Canadian Union of United Brewery, Flour, Cereal, Soft Drink Workers v. Kitchener Beverages Limited, 1986 CanLII 1376

[1986] OLRB Rep. September 1234

3101-85-R Canadian Union of United Brewery, Flour, Cereal, Soft Drink Work­ers, Applicant, v. Kitchener Beverages Limited, Respondent, v. Group of Employees, Objectors

BEFORE: Ken Petryshen, Vice-Chairman, and Board Members J. A. Ronson and R. R. Monta­gue.

APPEARANCES: E. G. Posen, Bob Hill and Paul Poirier for the applicant; R. A. Werry and Brian

Tisdale for the respondent; no one appearing for the group of employees.

DECISION OF THE BOARD; September 19, 1986

1. By letter dated June 11, 1986, counsel for the applicant requested the Board to recon­sider its decision dated June 4, 1986 wherein the Board (differently constituted) dismissed his clients' application for certification after a representation vote. In a notice dated July 11, 1986, the Board advised the parties that a hearing would be held on August 2, 1986 for the purpose of giving the applicant the opportunity to show cause as to why the Board should reconsider its decision of June 4th. At the hearing on August 2nd, the Board entertained the statements of fact and submis­sions from the parties. The factual context as set out below represents the applicant's best case.

2. On March 18, 1986, the union filed with the Board an application for certification for a unit of the respondent's employees. In a decision dated April 23, 1986, the Board (differently con­stituted) directed the taking of a representation vote, appointed a Labour Relations Officer to inquire into the duties, responsibilities and community of interest of certain employees in dispute and directed the ballot box be sealed pending a further direction by the Board. The vote was held on April 30th and, on agreement of the parties, the vote was counted on May 14th. Of the sixty ballots counted, the union obtained eleven votes.

3. After the vote was held, the Board distributed to the parties a Notice of Report of Returning Officer (Form 70) dated April 30, 1986 which notified the parties that any representations they wished to make concerning any matter relating to the representation vote shall be received by the Board or sent by registered mail no later than May 8, 1986. Parties are advised in the Notice that if no statement of desire to make representations is sent to the Board in accordance with the requirements set out in the Notice, the Board may dispose of the application upon the material before it without further notice to the parties or the employees. Subsequent to the count­ing of the ballots, the Board distributed to the parties a Notice of Report of Returning Officer on Counting of the Ballots (Form 73) dated May 14, 1986 which notified the parties that if they intended to make representations as to the accuracy of the report or as to the conclusions the Board should reach in view of the report, a statement shall be sent to the Board so that it is received or sent by registered mail no later than May 22, 1986.

4. In its decision dated June 4th dismissing the union's application, the Board notes that "no statement of objections and desire to make representations has been filed with the Board within the time fixed in accordance with subsection 1 of section 70 of the Board's Rules of Proce­dure following the taking of the representation vote pursuant to the Board's direction of April 23, 1986." The relevant provisions of section 70 of the Board's Rules of Procedure are as follows:

70.-(1) Subject to subsection (3). where a representation vote is taken after the hearing of an application,

(a) a party; or

(b) any employee or representative of a group of employees,

who desires to make representations as to any matter relating to the representation vote, or as to the accuracy of the report of the returning officer, or as to the conclusions the Board should reach in view of the report, shall tile a statement of desire as prescribed in Form 70 or 72, as the case may be, on or before the last day for the posting of the copies of the report and notices under subsection 69(3).

(3) Where a representation vote is taken in connection with a direction that the ballot box be sealed and the Board subsequently directs that the ballots be counted,

(a) a party; or

(b) any employee or representative of a group of employees,

who desires to make representations as to the accuracy of the report of the returning officer on the counting of the ballots or the conclusions the Board should reach in view of the report, shall file a statement of desire as prescribed in Form 73, on or before the last day for the posting of the copies of the report and notices under subsection 69(3).

(5) Where no statement of desire to make representations has been filed in the form and man­ner required by this section, or no such statement that has been filed states that a party, employee or representative of a group of employees desires a hearing before the Board, the Board may dispose of the application upon the material then before it without further notice to any party or to the employees.

5. On May 7, 1986, approximately a week after the vote was conducted, Mr. Hill and Mr. Power, two experienced representatives of the applicant, became aware of the fact that the employer distributed a letter to the employees the day before the vote. In support of its reconsider­ation request, the union intends to rely on the distribution of this letter and its contents. Immedi­ately after the ballots were counted on May 14th, Mr. Hill advised a representative of the employer that the union would be taking issue with the letter and would file a complaint with the Board. Under covering letter dated May 14th, the solicitor for the applicant sent to the Board a section 89 complaint which alleges that the distribution and the contents of the letter referred to above constitute a violation of section 64 of the Act. Part of the relief requested in the complaint is "a declaration that the complainant is entitled to represent the employees in the bargaining unit of the respondent as bargaining agent notwithstanding the results of any representation vote." The section 89 complaint was sent to the Board by regular mail on May 15th and was received by the Board on June 5th. In other words, the section 89 complaint, which is still pending, was filed with the Board the day after the Board dismissed the union's application for certification.

