[1985] OLRB Rep. December 1737
1705-85-R Olga York, Applicant, v. Service Employees Union, Local 183, Respondent, v. Gardiner's Supermarket Limited, Intervener
BEFORE: N. B. Satteifield, Vice-Chairman, and Board Members F. W Murray and S 0'Flynn.
APPEARANCES: Olga York, Judy Dainard, Harry Williams and Melvin Kleinsteuber for the applicant; G. Charney, Q. C., D. Burshaw, W. Love and Cindy Willsie for the respondent; K.W. Kort and G. Gardiner for the intervener.
DECISION OF THE BOARD; December 10, 1985
I. This application for a declaration to terminate the bargaining rights of the Service Employees Union, Local 183 ("the union") came before the Board for hearing on December2, 1985. The Board received submissions from the parties on some preliminary issues, including a motion by the union that the application was not timely and ought to be dismissed. TheBoard rendered the following oral decision at the hearing:
For reasons which will be given later in writing, the Board finds this application to be a timely application for a declaration to terminate the bargaining rights of the respondent trade union for the employees of the intervener in two separate bargaining units, one of full-time employees and the other of part-time employees. Since proper notice of the application and this hearing has not been given to the parties with respect to the unit of part-time employees, the Board hereby adjourns these proceedings and extends the terminal date of the application to December 12, 1985, in order that new notices may be served on the parties.
The Board confirmed its oral decision in a written one which also issued December 2nd, 1985. That decision contained the following directions:
… the Registrar is directed to extend the terminal date of this application to December 12, 1985 and serve on the parties new notices of the application and hearing into it in the manner and form prescribed by the Rules of Procedure under the Act. The application is to be scheduled for hearing in Belleville, Ontario, on February 3rd and 4th, 1986 and, if necessary, continuing on February 18th, 1986 in Belleville, Ontario.
The decision herein sets out the Board's reasons for its oral decision.
- It is undisputed that the union is the exclusive bargaining agent for two separate bargaining units of employees of Gardiner's Supermarket Limited ("the employer") at Picton, Ontario. The union and the employer take the position that those units are described in the recognition clauses of separate collective agreements between them, both of which expired on September 30, 1985. The applicant did not take any position on whether there are one or two collective agreements. Whether the document which the parties are relying on is in fact one or two collective agreements, it supports their agreement that there are two separate bargaining units. Clause 2.01 of Article 2 - Scope and Recognition of the main part of the document describes the unit of full-time employees in the following manner:
The Employer recognizes the Union as the exclusive bargaining agent for all employees of Gardiner's Super Market Limited at Picton, Ontario, save and except grocery manager, persons above the rank of grocery manager, office and clerical staff, persons regularly employed for not more than twenty four (24) hours per week and students employed during the school vacation period.
Clause 1.01 of Article 1 - Recognition in Schedule "B" of the document describes a unit of part-time employees as follows:
The Employer recognizes the Union as the exclusive bargaining agent for all employees of Gardiner's Super Market in Picton, Ontario regularly employed for not more than twenty four (24) hours per week and students employed during the school vacation period save and except Grocery Manager, persons above the rank of Grocery Manager, office and clerical staff.
- The pleadings filed prior to the hearing reveal the following sequence of events:
(1) On September 19th, 1985 a Form 17 "Application for Declaration Terminating Bargaining Rights" was filed with the Board. It names as applicant "Gardiners Supermarket Ltd. Employees". Paragraph 3 of Form 17, which requests a detailed description of the unit of employees for which the union is bargaining agent, including the municipality or other geographic area affected, is completed as follows: "Gardiners Village Centre, Gardiners Supermarket Ltd. (I.G.A.) Main Street, Picton, Ontario.". Paragraph 4 has been completed to show that there were approximately 38 employees in the unit so described. The form is signed for the applicant by "Olga York". The form was accompanied by a covering letter dated September 19th, 1985 bearing the same signature "Olga York" as the form followed by "& Employees of Gardiners Supermarket Ltd.". The first paragraph of the letter reads as follows:
Enclosed you will find a copy of signatures from the staff of Gardiners Supermarket Ltd. which is a petition to decertify the Service Employees Union Local 183. Also enclosed you will find a list of full and part-time employees.
