[1987] OLRB Rep. December 1602
1926-87-R Quaker Oats Employees Independent Union (Cereals), Applicant v. The Quaker Oats Company of Canada Limited, Respondent v. United Food and Commercial Workers Local 293, Intervener
BEFORE: Judith McCormack, Vice-Chain, and Board Members G. O. Shamanski and P. V. Grasso.
DECISION OF THE BOARD; December 16, 1987
1This is an application for certification in which the applicant requested a pre-hearing vote. A dispute arose with respect to whether the name of the United Food and Commercial Workers International Union, Local 1230-10 ("Local 1230-10") on the name of the United Food and Commercial Workers International Union Local 293 ("Local 293") should be on the ballot. By a decision dated November 10, 1987, the Board directed that the name of Local 1230-10 be on the ballot rather than that of Local 293. Since that time, Local 293 has applied for reconsideration of that decision by the following letter:
Please be advised that we have been retained to act on behalf of Local 293 of the United Food and Commercial Workers in the above matter.
We have just had the opportunity to review the decision of the Board in the above matter, dated November 10, 1987. This letter constitutes a request that the Board reconsider this decision. We request reconsideration for the following reasons.
Firstly, it is Local 293 of the United Food and Commercial Workers which is the incumbent union, and not Local 1230-10. It is Local 293 which presently represents the employees for the purpose of collective bargaining.
Secondly, at the meeting with the Labour Relations Officer on November 4,1987, all of the parties agreed that Local 293 would be named and appear on the ballot. This was in part the basis for the incumbent trade union agreeing to some of the other matters which were discussed on that day. Furthermore, the incumbent trade union has relied on this agreement that Local 293 would appear on the ballot for the purpose of campaigning. It is our position that in the event that the name of Local 293 does not appear on the ballot, the incumbent trade union will be substantially prejudiced and irreparably damaged.
Thirdly, it would appear that the Board issued its decision of November 10, 1987 without first receiving submissions from the parties, or providing the parties with an opportunity to either make submissions or call evidence.
Accordingly, it is our position that the name of Local 293 ought to appear on the ballot for the election scheduled for Thursday, November 19, 1987.
In light of the substantial prejudice and irreparable damage that will be suffered by the incumbent union in the event that the name of Local 293 does not appear on the ballot, we would accordingly request that prior to such an election taking place, the Board schedule an oral hearing to permit the incumbent trade union to make full submissions and call evidence. Unless the name of Local 293 is to appear on the ballot; it is imperative that this occur prior to any election taking place. Therefore, it may be necessary to postpone the election scheduled for November 19, 1987.
In the alternative, and in the event that the Board denies the above requests, we would request that the ballot boxes be sealed pending a hearing on the above and all related matters.
The Board advised the parties by telegram that the request for reconsideration had been dismissed and that reasons would follow. We now provide those reasons.
2Turning first to the argument that the Board made its decision without a hearing to receive the parties' evidence and submissions, the Board has noted on a number of occasions that implicit in the concept of a pre-hearing vote is the idea that a vote will be taken before any hearing is held (The International Nickel Company of Canada, [1961] OLRB Rep. Dec. 324). The reasons for this are self-evident. The purpose of a pre-hearing vote is to provide a "quick vote" procedure, unobstructed by the kinds of delays often attendant upon the litigation and resolution of issues which may be in dispute between the parties. As the Board said in Emery Industries Limited, [1980] OLRB Rep. March 316:
- It is axiomatic that in labour relations matters "time is of the essence"; but this is especially the case in respect of representation votes. If the trade union's certification application, and its status as bargaining agent, are not resolved expeditiously (i.e., if it cannot engage in collective bargaining, or perform the other representational functions for which it was selected) there may be discontent among its supporters and a possible erosion of that support. This might not only make the union's certification more difficult, but could also complicate its collective bargaining task. The purpose of the pre-hearing, or "quick vote" procedure is to facilitate a prompt resolution of representation questions, by permitting the Board to test employee wishes as soon as possible following the application date. This avoids the potential prejudice which might arise if a representation vote had to await a decision following a formal certification hearing. Some delay is inevitable, but the pre-hearing vote procedure is a legislative attempt to remove some of the problems, and prejudice, associated with delay while, at the same time, ensuring that all of the parties will be given a full opportunity to make their submissions with respect to any matters in dispute.
The expedition which is integral to a pre-hearing vote would be lost if the Board began to hold hearings before the vote is taken Satin Finish Hardwood Flooring (Ontario) Limited, [1984] OLRB Rep. Nov. 1602 and Kenting Earth Sciences Limited, [1985] OLRB Rep. Feb. 293.)
