[1985] OLRB Rep. December 1780
1937-85-R Ontario Public Service Employees Union, Applicant, v. Mount Sinai Hospital, Respondent
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members F. C. Burnet and W. F.
Rutherford.
DECISION OF THE BOARD; December 19, 1985
- This is an application for certification in which the applicant requested that the Board conduct a pre-hearing representation vote. In accordance with the Board's usual practice, it appointed a Labour Relations Officer to meet and confer with the parties concerning matters in issue between them in this application, examine the records of the applicant and the respondent to determine membership support and attempt to resolve the description of the voting constituency and list of employees in that voting constituency as of the terminal date for the purposes of any pre-hearing representation vote which might be conducted. In the course of that meeting, the applicant's representative filed with the Labour Relations Officer a written request for leave to withdraw this application. The respondent's representative advised the officer that the respondent opposed the request for leave and would be asking the Board to exercise its discretion under section 103(2)(i) of the Labour Relations Act, which gives the Board the power
(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing such employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application;
- The respondent's position is set out succinctly in its counsel's letter of November
21, 1985. The relevant portions of that letter are these:
It is the Hospital's position that the Board ought to bar the Applicant from further applications dealing with the same or substantially the same group of employees for at least six months, pursuant to s. 103(2)(i) of the Labour Relations Act. Alternatively, the Board ought to issue a caution to the Applicant that in the event that it brings a new application within six months, it will bear the onus of establishing that special circumstances exist to warrant the new application being heard.
It should be noted that O.P.S.E.U. has brought two applications in the past to certify this same group of employees, most recently in 1982 (O.L.R.B. File No. 1079-82-R). There can therefore be no suggestion that the Applicant in the present matter was uncertain as to the composition of the appropriate unit, or as to any related issues.
Rather, it appears that the Applicant is improperly utilizing the certification process as a form of discovery. Our position is that the Board ought to discourage such misuse by imposition of a bar.
Alternatively, the Board jurisprudence indicates that a bar may be imposed where the Union seeks to avoid an unfavourable vote by withdrawing an application after a vote has been directed. Admittedly, the [Labour Relations Officer] had not yet ordered a vote by the time that the present request to withdraw was made. Nonetheless, surely the decision as to whether or not a bar is to be imposed ought not to be predicated merely on the timing of the withdrawal. Rather, the circumstances behind the request must be examined.
In the present case, where the Applicant ought to have already been familiar with the circumstances, one can only assume that the withdrawal was precipitated by the applicant's realization that it had insufficient support for a successful application. Surely it should not be able to avoid a bar by withdrawing its application at this stage, when it would have likely faced a bar if it had merely waited until the vote was directed. We submit that the problem to be remedied is the same in each case, and thus a bar should be imposed.
- As the Board's Practice Note No. 7 indicates, if a pre-hearing representation vote has been requested in a certification application and a labour relations officer has met with the parties, a request by the applicant for leave to withdraw the application will generally be refused, and the application will be dismissed, unless the opposing parties consent to its withdrawal. The distinction between granting leave to withdraw and simply dismissing the application without determining any of the issues raised by it is, perhaps, more symbolic than substantial. If there has been no adjudication of the merits, it cannot be said that any issue has become res judicata as a result of the dismissal; the question of importance is then whether and to what extent the Board will exercise its discretion under subsection 103(2)(i) as a result of the dismissal. That question was addressed in The Bristol Place Hotel, [1979] OLRB Rep. June 486, at paragraph 6:
When a representation vote has been held and the applicant has failed to gain the membership support required, the Board will dismiss the application and impose a bar on future applications, generally for a duration of six months. Amongst its reasons for so doing are: to provide a cooling off period during which the employees may assess their position with respect to their desire to be represented by the applicant (see The Warson Manufacturing Company of Paris Limited, [19681 OLRB Rep. Aug. 441); or because the Board does not consider repetitious applications where the membership evidence has been fully tested by a vote to be in the interest of sound labour relations (see Campbell Soup Company Ltd., [19681 OLRB Rep. Feb. 1091). Whether the Board will exercise its discretion and impose a bar in situations where it dismisses an application, following a request for leave to withdraw, depends upon the particular circumstances of that application. If, for example, while the parties to an application for a pre-hearing representation vote are meeting with a Labour Relations Officer to arrange the vote the applicant seeks to withdraw an application because it appears that the applicant has the support of less than thirty-five per cent of the members in the voting constituency, a bar will not be imposed. Similarly, if a request is made prior to the direction of the vote,. the Board will not impose a bar. When a representation vote has been directed, but not held, and the applicant seeks leave to withdraw its application, the Board will dismiss the application without imposing a bar. It will, however, draw the attention of the parties to the Mathias-Ouellette decision. (In this respect see the Board's practice note #7 item 6 in its Rules of Procedure.) This has the effect of putting an applicant on notice that a future application made within six months could be barred if the applicant has been motivated to seek the withdrawal by fear of an election defeat. When, however, the request is made following the vote, the Board will impose a bar. In that situation, absent any special circumstances, the Board holds that a trade union should not be permitted to avoid the risk of defeat inherent in a representation vote.
