Ontario Labour Relations Board
[1988] OLRB Rep. March 286
2937-87-R National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Fram Canada Inc., Respondent, v. Group of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. O. Shamanski and H. Peacock.
APPEARANCES: L. A. MacLean, Hemi Mitic, Glen Myers and Wayne McKay for the applicant; Joe Carrier, Tom Patterson and Ed Bocik or the respondent; Michael Mitchell for the objectors.
DECISION OF THE BOARD; March 23, 1988
This decision deals with the objectors' submission that certain charges made by the applicant were not filed in a timely fashion and should not be entertained in these proceedings.
This application for certification was filed on January 28, 1988. The Registrar set February 16, 1988 as the terminal date for the application and scheduled it for hearing March 4, 1988. 226 written statements of objection to certification of the applicant ("petitions") were filed with the Board on the terminal date. The Board's letter to the applicant advising it of this filing is dated February 24, 1988 and appears to have been sent by ordinary mail. The applicant says it received that letter on March 1, 1988; this assertion is not challenged.
In mid-afternoon on March 3, 1988, the applicant delivered to the Board a 9-page document entitled "Particulars Regarding the Voluntariness of the Purported Statement of Desire, Rule 72." The series of events referred to in it are alleged to have occurred as long ago as August 26, 1987 and as recently as February 14, 1988, and are described therein as representing interference by the respondent with its employees' selection of a bargaining agent, contrary to section 64 of the Labour Relations Act ("the Act"). The applicant pleads in this document that the petitions, having been gathered in the circumstances alleged, do not represent voluntary expressions of the wishes of the persons who signed them. Further, the applicant makes the submission that the true wishes of the affected employees could not now be ascertained by way of a representation vote, and asks that it be certified without a vote pursuant to section 8 of the Act.
The objectors and respondent first saw the document in question on the morning of March 4, 1988, when they attended for the scheduled hearing of this application. Representatives of the applicant, respondent and objectors spent most of the day meeting with one another and one of the Board's Labour Relations Officers to discuss the composition of the appropriate bargaining unit and reviewing the list of employees filed by the employer, which the applicant and objectors saw for the first time that day. As a result, the hearing before us began at 3:45 in the afternoon. At that point it was clear that, in any event of the outcome of the participants' remaining disputes over the composition of the appropriate bargaining unit and the list of persons employed in that unit on the application date, the documentary evidence of membership filed by the applicant is sufficient, if found satisfactory, to permit certification of the applicant without a vote under section 7 of the Act. Having regard to the number of petitions apparently signed by employees for whom membership evidence has been filed, it was also clear that if the petitions are found to be voluntary expressions of the wishes of those who signed them, the Board would ordinarily exercise its discretion under subsection 7(2) of the Labour Relations Act to order a representation vote even if the revocations filed by the applicant all represent the last voluntary expression of wishes of those who signed them.
Counsel for the objectors argued that the applicant's filing of charges the day before the hearing violated section 72 of the Board's Rules of Procedure, which requires the prompt filing before hearing of particulars of any allegations of improper or irregular conduct on which a party intends to rely at hearing. Although he did not question the applicant's assertion that it did not receive the Board's advice of the filing of the petitions until March 1, 1988, he argued that the union could have contacted the Board by telephone shortly after the terminal date to ascertain whether petitions had been filed. He also argued that the union must have known of the circulation of the petition prior to March 1, 1988, having regard to certain as yet unproven material he had filed in connection with the objectors' charges of wrongdoing by the applicant.
Counsel for the respondent supported the objectors' request, citing the Board's decisions in Burlington Hotel Company Limited, [1969] OLRB Rep. Nov. 970 and Gignac, Sutts, Nosanchuk, [1973] OLRB Rep. Aug. 438. He conceded, however, that good labour relations considerations favour the Board's not requiring that an applicant file particulars of alleged management misconduct relied upon only with respect to the voluntariness of employee petitions until after the applicant is notified that such petitions have been filed. He agreed that the applicant here acted promptly after being so advised. As for the claim under section 8, however, he argued that the time for filing allegations then known to the applicant was the application date and that the applicant had not been prompt in that regard.
