Ontario Labour Relations Board

[1988] OLRB Rep. October 1107

1386-88-R Teamsters Local Union No. 938, affiliated with the International Broth­erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Applicant v. Southern Express Lines of Ontario Limited, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members R. W. Pirrie and H. Peacock.

APPEARANCES: Eric del Junco, Al LeFort and Jim O'Donnell for the applicant; Donald J. McKil­lop, George Toperczer and Marty Tribble for the respondent.

DECISION OF TILE BOARD; October 20, 1988

[ 1 ] This is an application for certification. The applicant originally named "G & W Freight-ways Ltd. Southern Express Lines Ltd." as respondent. Having regard to the agreement of the parties, the title of this proceeding has been amended to describe the respondent as "Southern Express Lines of Ontario Limited".

[ 2 ] The respondent took the position that the Board should decline to entertain this appli­cation. The Board's authority to do so is found in clause (i) of subsection 103(2) of the Labour Relations Act ("the Act"), which provides that

103.-(2) Without limiting the generality of subsection (1), the Board has power,

(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing such employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application.

[emphasis added]

For the most part, the facts on which the respondent relies in support of its request are not in dis­pute.

[ 3 ] On June 3, 1988 the applicant filed an application for certification (Board File 0588-

88-R) with respect to the unit of employees affected by the application now before us. At the same time, it filed a similar application with the Canada Labour Relations Board ("the CLRB"). The applicant initially advised both labour relations boards that it felt that labour relations between the respondent and the subject employees was a matter which fell within provincial jurisdiction. In its replies to both applications, the respondent took the position that its labour relations with the affected employees did, indeed, fall within provincial jurisdiction. Board File 0588-88-R was sched­uled for hearing July 8, 1988. The CLRB held the application before it in abeyance.

[ 4 ] On July 6, 1988, the applicant's counsel wrote to both labour relations boards to advise that the applicant had changed its position and was at that point taking the position that labour relations between the respondent and the subject employees fell within federal jurisdiction. He asked that the application before this Board be adjourned sine die, and that the CLRB commence processing the application which had been filed with it. Counsel for the respondent opposed the applicant's request that the application before this Board be adjourned sine die. That application came on for hearing before another panel of this Board on July 8, 1988. That panel then ruled orally that "since the applicant's position is that this Board has no jurisdiction to entertain this application, the Board is satisfied that it should be dismissed." That ruling was confirmed in writing on July 15, 1988.

[ 5 ] Following the applicant's letter to it of July 6, 1988, the CLRB began processing the application which had been filed with it. The respondent was required to and did file certain mate­rial with the CLRB, including a list of its employees and their job classifications and a "brief' ela­borating its claim that its labour relations fell within provincial jurisdiction. The CLRB gave the applicant copies of that material.

[ 6 ] On August 17, 1988, the applicant filed a second application with this Board (Board File 1 182-88-R) for certification with respect to the employees which are now the subject of the application before us. By letter dated August 19, 1988, counsel for the applicant advised the CLRB that "[upon reviewing the materials filed by the respondent and further investigating the respon­dent's operations" the applicant had decided to reapply to this Board and was requesting that the application before the CLRB be held in abeyance pending this Board's determination. On August 22, 1988, the CLRB decided to hold the application before it in abeyance until September 30, 1988. This prompted counsel for the respondent to complain to the CLRB about its having twice adjourned the application before it without in either case having first solicited his client's submis­sions.

[ 7 ] The terminal date in the applicant's second application to this Board came and went without the applicant's having filed the membership evidence on which it relied, despite the requirement of section 73 of this Board's Rules of Procedure. The respondent filed the material required of it. The application was scheduled for hearing September 9, 1988. By letter delivered to this Board by hand in late afternoon on September 6, 1988, the applicant requested leave to with­draw this second application. The applicant did not advise the Board of the reason for the request at the time it was made. That is not unusual, since the Board ordinarily focuses only on the timing of the request in deciding whether to grant it: see Practice Note No. 7. During our efforts to ascer­tain the facts without the necessity of formal proof, its counsel told us that the applicant had made the request upon realizing that (and because) it had forgotten to file its membership evidence by the deadline. This was not repeated under oath nor, before argument, did counsel for the respon­dent suggest that it had to be.

