Teamsters Local Union No. 879 v. Usarco Ltd., 1985 CanLII 976

[1985] OLRB Rep. May 763

0155-85-R Teamsters Local Union No. 879, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Usarco Ltd., Respondent

BEFORE: Harry Freedman, Vice-Chairman, and Board Members C. A. Ballentine and F. W Murray.

DECISION OF THE BOARD; May 6, 1985

1. This is an application for certification.

2. The applicant has requested that a pre-hearing representation vote be taken.

3. By decision dated April 22, 1985, the Board appointed a Labour Relations Officer to confer with the parties and review, among other things, the description of the voting constituency and the records of the applicant and respondent to obtain the information necessary for the Board to determine whether the applicant has passed the threshold requirement contained in section 9(2) of the Act.

4. At the meeting with the Labour Relations Officer, the parties agreed to the following voting constituency:

all employees of the respondent at Hamilton, save and except supervisors, persons above the rank of supervisor, office, clerical and sales staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.

5. Prior to the meeting, counsel for a group of employees filed the following letter with the Registrar:

April 26, 1985

Ontario Labour Relations Board

400 University Avenue

4th Floor

Toronto, Ontario

M7A 1V4

Attention: Registrar Dear Sir/Madam:

Re: Board File No. 0l55/85/R

Teamsters Local 879 and

USARCO Ltd.

Please be advised that we have been retained by nine individuals who are employees of USARCO Ltd. Our clients have advised us of a prior application for certification filed by Teamsters Local 879, which application we understand was in due course dismissed by the Board.

Our clients have advised us that subsequent to the dismissal of the application they requested the appropriate union official to return to them their union cards as none of them wished any longer to be members of the union. They were advised that the cards would be returned to them but as of this date no such cards have in fact been received.

My clients have further advised me that they understand a new application for certification is now pending. It is their belief that Teamsters Local 879 is relying, in part, upon the membership cards which they had previously signed but has, as noted above, requested the return of. It is the position of my clients that Teamsters Local 879 ought not to be able to rely upon those cards and that it should be directed to return those cards to the named individuals.

For the assistance of the Board t act on behalf of If any further information or assistance is required, please contact me at your convenience. I shall await further direction from the Board as to the manner in which it intends to proceed given this stated position of my clients.

Yours very truly

David E. Ivey

6. Counsel for the employer also filed the following letter with the Board:

May 1, 1985

DELIVERED BY HAND

D. K. Aynsley, Esq.

Registrar

Ontario Labour Relations Board

400 University Avenue

4th Floor

Toronto, Ontario

M7A 1V4

Re: Teamsters Local Union No. 879

and Usarco Ltd.

Board File No. 0155-85-R

Dear Mr. Aynsley:

we are the solicitors for the respondent in the above-captioned matter. This morning we received from the Board a copy of a letter sent on behalf of nine employees of the above-named respondent. As that letter points Out, the Teamsters have already made an unsuccessful application to the Board for certification. That application was dismissed by the Board (see O.L.R.B. File No. 3389-84-R). At the pre-vote meeting it was clear that the applicant did not have a clear 35% required for a pre-hearing vote. The applicant, therefore, after seeing the list, asked the Board to allow them to withdraw their application. The Board did not allow them to withdraw but instead dismissed the application.

The letter on behalf of nine employees indicates that after the application had been dismissed, the nine employees approached the Union to request the return of their cards. They allege that

they were informed that their cards would be returned. The cards were not returned and we suspect that these nine cards are now being used as part of the membership evidence in the above-captioned certification application. It is our submission that in light of all the facts and circumstances of this case the Board ought not to consider the application and ought to exercise its discretion and refuse to entertain this application. In the alternative, it is our submission that the nine aforementioned cards ought not to be available as membership evidence to support the 35% requirement for a pre-hearing vote. We therefore request that prior to establishing any pre-hearing vote the Board conduct a hearing in respect of this matter.

Should you wish to discuss the matter further, please do not hesitate to contact me.

Yours very truly,

STRINGER, BRISBIN, HUMPHREY

Per: Mark E. Geiger Dictated but not read.

Counsel for the employer renewed his submissions concerning the conduct of this matter at the meeting with the Labour Relations Officer. He also advised the Officer that he was looking into information received from his client that several employees did not pay any membership fee to the applicant and were told that the applicant would pay those fees.

7. We do not believe that the allegations made by counsel for the group of employees or by counsel for the respondent should cause the Board to schedule a hearing prior to conducting a pre-hearing representation vote. The Board's practice in this area has been recently set out in St. Clair College of Applied Arts and Technology [1984] OLRB Rep. Dec. 1776 at 1776-1777:

The respondent submitted in its reply, by way of preliminary objection to the application, that the Board does not have the jurisdiction to deal with this application and requested that the Board conduct a hearing to decide the jurisdictional issue before a meeting is held with a Labour Relations Officer or a pre-hearing vote is conducted. The Labour Relations Officer was authorized by the Board's November 23rd decision to convene a meeting of the parties and such a meeting was held despite the objection taken to the procedure by the respondent. At that meeting, the respondent renewed its preliminary objection to the jurisdiction of the Board to process this application and advised the Labour Relations Officer that it was participating in the meeting and vote arrangements without prejudice to its position that the Board did not have the jurisdiction to order a pre-hearing vote, and further that no vote be conducted until the jurisdictional issue is determined by the Board after a hearing is conducted.

