United Food and Commercial Workers International Union v. Hostess Food Products Limited, 1980 CanLII 961

[1980] OLRB Rep. May 710

2155-79-R United Food and Commercial Workers International Union, A.F.L., C.I.O., C.L.C., (Applicant), v. Hostess Food Products Limited, (Respondent), v. Group of Employees, (Objectors).

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members G. Bourne and M. J. Fenwick.

APPEARANCES: James K. A. Hayes, Vincent Gentile and Julius Hobeink for the applicant; C. G. Riggs, A. Johnson and D. King for the respondent; Stephen W. Peglar and A. Crowder for the Objectors.

DECISION OF THE BOARD; May 14, 1980

1. This is an application for certification. By a decision dated, March 21, 1980 the Board established the applicant's status as a trade union, determined a unit of employees appropriate for collective bargaining, and found that more than 55% of the employees in that unit were members of the applicant on the terminal date (February 28, 1980) fixed pursuant to Sections 7 and 92(2)(j) of The Labour Relations Act. There was also before the Board a "petition", signed by a number of employees who object to the applicant's certification. The representative of these objecting employees advised the Board that, since the filing of the original petition (which was filed by the terminal date) two other employees have decided that they also wish to oppose the union. He sought to introduce two handwritten statements to this effect, and requested the Board to treat these statements as if they had been part of the original petition. Essentially, the representative of the objecting employees was asking for an extension of the terminal date for the purpose of admitting two statements of objection which would otherwise be untimely. It is clear that unless the Board is satisfied that the terminal date should be extended, the trade union will be entitled to certification without recourse to a representation vote.

2. The terminal date in the instant case was set by the Registrar, pursuant to Section 2 of the Board's Rules of Procedure (R. R. 0. 551 as amended):

"2. When an application is made, the registrar shall fix a terminal date for the application which shall be not less than five and not more than ten days, as directed by the Board, after,

(a) the day on which the registrar serves the employer with the notice of application for posting, where they are served personally; or

(b) the day immediately following the day on which the registrar mails the notices of application to the employer for posting, where they are served by mail." [emphasis added]

The documents relating to the application were mailed to the respondent on Thursday, February 21, 1980 and the terminal date was fixed at February 28, 1980. These documents included three copies of the "Form 5-Notice to Employees", which were to be posted in conspicuous places where they were most likely to come to the attention of the employees affected by the application. The form 5 notice, or "green sheet", contains the following:

"3. The terminal date fixed for this application as directed by the Board is the 28th day of February, 1980.

4. Any employee or group of employees affected by the application and desiring to make representations to the Board in opposition to this application must send to the Board a statement in writing of such desire, which shall,

(a) contain the return mailing address of the employee or representative of a group of employees;

(b) contain the name of the employer concerned; and

(c) be signed by the employee or each member of a group of employees.

5. The statement of desire must be,

(a) received by the Board not later than the terminal date shown in paragraph 3; or

(b) if it is mailed by registered mail addressed to the Board at its office, 400 University Avenue, Toronto 2, Ontario, mailed not later than the terminal date shown in paragraph 3.

6. A statement of desire that does not comply with paragraphs 4 and 5 will not be accepted by the Board."

7. Form 5 advises the employees of the relevant portions of Rule 48 of the Board's Rules. These provisions of Rule 48 are as follows:

"48. -(1) Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a declaration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i) the return mailing address of the person who files the evidence, objection or signification, and

(ii) the name of the employer; and

(b) is filed not later than the terminal date for the application.

(2) No oral evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection 1."

4. The requirements of Rule 48 are mandatory. Unless the evidence of membership in, or objection to, the union is filed in a timely fashion, the Rule provides that it "shall not be accepted." The Board has the power to vary the terminal date pursuant to section 57(2) of the Rules, however this is not a power which should be exercised lightly. It is essential that there be one clear point in time, at which the board can ascertain the views of the employees, and make the determinations required by section 7 of The Labour Relations Act. This is done by fixing a terminal date pursuant to section 92(2)(j) of the Act, (see R. v. O.L.R.B. Ex Parte Hannigan, (1967), 1967 CanLII 205 (ON CA), 64 D.L.R. (2d) 117 (OCA)) and clearly advising all of the parties that material must be filed by that date.

