Retail, Wholesale and Department Store Union, AFL:CIO:CLC v. Allan Candy Ltd., 1988 CanLII 3734

[1988] OLRB Rep. October 998

1163-88-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC, Applicant/Complainant v. Allan Candy Ltd., Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members W. Gibson arid C. A. Ballentine.

DECISION OF OWEN V. GRAY, VICE-CHAIR, AND BOARD MEMBER W. GIBSON; October 27, 1988

1. This is an application for certification in which the applicant requested that a pre-hear­ing vote be conducted. By decision dated September 14, 1988, a somewhat differently constituted panel directed that a pre-hearing representation vote be taken. The matter of arrangements for the conduct of the vote was referred to the Registrar.

2. On the day the vote was conducted, September 29, 1988, counsel acting for the applicant trade union wrote to the Registrar to the following effect:

We have just learned that a captive audience meeting involving all employees was held at the workplace yesterday. Mr. Freeman, owner and proprietor, and Mr. Rossi, general manager, were present. They read a letter to the employees (a copy of which is appended), which con­tained threats to their job security. Further particulars will follow. It is the position of the appli­cant that this constitutes a violation of the Act.

It is the further position of the applicant that the ballot box ought to be sealed pending the Board's resolution of this complaint.

The Registrar did seal the ballot box, in the exercise of her delegated authority to determine mat­ters involving the conduct of the vote. Obviously, this did not involve a determination by her or by the Board of the merits of the implied claim that ballots cast in the vote conducted that day would not reflect the true wishes of the voters. It simply ensured that the Board could deal with the ques­tion whether effect should be given to the ballots cast in the vote before those ballots were counted.

3. Notice of the Report of the Returning Officer with respect to this vote was given to the applicant, respondent and affected employees in Form 71. By means of that form, those parties were advised that if they wished to make representations in connection with the application or as to any matter relating to the representation vote, they were required to send a statement to that effect to the Board by October 12, 1988, which statement was required to contain "a concise state­ment of your allegations concerning the application or the representation vote" and "a statement as to whether you desire a hearing before the Board." The Notice further stated that if no such statement were filed by the specified date, the Board might dispose of the application upon the material before it without further notice. In this regard, the Notice advised the parties that "If you do not request a hearing but wish the Board to consider your representations without a hearing, your statement of desire must contain all the representations you desire the Board to consider." (While Form 72 should have been used to give notice of the report of the Reporting Officer, the relevant portions of Forms 71 and 72 are the same, and no interested party would have learned from a notice in Form 72 anything which they would not have learned from the notice given here.)

4. By letter to the Registrar dated October 4, 1988, the respondent's solicitors asserted that:

the contents of the letter read to Allan Candy employees does not [sic] make out a prima facie case of any violation of the Ontario Labour Relations Act. We are unable to discern any threats to the job security of our client's employees as alleged in Union Counsel's letter.

Unless further particulars follow expeditiously in the form of a Section 89 complaint, it is our cli­ent's position that there is no basis upon which the integrity of the secret ballot vote can be questioned. Therefore, the ballots should be counted and the result should be binding upon the Respondent and the Applicant.

On October 6, 1988, the Board received written representations from some employees to the effect that the ballot box should be opened and the ballots cast should determine the result of the certifi­cation application.

5. In the afternoon of October 12, 1988, the Registrar received the following letter dated October 11, 1988, from counsel for the applicant:

RE: Retail, Wholesale and Department Store Union and Allan Candy Ltd. 1163-88-R and our Unfair Labour Practice Complaint

Further to our letter dated September 29, 1988; enclosed please find six copies of an unfair labour practice complaint, which we ask that you process in the usual way.

We have had a chance to review the letter from the respondent, dated October 4, 1988 request­ing further particulars.

Our allegation is that the attached letter, read by the respondent to all employees the day before the vote, is in violation of the Act. The respondent's position, as we understand it, is that we have not made out a prima facie case. They request further particulars.

In our opinion, whether we have made out a prima facie case is a matter tot argument, not for further particulars.

We reiterate our request that the ballot box remain sealed pending the Board's determination of our complaint.

