[1990] OLRB Rep. December 1334
1955-90-R Hospitality, Commercial and Service Employees Union, Local 73 of the Hotel Employees and Restaurant Employees International Union, Applicant v. Ronscott Inc. carrying on business as Shoreline Motor Hotel, Respondent
BEFORE: Brain Herlich, Vice-Chair,, and Board Members J. A. Ronson and K. Davies.
DECISION OF THE BOARD; December 7, 1990
This is an application for certification.
The parties met with a Labour Relations Officer on November 15, 1990 and, subject to the respondent's position that it was inappropriate for the officer to proceed with the meeting, were able to agree on a number of issues regarding the application.
This application was filed on October 24, 1990. As of that date the Board had not previously found the applicant to be a trade union within the meaning of section 1 (l)(p) of the Labour Relations Act (although such a finding has previously been made in relation to the parent Hotel Employees and Restaurant Employees International Union). Consequently, as is the usual practice, the Registrar by letters dated October 30, 1990 advised the parties as follows:
On reviewing the application in the above matter, it appears from a check of the Board's status records that the Board has not found in any previous proceeding that the applicant has been found to be a trade union within the meaning of section l(l)(p) of the Labour Relations Act under the name used in the current application.
If our information is correct, the applicant may be required at the hearing scheduled in this matter to satisfy the Board in accordance with its usual practice that the organization is a trade union within the meaning of section 1(l)(p) of the Labour Relations Act, or is the same organization as one found previously to be a "trade union" by the Board.
If our information is incorrect, the applicant is to advise me immediately in writing of the file number of the Board proceeding in which the applicant under the present name has been found to be a trade union. If you have any questions, please contact James Bowman, Deputy Registrar, at 326-7500.
The respondents’ reply is dated November 9, 1990 and was filed on November 13,
The reply includes no reference to the issue raised in the Registrar's letter.
On November 14, 1990 the Board (differently constituted), after hearing the viva voce evidence called by the union and considering the conflicting submissions of the parties in that case, issued a decision wherein, inter alia, it found the applicant to be a trade union within the meaning of section l(l)(p). That finding was made in the context of a certification application brought by the same applicant in respect of a different employer (Quetico Centre, unreported November 14, 1990, Board File 1748-90-R).
When the parties to the present application attended before the Labour Relations Officer on November 15, 1990 it would appear that neither they nor the officer was aware of the finding made by the Board the previous clay. Both parties were aware of and had copies of that Board decision when the instant matter came on for hearing before the present panel on November 22, 1990.
Section 105 of the Labour Relations Act reads as follows:
Where in any proceeding under this Act the Board has found or finds that an organization of employees is a trade union within the meaning of clause l(l)(p)' such finding is prima facie evidence in any subsequent proceeding under this Act that the organization of employees is a trade union for the purposes of this Act.
Thus, in the absence of any allegations and proof to the contrary, an earlier Board finding that an organization is a trade union within the meaning of the Act is sufficient to dispose of what is generally referred to as the "status" issue in all subsequent proceedings involving the same organization.
The applicant in the present case urges us to follow precisely that course. Mr. Bickford, on behalf of the respondent, however, takes the position that the Board's decision of November 14, 1990 should be treated as a nullity (at least as against his client) and asserts that the applicant ought to be required to again prove its status in a hearing where the respondent will have the opportunity to cross-examine any and all witnesses called by the applicant. He asserts that since the status issue was unresolved at the time the present application was filed, his client was entitled to both notice of and the right to participate in any hearing where that issue was litigated. He argues that since his client's rights were prejudiced by not receiving notice of that hearing that we should treat the decision which issued as inoperative.
The policy underlying section 105 [then section 94] was discussed in Toronto Pattern Works Ltd., [1975] OLRB Rep. Dec. 911 at p. 911 as follows:
3....
The legislature has taken account of the fact that in the normal course a viable trade union continues as a viable trade union. A requirement for fresh oral testimony in each succeeding case after status has been proved would be inordinately time consuming and would place an onerous burden on trade unions to have witnesses present at all certification hearings in order to reprove status. Furthermore a requirement to reprove status might lead to labour relations instability if technical defects in one case were to bring into question the viability of the trade union in what might well be numerous other bargaining agency relationships establishe[d] subsequent to the initial proving of its status.