3At the same time, the Board recognizes that the parties are entitled to a hearing on contested issues which may arise between them. To accommodate the need for expedition and also provide the parties with an opportunity to call evidence and make submissions, the scheme of section 9 contemplates the deferral of decisions on contentious matters until after the vote is held (Kirouac Contracting Limited, [1987] OLRB Rep. Oct. 1262.) In these circumstances, the Board will attempt to ensure that the vote will be useful in any event of the dispute by segregating ballots or otherwise structuring the vote to this end. After the vote is conducted, a hearing is held to determine the matters in dispute. Occasionally, as in this case, issues arise which must be determined before the vote because they relate to the manner of taking the vote. In these circumstances, the parties will put their positions to the Labour Relations Officer appointed by the Board to conduct the pre-hearing vote meeting, and they will be included in the officer's report to the Board. Infrequently, the parties will also request the opportunity to make written submissions before the vote. In this case, no such request was made, and all parties were apparently content to put their positions to the officer at the pre-hearing vote meeting in the knowledge that the Board would have to make a decision on the structure of the ballot before the vote. Local 293 now takes the position that the parties were in agreement that Local 293 should be on the ballot. That is not the case that was put to the Board. If Local 293 wishes to maintain that there was an agreement at the officer's meeting which should play a role in the Board's decision, it will have the opportunity to do so after the vote, and the Board will determine the matter in the manner described above. However, at this point, it is clean from the submissions that both the question of whether Local 293's name should be on the ballot and the assertion that there was an agreement to this effect are in dispute.
4Whether on not Local 293 could have or should have availed itself of the written submissions procedure, the problem here is more substantial, that is, that the nature of the ballot itself is affected by a dispute that cannot be determined without a hearing. In these circumstances the Board has two choices; it can exercise its discretion to decline to order a pre-hearing vote at all (and thus transform the application from one involving a pre-hearing vote to a "regular" application), on it can structure a vote with the risk that it may not ultimately prove to be useful to the Board, depending on the outcome of the successor nights issue. If the Board decides to order the vote, it must choose which name should be on the ballot, again without knowing which panty's position will eventually prevail. As we stated in our earlier decision, this is not an appropriate case for two ballots, particularly in light of the similarity in names.
5In this case, on balance we found that the option of ordering the vote and structuring the ballot in accordance with the applicant's position to be most appropriate for a number of reasons. Local 293 conceded that at the time this application was filed, Local 1230-10 had the bargaining rights in question. The alleged transfer of bargaining nights to Local 293 took place after the filing of the applicant's application. Local 293 has applied to the Board for a declaration that it is the successor to Local 1230-10 bargaining nights; that application (Board File No. 2113-87-R) is currently pending before the Board. What Local 293 seeks is to have the Board act as if such a declaration had already been obtained. The Board has declined to do this in the past in similar circumstances (Wire Rope Industries Ltd. [1987] OLRB Rep. Oct. 1336.) In addition, if we were to allow a pre-hearing application to be transformed into a regular application in these circumstances, it would leave an applicant vulnerable to the manufacturing of disputes by other parties, designed in part to defeat the application by drawing on the higher level of membership evidence required in a regular application. We hasten to point out that there was no suggestion that Local 293's conduct was motivated by such considerations in this case. Nevertheless, we did not think it advisable to decline to order a vote to which an applicant would otherwise be entitled because events created by an intervener since the date of the application caused some uncertainty in the nature of the ballot.
6It also made sense to us that the Board be particularly cognizant of the applicant's views in setting up the ballot. It is the applicant which has chosen the expeditious pre-hearing vote process, and in light of that choice, it is reasonable to assume that expedition is of some importance to it. If the applicant's position is ultimately found to be wrong, the result may well be another vote at some point later in time. In other words, the applicant will have lost the advantage of the "quick vote" procedure. As a result, we found it reasonable that the applicant's position should figure highly in the Board's considerations at this point, given the special impact upon it of the risks involved. This approach is also consistent with the Board's treatment of bargaining unit disputes on pre-hearing votes (Satin Finish, supra.)
7We understand the argument that Local 293 is the incumbent in this matter to be a reiteration of the legal position that Local 293 is the successor to Local 1230-10's bargaining nights, rather than an assertion that Local 293 was actually the signatory to the expiring collective agreement in this matter. However, the question of whether Local 293 is the successor to the bargaining nights of Local 1230-10 is precisely the issue which is in dispute between the parties. Thus, the characterization of Local 293 as the incumbent in the manner set out above does not provide us with any assistance in determining which name should be on the ballot at this point, since Local 293's position is predicated on a resolution of that dispute in its favour. That resolution, whether favourable to Local 293 or not, will only take place after the vote. There is an obvious risk in selecting Local 1230-10's name for the ballot, that is, that the vote results may not be useful to the Board. On the other hand, the course of action urged upon us by Local 293 carries an almost identical risk. At the same time, we are not convinced that irreparable damage will be caused by directing the vote as we did. If Local 293 is eventually found to be the successor to Local 1230-10's bargaining rights, it will be open to Local 293 to make submissions as to what steps should then be taken; including the possibility of holding another vote. Whether on not some tactical advantage may be lost with respect to Local 293's campaign, there is no guarantee that the delay attendant upon a determination of the successor nights issue prior to the vote would not have the same effect on one or more of the parties, including Local 293.
8This application for reconsideration is dismissed.