The unfair labour practice complaint referred to in this letter has been assigned Board File No. 1679-88-U. The acts complained of are described this way in that complaint:

A representation vote was scheduled to be held on September 29, 1988. The day prior to the vote, a "captive audience" meeting was held by the owner and general manager of the respon­dent. The attached letter was read to the employees.

It is the union's position that the letter contains threats to the job security of the employees, and that the respondent's activities were in violation of sections 64, 66 (a) and (c) and 70 of the Act.

The relief claimed in the complaint includes certification pursuant to section 8 of the Act or, alter­natively, a new vote (which claims, we note, should more correctly have been asserted in the cer­tification proceedings themselves).

6. Subsections (2), (4) and (5) of section 70 of the Board's Rules of Procedure provide as follows:

(2) Subject to subsection (3), where a pre-hearing representation vote is taken,

(a) a party; or

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

who desires to make representations in connection with the application or as to any matter relat­ing to the representation vote or the accuracy of the report of the returning officer or the conclu­sions the Board should reach in view of the report, shall file a statement of desire as prescribed in Form 71 or 72, as the case may be, on or before the last day for the posting of copies of the report and notices under subsection 69(3).

(4) Upon receiving a statement of desire to make representations in the form and manner required by this section that contains a statement that a party or any employee or representative of a group of employees desires a hearing before the Board, the registrar shall serve a notice of hearing in Form 8 upon each of the parties to the proceedings and upon each person who has filed a statement.

(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.

[emphasis added]

7. This application was referred to this panel at this stage because no express statement that a party desires a hearing in the certification proceedings appears in any of the statements of desire filed. (For the sake of analysis, we include in that category all of the applicant's material referred to herein, including the complaint filed under section 89.) We were initially inclined to the view that subsection 70(5) of the Rules was therefore applicable. As appears from the use of the word "may" in subsection 70(5) of the Rules, the Board is not obliged to deal with an application upon the material then before it without a hearing. The Board may conclude from the material then before it that a hearing is necessary or desirable. We therefore considered whether we would dispose of the question whether to count the ballots without conducting a hearing. That required consideration of the merits of the applicant's claim having regard to the representations it had made.

8. We read the letter which the applicant says was read to employees by the owner and general manager of the respondent at a "captive audience" meeting held on the day before the vote was conducted. In the absence of any other representation as to its meaning, we took the phrase "captive audience meeting" to mean that the meeting was instigated and called by the employer and conducted during the employees' working hours, and that all employees were required to attend. Having carefully reviewed the letter which was attached to counsel's letter of September 29, 1988 (no copy of any letter was, in fact, attached to the unfair labour practice com­plaint which accompanied the letter of October 11, 1988), we did not find in it any threat to the employees' job security. In the absence of any representation that any of the language used by the employer had some special or secondary meaning in the context of the subject workplace, it appeared from the material before us that the respondent had remained within the bounds of the "freedom of expression" exception in section 64 of the Act. We concluded that we would direct that the ballot box be unsealed and that all ballots be counted, with the exception of segregated ballots of persons about whose eligibility to vote there was no agreement by the applicant, respon­dent and any interested employee in attendance at the time the ballots are counted.

9. Before our decision to that effect was released, we became aware that, as a matter of practice, some panels of the Board take the approach that a statement that a party desires a hear­ing need not be express but may be implied in what a party has written. While it is not at all diffi­cult for a party who receives and reads a Notice in Form 71 or 72 to respond to its instructions by writing the words "We desire a hearing", the word "express" does not appear beside "statement" in the phrase "statement as to whether you desire a hearing before the Board" in Forms 71 and 72 or in the phrase "statement that a party ... desires a hearing before the Board" in subsections 4 and 5 of section 70 of the Rules. Although it was not initially our interpretation, the view that the requisite statement may be implied seemed a not unreasonable interpretation of the language of section 70 of the Rules.

