International Brotherhood of Electrical Workers, Local 586 v. Megatech Electrical Ltd., 2000 CanLII 7685

1061-98-R International Brotherhood of Electrical Workers, Local 586, Applicant v. Megatech Electrical Ltd., Responding Party v. Construction Workers Local 52, affiliated with the Christian Labour Association of Canada (“CLAC”), Intervenor.

BEFORE: John Morgan Lewis, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.

DECISION OF THE BOARD; January 5, 2000

1This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995 (the “Act”). The application was filed on June 16, 1998.

2A representation vote was held on June 24, 1998. The vote was subsequently set aside and a second representation vote was held on November 30, 1999. Prior to the second vote taking place, the Board addressed the issue of the appropriate voting constituency for the second vote. By decision dated April 23, 1999, the Board determined the voting constituency to be:

all journeymen and apprentice electricians and journeymen and apprentice linemen in the employ of Megatech Electrical Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all journeymen and apprentice electricians and journeymen and apprentice linemen in the employ of Megatech Electrical Ltd. in all other sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non-working foreman.

By decision dated October 8, 1999 the Board dismissed a request for reconsideration of its decision of April 23, 1999.

3Having regard to the fact that the representations, which are presently before the Board were the subject of a Board hearing and two fully reasoned decisions, there is no basis for the Board entertaining these representations again, under the guise of post vote representations.

4Counsel for the responding party has advised the Board that the responding party has decided to judicially review the aforementioned decisions of the Board and requests that the Board not issue certificates to the applicant pending the determination of the judicial review.

5The Board has routinely held that it will not stay proceedings pending an application for judicial review. In Royalguard Vinyl Co., [1994] OLRB Rep. June 775, the Board declined to issue an interim order staying the issuance of a certificate pending the release of reasons for its decision in order that the employer would have an opportunity to asses its position with respect to judicial review before commencing bargaining. Similarly, in Shoppers Drug Mart, [1996] OLRB Rep. Mar./Apr. 303, the Board refused to stay the issuance of a certificate pending an application for judicial review. In EKT Industries Inc., [1987] OLRB Rep. May 696, the Board provided the following rationale for refusing to stay the operation of a decision pending full reconsideration and an application to the Minister of Labour to amend a designation in the construction industry:

Assuming, as we do, that the Board has the power to “stay” its own decisions, it is a power which should only be exercised in truly exceptional circumstances, and if it is to be exercised by a different panel of the Board the circumstances must be even more extraordinary (bearing in mind that similar relief is available from a Court on an application for judicial review, wit the added safeguard of judicial discretion and “costs”.) Otherwise expedition and finality would be seriously prejudiced.

6Thus, the Board does not consider the mere expression of an intent to file, or the actual filing of, an application for judicial review as sufficient reason to stay the statutorily mandated effect (i.e. the issuance of certificates) to an applicant that was successful in a representation vote. In the present case, the responding party has not asserted any extraordinary circumstances that would cause the Board not to issue certificates to the applicant. Accordingly, the responding party’s request that certificates not be issued to the applicant pending the outcome of its judicial review proceedings is hereby dismissed.

7In its decision dated June 22, 1998, the Board found the following bargaining unit to be appropriate for collective bargaining:

8On the taking of the representation vote held on November 30, 1999, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.

9Section 160(1) of the Act, which states as follows, provides for the issuance of more than one certificate if the applicant has the requisite support:

(1) The Board shall certify the trade unions on whose behalf an application for certification is brought as the bargaining agent of the employees in the bargaining unit if more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in favour of the trade unions. The Board shall issue one certificate that is confined to the industrial, commercial and institutional sector and another certificate in relation to all other sectors in the appropriate geographic area or areas.

Therefore, pursuant to section 160(1) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario and all journeymen and apprentice electricians and journeymen and apprentice linemen in the employ of Megatech Electrical Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.

10Further, pursuant to section 160(1) of the Act, a certificate will issue to the applicant trade union in respect of all journeymen and apprentice electricians and journeymen and apprentice linemen in the employ of Megatech Electrical Ltd. in all sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

11The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.

12The responding party is directed to post copies of this decision immediately, adjacent to the "Notice of Vote and of Meeting" posted previously. These copies must remain posted for a period of 30 days.

“John Morgan Lewis”

for the Board