Ontario Labour Relations Board

3703-99-R Universal Workers Union, L.I.U.N.A. Local 183, Applicant v. Metal Tech Systems Inc., Responding Party v. Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Intervenor.

BEFORE: David A. McKee, Vice-Chair, and Board Members J. G. Knight and A. Haward.

APPEARANCES: Lorne Richmond and Joao Alves for the applicant; Jerry Guerra for the responding party; Michael McCreary and Ziggy Pflanzer for the intervenor.

DECISION OF THE BOARD; June 28, 2000

1. This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (the “Act”). A hearing was held on June 21 and 22, 2000. At the conclusion of evidence and argument on the second day, the Board gave a “bottom-line” ruling with respect to two issues raised by the intervenor. In that bottom-line ruling, the Board ordered that a second representation vote be held on Thursday, June 29, 2000. This decision contains the reasons for that decision.

2. This application was made on March 13, 2000. The Board originally ordered a representation vote to be held on March 22, 2000. In applying, the applicant did not give the Board notice of any other trade union who might have a legal interest in the application. Neither did the responding party. Therefore, the ballot was a simple choice between the applicant and no union. On March 17, the intervenor filed, first by way of letter and then by way of formal intervention, an intervention asserting that it had a collective agreement covering the bargaining unit applied for. Further, the intervenor asserted that: “Any superficial inquiry of the employees would have revealed that they were members of Local 675 and covered by the attached collective agreement”.

3. The vote ordered for March 21, 2000 was cancelled and a second representation vote ordered to be held on March 31. The applicant originally challenged the validity of this collective agreement, but on the first day of hearing withdrew that challenge. The applicant did not press its assertion that Local 183 knew or ought to have known of the collective agreement.

4. On June 21 and June 22 the Board heard argument on two issues. First, the intervenor argued that it had not received notice of the time and location of the polls for the conduct of the representation vote. It did, however, have in attendance at each of those polls a scrutineer. These scrutineers were present during the entire time the polls were open. The intervenor’s evidence was that it had received notice of the times and locations of the vote from a representative of Carpenters, Local 27 who saw the information posted on a job site. On the basis of the Board’s failure to deliver notice of the second vote to it, the intervenor asked the Board to conduct a second representation vote. The Board rejected that argument. The intervenor suffered no actual prejudice. In any event, the intervenor was advised of the date of the vote. If it did not have the place and time of the polling, it is a very simple matter to telephone the Vote Coordinator’s office and ask for that information.

5. The intervenor also objected to the form of the ballot. Voters were asked to choose between “United Brotherhood of Carpenters and Joiners of America, Local 675” and “Universal Workers Union, L.I.U.N.A., Local 183”. The ballot should not have been printed with that name for the intervenor. The intervenor had described itself throughout as “Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America”. The decision directing the vote referred to the intervenor by its proper name and directed that a vote be held between the applicant and intervenor.

6. Slight variations or abbreviations of a union’s name do not, in and of themselves, cause the Board concern. The issue that is raised in this case is whether or not, on the evidence before the Board, the persons entitled to cast ballots in this vote might reasonably be misled by the form of name of the intervenor used on the ballot. That is, would the name as it appears on the ballot reasonably create some confusion as to whether or not the incumbent union was the alternative choice on the ballot.

7. The evidence of the intervenor leads the Board to the conclusion that it has identified itself to the public, and more importantly, to its members, as Drywall Acoustic Lathing and Insulation, Local 675, United Brotherhood of Carpenters and Joiners of America, or sometimes simply Drywall Local 675 or Drywall Acoustic Lathing and Insulation, Local 675. Rarely does it use the name Carpenters, Local 675. The evidence is that the preferred form of the name is used on membership cards, apprentice summary reports, hardhat stickers, letters and envelopes used in correspondence with members, notepads used in the office and given to members, dues receipts, fax transmission sheets, the Local members’ newsletters, members’ benefit booklets, welfare plan, information documents, the by-law and trade rules booklet, the residential collective agreement, and the application for pension benefits. In the hundreds of applications for certification made by the intervenor in the past twelve years, only twice has it failed to use the “Drywall Acoustic Lathing and Insulation” name, once by error. The Labour Day parade banner is also less clearly identified. However, it is clear that the Local has, among its members, striven to maintain a separate and distinct identity from the rest of the United Brotherhood of Carpenters and Joiners of America. This desire to maintain a separate identity no doubt has its origins in the separate existence of Local 562 of the International Union of Wood, Wire and Metal Lathers (later merged with a UBCJA Drywall local). It has continued to maintain this separate identity, even though the officers and business representatives of the intervenor are now in fact employed by a regional council within the Carpenters Union. It is of no consequence to the Board why this Local Union has decided to maintain a distinct identity. The fact is that it has done so.

