[1989] OLRB Rep. March 245
2963-88-R United Steelworkers of America, Applicant v. Goldcrest Furniture Ltd., Respondent v. Laundry and Linen Drivers and Industrial Workers, Local 847 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervener #1 v. Group of Employees, Intervener #2
BEFORE: Owen V. Gray, Vice-Chair, and Board Members G. O. Shamanski and C. McDonald.
DECISION OF THE BOARD; March 20, 1989
1This is an application for certification in which the applicant requested that a pre-hearing vote be taken. It was filed on February 28, 1989. On March 2, 1989, the Board made the usual order authorizing a Labour Relations Officer ("LRO")
(1) to confer with the parties as to the description and composition of an appropriate bargaining unit;
(2) to examine the records of the applicant and of the respondent for the purpose of obtaining the information required by the Board under subsection 2 of section 9 of the Labour Relations Act;
(3) to confer with the parties as to the description and composition of the voting constituency, the list of employees as of the terminal date in this matter to be used for the purposes of any vote that may be directed by the Board, the form of the ballot, the date and hour for the taking of the vote, and the number and locations of the polling places;
(4) upon consent of the parties, to investigate any other matter relating to the application; and
(5) to report to the Board.
By letter dated March 2, 1989, the Registrar informed the respondent of this application, the Board's order of the same date and the date scheduled for the LRO's meeting with the parties and of its obligations to prepare and file material in connection with the application. Those obligations are as set out in the Form 5 Notice which accompanied the letter, paragraph 7 of which directed that:
You shall prepare and have the following material available on or before the 10th day of March, 1989, for the Examiner whom the Board will appoint in this application:
(i) A list arranged as in the schedules attached hereto of all employees in the bargaining unit described in the application as at February 28, 1989, the date when the applicant's application was made.
(ii) Documents, from among existing employment records containing signatures of the employees whose names appear on the list referred to above, arranged in alphabetical order.
2By letter dated March 7, 1989, a lawyer acting for the respondent advised the Registrar of its position that this application is untimely by reason of the alleged existence of a collective agreement between it and another union (hereafter referred to as "the incumbent union"). He asserted that the application should either be dismissed without a hearing or made the subject of a hearing on the question of timeliness before any further steps were taken concerning the applicant's request that a pre-hearing vote be conducted. This letter further advised the Registrar that the respondent had not posted the Notices to Employees which it had been directed by the Registrar to post.
3The LRO appointed for the purposes set out in the Board's decision of March 2, 1989, met with representatives of the applicant, the respondent and the incumbent union on March 14, 1989. The respondent had not by that date complied with paragraph 7 of the Form 5 Notice referred to above. The LRO's report to the Board indicates that the respondent's representative refused to provide the requisite lists of employees and challenged the Board's jurisdiction to entertain this application. It appears from the report that the LRO then adjourned the meeting without completing the tasks assigned in the decision of March 2, 1989, in order to get direction from the Board. It is not clear from the report whether the LRO made a demand to examine the respondent's existing employment records pursuant to the decision of March 2, 1989, nor that any person interfered with any attempt by him to do so.
4The LRO is directed to reconvene his meeting forthwith on 48 hours' notice to the counsel who appeared at his meeting of March 14, 1989. If the respondent has not by then complied with paragraph 7 of the Form 5 Notice, he is to demand of the respondent access to existing employment records showing who was employed by the respondent on the application date and the terminal date. If he is refused access, he is to draw the respondent's attention to the fact that any person interfering with his carrying out the Board's instructions may be liable to punishment in like manner as if he or she had been guilty of contempt of court: Statutory Powers Procedure Act, R.S.O. 1980, c. 484, section 13; Plaza Fiberglas Manufacturing Limited, [1985] OLRB Rep. Nov. 1648; Ontario Labour Relations Board v. Plaza Fiberglas Manufacturing Limited, (1986), 86 CLLC ¶14,031 (Ont. Div. Ct.). If the refusal continues, he is to record the name or names of the individuals who so impede his investigation, together with the information from which it appears that they were acting on the respondent's behalf in so doing.
5Whatever the outcome of the steps directed in paragraph 4, the LRO is to record in his report the results of his examination of such records as he gains access to in carrying out the instruction in paragraph (2) of the decision of March 2, 1989. He is also to complete his conference with those in attendance on all of the matters referred to in the decision of March 2, 1989, and any other issue which any party says arises in this application. He is to direct the attention of any party who refuses to take or disclose a position on any issue to the Board's decision in Airline Limousine, [1988] OLRB Rep. Nov. 1135 at paragraph 6. He is to complete his report in the usual manner.
6Once the LRO's final report is received, the Board will consider the matters referred to in subsection 9(2) of the Labour Relations Act, including the question whether a pre-hearing representation vote should be directed.
7The respondent would be well advised to review such decisions as Taiga Trucking (Ontario) 1980 Inc., [1987] OLRB Rep. Nov. 1433, Ontario Hydro, [1987] OLRB Rep. Dec. 1589, and Airline Limousine, supra. It should consider the difference between "jurisdiction" to grant certification after a hearing and "jurisdiction" to entertain and process a certification application. It should understand that the Board's processes cannot function as they should if parties treat the Board's rules and procedures as inapplicable whenever they feel their position will ultimately prevail.