Retail, Wholesale and Department Store Union, AFL:CIO:CLC: v. U-Need-A Cab Limited, 1989 CanLII 3117

[1989] OLRB Rep. March 301

3052-88-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant v. U-Need-A Cab Limited, Respondent

BEFORE: Owen V. Gray, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.

DECISION OF OWEN V. GRAY, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON: March 16, 1989

1. This application for certification was filed on March 9, 1989. In it, the applicant requests that a pre-hearing representation vote be taken. If none of the employees in the bargaining unit applied for was affected by a previously filed and still outstanding application, the initial processing of this application to the point at which notice of it would be given to the respondent employer would include the appointment, by a panel of the Board, of a Labour Relations Officer. Pursuant to that appointment, the Labour Relations Officer would 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 ("the Act"), and confer with the parties and report to the Board on their positions with respect to the description and composition of an appro­priate bargaining unit and of the voting constituency for the purpose of any vote, as well as other matters relating to the possible conduct of such a vote. Notice of the appointment of the Labour Relations Officer and of the place and time of his/her meeting with the parties (usually two days after the terminal date fixed by the Registrar under section 2 of the Board's Rules of Practice) would then be sent out to the applicant and respondent along with the other material which issues from the Board promptly after an application for certification is received.

2. On March 13, 1989, this panel was called upon to consider the otherwise routine appointment of a Labour Relations Officer in this application. As it happens, we are aware that there is a prior and still outstanding certification application by the applicant with respect to some or all of the same employees of the respondent. We understand that the applicant applied for leave to withdraw that application before filing this one and that the request to withdraw has not yet been dealt with because the Board is awaiting the respondent's written representations with respect to whether the dismissal of the first application (which would ordinarily be the minimum response to the request for withdrawal, having regard to the stage at which it was made) should be accompanied by the imposition of a bar on further applications pursuant to clause 103(2)(i) of the Act. The appropriate disposition of the first application is a matter which will be dealt with by another panel. The only question which arises now is whether, in these circumstances, we can or should now make the otherwise routine appointment of a Labour Relations Officer to meet with the parties to this application for the usual purposes.

3. Subsection 103(3) of the Act provides that:

(3) Notwithstanding sections 5 and 57, where an application has been made for certification of a trade union as bargaining agent for employees in a bargaining unit or for a declaration that the trade union no longer represents the employees in a bargaining unit and a final decision of the application has not been issued by the Board at the time a subsequent application for such cer­tification or for such a declaration is made with respect to any of the employees affected by the original application, the Board may,

(a) treat the subsequent application as having been made on the date of the making of the original application;

(b) postpone consideration of the subsequent application until a final decision has been issued on the original application and thereafter consider the sub­sequent application but subject to any final decision issued by the Board on the original application; or

(c) refuse to entertain the subsequent application.

It was at one time thought that this subsection precluded the Board taking any step in the pre-hear­ing processing of a "subsequent application" (other than to acknowledge receipt of it) unless and until the Board had either decided to proceed in the manner contemplated by sub-paragraph (a) or had issued a final decision with respect to the prior application. The correctness of that view turns on the meaning of "consideration of the subsequent application". In our view, the word "con­sider" means "decide" or "determine on the merits", rather than "process": see Board of Educa­tion for the City of Hamilton, [1987] OLRB Rep. June 847 at paragraph 15; and Kirouac Contract­ing Ltd., [1987] OLRB Rep. Oct. 1262 at paragraph 13; and see Egan Visual Inc., [1986] OLRB Rep. Aug. 1071, where the Board similarly interpreted similar language in subsection 40a(22) of the Act. Subsection 103(3) speaks to whether and when the Board will determine the merits of a "subsequent application". It does not prevent the administrative processing of an application to the point at which it is ready for hearing on the merits. Indeed, the appropriate application of sub­section 103(3) to any particular situation may itself be a matter of dispute which should not be resolved except following a hearing.

4. We do not agree with our colleague that the question whether to make the usual appointment of a Labour Relations Officer in this application ought to be put before the panel which will determine, at some later date, whether or not to impose a bar upon the dismissal of the first application. The implicit premise of that suggestion is that that panel would not decide the question now before us until it had decided whether or not to impose a bar in dismissing the first application. We recognize that our appointment of a Labour Relations Officer and any actions he or she might take would be of no consequence if that other panel decided to impose a bar, and that the delay involved in awaiting that decision may not be great. Nevertheless, there is an important point of principle here. In our view, and with great respect to our colleague, a decision to delay processing of this application because of the possibility that it will fail on an issue raised by the respondent employer is inconsistent with the Board's approach to applications in which a pre-hear­ing representation vote is requested.

