to the Board while at the same time being concise and to the point. The manner in which counsel agreed to present this issue to the Board saved their clients and the Board considerable time and resources.

18As counsel indicated, there are few indicators available in the present matter to guide the Board as to the appropriate representative period to adopt. On balance, however, the Board is of the view that the union’s position must prevail.

19The term “representative period”, although no longer in use in construction industry applications, was at one time a term of art for the Board. As the cases relied upon by the union indicate, the term “representative period” was used by the Board to refer to a period of time referable to the application date. The Board looked at the representative period to determine whether, on the application date, an individual was employed in the bargaining unit. The counsel who represented the parties at the signing of the Minutes of Settlement (who were not the counsel that represented the parties at the hearing) were both senior labour relations counsel. It is reasonable to assume that, when agreeing to use the words “representative period”, counsel were aware that the words were a term of art for the Board and, in the Board’s usage referable to the date of application.

20While the term “representative period” can be given meaning if considered in the context of the Board’s usual terminology, if we were to consider it outside of how the Board has used the term, there is no basis on which to define its meaning. We would be required to pull a meaning out of the air. Given that the term is a term of art for the Board and presumably in the labour relations community, we see no reason to do so.

21As a result, it is our determination that the appropriate representative period to apply in the instant matter is a period of time, referable to the application date, which would not extend after the application date by the length of time necessary to include either Mr. Jurkovic or Mr. Stipic on the voters list. Accordingly, it is our determination that neither Mr. Jurdovic or Mr. Stipic are entitled to vote in the representation vote that was held on December 4, 1999.

22The parties are hereby directed to advise the Board as to whether, having regard to the Board’s determination herein, certificates can issue to the applicant.

23We are seized.

“D. L. Gee”

for the Board