5. If applications for certification are to be dealt with expeditiously and equitably, it is important that the terminal date provide a firm benchmark for all of the parties affected by the application; although this does not mean that the terminal date is entirely inflexible. In exercising its discretion to extend the terminal date the Board has adopted an approach which is sensitive to the particular circumstances of the case. In Kilean Lodge Incorporated [1977] OLRB Rep. April 240 the Board commented:

"The Board's approach in such cases has been to avoid fixing any rigid formula to determine whether the employees in any given application have been given adequate notice. Where a request for an extension of the terminal date is made the Board prefers to assess the merits of each request in the light of the particular fact surrounding it. Among the things the Board takes into account are:

1. The number of days the notice was posted.

2. The manner in which it was posted, including the frequency of locations of posting on the respondent's premises and whether it was sent to employees individually by mail.

3. The number of employees in the bargaining unit and the frequency of their presence on the premises during the time of posting, having particular regard to shifts and days off.

4. Whether any delay in posting is attributable to the employer.

5. Whether the request for an extension is made by the employer alone or by a group of employees. This may be especially relevant where employees have made no request for an extension of time and posting was delayed by the employer's own conduct.

(see, generally: Lanark Mills Ltd. [1965] OLRB Rep. Aug. 356 Joesug Realty Ltd. [1966] OLRB Rep. July 278; The Breithaupt Leather Company Limited [1966] OLRB Rep. Dec. 734; Dominion Sport-Service Limited [1967] OLRB Rep. June 266; J.H. McNairn Limited [1973] OLRB Rep. Feb. 90)."

6. The union's organizing campaign took place in the weeks immediately preceding the certification application. The respondent was aware of that campaign and posted at least three notices (dated February 14, February 15, and February 19,) setting out its views, and explaining the certification process and the "qualifying percentages" needed for a representation vote, or "automatic certification". The notices were posted adjacent to the employees' coffee machine, and managerial personnel directed the employees' attention to them. The Form 5 notice was posted on February 25, 1980 in the same location. As the employees were coming in to work the following morning, managerial personnel specifically directed them to read it. Roger Sanche and Jack Boot, (the two employees who subsequently registered a "late" objection) testified that they had a full opportunity to read the form, and had in fact done so. Sanche acknowledged that he knew the form was from the Labour Relations Board, and dealt with the union's certification — although he may not have read it carefully.

7. In response to the Form 5 notice, Allan Crowder drafted a petition in opposition to the union, and began to solicit signatures. Crowder testified that he approached almost all the respondent's 23 employees, including Boot and Sanche. We are satisfied that Crowder had ample opportunity to canvas the employees, and solicit the support of those who objected to the union. Both Boot and Sanche were aware of Crowder's activities, although neither signed the petition at that time. Crowder also spoke to Sanche about the union by telephone on the evening of February 27.

8. As he was soliciting signatures, Crowder carried a copy of the Form 5 notice with him. Crowder asked each individual whether he was in favour of or opposed to the union s certification. If the employee indicated his opposition, Crowder showed him the Form 5 notice, and asked him to sign the petition. The petition was properly filed by the terminal date, as was all of the union's membership evidence. The letters of opposition from Sanche and Boot were written on March 10, 1980, and were presented at the hearing on March 14th. Neither Boot or Sanche were present for the hearing on that date.

9. On the basis of the evidence before it, the Board is satisfied that it should not exercise its discretion under section 57(2) of the Rules to extend the terminal date. It is evident that the employees on whose behalf such request is made had a full opportunity to read, and did in fact read, the Form 5 notice. Both individuals had the opportunity to sign Mr. Crowder's petition, and thereby record their opposition to the union in a timely fashion. A number of their fellow employees did so. In the circumstances of this case we do not think it is necessary to extend the terminal date for the sole purpose of admitting an otherwise untimely statement of objection. Accordingly, having regard to the timely evidence of membership in, and objection to the trade union the Board is satisfied that more than 55% of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on February 28, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

10. The Board declines to exercise its discretion to order a representation vote.

11. A certificate will issue to the applicant.

12. It should be noted that Board Member C. G. Bourne concurs in the result, but may issue a separate opinion or supplementary comments at a later date.