[1986] OLRB Rep. January 145
1439-85-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant, v. Quick Messenger Service, a Division of 382525 Ontario Limited, Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members F. W. Murray and W. F. Ruthet ford.
APPEARANCES: Hugh Buchanan for the applicant; A. P. Tarasuk and Steve Andrews for the respondent.
DECISION OF THE BOARD; January 16, 1986
The name of the respondent is amended to read: Quick Messenger Service, a Division of 382525 Ontario Limited.
This is an application for certification which originally came on for hearing before the Board on Friday, September 27, 1985. After hearing the parties' submissions, the Board indicated that the application would be dismissed, without bar, and that its reasons for this decision (announced orally and briefly at the hearing) would be issued later. Those reasons are set out below. For ease of exposition, we have used the term "employer" and "employee", even though it is the respondent's position, expressed in its reply, that it does not have any "employees", and that the individuals affected by this application are "independent contractors" who are not entitled to form or join a trade union.
At the opening of the hearing, the representative of the union indicated that he had learned, only that morning, that some former union supporters among the respondent's employee complement may have had a change of heart, and further that there might also be some defect in the union membership cards tendered in support of the certification application. He submitted that, as a practical matter, it made little sense to embark upon potentially protracted litigation in respect of an employee group whose support for the union might be equivocal. He was content that the application should be dismissed.
Counsel for the respondent asserted that, in addition to dismissing the application, the Board should impose a "bar" - that is, decline to entertain a new application for certification from the applicant for a period of up to ten months. A bar of that kind is contemplated by section 103(2)(i) of the Act. It would prevent the applicant union from seeking to represent the respondent's employees for the stipulated period. By the same token, it would also prevent those employees from requesting this Board to certify the applicant as their representative - even though that might well be the wish of the majority of them.
Counsel for the respondent told the Board that, in his experience, the circumstances of this case were quite unusual. He had been advised by his client that certain employees of the respondent, who had once been union supporters and had even solicited membership documents from their fellow employees in support of this application, had, in discussions with their employer, indicated a change of heart and revealed that a number of the membership cards which they themselves had collected had not been accompanied by the one dollar payment necessary to meet the requirements of the Act (see section l(1)(l)). Since the membership cards contain a space where the "collector" signs to verify that the one dollar payment has been made, this employee assertion (related to counsel "secondhand") amounts to an acknowledgement that they had themselves signed a document fraudulently attesting to something which was untrue. We mention the "secondhand nature" of counsel's information, since it was not clear how these discussions came about, and counsel indicated, quite rightly, that he was reluctant to pursue them because the Act quite clearly prohibits employer "interference" with the employees' right to join a trade union if that is their wish. Counsel indicated that he did not think it would be proper for him to interrogate employees in order to verify the information that he had received. He urged the Board to undertake its own investigation - which, of course, would involve weighing the circumstances in which these alleged improprieties and "changes of heart" had come to light.
Counsel for the respondent further told the Board that he had been advised that, in at least one instance, the irregularity had come to the attention of a union official. He had also been told that there had been misstatements of fact which may have influenced certain employees to join the union. None of these charges were particularized or filed with the Board prior to the hearing, nor did the union learn of them until just before the hearing. Counsel for the respondent explained that he had only learned of them recently and was concerned that he was being "set up". Ironically, the applicant's organizing director, who appeared at the hearing, expressed the same view.
In summary then, the respondent urges the Board to initiate its own investigation into whether some of the individuals who have signed membership cards indicating support for the union have not made the requisite payment, and to schedule hearings to consider these allegations, as well as the possibility that there may have been misrepresentation or undue influence in the way in which the membership cards were collected. Counsel argued that if, at the end of such inquiry and such Board hearings, the Board was satisfied that the allegations had been made out (in whole or in part), then the Board should exercise its discretion under section 103(2)(i) of the Act, to bar the applicant from making any further application to represent these employees for a period of ten months. The applicant, as mentioned, argues that we should simply dismiss the application and leave it at that.
We might note that the employees potentially affected by this application were duly notified of the hearing and a number of them were in attendance. No one appeared on behalf of those employees to complain about the manner in which the organizing campaign had been conducted or the way in which membership cards had been collected. Nor were there any submissions on the employer's request to bar any further certification application for a period of ten months.
Having considered the respondent's representations, the Board determined that the application should be dismissed without further inquiry and without bar, but, of course, without prejudice to the respondent's right to raise any legally relevant matters, should a new application for certification be made by the applicant at some time in the future. We made this determination for a number of reasons. In the first place, as we have already noted, the respondent's initial position is that it has no employees, and that none of the individuals potentially affected by this application are covered by the Labour Relations Act or entitled to join a union. If that position were sustained (and that would require evidence) then the charges or presence of a temporary bar would be quite irrelevant because the affected individuals would not be entitled to join a union in any event. Moreover, it was apparent that even if the affected individuals are employees of the respondent, to investigate and litigate the respondent's allegations (assuming they were properly particularized as the Rules require) would necessarily entail protracted and expensive proceedings which would consume several months, given the Board's current hearing calendar. While the respondent expressed concern about maintaining the integrity of the Board's processes (a concern which the Board shares), and the respondent pointed to the possibility that improprieties may have tainted the mechanism for ascertaining employee wishes, it is difficult to see how the employees' interests would be advanced by the course of action which the respondent seeks. The respondent is not suggesting, for example, that the Board conduct a secret ballot vote to "clear the air" and ascertain the true wishes of the employees. Indeed, the position taken in the respondent's pleadings is that the persons affected by this application are not entitled to join a trade union at all. And if the Board undertook the inquiry urged upon us by the employer, what would be the result? The hearings might well consume almost as much time as any bar which the Board would ultimately impose and during this process the employees (who have already indicated some apparent appetite for collective bargaining) would be precluded from seeking representation by any other trade union and would have their wages and working conditions frozen pursuant to section 79 of the Act. Finally, it is our opinion that the bar contemplated by section 103 is not intended to be a "penalty" for improper conduct on the part of employee supporters of a union or even union officials. It is a means to restore a temporary equilibrium to employer-employee relationships which may have been disturbed by several certification applications in close succession or by the "politics" associated with a representation vote.
Having considered the respondent's submissions and the various interests involved, we are satisfied that the application should be dismissed without bar but, as noted, without prejudice to the respondent's right to raise any legally relevant matters in any later certification application made by this or any other union.