5. Membership evidence is the primary basis on which certification applications are deter­mined in "ordinary" applications under section 7 of the Labour Relations Act. Whether this should be so is a matter of perennial debate. Employers and those who represent their interests argue that membership evidence is an unreliable basis for the certification decision, which they say should be based on a representation vote in every case. Employers are often incredulous that a majority of their employees wish to be represented by a trade union. It is argued on their behalf that collective bargaining will be more fruitful if that incredulity is first overcome by credible demonstration of employee support by means of a representation vote. Trade unions oppose the use of representa­tion votes in every case, for reasons which were reviewed by Professor Paul Weiler in Reconcilable Differences (1980, the Carswell Company Limited, Toronto) at pages 37 to 49. One of the concerns of trade unions is the adverse effect of delaying the consultation of employee wishes until after any other matters put in dispute by the employer have been fully adjudicated. The response to this debate in some jurisdictions has been to require representation votes in every case but conduct them quickly before hearing the application on the merits. While not compulsory in this jurisdic­tion, section 9 of the Act provides that an applicant trade union may opt for a quick vote when it files its application. We do not propose here to enter the debate about the relative merits of mem­bership evidence and representation votes as the basis for determinations of employee wishes. We simply note that if certifications based on representation votes are more palatable to employers and do provide a better foundation for collective bargaining than those based on membership evidence, then it is obviously in the interests of harmonious labour relations that the quick vote option be made as attractive as possible to trade unions. That involves ensuring that the processing of the application through to and including the conduct of the vote will not be susceptible to delay merely because a respondent employer raises an argument which, if successful, would result in the dis­missal of the application.

6. Certification applications are regularly processed through to and including the conduct of a pre-hearing representation vote notwithstanding the existence of issues which, if resolved in favour of the opponents of the applications, would result in their dismissal. From time to time a respondent employer argues that the prospect of its success on such an issue ought to lead the Board to determine that issue before conducting any pre-hearing representation vote. The Board has repeatedly rejected such arguments. As the Board observed in Kenting Earth Sciences Limited, [1985] OLRB Rep. Feb. 293 at paragraph 8:

A "pre-hearing representation vote" is precisely that: a vote conducted before any hearing is held to determine whether and to what extent the result of that vote should affect the rights of the parties. The Board has repeatedly noted that the expedition contemplated and intended by section 9 of the Labour Relations Act would be lost if the vote had to await formal adjudication of some contested issue in the guise of a preliminary matter: The Board of Education for the City of North York, [19841 OLRB Rep. July 989; Satin Finish Hardwood Flooring (Ontario) Limited, [1984] OLRB Rep. Nov. 1602, and the decisions cited therein. A hearing is conducted after the vote to determine whether effect should be given to the result.

In Ontario Hydro, [1987] OLRB Rep. Dec. 1589 the Board observed that:

4. The Board's response under subsection 9(2) to a request that a pre-hearing vote be conducted involves a decision about procedures not substance. The procedural question is whether to gather up additional information about the wishes of employees to be represented by the appli­cant. The employees whose wishes would be tested in this way collectively constitute one or more voting constituencies, which may very well not be coextensive with the bargaining unit or units ultimately found appropriate by the board. The voting procedure can be designed to ensure that a vote of employees in that bargaining unit or units can, in effect, be retrospectively reconstructed from ballots cast by persons in the voting constituency or constituencies. The Board's discretion in defining a voting constituency is fettered only by its own assessment of the possible utility of a pre-hearing vote conducted in that constituency. If it appears to the Board that not less than 35 per cent of the employees in a voting constituency were members of the applicant at the time the application was made~ the Board may conduct such a vote before enter-taming the representations and evidence of the parties and other interested persons with respect to matters relevant to the disposition of the application and before determining whether and to what extent the results of that vote could or should be relied upon in dealing with the applica­tion.

