[1982] OLRB Rep. June 954
2529-81-R International Association of Machinists and Aerospace Workers, Applicant, v. Sonora Cosmetics Inc., Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members M. J. Fenwick and W. H. Wightman.
DECISION OF THE BOARD; June 11, 1982
This is an application for certification. It is the second such application involving these parties. The first was filed on February 11, 1982, and was scheduled for hearing on March 5, 1982; but on the day fixed for the hearing, the applicant union requested in writing that it be granted leave to withdraw the application. By a decision dated March 8, 1982, the Board acceded to that request.
The second certification application was filed on March 5, 1982, and relates to the same group of employees. It was set down for a hearing on April 16, 1982, but once again, the applicant union seeks leave to withdraw. The circumstances of the second application, certain allegations as to what transpired on the day fixed for hearing, and the respondent's submissions as to the appropriate disposition of this case, are all contained in its letter dated May 4, 1982. That letter reads as follows (note that in paragraph 3 thereof, the respondent has incorrectly stated the date on which the application was made):
“On February 11, 1982 the applicant submitted an Application for Certification with respect to the Production employees of the respondent Sonora Cosmetics Inc., Board File 2338-81-R. The terminal date of said application was February 22, 1982 and it was scheduled for hearing before the board on May 5, 1982. The respondent replied to the aforesaid application in accordance with the provisions of the Act and Regulations and posted notices accordingly.
On March 5th the application was placed before an Officer of the Board and at that time the applicant requested leave to withdraw the said application. The Board issued final decision on the matter on March 8, 1982 and a copy of a decision was forwarded to the respondent by letter dated March 10. 1982.
On March 11, 1982 the applicant filed another application to represent the same group of employees of the respondent, Board File 2529-l-R. The terminal date for this application was March 19, 1982 and the application was originally scheduled to be heard on March 26th. On request of the applicant, the hearing date was deferred to April 16, 1982. On that date the application was brought before a Board Officer at which time the applicant and respondent were advised that the application before the Officer was ‘as if the application was being formally heard by the Board’. In the processing of the application, the Officer determined that the applicant was in neither a certifyable [sic] position nor entitled to a vote. The Officer further advised the parties that the application would be dismissed. At that point, the representatives for the respondent requested that a bar be placed on further applications in accordance with Section 103, subsection 2(i) of the Labour Relations Act. This request was made in view of the fact the employees had been subjected to two applications within a very short period of time. The parties were advised and assured by the Officer that the request by the respondent was unnecessary and that the bar would be imposed. The representative for the applicant did not object to the request for the bar by the respondent or the statements by the Officer that a bar to further applications would be imposed.
I have been subsequently advised by the Officer that the bar referred to above would not be imposed and that the representations of the Officer were incorrect. The Officer further requested that the respondent make representations to the Board on this matter. The respondent hereby requests that the normal bar be placed on future applications to provide for a normalization of working conditions and atmosphere for the employees. This request is based on the following factors:
(1) That the employees have been subjected to an atmosphere of certification from the commencement of the organization drive from January, 1980 until April 16, 1981, during which time they have been subjected to the posting of two notices of applications.
(2) The representations of a Board Officer that a bar would apply.
(3) The fact that the representative of the applicant did not object to the respondent's request for a bar and or the Board Officer's statement that a bar would apply.
The respondent hereby requests that this letter be placed before the Board and that the respondent be given further opportunity to make representations regarding the placement of a bar in accordance with Section 103, subsection 2(i) of the Labour Relations Act.”
Thus, this is the second certification application which the applicant has made within a short period of time, and for this, and the other reasons set out in the respondent’s letter, the respondent requests the Board to exercise its discretion under section 103 of the Act to bar a further certification application. The effect of such bar, of course, would be to prevent the respondent's employees for a period up to ten months, from seeking to engage in collective bargaining through the applicant as their bargaining agent.