- For sound industrial relations consideration therefore the certificate on the status of the applicant trade union is prima-facie evidence of its status pursuant to section 94 of the Act. This is not to say, however, that the evidence of the applicant's status as embodied in the certificate can not be attacked and shown to be deficient to the extent that the Board, in the absence of countervailing evidence, will rule that the trade union no longer has status pursuant to section 1(1)(n) [now l(l)(p)]. In the fac[e] of section 94 it follows however, that an onus attaches to the respondent to support by credible and meaningful evidence its allegations with respect to the status of the applicant. See the Zeller's Limited case [1970] OLRB Rep. Nov. at page 815 where the Board stated:
It should be clearly understood, however, that a mere allegation unsupported by probative evidence which will substantiate any such challenge will not be sufficient to rebut the prima facie evidence of the applicant's status as a trade union or the presumption with respect to the right of the applicant under its constitution to take into membership the employees of the respondent in the bargaining unit.
Mr. Bickford referred us to the well-known cases of Re J. A. Weatherspoon and International Union U.A.W. Local 1256, 1972 CanLII 608 (ON HCJ), [1972] 2 O.R. 154 and Re Bradley et al and Ottawa Professional Firefighters Association et al, 1967 CanLII 160 (ON CA), [1967] 2 OR. 311 (C.A.) These cases involved issues of notice to employees potentially affected by the ruling of an arbitrator in grievances regarding competing seniority (viz, layoff or job promotion) rights. Mr. Bickford did not specifically articulate the nature of his client's interest it is said was prejudiced. Whatever the nature of that interest may be, it is not analogous to the interests examined by the Courts in the cases referred to.
Indeed, one may question whether Mr. Bickford's client's interest has been affected at all by the lack of notice of the Quetico Centre hearing. As the Toronto Pattern Works Ltd. case (supra) and others make clear, while a finding of status may well be res judicata in respect of the parties to a particular proceeding (see The Sisters of St. Joseph of the Diocese of London, in Ontario, [1972] OLRB Rep. Oct. 846) such a finding is not, strictly speaking, binding upon a stranger to the proceedings in which it is made. Thus, the Board has entertained challenges to previous findings of trade union status by parties not participating in the previous hearing where status was found (see for example C.D. C. Holdings Limited, [1979] OLRB Rep. Dec. 1142 and Footwear Fashions Limited, [1981] OLRB Rep. Apr. 454 - in the latter case, the Board found that despite an earlier finding to the contrary the intervener was not a trade union). It was certainly open to the respondent in this case to make allegations and call evidence to challenge the applicant's status - it did neither. All Mr. Bickford was seeking was that the applicant be required to call evidence to satisfy the Board anew of its status as a trade union. This is precisely the kind of mischief section 105 was designed to cure (see the Toronto Pattern case, (supra).
While Mr. Bickford's submission must be considered primarily in relation to the interest claimed to be protected, we are not unmindful of the disruption and prolongation of certification proceedings as well as the prejudice to newly formed unions which would result were the Board to accept the submissions. In principle there is no material difference between the interest of the respondent in the present case and that of another employer asserting that a union whose status has been established and accepted for several years ought to be required to reprove its status because the employer did not participate in the hearing where status was found. (Of course it would be open to even that employer, as it was to the respondent in this case to call evidence to rebut the presumption of status.) While, in fairness to Mr. Bickford, he agreed that such a scenario might be advancing his argument too far, he would not concede that an employer made subject to a certification application filed shortly after a status finding had been made should not be permitted to require the applicant to reprove status. But even the principal thrust of Mr. Bickford's argument causes us great concern. He asserts that once an application is filed by a putative trade union, the Board has a positive obligation to advise and notify any persons involved in matters with that union so as to allow an opportunity to participate in the hearing where status will be determined. The practical effect of such a requirement could be an indefinite suspension of a union's right to the benefits of the Act. What, for example, would the Board be required to do when a subsequent application (involving a second respondent) is filed on the eve of the hearing (involving the first respondent) where status is to be determined? If that hearing had to be delayed for purposes of notice, could the cycle not repeat itself indefinitely?
Section 105 of the Act is designed specifically to avoid such difficulties. If the respondent wished to challenge the applicant's status it was free to make appropriate allegations and call supporting evidence. It chose to do neither.
In view of the finding of the Board in Quetico Centre (supra) and in view of the provisions of section 105 of the Act, we are satisfied and find that the applicant is a trade union within the meaning of section l(l)(p) of the Act.
Mr. Bickford also asserted that it was inappropriate for the Labour Relations Officer to have conducted the meeting between the parties in view of the "threshold" issue of status being still outstanding at the time the meeting was conducted.