10. Another matter of practice then entered into our consideration. The numbered para­graphs of Forms 71 and 72 clearly say that a party wishing to make representations in connection with the application or as to any matter relating to the representation vote must set out in its state­ment of desire at least a concise statement (Form 71) or summary (Form 72) of the representations it wishes to make, even if it also states that it desires a hearing. In practice, parties familiar with Board proceedings often do little more than say that they desire a hearing with respect to matters still in issue, without setting out any statement or summary of the representations of fact on which they propose to rely. This is apparently on the theory that the last words on those Forms (which appear in the last of the quotations in paragraph 3 of this decision) suggest that it is only necessary to set out representations when a hearing is not asked for. In practice, parties have not been lim­ited at hearing to the representations summarized in their statements of desire; that practice has no doubt encouraged the view that, despite the language of the Notices, the representations to be made need not be summarized or concisely set out in a statement of desire if a hearing is requested (except to the extent necessary to comply with section 72 of the Rules). Against that background, if the applicant here has made a statement that it desires a hearing, it might fairly think that, for the purposes of Rule 70, its statement of desire need only allege threats to job security without making any representations of fact to support the allegation.

11. It seems not unlikely that this applicant wants a hearing. Such an implication can be drawn from the filing of the complaint and the request that it be processed, on the theory that those who file complaints clearly want the subject matter of those complaints to be the subject of a hearing. A decision that it is not entitled to a hearing as of right because it has not expressly said "we desire a hearing" might come as a surprise to it. It would be unfortunate if Rule 70 were administered inconsistently, with some panels taking the view that parties wishing a hearing as of right must say so expressly, while others are prepared to review the filings to see if any party has said anything from which a desire for a hearing may be inferred. In the interest of consistency and fairness, we accept the latter approach.

12. Although the applicant has not said "we desire a hearing", we infer from what it has said that it wants a hearing on the question whether the ballots should be counted and, in that sense, has made a statement that it desires a hearing. We therefore have no choice but to direct that the Registrar list the certification application for hearing pursuant to subsection 70(4) of the Rules. It would make sense to list Board File 1679-88-U with it.

13. Out of respect for the concern expressed by our colleague in his concurring decision, we should explain why we have recorded in paragraph 8 the finding that we made after we initially concluded that we could deal with the issue raised by the applicant on the material before us, with­out conducting a hearing.

14. Those who appear before the Board, including trade unions and those who represent them, are often heard to express frustration and disappointment that the Board does not more often deal summarily with claims which, because of the way they have been expressed, do not appear to allege a prima facie case for the relief sought. Against that background, and having regard particularly to our own initial reaction, we thought that in the absence of an explanation, the employer and the employees who have requested that the ballots be counted might well be per­plexed that the disposition of this certification application is being delayed by scheduling for hear­ing a claim which appears on its face to have no merit, particularly when the party asserting the claim has not expressly asked for a hearing. We thought it important to provide an explanation of that result. We thought it important to make it clear that the critical question was whether we were free to dispose of the matter on the material before us: that it was critical because, on the material before us, we would have summarily rejected the assertion that the ballots should not be counted, if we were free to do so. It was important to record that the result here was strongly influenced, if not dictated, by practices the existence of which might not be intuitively obvious to someone who has merely read the Board's Forms and Rules of Procedure. So far as we are able to do so by refer­ring to them here, it was important to ensure that all those who may become involved in Board proceedings can become aware in advance of practices which influence the way panels may deal with procedural problems. It is necessary not only that the Board's approach to procedural issues be even-handed but also that it appear to be even-handed. It is necessary, therefore, to record and to demonstrate to the other parties to this application that the Board's Rules, inclinations and past practices produced the result here, and should do so equally for them if positions were reversed. It was desirable to demonstrate that the Board is disciplined by those rules and considerations despite any impression it may prematurely form with respect to the merits of a claim. It was also desirable to alert parties who become involved in Board proceedings that the failure to expressly request a hearing in circumstances such as these can lead to a panel's forming (and perhaps even acting on) what to the party would seem a premature view of the merits of its position. For all of these rea­sons, we felt it was necessary to record our initial reaction to the material before us.

15. It necessarily follows from our ultimate conclusion, and we agree with our colleague, that it will be for the panel which hears this matter to determine, on the basis of whatever evidence may then be offered and received, whether the ballots cast on September 29, 1988 should be counted. As we came to a premature determination of that question, it should not be heard by this panel. The panel which does hear the matter will not, of course, be bound by the conclusion we have expressed in paragraph 8.

CONCURRING OPINION OF BOARD MEMBER C. A. BALLENTINE; October 27, 1988

I concur with this decision except paragraph 8 page 5. I view this finding as unnecessary and it should have been left for the panel of the Board that will hear the complaint to decide.