3475-99-R I.B.E.W. Construction Council of Ontario, Applicant v. JLY Electric Ltd., Responding Party.
BEFORE: David A. McKee, Vice-Chair
DECISION OF THE BOARD; May 1, 2000
This is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995 ch. 1 (“the Act”). Following the post-vote certification process, there are two issues which remain outstanding.
The first relates to a request by the responding party (“JLY”) to be permitted to raise an issue that it had not previously raised. The application was filed on February 28, 2000. JLY filed its response on March 1, 2000. As required by the Rules of Procedure, JLY filed a list of its employees whom it believed fell into the proposed bargaining unit of journeymen and apprentice electricians. Two of the employees on the list were Al James (“James”) and Terry Trebilcock (“Trebilcock”). The Board ordered a vote. In keeping with the Board’s normal practice, employees who were agreed by both applicant and responding party to be in the bargaining unit cast ballots by placing their ballots in a ballot box. Two employees were challenged. Their ballots were segregated in a manner which guaranteed the anonymity of those voters, but which would enable the Board to identify the ballots. Those two ballots were segregated because there was a challenge to the status of those individuals as members of the bargaining unit.
Following the conduct of the vote, the Board Officer proceeded to count the undisputed ballots. This included the eight ballots cast by persons both parties agreed to be in the bargaining unit initially, and one of the segregated ballots, cast by a person the parties ultimately agreed was in the bargaining unit. One ballot remains sealed and segregated (that of Darrell MacNeil).
JLY now asserts that it was in error in listing James and Trebilcock as members of the bargaining unit. It does so on the basis that they were not apprentices as defined in the Trades Qualification and Apprenticeship Act (“TQA”), and therefore ought not to be included in a bargaining unit of journeymen and apprentice electricians. JLY asks the Board to “reconsider” its decision to include these two individuals in the bargaining unit and to permit JLY to lead evidence as to the nature of the status of these two individuals. The status of individuals at work in the construction industry under the TQA is an issue which sometimes comes before the Board. This is not because the TQA is a statute which the Board administers. In an application for certification such as this, the Board determines issues of bargaining unit composition, and in doing so, applies the terms of the Labour Relations Act. In determining that question, the impact of the TQA on work actually performed by employees on the application date may be relevant. This is of particular significance in a construction industry application for a craft unit, since membership in that craft unit is generally dependent on the type of work performed for a majority of hours on the application date by the employees in question. However, the focus of the Board’s inquiry is who is or is not a member of the bargaining unit. The impact of the TQA may be part of the Board’s consideration, but it is not the issue before the Board. In the end, the question is whether or not a particular employee is or is not a member of the bargaining unit on the application date.
In this case, it is not correct to describe JLY’s submission as a request for reconsideration. The Board has not adjudicated the issue at all. The reason for this is that JLY did not attempt to make an issue of it at the relevant time. It asserted that James and Trebilcock were members of the bargaining unit. The union agreed. What JLY really seeks to do now is to return to an earlier part in this process, to ignore all that has happened since that time, and to recommence the application from the date it filed its response.
Although there were initially some difficulties with respect to service, JLY was provided with copies of the Board’s Information Bulletins 6, 8 and 9 which describe in some detail what a responding party is obliged to do. In fact, JLY followed the process set out in those Bulletins. Bulletin 6 is a general description of the Board’s process. It states in bold print:
It is important that the parties involved in a certification application read and comply with the directions in this Bulletin and the Board’s Rules of Procedure. Failure to do so may result in the application or other materials not being processed by the Board.
Further in that Information Bulletin, the following instructions are contained with respect to the filing of a response:
The response consists of a Response to Application for Certification, Construction Industry (Form A-71) and Schedule “A” (list of employees). The list of employees assists the Board in determining which employees are eligible to vote. The employer must include on the list the names of all employees who were at work on the application filing date who were performing work within the union’s proposed bargaining unit and, if the employer is proposing a bargaining unit that is different from the union’s, the names of employees who were at work on the application filing date who were performing work within the employer’s proposed bargaining unit.
- This list is in fact a critical document. The Board does not at that stage inquire into the status of any individual. Those individuals who are agreed to be in the bargaining unit will be permitted to vote. Those whose status is disputed will be permitted to vote, but their ballots will be segregated in the manner described above and the issue of their status may be litigated at a later time. Information Bulletin No. 9 deals specifically with status disputes. In an introductory paragraph, it states:
Where there is a dispute about whether certain individuals should or should not be on the list for the count under section 8.1 of the Act or on the voters’ list or in the bargaining unit, each party must identify in writing those individuals whose inclusion on the list or in the bargaining unit it is challenging no later than the conclusion of the balloting on the day of the representation vote. Challenges that are made after the conclusion of the balloting will not be considered except in exceptional circumstances. In addition, in the interests of fairness and finality, parties cannot raise issues about the list to which they have earlier agreed. (emphasis added)
Before 1995, the Act enabled a union to be certified if it could demonstrate that more than fifty-five per cent of the bargaining unit were its members. That is, there might be very few steps, and simple ones, that follow the settling of the list, or a sufficient proportion of the list of the status of the disputed individuals would have been numerically irrelevant. In one such case, Runnymede Development Corporation Limited, [1997] OLRB Rep. Oct. 1305, the Board said at paragraphs 28 and 29:
In this case, the respondent filed a list of employees containing 7 names on Schedule “A” on the terminal date. Subsequently, the respondent met with a Labour Relations Officer (and the applicant and intervenor) on two separate occasions specifically with respect to the list of employees and composition of the bargaining unit. During the course of the record of these meetings on February 4, 1987, the respondent specifically agreed, in writing, that the applicant’s position with respect to the list of employees is correct and that 5 of the 7 names originally on the list should not be on it. The respondent subsequently affirmed that agreement when it did not dispute the correctness of the Officer’s report that contained the agreement and by letter dated February 27, 1987. It was not until more than three months after it signed the agreement that the respondent decided that it had “erred” and sought to resile from the agreement.