It is axiomatic that expedition is a prime value in all proceedings before the Board, particularly certification applications. The Board's experience has demonstrated that many certification applications are not controversial and can be disposed of without the need for a formal hearing. In many cases applications are resolved through the "waiver" process wherein the parties are in telephone contact with a Labour Relations Officer. Many other certification applications are resolved subsequent to a more formal meeting between the parties and a Labour Relations Officer. Indeed, the Board, in order to expedite the process and to minimize unnecessary use of hearing time, has recently implemented a process whereby the parties meet with a Labour Relations Officer prior to (rather than on the day of) a scheduled hearing. The range of areas canvassed between the parties and the Labour Relations Officer is comprehensive and includes such issues as proper names of parties, bargaining unit descriptions, review of employee lists, disclosure of the "count", a review of membership evidence and supporting documentation and the establishment of a voters' list and vote arrangements in cases where a vote appears likely. Typically, the Labour Relations Officer prepares a report which the parties sign. The report catalogues the areas of agreement and disagreement between the parties on all matters relevant to the application. Where the parties are in complete agreement, a decision may issue without the need for a formal hearing. Where areas of dispute remain, a hearing will take place to deal with those areas only. This process has and continues to serve the parties and the community well.
The respondent's submissions in this case, if accepted, would undermine the process and disturb the efficiency the parties to Board certification hearings have come to expect. Disagreement on one issue should not preclude the officer from canvassing and recording the parties' agreement (or disagreement) on all other issues relevant to the application. If any time a disputed issue arose in a certification proceeding, a hearing and determination of that issue would have to conclude prior to the meeting with a Labour Relations Officer, the process would be unduly protracted.
Nor is there any magic in the fact that the issue in the present case was whether the applicant is a "trade union" within the meaning of section l(l)(p) of the Act. Any agreement the parties enter in respect of other issues is obviously without prejudice to their right to argue the status (or any other disputed) issue before the Board.
In Emery Industries Limited, [1980] OLRB Rep. Mar. 316, the Board considered its jurisdiction to order and hold a pre-hearing representation vote prior to the union having proved status and concluded as follows:
We have carefully considered the submissions of the intervener with respect to the jurisdiction of the Board to order a representation vote. Essentially, the intervener argues that until a trade union establishes its status, it is not entitled to make use of the pre-hearing vote procedure. We cannot accept this contention. There is no reason for according the "status issue" a special significance which removes it from the ambit of a legislative scheme which specifically provides for a resolution of disputed issued after a vote is taken. Of course, if one adopts a strict "sentence-parsing" approach, one encounters the word "trade union" before mention is made of such matters as employee status, the appropriate bargaining unit, and membership in the trade union; but, while it may appear that one determination is a condition precedent separate from the next, in our view it is clear, having regard to the purpose and structure of section 8 [now section 9], that the Legislature intended that all of these matters be resolved at a hearing following the vote. The Board cannot certify the applicant union until its trade union status is determined; but we can see no reason for singling out the trade union status issue for special treatment; nor can we discern any labour relations objective which would be served by denying new unions access to the pre-hearing vote procedure. There is no reason why these new unions should be put at a competitive disadvantage vis-a-vis established organizations, and it would require the clearest possible language before the Board would be driven to this conclusion. There may well be cases where the issues raised are of such nature, or complexity, that a prehearing vote is inappropriate. Section 8 is framed so that the Board has a discretion to order a pre-hearing representation vote; and Rule 5 of the Rules of Practice regulates the procedure which must be followed when the Board has refused this request. However, there is nothing in the issue of trade union status, per Se, which prevents the taking of a vote, nor is there any evidence, in this case, of any other special circumstances which make such vote inappropriate or which justify any interference with the previous Board decision. In our view the Board was entitled to direct the taking of a vote and defer resolution of the trade union status issue.
We note, of course, that in pre-hearing applications the parties typically meet with a Labour Relations Officer in much the same fashion (with appropriate modifications to suit the procedure) as in a certification application where no pre-hearing representation vote is requested.
We adopt the reasoning of the Board in the above cited case and conclude that since an outstanding status issue is neither a bar to the holding of a Labour Relations Officer meeting nor the conduct of a vote prior to a hearing, there was then no impropriety in holding the Labour Relations Officer's meeting in the present case. On the contrary, in view of our description of the Board's process and the integral role of Officers' meetings within that process, it was entirely proper and desirable for the Officer in the present case to have completed all aspects of the meeting with the parties.
Having regard to the agreement of the parties the Board finds that:
all employees of the respondent in the City of Thunder Bay, save and except supervisors, persons above the rank of supervisor and the accountants/bookkeeper,
constitute a unit of employees of the respondent appropriate for collective bargaining.
Having regard to the further agreement of the parties and to all of the material before us, the Board is satisfied that more than fifty-five percent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on November 8, 1990, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(i) of the said Act.
A certificate will issue to the applicant.