An application for certification can give rise to a large number of issues, some of which can be characterized as jurisdictional, and those issues that remain in dispute will be resolved by the Board after a hearing is conducted where all parties affected are given the opportunity to present their evidence and make their submissions to the Board (see section 102(13) of the Labour Relations Act, we do note, however, that the Board need not conduct a hearing into applications for certification relating to the construction industry, pursuant to section 102(14) of the Act. The Board directs a representation vote in an application for certification filed under section 7 of the Act, only after a hearing where issues similar to the one raised by the respondent in this case are dealt with. However, an application for a pre-hearing vote is processed in a different manner. Unless the Board is of the opinion that the pre-hearing vote application gives rise to concerns or issues that are so complex that there is no reasonable utility in conducting a vote before resolving those concerns or issues, the Board directs the taking of a pre-hearing vote. Where such complex concerns or issues are raised, the Board has the discretion under section 9(1) of the Act and section 5 of the Board's Rules of Procedure to refuse to entertain the pre-hearing vote application and direct it to be processed in the usual way. (See Central Hospital, [1982] OLRB Rep. March 347 at 348; Howard Furnace Ltd., [19611 OLRB Rep. July 98.)

The pre-hearing vote procedure exists to permit the Board to promptly conduct a vote among the employees who are subject to the application for certification. (See Emery Industries Ltd., [1980] OLRB Rep. March 316 at page 319; Ontario Hospital Association (Blue Cross), [1981] OLRB Rep. April 468 at pages 483-484; Central Hospital, supra; Savette Family Department Store Ltd., [1974] OLRB Rep. May 327; The Board of Education for the City of North York, [1984] OLRB Rep. July 989.) The jurisdictional issue raised by the respondent in this case, and in our view, the vast majority of issues that might be raised in relation to a pre-hearing vote application for certification need not be decided by the Board before the pre-hearing vote is conducted. We adopt and apply the reasoning of the Board in Satin Finish Hardwood Flooring Limited, Board File No. 185 l-84-R, November 8, 1984, as yet unreported, in which the Board wrote a paragraph 10:

While it is necessary for the Board to know the parties' positions on relevant issues before it can make the determinations contemplated by subsection 9(2) of the Act, it is not necessary for the Board to resolve their differences on those issues before making those determinations. Because the Board need only identify and delineate the conflicts rather than resolve them, it is only the most unusual case in which the officer's report on his meeting with the parties will be an insufficient basis on which to make the determinations called for by subsection 9(2). Although it is not in this case, it may occasionally be necessary for the panel to consult directly with the parties, rather than receive their positions through the officer or in writing, there should never be a necessity for a formal pre-vote evidentiary hearing in a pre-hearing vote proceeding. There may well be cases in which the issues of fact and law raised by the parties are so complex that some or all of them must be resolved before there can be any potentially beneficial resort to a representation vote. The appropriate response in such cases is to decline to exercise the discretion to order a pre-hearing representation vote and, instead, direct that the application be processed in the ordinary manner: see Howard Furnace Limited, [1961] OLRB Rep. July 98. We do not feel that the issues raised in this case require that response.

Thus, we are of the view that the respondent's preliminary objection is not a sufficient basis for us to refuse to process the application for certification under section 9 of the Labour Relations Act.

8. The submissions made in this case relate to the adequacy, weight and integrity of the documentary evidence of membership that the applicant relies on in support of its application. In our opinion, those issues are precisely the kinds of issues which should be dealt with at a hearing after the pre-hearing vote is conducted. Indeed, section 9(4) of the Act requires the Board to determine whether the requisite number of employees were members of the applicant as of the application date after the vote is conducted, whereas section 9(2) only requires an appearance of a requisite amount of membership based upon the documentary evidence filed by the applicant in order to direct a pre-hearing representation vote. We simply do not view the resolution of those issues as a condition precedent to the taking of a pre-hearing representation vote.

9. It appears to the Board on an examination of the records of the applicant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent in the voting constituency hereinafter described were members of the applicant at the time the application was made.

10. All employees of the respondent in the voting constituency on the 2nd day of May, 1985, who have not voluntarily terminated their employment or who have not been discharged for cause between the 2nd day of May, 1985, and the date the vote is taken will be eligible to vote.

11. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.

12. The Board directs that the ballot box be sealed.

13. This panel of the Board is not seized with this matter.

14. The matter is referred to the Registrar.