A petition bearing 32 signatures and two separate lists of employees names, one identified as full-time and the other as part-time, were included with the covering letter.
(2) On October 8th, 1985, the Board received by certified mail postmarked October 4th, 1985, an undated letter from Olga York signed in the same manner as the September 19th letter, the text of which is as follows:
In response to our telephone conversation on Sept. 25/85 I am sending a list of amendments you require.
Applicant is Olga York.
Applicant applies to Ontario Labour Relations Board under section 57(2a). #3 Detailed description of the unit of employees for which the respondent is the bargaining agent is:
The Employer recognizes the Union as the exclusive bargaining agent for all employees of Gardiners Super Market Ltd., at Picton, Ontario, save and except grocery manager, persons above the rank of grocery manager, office and clerical staff, persons regularly employed for not more than twenty four (24) hours per week and students employed during the school vacation period.
I hope this is all the information required to complete our application for decertification. I'll be looking for a reply. Thank you.
(3) On October 11th, 1985, the Board sent a "Notice of Application for Declaration Terminating Bargaining Rights and of Hearing" to the union and the employer and directed the employer to post copies of a "Notice to Employees of Application for Declaration Terminating Bargaining Rights and of Hearing". That notice describes the bargaining unit covered by the application in the identical terms used by York in her letter in item 2 above. The notices to the union, employer and employees set October 21st, 1985 as the terminal date for the application. The Board also sent a copy of York's undated letter to the union and the employer. A "Notice of Fixing Terminal Date and of Hearing" was sent to York at the same time as the notices to the other parties.
(4) On October 17th, 1985, the Board received a letter dated October 12th from York bearing the same form of signature as the earlier two letters. The first two paragraphs of her letter read as follows:
After I sent out the detailed description of the unit of employees for which the respondent is the bargaining unit I realized that the employees are made up of two (2) bargaining units, one for full time and one for part time employees. Also the recognition is found in two (2) separate places in the contract which I didn't know this. I thought it was all one unit until I read the contract more thoroughly. Even during a strike vote it was all classed as one unit. I have not received any information concerning the application for decertification so I'm sending the second (2nd) recognition for the part time unit as they want decertification at the same time as the full time employees. Recognition for part time employees is as follows.
The employer recognizes the Union as the exclusive bargaining agent for all employees of Gardiners Super Market in Picton Ontario regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period save and except Grocery Manager, persons above the rank of Grocery Manager office and clerical staff.
(5) On October 18th, 1985, the Board received another letter from York dated October 16th, 1985 which appears to be in response to the Board's notice respecting the terminal and hearing dates. The letter had been sent by registered mail, special delivery on October 17th. The text of the letter, amongst other things, describes again the two bargaining units and it was accompanied by another petition containing 34 signatures.
(6) On October 2 1st, 1985, the Board received a letter from the employer's solicitors accompanied by, amongst other things a formal intervention in the application and lists of employees. The text of the letter, together with the lists, identifies precisely the employees whom the employer considered to be full-time and part-time employees. The letter also draws to the Board's attention the fact that the letter from York described in item 2 above refers only to the unit of full-time employees while the employer claims to be bound to a collective agreement with the union for part-time employees as well. The employer's letter requests the Board to clarify with the applicant which unit or units the application covers.
(7) On October 22nd, 1985, the Board received the union's reply to the application together with a covering letter, both dated October 18th. The two bargaining units described in the reply as being the ones for which the union has bargaining rights are the same as those described in York's October 16th letter.
At the hearing, York advised the Board that she wished her application to be processed as an application to terminate the bargaining rights respecting both units of employees. Accordingly, she requested the Board to adjourn the proceedings, extend the terminal date for the application and serve proper notice to the effect that the application applies to all employees of the employer in the full-time and part-time units. Neither the employer nor the union took a position on her request. Union counsel, however, moved that the Board dismiss the application as being untimely pursuant to section 57(2)(a) and section 61(2) of the Act.
