Ontario Labour Relations Board
File No.: 0802-99-R Date: January 24, 2000
Labourers’ International Union of North America, Local 527, Applicant v. David S. Laflamme Construction, Responding Party.
BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. G. Knight and G. McMenemy
DECISION OF THE BOARD
This is an application for certification in the construction industry. No response was filed. Following a vote a certificate issued on July 12, 1999 for an amended bargaining unit described at paragraph 4 of the Board’s decision of that date. Within thirty days the applicant sought reconsideration of the Board’s determination on the bargaining unit description. The Board received the applicant’s submissions in that regard and on November 29, 1999 issued a decision declining to reconsider the finding as to the description of the bargaining unit. In reaching its decision, the Board had regard to the applicant’s submissions of August 11, 1999 and September 23, 1999.
By letter dated December 29, 1999 the applicant renews its request for reconsideration, asserting that the November 29, 1999 decision did not deal with the circumstances under which the balloting was conducted. We refer to paragraphs (ii) and (iii) of counsel’s letter dated December 29, 1999.
We note firstly, that the applicant is in effect seeking a second reconsideration. It is incumbent on an applicant to plead all of the circumstances on which it relies in its initial request. Otherwise the interest in finality expressed in sections 114(1) and 116 of the Labour Relations Act, 1995 is meaningless. On that basis alone, this further request is properly dismissed.
However we will review the submissions briefly. The matters raised in paragraph (ii) have been dealt with in paragraph 8 of the November 29, 1999 decision. A party participating in a vote is responsible for any position it asserts. If the party is in any doubt it is incumbent on that party to so identify the doubt and have it noted by the Officer.
Paragraph (iii) raises a new allegation. It is one that would have been within the knowledge of the applicant at the time of the original request for reconsideration and was not raised. The applicant asserts that at the vote it requested the Officer to note the trade of each voter on the date of application on each ballot. It asserts that the Officer accepted this position and noted the trades “on each ballot”. The applicant then asserts the names and trade of each voter.
The decision of July 12, 1999 which grants a certificate to “all construction labourers” in the construction industry excluding the ICI sector, also notes at paragraph 8 that the ballots will be destroyed after the expiration of thirty days unless a request to retain them is received within that time. No such request was received from the applicant, notwithstanding the fact that it would have been aware of the change to the bargaining unit description and its attendant concern in that regard at the time of receiving the July 12, 1999 decision. The original request for reconsideration was filed on August 12, 1999. Thus, in the normal course, the ballots in this case would have been destroyed and there would be no opportunity to attempt to verify the applicant’s assertion, notwithstanding the fact that the applicant could have and should have acted to preserve that opportunity in the circumstances. One might reasonably assume the ballots to be destroyed. That is further reason to dismiss this second request for reconsideration.
However, the ballots in this case were not destroyed in accordance with the July 12, 1999 direction. They are available in the file for review. There is no marking as to trade. No notations are made on any of the six ballots cast except for the marking indicating the employee’s choice whether or not to be represented by the applicant. It would be highly unusual for any such marking to be made in any event, as such marking might well act to identify the voter and interfere with the secrecy of the balloting process.
The assertions made by the applicant are not supported by the evidence, and were not made in a timely way. Should the parties wish to review the ballots to confirm the Board’s comments here, they are entitled to make that request within 10 days of the date of this decision. Absent any such request the ballots will be destroyed. Absent such request, this second request for reconsideration will be deemed dismissed and this matter concluded without further notice to the parties.
‘ “M. A. Nairn”
for the Board