The Board's approach to a "subsequent application" by a previously unsuccessful applicant
was also described in Repac Construction & Materials Limited, [1978] OLRB Rep. Jan. 91,
at paragraph 7:
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 18,026). Exceptional circumstances may, however, also lead to the Board invoking the provisions of section 92(2)(i) [now 103(2)(i)] in other situations. The leading example of this is the J. W Crooks Company case, [1972] ORLB 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) [now 103(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.).
It does not appear that the respondent relies on the mere existence of previous unsuccessful applications as warranting imposition of a bar upon the dismissal of this one. It is apparent from the Board's jurisprudence that the last of a series of unsuccessful applications will be dismissed with a bar only where the applications in question have all been brought within a period of a few months: Campbellford Memorial Hospital, [1978] OLRB Rep. Aug. 722, Sonora Cosmetics Inc., [1982] OLRB Rep. June 954, St. Joseph's Hospital, [1984] OLRB Rep. Apr. 651 and St. Joseph's Hospital, [1984] OLRB Rep. Sept. 1264. That is not the case here.
The Board's jurisprudence does indicate that it may exercise its discretion under section 103(2)(i) when an applicant for certification has sought to withdraw the application after a vote has been directed and before the vote is held, if it appears that the trade union anticipated defeat in the representation vote and sought to escape the bar which would have been the consequence of defeat: Mathias Ouellette, 56 CLLC 18,026. It is also clear that the Board does not impose this bar automatically at the time of the dismissal if a vote has not actually been conducted. Rather, the propriety of a subsequent application within the six month period thereafter is considered only if and when such an application is filed: Mathais Ouellette, supra; Fruehauf Trailer Company of Canada Limited, [1973] OLRB Rep. Oct. 547. If such an application is filed in that period, the onus is said to lie on the applicant to show that special circumstances exist which would warrant the new application being entertained at that time. Because such an onus does arise in those circumstances, the Board's practice when leave is sought to withdraw an application after a vote is directed is to dismiss the application and draw the parties' attention to the Board's decision in Mathias Ouellette, supra. That is what we would do here if we accepted the respondent's argument that the applicant's request to withdraw this application should be given the same treatment as it would have been given if made after a pre-hearing vote had been directed.
A vote had not been directed at the time the applicant made its request to withdraw. The respondent argues that this is a mere matter of timing, and says the circumstances must be examined to determine whether the motivation was to avoid an unfavourable vote. The difficulty with the respondent's argument is the implicit assumption that a vote by the affected employees was inevitable and, further, that the union knew it was inevitable. No such assumption is necessary when a vote has been directed. When a union's request to withdraw is made after a vote has been directed, a (rebuttable) inference that it expects defeat naturally arises because then, to the union's certain knowledge, no legal requirement other than success in the vote stands in the way of certification. That cannot be said before a vote is directed, and thus no such inference can be drawn, without first determining both that a vote would inevitably have been directed and that the union knew this was so at the time it requested leave to withdraw. That determination would require, in effect, that the Board complete the adjudication of an application which the applicant does not wish to pursue, for the sole purpose of determining who shall bear the burden of proof under subsection 103(2)(i) in the event the applicant applies again within six months. Whether or not it makes any sense to engage in what could amount to the full adjudication of a previous application in order to deal with a preliminary objection to the Board's adjudicating a subsequent application, it certainly makes no sense to do so before any subsequent application is filed. Because such an adjudication would be required before the burden of proof described in Mathias Ouellette could fall on the applicant, it would be inappropriate for us to warn the applicant that it will bear such an onus.
In the result, we propose to and hereby do no more than dismiss this application.