Universal Workers Union, Labourers’ International Union of North America, Local 183 v. Robinson Adams Overhead Doors Inc.
File No.: 2048-01-R Date: November 20, 2001
Applicant: Universal Workers Union, Labourers’ International Union of North America, Local 183 Responding Party: Robinson Adams Overhead Doors Inc.
Before: Harry Freedman, Vice-Chair and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD
1The responding party made this application for reconsideration of the Board’s decision dated October 26, 2001, in which the Board directed a representation vote and in the course of doing so, found that the responding party’s notice under section 8.1 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as am. (the “Act”) was irrelevant. It wishes to have the Board find that there remains a section 8.1 dispute that may be material to this application.
2Despite the Board having found the section 8.1 notice irrelevant, the Labour Relations Officer conducting the representation vote quite properly segregated each of the 17 ballots cast and sealed the ballot box.
3The responding party seeks reconsideration on the grounds that the Board misapprehended its position in its response. The responding party in schedule B to the response took the position that the application for certification should be dismissed without opening the ballot box for three reasons:
a) all of the individuals performing the installers work are independent contractors;
b) the work being done by the individuals engaged in the installation of overhead doors is actually work covered by the ironworkers’ jurisdiction; and
c) the applicant claimed that there were 14 individuals in the bargaining unit on the application date while the responding party asserted that there were only nine independent contractors working on that date and therefore requested that the Board “carefully scrutinize the membership evidence to ensure that it actually represents 40% of the bargaining unit.”
4The Board in its October 26, 2001 decision dismissed item b) as a reason for dismissing this application for certification and the responding party, quite sensibly, takes no issue with that element of the Board’s decision.
5The Board noted in its October 26th decision that although the responding party took the position that there were no employees in the bargaining unit as they were all independent contractors, the responding party did submit at paragraph 4 of its response that there were 9 employees in the bargaining unit. The Board viewed the responding party as taking two alternative positions in its response, something that it is certainly entitled to do.
6The responding party, however, in its application for reconsideration submits “that it did not make clear to the Board that one of its positions would be that some or all of the individuals in the unit proposed by the applicant were independent contractors, and were not employees for the purposes of collective bargaining.” The response made no reference whatever to the possibility that some of the individuals affected by this application might be employees while others might be independent contractors. Indeed, had the responding party done so there is a real question as to whether taking that position would have rendered its section 8.1 notice invalid. Section 8.1(2)(b) of the Act requires the employer to provide its “estimate of the number of individuals in the bargaining unit described in the application for certification” in its section 8.1 notice. We have considerable doubt as to whether the estimated number contemplated by section 8.1(2)(b) of the Act can be a range between 0 and 9 as the responding party seems to suggest, but we do not need to decide that point at this time.
7The responding party in its request for reconsideration submits that the Board dismissed the section 8.1 objection based “on the fact that either all nine individuals were in the bargaining unit, or no one was in the bargaining unit.” The Board found that the section 8.1 notice was not relevant on the basis that the employer’s principal position was that there were no employees in the bargaining unit and also on the basis that the numerical difference between the parties was not material to the application once the Board compared the membership evidence provided by the applicant as against the information provided by the responding party. In other words, the applicant had filed membership evidence on behalf of more than 40% of the individuals the responding party had listed, apparently in the alternative, as being employees in the bargaining unit on the application date.
8The applicant relies on the Board’s decision in Toronto Star Newspaper Limited, [1999] OLRB Rep. March/April 352 to submit that the Board should reserve its section 8.1 determination in circumstances where some but not all of the challenged individuals may be excluded from the bargaining unit. In the Toronto Star Newspaper Limited case, the Board reconsidered its direction with respect to sealing the ballot box based on the challenges to the status of the individuals on the list. The Board did not, contrary to the submission of the responding party, reconsider its decision not to seal the ballot box under section 8.1. See paragraph 23 of the decision where the Board indicated it was sealing the ballot box due to the number and variety of status disputes that had been raised. The Board, after undertaking a thorough analysis of section 8.1, said at paragraph 21 of the decision that it “would not seal the ballot box on account of the provisions of section 8.1 of the Act.”
9The ballots cast in the representation vote held pursuant to the Board’s October 26th decision were individually segregated and the ballot box was sealed because there is a dispute over whether the individuals the applicant claims were working in the bargaining unit on the application date were employees of the responding party. The segregation and sealing of the ballot box was not required by section 8.1 of the Act, but rather resulted from the challenges made by the parties to the persons who cast ballots at the representation vote. Whether any or all of those ballots should be counted will depend on the determination made about the status of the individuals in dispute.
10The actual outcome of the status disputes cannot, in our view, affect the Board’s decision about whether the responding party’s section 8.1 notice is irrelevant since the Board makes that initial determination before ordering the representation vote based on the material in the application and the response. See Toronto Star Newspaper Limited, supra where the Board discussed Bill 31 and the introduction of section 8.1 into the Act in at pages 355-56:
Bill 31 prevents a union which does not actually have more than 40 percent support in its proposed bargaining unit from being able to enjoy the benefits of a representation vote. Bill 31 achieves this purpose by requiring the sealing of representation ballots in circumstances in which doubt is created by the information provided in the response as to whether the union has the requisite initial support. There is no delay in the holding of quick representation votes ‑ that is the reason why the decision to hold a representation vote is still founded completely upon the information contained in the union's application. In other words, the legislature did not seek to have the resolution of any disputes between the parties as to the number and identity of employees in the bargaining unit determined by the Board as a condition precedent to the holding of a representation vote….
…There is no need to seal the ballot boxes in certification applications where there may be a dispute about precise numbers, but no issue that the applicant has the requisite actual support….
The Board will generally not seal the ballot box in cases where the difference between the union's estimate of the number of employees in its proposed bargaining unit and that provided by the employer is not numerically significant and if the union's proposed bargaining unit (under subsection 8.1(5) paragraphs 3 and 4) "could be" appropriate for collective bargaining. The representation vote will proceed and be counted soon afterwards.
The Board will seal the ballot box in circumstances in which the mischief which Bill 31 sought to eliminate is present. Thus, as occurs in some cases, if the difference between the union's estimate and the employer's estimate is numerically relevant, or if there is significant doubt as to whether the union's proposed bargaining unit could be appropriate, then the representation vote will proceed (if the union has over 40 percent membership evidence in respect of its estimate), but the ballot box will be sealed until the actual determination of the number of employees in the union's proposed “could be” bargaining unit (or, if the union's proposed unit could not be appropriate, in the appropriate unit ultimately determined by the Board under section 9) has been made and the union's membership evidence has been compared to the list of employees within that unit.
11The Board determined in its October 26th decision in this matter that the difference between the applicant’s and responding party’s estimate was not numerically relevant (based on the alternative submission of the responding party as to the number of employees in the bargaining unit and the degree of membership support for the applicant among those individuals) and that the applicant’s proposed bargaining unit not only “could be appropriate” but rather was “appropriate” as indeed the responding party agreed to the applicant’s description of the proposed bargaining unit. Therefore, the Board concluded that the responding party’s section 8.1 notice was irrelevant.
12There is nothing that the responding party has submitted in its application for reconsideration that persuades us to reconsider our decision. This application for reconsideration is dismissed.
“Harry Freedman”
for the Board