[ 8 ] By telegram dated September 7, 1988, the Registrar advised the parties that, in view of the applicant's request to withdraw, the hearing scheduled for September 9, 1988 had been can­celled. By decision dated September 8, 1988, another panel of this Board granted the applicant leave to withdraw the application. In the meantime, on September 7, 1988, the applicant filed the application now before us. On September 9, 1988, the applicant wrote to the CLRB requesting leave to withdraw the application then before that Board.

[ 9 ] As a matter of constitutional law, the regulation of labour relations with respect to employees involved in the transport of goods by truck may fall either within federal or provincial jurisdiction, depending on the nature of the employer's operations. Those determinations can be difficult, and can turn on facts of which the employees and their trade union may well have no knowledge. Counsel for the respondent is not critical of the applicant's initial confusion about the proper forum in which to bring its application. He argued, however, that the multiplicity of appli­cations here gave rise to a "possibility of manipulation" with respect to the gathering and filing of membership evidence. Counsel particularly emphasized the fact that before filing the application now before us, the applicant had been able to obtain a list of employees of the respondent in the course of the proceedings before the CLRB. He argued that this Board has a "principle" of main­taining secrecy of employee lists, which principle had been violated by the course taken by the applicant. He also argued that the Board should be suspicious of the circumstances of the with­drawal of the immediately preceding application in Board File 1182-88-R. He submitted that it was hard to believe that this trade union would have merely forgotten to file the necessary membership evidence. Making reference to the Board's decision in Mathias Ouellette, 56 CLLC ¶18,026, he argued that the applicant had to establish "special circumstances", and that its failure to lead evi­dence with respect to the reasons for its withdrawal of the application in Board File 1182-88-R should therefore result in the Board's declining to entertain this application.

[ 10 ] Our review of Board File 0588-88-R revealed that the membership evidence originally filed in connection with that application had consisted of 17 combination applications for member­ship and receipts. Although the documents themselves were returned to the applicant on or about August 5, 1988, the names of the persons who apparently signed those documents can be ascer­tamed from material which remains in the file. Seventeen combination application for membership and receipt documents have been filed in support of the application now before us. All 17 docu­ments are dated either June 1 or June 2, 1988. The names of the persons who appear to have signed these documents correspond precisely to the names of the persons who appear to have signed the membership evidence which was filed originally with Board File 0588-88-R. Accord­ingly, it appears that the documentary evidence of membership evidence on which the applicant relies in this application concerns membership of which the applicant had documentary evidence before any "possibility of manipulation" arose. These facts were drawn to the attention of counsel for the respondent in the course of his submissions. His response was that the "possibility of manipulation" on which he relied should result in our declining to entertain the application now before us even if we were satisfied that no advantage had been taken of that possibility in this case.

[ 11 ] The Board's approach to the exercise of its discretion under clause 103(2)(i) (then sec­tion 92(2)(i)) was described succinctly in Repac Construction & Materials Limited, [1978] OLRB Rep. Jan. 91 at paragraph 7:

7. As a general principle the Board is quite reluctant to either bar, or refuse to entertain, a sub­sequent application for certification filed by a previously unsuccessful applicant. lndeed, such action is usually only taken either where employee desires have been tested by a representation vote in which the union failed to receive sufficient support to be certified (See: Campbell Soup Company Ltd., 11976) OLRB Rep. Feb. 1091), or where the union has sought to avoid an unfa­vourable vote result by withdrawing its application following the ordering of such a vote. (See: Mathias Cuellette 56 CLLC ¶18,026). Exceptional circumstances may, however, also lead to the Board invoking the provisions of section 92(2)(i) in other situations. The leading example of this is the J. W. Crooks Company case, (1972] OLRB Rep. Feb. 126, where "in light of the special and extreme circumstances confronting the Board", namely four unsuccessful applications for certification made by the same applicant in a little over three months, the Board imposed a six month bar on any future applications by the same applicant. In its consideration of any request pursuant to section 92(2)(i), the Board, concerned that the wishes of employees be given effect to, has always been careful not to use its authority under that section merely to punish an unsuc­cessful applicant union, even in those instances where the union may have engaged in previous irregular or improper conduct. (See: Fruehauf Trailer Company of Canada Limited 119741 OLRB Rep. Jan. 6.).

The alleged "irregular or improper conduct" with which the Fruehauf Trailer decision dealt was the submission in a prior application of membership documentation purporting to evidence pay­ments which had not in fact been made, something which the Board there was prepared to charac­terize, for the sake of analysis, as a "fraud on the Board."