- The purpose of the Labour Relations Act is to encourage the practice and procedure of collective bargaining, and certification provides a mechanism whereby a union can become established as the employees' bargaining agent. Where there is no subsisting collective bargaining relationship, an application for certification can generally be made at any time (see section 5). Section 103 provides a limited temporary bar to the exercise of statutory rights where the Board, in its discretion, considers it advisable; however, the Board has been reluctant to exercise that discretion where the employees have not had the opportunity to express their wishes concerning trade union representation in a Board supervised reprersentation vote. In Repac Construction and Material Limited, [1978] OLRB Rep. Jan. 91 at 94 the Board summarized its approach to section 1 03(2)(i) (then section 92(2)(i) as follows:
“As a general principle the Board is quite reluctant to either bar, or refuse to entertain, a subsequent application for certification filed by a previously unsuccessful applicant. Indeed, such action is usually only taken either where employee desires have been tested by a representation vote in which the union failed to receive sufficient support to be certified (See: Campbell Soup Company Ltd., 1976) OLRB Rep. Feb. 1091), or where the union has sought to avoid an unfavourable vote result by withdrawing its application following the ordering of such a vote. (See: Mathias Ouellette 56 CLLC ¶118,026). Exceptional circumstances may, however, also lead to the Board invoking the provisions of section 92(2)(i) in other situations. The leading example of this is the J. W. Crooks Company case, [1972] OLRB Rep. Feb. 126, where ‘in light of the special and extreme circumstances confronting the Board’, namely four unsuccessful applications for certification made by the same applicant in a little over three months, the Board imposed a six month bar on any future applications by the same applicant. In its consideration of any request pursuant to section 92(2)(i), the Board, concerned that the wishes of employees be given effect to, has always been careful not to use its authority under that section merely to punish an unsuccessful applicant union, even in those instances where the union may have engaged in previous irregular or improper conduct. (See Fruehauf Trailer Company of Canada Limited [1974] OLRB Rep. Jan. 6.).”
(To the same effect, see: Patchoque Plymouth Hawkesbury Mills [1972] OLRB Rep. Nov. 794; Bernardine of Canada Limited Board File 1 437-75-R, decision dated January 26, 1976, -unreported; and Mor-Alice Construction Limited [1977] OLRB Rep. Oct. 668.)
In exercising its discretion under section 103, the Board has not been blind to practical (or tactical) realities of the situation. A certification proceeding may appear very straight-forward to an experienced labour law practitioner, familiar with the Board's rules, policies, and jurisprudence, but to a layman or a union official who does not regularly appear before the Board, the certification process may not seem so simple. In the Board's experience, it is neither unusual nor particularly surprising that from time to time, certification applications have to be withdrawn, or are dismissed because they are not properly launched or supported in accordance with the Act and Rules. But this fact alone does not justify the imposition of a bar to a further exercise of the employees’ statutory rights, nor does the Board’s established practice of permitting such applications seriously inconvenience the employer. No doubt, if the union tries again, the employer must file a new employee list and post new notices on its premises advising employees of the pending application for certification. However, this is a minor inconvenience, which must be carefully weighed against the result of prohibiting employees from making any application at all. Moreover, the Board is well aware of the potential effect on the momentum of the union's organizing campaign if employees who have joined a union and indicated their desire for collective bargaining are prohibited from realizing this goal for as much as ten months. Unless there are exceptional circumstances which warrant prohibiting employees from proceeding with their attempt to organize (the J. W. Crooks Limited involved four unsuccessful applications in three months), the Board has been relatively lenient in imposing a bar under section 103. We are aware of no cases, nor did the respondent refer to any, where the Board has imposed a bar after the second unsuccessful application - especially where, as here, neither application ever matured into an actual hearing before the Board, and the employer is in the Toronto area so that there would be no serious inconvenience in attending at the Board offices on the day fixed for the hearing.
We have carefully considered the submissions of the respondent and find nothing in them which would prompt the Board to depart from its usual practice in circumstances such as those here present. The respondent requests the application of the "normal bar", but as is apparent from the cases to which we have already referred, there is no bar "normally" imposed on a second unsuccessful certification application, unless the employer can demonstrate exceptional circumstances warranting it. None are apparent here, nor has the respondent adverted to any in its submissions. The respondent alleges that in discussions with a Board officer on this, the second certification application, the officer suggested first that a bar would be imposed, then, subsequently indicated that it would not follow in the oridinary course, and that the respondent should make written submissions on the matter. Those submissions were then made as noted above. Assuming, without finding, that the Board officer initially stated the established Board policy incorrectly, and later rectified that error by informing the respondent that the imposition was a matter for the Board's discretion to which submmissions should be directed, we are still not satisfied that in the circumstances of this case a bar should be imposed. Nor do we see any necessity for a further hearing in this matter. The respondent has been extended an opportunity to make submissions as to why a bar should be imposed, and there is nothing in those submissions which would prompt the Board to exercise its discretion to do so. A further hearing would therefore be superfluous.
Having regard to the foregoing, this application for certification is dismissed; but, in the circumstances, the Board sees no reason why it should exercise its discretion under section 103 of the Act to impose a bar to a further certification application. In so finding, however, the Board notes that it might well impose a bar after a third unsuccessful application, and if the union's membership evidence has not been collected within six months of the new application date, the Board may exercise its discretion to direct the taking of a representation vote even if the nominal employee support for the union exceeds the 55% level which would otherwise entitle the union to certification without recourse to a representation vote.