6. In arguing there was cause for the Board to reconsider its decision of June 4th, counsel for the union emphasized that representatives of the union only became aware of the letter on May 7th. Since at that time the ballot box was sealed, counsel indicated it made sense for the union to wait and find out the outcome of the vote before raising an allegation of misconduct needlessly. Immediately upon discovering the results of the vote, the union sent to the Board the section 89 complaint placing in issue the validity of the representation vote.

7. When confronted with situations where a party has filed an untimely objection relating to a representation vote, the Board has attempted to balance the need for expedition with the need for flexibility. If the Board's procedures are to remain expeditious, the Board must be able to rely on its own deadlines and parties must be encouraged to comply with time limits set out in the Forms and Rules. On the other hand, the Board does not take an unduly technical view of its pro­cedures and recognizes that these procedures are designed to enable non-lawyers to function before the Board. In developing a test which balances these values, the Board examines the rea­sons for procedural non-compliance as opposed to the prejudice to the other party caused by the non-compliance. (See, H.D. Lee Company of Canada Limited, [1975] OLRB Rep. Jan. 55). In Pure Spring (Canada) Ltd., [1964] OLRB Rep. Dec. 476 the Board made the following comments in this regard:

Even though a party has failed to file its objections to a representation vote by the date fixed by the Board in Form 49, (now Form 70) the Board has entertained such objections when that party has been able to satisfy the Board that, even with the exercise of reasonable diligence, alleged improprieties in the conduct of another party to the vote only came to the objector's knowledge after the expiration of the time for making objections. In the instant case, however, no evidence was adduced to show that the respondent exercised diligence in making inquiries as to the conduct of the applicant or to explain why nearly a month elapsed between the date of the happening of the alleged offence and the filing of the charges, despite the fact that counsel for the respondent stated that the respondent knew of the alleged meeting shortly after it occurred and admitted that the respondent was suspicious as to the purpose of the meeting. In the absence of such evidence there is no basis upon which the Board, in the exercise of its discre­tion, could, at this time, entertain the charges made by the respondent.

In commenting on the test articulated in Pure Spring (Canada) Ltd., supra, the Board in H. D. Lee Company of Canada Limited, supra, wrote:

Put another way, in cases of this kind dealing with a fundamental procedure of the Board, the Board must give paramount consideration to the speed and certainty of its procedures. Preju­dice to another party is not a test that can accomplish this. Such a test does not provide a bright line for the channelling of documents and prejudice may have little or no relation to administra­tive expedition. Thus the test in this area emphasizes the reasonable diligence of the party ask­ing the Board to amend the time limits

8. The Board's prior decisions make it clear that the Board will entertain untimely objec­tions to a representation vote only when a party satisfies the Board that, even with the exercise of reasonable diligence, alleged misconduct only came to its knowledge after the expiration of the time for making objections. It is implicit in this test that the Board will not entertain untimely objections to a representation vote when the objecting party was aware of the alleged misconduct prior to the expiration of the time for making objections unless there are exceptional circum­stances.

9. In the instant case, the alleged misconduct upon which the applicant intends to rely is a letter circulated by the respondent prior to the representation vote. The wording of Form 70 refers t) objections with respect to the conduct of a representation vote and clearly encompasses the type of objection the applicant has made. The time for making any objection to the representation vote was May 8th. The representatives of the applicant became aware of the letter on May 7th. In the circumstances before us, then, the applicant had knowledge of the alleged misconduct prior to the expiry of the time for making objections and should have made its objection no later than May 8th.

10. The date for filing objections set out on Form 73 was May 22, 1986. Form 73 is concerned essentially with objections relating to the counting of the ballots. As indicated previously, the applicant's objection concerns the vote itself and does not relate to the count. But even if the operative date for our purposes was May 22, 1986, the objection sent by the applicant on May 15, p86 was untimely since it was not filed with the Board until June 5, 1986.

11. It was not appropriate for the union to wait until it had the results of the vote before attempting to file a statement of objection. Once it becomes aware of alleged misconduct, it is incumbent upon a party to notify the Board as soon as possible. (See, Chateau Gardens (London) fric., [1977] OLRB Rep. Jan. 12). In our view, there are no exceptional circumstances which would lead us to accept the applicant's position in a situation where it was aware of the alleged miscon­duct at a time when it could have filed a timely objection but failed to do so.

12. Having regard to the late filing and all of the circumstances, the Board is satisfied that the applicant has been unable to show cause why the Board should reconsider its decision of June 4th. Accordingly, the applicant's request for reconsideration is dismissed.

13. The section 89 complaint (File No. 0651-86-U) referred to in this decision was scheduled to be heard on August 1, 1986 as well as the certification matter. If the union wishes to pro­ceed with the complaint it should advise the Registrar of its intent to do so as soon as possible.