If the decision in Burlington Hotel Company Limited, supra, stands for the proposition that allegations of misconduct with respect to a petition must be filed, if then known, before the applicant knows whether any petition has been filed, it would appear to contradict other Board decisions of comparable vintage: Canadian Hanson & Van Winkle Company Limited, [1967] OLRB Rep. Nov. 756; National Starch & Chemical Co. (Canada) Ltd., [1968] OLRB Rep. Sept. 597; Pre-Con Murray Limited, [1968] OLRB Rep. Nov. 793; Navco Food Services Ltd., [1969] OLRB Rep. Nov. 979; Journal Printing Company, [1971] OLRB Rep. Jan. 18; and, particularly, Tradewoods Manor Nursing Home Ltd., [1971] OLRB Rep. Mar. 136. We are of the view that an applicant's obligation to file particulars of allegations of misconduct which are intended to apply solely to the issue of the voluntariness of a petition or petitions arises when it is advised by the Board that a petition has been filed and that that is so even if the applicant has prior knowledge that a petition was being circulated. We need not decide whether such prior knowledge triggers an earlier duty to investigate which would affect the promptness with which an applicant would be expected to file petition-related charges once it is notified by the Board of the filing of a petition. By any measure, this applicant acted promptly once it was notified. We do not agree that applicants are under any obligation to seek advance notice of information which would in due course be the subject of official communication by the Registrar in writing, nor do we accept the implication that the Registrar should be expected to answer telephone enquiries about filings before she has given official notice of the filings to all affected parties in the usual manner.
Given the quantity of membership evidence filed, the claim under section 8 appears to add nothing, by way of response to the petitions, to the mere assertion of the facts on which it is based. If all of the applicant's membership evidence is satisfactory, then the Board has the power in this case to certify without a vote without resort to section 8. It is most difficult to imagine the Board's exercising its discretion under subsection 7(2) by ordering a vote in circumstances to which section 8 would apply. If the documentary evidence filed by the applicant is not satisfactory evidence of membership that will be as a result of something other than the petitions (see Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138 at paragraphs 15, 16 and 17). The claim under section 8 would then be an alternate basis for the applicant's claim for certification, not just a matter of reply on an issue first raised by the objectors. To the extent it relies on allegations of which the applicant then had knowledge, it might fairly be said that the promptness envisaged by section 72 of the Board's Rules of Procedure favoured the applicant's asserting and particularizing its claim under section 8 at the time it filed this application.
If on March 4, 1988 there had been any prospect that, but for the allegations relied upon in the claim under section 8, this application would be disposed of that day, then the argument that that claim should be rejected as untimely would be worthy of serious consideration. There was no such prospect, however. Even if there had been no allegations of misconduct, the hearing of the participant's dispute about the composition of the bargaining unit and the usual inquiry into the circumstances of origination, circulation and signing of 226 petition documents would not have been completed on March 4th, even if the whole day had been available for that purpose. We would not have commenced such a hearing at 3:45 in the afternoon in any event. The number of employees in the bargaining unit sought in this case, together with the current practice of delaying the union's scrutiny of the employer's list until the first scheduled date of hearing, effectively ensured that the first scheduled hearing day would not be the first day of hearing with respect to any matter of substantial dispute. Even when it has found that allegations in support of a claim under section 8 could have been made earlier, the Board has not refused to entertain the claim when the timing of its filing did not itself lead to an adjournment or otherwise cause prejudice or delay: Riverdale Frozen Foods Limited, [1979] OLRB Rep. Apr. 338. Here, an adjournment to a series of future dates was necessary due to factors unrelated to the introduction of the applicant's claim under section 8. In those circumstances, we see no good reason to strike the claim out merely because it and a portion of the allegations on which it is based could have been asserted earlier.