8. Thirteen of the sixteen persons on the voters’ list were members of the intervenor in December 1999, though most of them had been placed in arrears or had been suspended by date of the application. The thirteen persons would have had some connection with the intervenor and would have known it by that name. A different and truncated name would likely have created some confusion in the minds of at least some of the persons in the bargaining unit.

9. The Board acknowledges the error of its administrative staff in creating the ballot in this fashion. The decision ordering the vote set out the names of the parties properly, but these instructions were not carried out exactly. However, there is an obligation on an applicant in any application for certification to ensure that the process operates smoothly, or to accept the consequences of its failure to do so. Had Local 183 identified the intervenor as incumbent on the application for certification, it is unlikely that the problems encountered in this file would have arisen. Even assuming, as we must, that it failed to do so unwittingly, it should have been even more careful to ensure that no further problems developed, or at least that it did not contribute to them. The sample ballot was faxed to the intervenor at 5:00 p.m. on March 28 and to its counsel at 9:28 a.m., March 29. On March 30 the intervenor faxed a letter to the Board asking that the name of the intervenor on the ballot be amended. On March 30 the applicant wrote to the Board stating:

“It is Local 183’s position that the ballot clearly and adequately sets out the names of the two unions, and that the reference to Local 675 of the United Brotherhood of Carpenters and Joiners of America, so closely resembles the name of the intervenor claims to go by [sic], that there will be no confusion in the minds of the voters as to which union they are voting for. Accordingly, it is the position of Local 183 there [sic] is no merit in the intervenor’s suggestion that if the ballots are not amended the vote will some how be unfair”.

10. In another similar displacement application involving the same two union parties and Steel Technologies Framing Inc. (Board File 3809-99-R), the same problem arose. In that case, once again the intervenor advised the Board of its objection to the manner in which it had been described on the ballot the day before the vote, and requested that its proper name be used. The Board was able to accommodate the request of the intervenor. In that vote, the name was correctly set out on the ballot.

11. In this case, the two letters dated March 30 were received by the administrative staff of the Board. They do not adjudicate disputes between counsel for parties to a proceeding. Once a vote is ordered, generally any dispute is left to be decided by a panel of the Board after the vote has been conducted. This is consistent with the Board’s desire to hold votes in an expeditious fashion, a result which the applicant claims it very much desired in this case. In this case, had the applicant simply consented to the ballot change, the Board’s administrative staff would likely have noticed the difference between the decision ordering the vote and the sample ballot they had created and would have had the opportunity to correct the error. By preventing that process from occurring, the applicant is left with the results of its own action.

12. The Board has found that, on the balance of probabilities, a reasonable employee would have been misled by the form of the ballot. Accordingly, the results of the March 31 vote would not likely reveal the true wishes of employees. Accordingly, pursuant to section 111(5), the Board ordered a second representation vote to be held.

13. Any issues arising out of this vote, including any challenges to any person casting a ballot, will be processed in the usual way following a regional certification meeting.

14. In its intervention, the intervenor has asserted that persons who are on the voters’ list were employed contrary to a collective agreement and solely for the purposes of bringing this displacement application (“the April Waterproofing issue”). In this regard, the Board makes the following directions.

15. On or before July 13, the intervenor is to file with the Board a statement of all material facts on which it relies in support of the April Waterproofing argument. The applicant and responding party are directed to file a response to this statement on or before July 27, 2000 setting out all of the material facts on which they rely, and further identifying the statements in the intervenor’s statement of facts with which it agrees or disagrees. If a party disagrees with any fact set out in that statement, the party replying shall set out its version of the facts. On or before August 3, 2000 the intervenor shall file with the Board a reply to these two responses, stating which facts it agrees or disagrees with. If it disagrees with any fact asserted by a party opposite, the intervenor shall set out its version of the facts.

16. This panel is concerned about the number of days that have been set, if necessary, to deal with all of the potential issues. If any party has any preliminary issue or motion which can be dealt with in writing respecting the pleadings, or any issue arising from the vote, that party is to address the Board in writing. This panel shall remain seized to deal with all such matters, up to the next day of hearing. If any party makes a motion, the parties opposite shall respond within five working days and the moving party shall file a reply within three working days.

17. Unless the Board orders otherwise, in the meantime, this matter will resume, before a different panel of the Board than this one, on October 3, 4, 5, November 7 and 8, 2000.

“David A. McKee”

for the Board