Union counsel acknowledges that the Form 17 was filed in a timely fashion, but contends that it was incomplete because it failed to describe any bargaining unit at all as required by paragraph 3 of the form. Counsel points out that, while York sought to correct that omission by later correspondence, she did so after September 30th, 1985. By that time, the "open period" for making any application to terminate bargaining rights had expired. As a consequence, counsel argues, the Board did not have before it a valid application within the time limits set by section 57(2)(a) and section 61(2) of the Act. In effect, counsel argues, that York was attempting to perfect a faulty application after the period for filing applications had closed and the Board should not allow her to do so. According to counsel, the fact that the application does not describe any bargaining unit is not simply a technical fault, it is a failure of the application to identify on its face the employees intended to be covered by it.
Union counsel, in relying on its argument that the application was not perfected in a timely fashion, acknowledges that he may be swimming against the current of the Board's decisions. In this respect, he referred the Board to its decision in M. G. Burke investments Ltd., [1978] OLRB Rep. June 549. The applicant in that case had sought to apply for a declaration terminating bargaining rights by a letter and accompanying petition, but without the proper application form. The letter and petition were timely. The Registrar acknowledged receipt of them, but pointed out that the Rules of Procedure under the Act required that applications for termination of bargaining rights be made on a specific form and enclosed a supply of the form. By the time the applicant had filed the completed form, the open period for making the application had lapsed. The respondent trade union took the position that the application had been made when the proper form was filed. The Board disagreed, finding that the letter and the petition together contained all of the information required by the form, the Act and the Rules of Procedure, thus the respondent trade union's interests therein were not prejudiced by any defect in form.
Union counsel herein points out that the instant application may be distinguished from that case because the Form 17 and petition do not identify the bargaining unit or units affected by the application and, therefore, does not contain all of the essential information. Counsel also relies on the Board's decision in Clive R. Dyker v. Retail Clerks International Association, Local 205, [1971] OLRB Rep. August 475. The Board in that decision dismissed an application to terminate bargaining rights respecting a part-time bargaining unit. The application had been made by an employee in the full-time unit and was supported by a petition clearly referring to employees in the part-time unit. That case does support a strict, literal interpretation of what is now section 57(2) of the Act to mean that the party or parties named as applicant in the style of cause of the application must be from the bargaining unit affected by the application.
The Board's later decisions reveal it to have taken a far less technical approach. See, for example, R. Forget and a Group of Employees and Retail Clerks Union, Local 486 and Dominion Stores Limited, Board File No. 1 8379-70-R referred to in paragraph 6 of Dyker v. Retail Clerks, supra; Selinger Wood Ltd., [1979] OLRB Rep. May 434; St. Michael's Shops of Canada Limited, [1979] OLRB Rep. Oct. 1023; Thomas Construction (GaIt) Limited, [1982] OLRB Rep. Nov. 1727; and, Cara Operations Limited (Retail Stores Division), [1984] OLRB Rep. Oct. 1378. A fair reading of those cases reveal different fact situations than the instant case, but they also reveal clearly that the Board looks beyond the mere form of the application to its substance, and, as it did in Thomas Construction, supra, it may rely on section 84 of the Board's Rules of Procedure which states:
No proceeding under these Rules is invalid by reason of any defect in form or of any technical irregularity.
See also the Board's decision in Genwood Industries Ltd., [1976] OLRB Rep. Aug. 417. The Board in that case had been asked by the respondent trade union to dismiss an application for termination of bargaining rights because, according to the union, it was deficient in form. In dismissing the motion, the Board commented as follows at paragraph 7:
It is the duty of this Board to concern itself with the substance and not merely the form of documents tendered in support of an application for the termination of bargaining rights. It may be that in some cases the wording of such documents may be so inadequate as to cause this Board to dismiss the application upon a preliminary motion. This is a question that falls to be determined within the particular circumstances of each case.