5. Except in very simple cases, there will always be some risk that no use can ultimately be made of the results of a particular pre-hearing representation vote. Against that risk must be balanced the potential benefit of the quick vote, both in the case at hand and for the certification process generally. In the Board's view, the purpose described in the preamble to the Act is best served by making the section 9 quick vote procedure a real and workable option in the widest possible range of cases. As a matter of policy, the Board will not be quick to conclude that a pre-hearing vote should not be conducted because of a risk, however real, that no use could ultimately be made of the results. Generally, the Board would rather conduct a pre-hearing vote which might later prove useless than fail to conduct a pre-hearing vote which might have been useful.

Although we are not yet at the stage at which the determinations contemplated by subsection 9(2) are to be made, these observations bear at least equal application to the purely procedural decision to appoint an officer to find out what the issues are in this application so far as the applicant and respondent are concerned.

7. It would entirely inconsistent with the Board's approach to applications under section 9 for the Board to delay making the usual officer appointment because in some subsequent adjudica­tion (albeit one which will take place relatively soon) this application may be brought to an end by the imposition of a bar in a prior application. Accordingly, we hereby appoint a Labour Relations Officer to be designated by the Registrar:

(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 of 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.

DECISION OF BOARD MEMBER JAMES A. RONSON; March 16, 1989

1. By this application the Applicant Union requests that a representation vote be taken among the employees of the Respondent Employer in the voting constituency as determined by the Board (section 9(1)and 9(2) of the Act). Upon receipt of such an application the Board may deter­mine a voting constituency and may direct that a representation vote be taken among the employ­ees in the voting constituency.

2. I believe the following factors affect our first exercise of discretion in this matter:

(A) On November 30, 1989 the Union filed an application for certification, (the "First Application"), concerning the same voting constituency we are deal­ing with in this application. The First Application is still before the Board. The Union's proposed bargaining unit is:

"All licensed taxi drivers of the respondent working under the U-Need-A Cab roof sign in the City of London, save and except, road chief supervisors, persons above the rank of road chief supervisor, dispatch staff, office and clerical staff, license plate owners and car owners.

CLARITY NOTE: This application is being made to represent only those persons who drive a vehicle and who own neither a car nor a license plate nor any combination of same."

The Employer's proposed unit is:

"All employees of the Respondent in the City of London, save and except road chief supervisors, persons above the rank of road chief supervisor, dis­patch staff, maintenance staff, office and clerical staff."

On a sheet attached to its Reply the Employer lists various groups of employees who, it alleges, are dependant contractors under the Act.

(B) On January 13, 1989 a panel of the Board composed of R. MacDowell, Alter­nate Chair, K.S. Davies and M. Rozenberg endorsed the Board record in the First Application as follows:

"A Board Officer is hereby appointed to meet with the parties and endeav­our to settle the matters in dispute between them, and, if necessary, to enquire into the employee list and composition of the bargaining unit."

(C) A review of the file in the First Application discloses that the Union and Employer had serious differences arising out of the employee lists which had been provided to the Union.

(D) By written request dated March 8,1989 the Applicant Union asked leave of the Board to withdraw the First Application.

(E) By registered mail on March 9, 1989, the Union filed its second application for certification and requested a pre-hearing vote. The proposed bargaining unit is:

"All licensed taxi drivers of the respondent working under the U-Need-A Cab roof sign in the City of London, save and except, road chief supervisors, persons above the rank of road chief supervisor, dispatch staff, office and clerical staff, license plate owners and car owners.

CLARITY NOTE: This application is being made to represent only those persons who drive a vehicle and who own neither a car nor a license plate nor any combination of same."

(F) I understand that in the First Application the Employer opposes the Union's request for leave to withdraw and wishes to submit argument to the Board that the First Application be dismissed and a bar be imposed on the Union preventing it from filing subsequent applications for certification within a given period of time.

3. Given this state of affairs, I would direct that this application be set down for hearing before the panel of the Board which deals with the Union's request to withdraw the First Applica­tion and immediately subsequent thereto. Not only are the bargaining unit problems and voting constituency problems intertwined between the two applications, but to proceed and determine the voting constituency in this application is to presume that the Union is entitled to withdraw the First Application without a bar being imposed.

4. I further direct that a copy of this, my decision, be delivered to the employer by the Labour Relations Officer who attends upon the Employer at the direction of my colleagues, Mr. Gray and Mr. Patterson.