0411-01-R Bricklayers, Masons Independent Union of Canada, Local 1, Applicant v. Bayview-Wellington Construction Inc., Responding Party.
BEFORE: Harry Freedman, Vice-Chair, and Board Members G. Pickell and A. Haward
DECISION OF THE BOARD; August 29, 2001
1The Board (differently constituted), by decision in this application for certification dated May 4, 2001 directed that a representation vote be held on May 8, 2001. That decision noted that the responding party had filed a response, had given notice under section 8.1 of the Act and had taken issue with the applicant’s assertion that the employer was actually Bayview-Wellington Construction Inc. and/or Bayview Wellington Homes Inc. The Board in that decision also determined that despite the section 8.1 notice, the numerical difference between the parties was not significant and that the applicant had established sufficient membership support to have a representation vote conducted and counted. The Board did not, however, comment upon or note that the responding party’s response had raised a preliminary objection to the Board considering this application on the grounds that an earlier application by LIUNA, Local 183 had been dismissed by the Board after a representation vote by decision dated September 28, 2000 in Board File No. 4395-98-R. The responding party, in its response, referred to the Board’s decision in Ganiva Construction Ltd. and submitted that the Board should dismiss this application without a vote based on section 10 of the Act.
2Following the release of that May 4, 2001 decision, counsel for the responding party, by letter to the Registrar dated May 7, 2001 again sought to have this application dismissed without a vote. That letter stated in part:
In the response filed by the Responding Party, I raised in Schedule “B” the issue of the application of Section 10 as it applies to this certification proceeding. It would appear from a reading of the decision of May 4th that the Board has not considered those submissions and particularly the request that the Board decline to consider the instant application as it is being brought within one year from the date the first application was dismissed. I would again refer the Board to the decision of Ganiva Construction Ltd. in Board File No. 0284-01-R and again request that the application be dismissed without a vote.
Counsel for the applicant by letter dated May 7, 2001 submitted that the Board should proceed with the vote as the issues raised by the responding party could be dealt with at a hearing. The Board did not comment upon those submissions and the vote proceeded on May 8, 2001 in accordance with the Board’s May 4, 2001 decision.
3Following the representation vote, counsel for the responding party, after having received the Certification Worksheet which listed the issues in dispute to be dealt with at the hearing (name of the employer, bargaining unit description and status of employees) stated in a letter to the Board dated May 17, 2001:
I acknowledge receipt of the Certification Worksheet dated May 8, 2001. I note in paragraph 6 of the said worksheet three items are listed as being necessary to be dealt with at a hearing. I have on two occasions sent out my submissions to the Board in relation to the Section 10(3) question. At no time has the Board acknowledged our position in this regard. The issue is still a live issue and accordingly, is not only one that must be dealt with, but must be dealt with as a preliminary matter in relation to whether this Application should be dismissed at the outset as being untimely.
4The parties advised by the Board, by letter from counsel for the applicant dated August 28, 2001, that they had agreed to have this matter listed for hearing with respect to the issue of whether the application is barred pursuant to section 10(3) of the Act. That letter also indicates that the parties would likely be able to resolve any other outstanding issues without a further hearing or meeting.
5It appears to us that the Board, by directing the vote in the face of the preliminary objection raised by the responding party based on section 10(3) of the Act, was following the approach the Board had taken shortly after the current section 10(3) of the Act came into force. The Board in Windsor Racetrack Slots, unreported decision dated January 17, 2001, Board File No. 2997-00-R, Q.L. cite [2001] O.L.R.D. No. 168 discussed at paragraphs 8 to 11 proceeding with a representation vote in the face of an objection based on section 10(3) of the Act arising from the dismissal of an earlier application for certification:
- The responding party submits that this application is barred by virtue of section 10(3) of the Act. Section 10(3), as amended by the Labour Relations Amendment Act, 2000, S. O. 2000, c. 38 (“Bill 139) which was proclaimed December 30, 2000, provides:
If the Board dismisses an application for certification under this section, the Board shall not consider another application for certification by any trade union as the bargaining agent of any employee that was in the bargaining unit proposed in the original application until one year after the original application is dismissed.
The responding party, in its response and in written submissions filed with the Board asserted that an application for certification made by the National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW Canada) (the “CAW”) had been dismissed by decision of the Board (differently constituted) dated July 25, 2000. The responding party submitted that the voting constituency in the CAW application related to substantially the same employees who come within the bargaining unit proposed by the applicant. While section 10(3) of the Act refers to the Board not considering another application for certification as the bargaining agent “of any employee that was in the bargaining unit proposed in the original application”, the only material provided to support the request that this application be dismissed without a vote refers to the agreed upon voting constituency in the earlier CAW application. It is not clear whether the agreed upon voting constituency reflected the bargaining unit proposed by the CAW in its unsuccessful application nor whether any of the employees in the applicant’s proposed bargaining unit were in the bargaining unit proposed by the CAW in its unsuccessful application.
Although section 10(3) of the Act does provide that the Board “shall not consider another application for certification” where the circumstances set out in that section exist at the time the subsequent application is filed, obviously the Board must determine whether those circumstances do exist before it can decide whether to “consider” the subsequent application. That determination is no different, in my view, then determining whether an applicant is a trade union within the meaning of section 1(1) of the Act or whether an application for certification has been filed within the time prescribed by sections 7 and 67 of the Act. In other words, only a trade union may apply for certification, an application for certification may only be made at certain times, and now, an application for certification shall not be considered if the circumstances described in section 10(3) existed at the time of the application. All of those elements might be viewed as conditions precedent to an application for certification proceeding, but they also may well involve complex factual and legal issues that must be resolved.
When the legislature amended section 10(3) of the Act by Bill 139, it did not amend section 8(5) of the Act which provides:
Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the date on which the application for certification is filed with the Board.
Bill 139 did not direct the Board to determine the issues affecting an applicant’s ability to bring an application in any particular order, unlike the more specific directions given to the Board about determining certain issues in a particular order found in section 8.1 of the Act. In the absence of any specific legislative direction that the Board must first determine whether the conditions in section 10(3) exist before making any other determination required of it in dealing with an application for certification, and in view of the specific requirement that the Board hold a representation vote within five days of the application, I am of the opinion that if the Board is satisfied that the requisite appearance of membership support exists, a representation vote should be directed and the issues about the applicant’s right to bring the application and whether the Board should consider the application may be dealt with following the representation vote.
- It is beyond dispute that a speedy representation vote in an application for certification that takes place within the time prescribed by section 8(5) serves one of the principal objectives of the Act found in section 2, paragraph 1, which states:
The following are the purposes of the Act:
- To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.
In my view, conducting a representation vote and then determining all of the issues raised by the parties in the application permits the wishes of the employees who were in the bargaining unit that is the subject of the application to be recorded around the time the application was filed and not at some future indeterminate point when there wishes might well be affected by the passage of time or the conduct of the parties. Having a representation vote quickly minimizes the disruption and uncertainty that would be occasioned by waiting weeks, months or even years for the resolution of what can be quite complex and difficult litigation. See for example, Penegal Trim & Supply Ltd., [2000] OLRB Rep. March/April 332.
6Therefore, having regard to the parties’ agreement with respect to how the Board should proceed with this matter and to the preliminary objection raised and maintained by the responding party from its receipt of this application, this matter is referred to the Registrar to be listed for one day hearing for the purpose of hearing the evidence and representations of the parties with respect to whether this application must be dismissed by reason of section 10(3) of the Act as a result of an earlier application for certification made by the Labourers' International Union of North America, Local 183 in Board File No. 4395-98-R that was dismissed by decision dated September 28, 2000.
7This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board