- The "particular circumstances" of the instant case are that, prior to September 30th,
1985, the date when union counsel contends, without contradiction by the other parties, that the open period had expired for making an application to terminate bargaining rights, the Board had in front of it the Form 17, together with a covering letter and two lists of employees, one part-time and one full-time. The Form 17 shows the applicant to be: "Gardiners Supermarket Ltd. Employees". The application does not describe a bargaining unit in the language or terms by which they are usually described. Instead, the application uses the words "Gardiners Village Centre, Gardiners Supermarket Ltd. (I.G.A.), Main Street, Picton, Ont.". In paragraph 4 of the form, the applicant states that there are 38 employees in the group described in paragraph 3. That information was sufficiently incomplete to cause the Board not to process the application immediately. When it was ultimately processed, the union filed a reply in which it claims to represent approximately 40 employees of the employer at the location identified in the application. In retrospect, therefore, the way the applicant was originally named in the application, together with the information in paragraph 3 of the application and the number of employees make it clear on the face of the application that it was intended to cover all of the employees of the employer for whom the union holds bargaining rights. When the Form 17 is read together with the letter and the two lists of employees which accompanied its filing it becomes patently clear that the application was intended to cover all employees for whom the union holds bargaining rights. Therefore, as of September 19th when the application was made and as of September 30th when union counsel contends that the open period for making applications had expired, it is clear that the application had been made respecting all full-time and part-time employees represented by the union. What was lacking was a description of the bargaining unit or units and that is the flaw which union counsel argues the applicant should not be allowed to repair after expiry of the open period.
The Board disagrees, to do so clearly would be to ignore the substance of the application in favour of its form when the Board's decisions show it to be concerned with the substance of the applications which come before it and not merely their form. In Thomas Construction, sup ra, the Board was dealing with a fact situation where the Form 17 had been filed almost three months after the end of the open period, but where the Board had received a letter from the applicant shortly before the expiry of the open period which conveyed the wish that the letter be taken as an application for decertification of the union. The letter contained no reference to any bargaining unit, that information being provided only when the Form 17 was filed three months later. The applicant in that case was faced with a substantially more complex problem in identifying what bargaining rights were held by the trade union than is the case here, but the decision does stand for the fact that the Board has allowed a timely application to be perfected after expiry of the open period. The Board's approach in that case demonstrates, without expressing, the realization that applications of this sort frequently are brought by rank and file members of the bargaining unit who are unfamiliar with the niceties of pleadings and usually unrepresented by legal counsel. In such circumstances, for the Board to adopt such a "forms of action" approach as argued here by union counsel would, to use the Board's words in Genwood, supra, "... be unrealistic and would frustrate the intentions of the Act."
Therefore, having regard to the fact that the instant application as filed clearly was intended to cover all employees of the employer for whom the union held bargaining rights, the Board is not prepared to dismiss it as proposed by union counsel because it failed to define a bargaining unit of employees on its face and remained in that "flawed" condition at the expiry of the open period. In the fact situation here, where the application was filed in a timely fashion, expiry of the open period is irrelevant.
The Board now turns to its reasons for extending the terminal date and serving new notices on the parties. The Board did not send to the other parties a copy of the Form 17 or the September 19th covering letter when they were first received. Instead, it appears from the applicant's undated letter which was received by the Board on October 8th (see item 2 in paragraph 3) that a Board clerk had communicated to York the fact that the application did not contain an explicit description of the bargaining unit that it was intended to cover. In view of the contents of the undated letter, it is not surprising that the Board treated it as a request to amend the application to make Olga York the applicant and to have it apply to the bargaining unit described in the letter, that is, the full-time unit. It was at that point when the Board commenced processing the application pursuant to the Rules of Procedure, sent notice to the parties and arranged to have the employer post the Notice to the Employees, which notices all indicated that the application had been made with respect to the full-time unit. After that had been done, the Board received York's letter dated October 12th which states clearly that the application was intended to cover the part-time unit as well. Unfortunately, the Board did not treat that letter as a request for leave to amend the application to include the part-time unit, although it did send copies of the letter to the other parties. The Board's usual practice in similar circumstances, that is, when a request is made sufficiently prior to the date of hearing into an application to amend the application, is to issue a decision extending the terminal date of the application and directing the Registrar to reprocess it. That procedure has the effect of retaining the original date of the application, but allowing the Board to serve the parties with fresh notices of the amended application and giving the parties time to respond thereto.
In all of the circumstances of this case, the Board is of the view that the applicant should not bear the burden of the Board's departure from its usual procedures in processing applications. Therefore, it is appropriate to redress the effects of that departure by adjourning these proceedings, extending the terminal date and serving the parties and employees with new notices clearly setting out the two bargaining units which York intended the application to capture.
It is for these reasons that the Board issued the oral decision set out above and made the directions in the decision which issued December 2, 1985 also referred to above.
This panel of the Board is not seized with this application.