[ 12 ] While the Fruehauf Trailer decision and others may weigh against the proposition, we are prepared to accept for the sake of this analysis that an applicant's "abuse of the Board's pro­cess" in prosecuting a prior unsuccessful application may be a relevant consideration in exercising the discretion afforded by section 103(2)(i). There is, however, no "principle" of maintaining secrecy of employee lists in proceedings before this Board. Natural justice requires that any such list be revealed to an applicant at an appropriate point before the Board disposes of any issue to which the contents of the list are relevant: Kitchener-Waterloo Hospital, [1988] OLRB Rep. Apr. 406; Metropolitan Separate School Board, [1986] OLRB Rep. Dec. 1'733; Nova Scotia Michelin Tire Employees' Local 1699 v. Nova Scotia Labour Relations Board, 86 CLLC ¶14,009 (N.S.S.C.); and, Airline Limousine, [1985] OLRB Rep. Jan. 1. The mere fact that a.n applicant obtained infor­mation to which it was entitled in the course of its pursuing an ultimately unsuccessful certification application could not alone amount to an abuse of this Board's process. In the absence of a statu­tory provision giving a union an independent right to such information, however, it could be argued that it would be an abuse of this Board's process for a union to prosecute a certification application which it knows has no prospect of success for the sole purpose of obtaining names of employees in a bargaining unit targetted for organizing. We are not aware of any case in which that has occurred. It is unnecessary for us to determine whether there are any other circumstances in which an applicant's having obtained a list of employees in the previous proceeding before this Board would amount to an abuse of the Board's process. The question does not arise here. Neither of this applicant's two previous applications to this Board reached the stage at which it would ordi­narily have received a copy of the employer's list, and there is no suggestion that the applicant did, in fact, obtain a list of employees of the respondent as a result of any use of this Board's process. It is not for us to say what would or would not constitute an abuse of the CLRB's processes, or to use our powers to police the use of those processes. In any event, we note again that the very substan­tial membership support on which the applicant relies in this application is the support it had when it filed its first applications in June, before there had been any "possibility of manipulation".

[ 13 ] As for the argument the respondent based on the Board's decision in Mathias Ouellette, supra, it is important to observe that the prior unsuccessful application with which that decision dealt was one which had been dismissed because the applicant's request to withdraw it had been made after the Board had directed the taking of a representation vote. The onus contemplated by the decision in Mathias Ouellette, supra, does not apply unless the previous application had reached the stage at which a representation vote had been directed before the request to withdraw was made: see Mount Sinai Hospital, [1985] OLRB Rep. Dec. 1780, at paragraph 6. None of the applicant's previous applications before this Board had reached that stage; accordingly, any absence of evidence establishing "special circumstances" has no special significance here.

[ 14 ] It is clear from the language of clause 103(2)(i) that its drafters considered an "unsuc­cessful application" to be one which has been dismissed. Board File 1182-88-R was not dismissed. It is unnecessary for us to deal in this case with counsel's submission that the Board should not have granted the applicant's request for leave to withdraw that application without first giving the respondent notice of the request and an opportunity to make submissions. Having heard his sub­missions, we are not persuaded that that application ought to have been dismissed. In this case, therefore, there is only one "unsuccessful application" to this Board prior to the one before us.

[ 15 ] When counsel for the respondent concluded his argument with respect to the exercise of our discretion, for the reasons set out above we were not persuaded that we should refuse to enter­tain this application, and so advised the parties.

[ 16 ] Following our oral ruling, representatives of the applicant and respondent met with a Labour Relations Officer, came to agreement with respect to matters remaining in issue and con­sented to the Board's issuing a decision in this matter based upon the submissions made and agree­ments reached, without an oral hearing before a panel of the Board.

[ 17 ] We find that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

[ 18 ] Having regard to the agreement of the parties, we find that

all employees of the respondent in Metropolitan Toronto save and except supervisors, those above the rank of supervisor, mechanics, dispatchers, bro­kers, office and sales staff, employees regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period constitute a unit of employees of the respondent appropriate for collective bargaining in this appli­cation.

[ 19 ] We are satisfied on the basis of all the evidence before us That more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on September 27, 1988, the terminal date fixed for this appli­cation and the date which we determine, under clause section 103(2)(j) of the Act, to be the time for the purpose of ascertaining membership under subsection 7(1) of the Act.

[ 20 ] A certificate shall issue to the applicant.