In our view, the circumstances under which the agreement was made and the respondent’s subsequent actions (and inaction) make it wholly inappropriate for the Board to permit it to resile from that agreement (see Harnden & King Construction Ltd., [1986] OLRB Rep. May 635). Accordingly, the Board declares that the applicant and respondent are bound by the terms of the February 4, 1987 agreement with respect to the list of employees. The Board will not entertain evidence or representations from either of them that are inconsistent with that agreement. Of course, the intervenor, which is not a party to that agreement, is entitled to maintain, as it has throughout, that the 5 individuals who the applicant and respondent have agreed are not in the bargaining unit should be on the list, until such time as the Board may determine that the individual who is a member of the intervenor should not be on the list and therefore is not affected by this application.
(See also Harnden & King Construction Ltd., [1986] OLRB Rep. May 635 at page 638.)
In 1995 the Act was amended to require a representation vote in each application for certification. On the one hand, the Act mandates that applications shall be disposed of expeditiously, including the holding of a representation vote within five days of delivery of notice of the application to an employer. On the other hand, the process has, of necessity, become more detailed and complex. The Board must ensure that all parties are given adequate notice of each step in the process, and the opportunity to make their submissions on all relevant issues which are of importance to each party. In doing so, the Board must not lose sight of the need for both expedition in the processing of an application and finality of steps taken along the way.
The Board has confirmed the principles enunciated in Runnymede and Harnden & King Construction Limited in decisions since 1995. In Northam Development Corp., [1997] O.L.R.D. No. 2092, the Board stated at paragraph 6:
Dealing with the second issue, the certification worksheet which indicated that the parties agreed that there was only one person in the bargaining unit was signed by a representative of the applicant. The Board relies upon parties to ensure the accuracy of the matters agreed to in the pre-certification process and will hold parties to agreements reached in this regard. If a party signs a worksheet in error, it does so at its peril. The party will not be permitted to resile from the agreement. Without this degree of certainty, the entire vote process would grind to a halt and the statutory direction to ensure a timely holding of representation votes would be defeated. The second ground for reconsideration is dismissed.
In a subsequent decision, Tele-Direct Media Inc., [1998] O.L.R.D. No. 3988, the Board said at paragraph 14:
… The Board can relieve the strict application of its rules and requirements, but it must have good cause for doing so. Certification votes are dealt with swiftly. Among the reasons for expedition in certification applications, is the interest shared by all concerned that there be clarity and certainty as to whether the employees affected by a certification application will be governed by a collective bargaining relationship, or not. A certification application is necessarily disruptive of the status quo employment relationship between the employer and its employees, and all concerned need to know, as soon as possible, whether that relationship will change to one regulated by collective bargaining, or whether it will return to what it was before. That is partly the reason for the short time limits in the Act and in the Board’s rules and procedures.
The reasons given by JLY for its desire to raise this issue are stated to be as follows. It was only during the course of responding to another application made by the applicant union, that it made further inquiries about the contracts of apprenticeship which it had been advised James and Trebilcock were bound to. The allegation is that these contracts of apprenticeship had been cancelled on the application date. This was an inquiry that JLY could have made, but chose not to, at the time the application for certification was filed. That is, JLY had turned its mind to the issue of the status of these two individuals and was satisfied on the basis of the inquiries that it had made at that time that both were apprentice electricians. It was only after it made further inquiries, all of which could have been made on receipt of the application for certification, that it believed it discovered otherwise. Equally significant is the fact that the results of the vote had been announced prior to the time at which JLY commenced to undertake these inquiries. The results were very close (five in favour of the union, four against and one segregated ballot). The other application filed by the applicant union clearly identified the two individuals as union supporters. Although the Board expects parties to act aggressively in their own self-interests at the appropriate time, issues of self-interest alone will not persuade the Board to permit the extremely disruptive process of recommencing the certification application in the manner that JLY requests.
At this stage in the process, of course, the request is extremely disruptive. The Board has conducted a vote and the ballots of these two individuals were not segregated and have been counted. However, it is possible that a new representation vote may be held, depending on the results of the Board’s inquiry into the status of Darrell MacNeil. Even in those circumstances, the Board does not find it appropriate to permit the responding party in this case to go back to the first step it took in this litigation and, with the benefit of hindsight and one counted set of ballots, redefine its position at various steps along the way.
Accordingly, the request of JLY to review the list of employees it filed on March 1, 2000 and to raise the issue as to the status of James and Trebilcock is denied.
The second issue relates to the status of Darrell MacNeil. It is evident that the Board will need to hear evidence and argument on the issue of his status. His ballot has been segregated and it is appropriate to inquire into this issue at this time. The Registrar is directed to set one day of hearing to deal with all evidence and argument with respect to all issues arising from the status of Darrell MacNeil.
“David A. McKee”
for the Board