[1990] OLRB Rep. April 419
2665-89-R Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. D.J. Venasse Construction Limited, Respondent
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.
APPEARANCES: Bernard Fishbein, Jules Bloch and K. P. Ryan for the applicant; Jim Hassell, Michael Venasse and Anne Murphy for the respondent.
DECISION OF LOUISA M. DAVIE, VICE-CHAIR AND C. A. BALLENTINE BOARD MEMBER: April 17, 1990
The name of the respondent is amended to read: "D.J. Venasse Construction Limited".
This matter came on for hearing before us on March 26, 1990. At the commencement of the hearing into this application for certification, counsel for the respondent made a preliminary motion requesting that this application be dismissed and that a bar be imposed. In so doing, counsel stated that he relied upon section 103(2)(i) of the Labour Relations Act ("the Act") and section 23(1) of the Statutory Power of Procedure Act ("the SPPA"). The motion was opposed.
Counsel for the respondent submitted this was the sixth application for certification filed by this applicant in respect of substantially the same group of employees in little more than two months. The first application was filed on November 23, 1989. The current application was filed on February 1, 1990. Counsel argued that the frequency of the applications warranted the imposition of a bar and relied principally upon St. Joseph's Hospital of Sarnia, Ontario, [1984] OLRB Rep. Sept. 1264 and J. W. Crooks Company, [1972] OLRB Rep. February 126.
In opposing the motion, counsel for the applicant asserted that generally, an application for certification is not entertained and/or a bar upon subsequent applications is imposed only where a representation vote has been held and the applicant has failed to obtain the necessary majority to be entitled to certification, or where an applicant has withdrawn an earlier application because it feared defeat in a representation vote which had been directed. Counsel acknowledged that in "special and extreme" circumstances which involved an abuse of the Board's process the Board has refused to entertain an application and imposed a bar but argued that those instances were rare and not applicable to the case before us. He relied upon inter alia, Campbell Soup Company Ltd., [1968] OLRB Rep. Feb. 1091, Watson Manufacturing Company of Paris Limited, [1968] OLRB Rep. Aug. 441, Repac Construction & Materials Limited, [1978] OLRB Rep. Jan. 91, Sonora Cosmetics Inc., [1982] OLRB Rep. June 954, Mon-Alice Construction Limited, [1977] OLRB Rep. Oct. 668, Colautvi Construction Ltd., [1985] OLRB Rep. May 643, Amarcord Carpenters Ltd., [1989] OLRB Rep. June 531.
The history which precedes its application may be summarized as follows: On November 23, 1989, the applicant filed an application for certification relating to all construction labourers in the employ of the respondent in the industrial, commercial and institutional (ICI) sector of the construction industry in the Province of Ontario and all construction labourers in all other sectors in Ontario in Labour Relations Board Area 16 (a standard ICI and Board Area 16 Bargaining unit). By telegram sent on November 27, 1989, and before the application had been sent to the respondent, the applicant sought leave of the Board to withdraw that application. By decision dated November 30, 1989 leave to withdraw was granted by the Board. By letter dated December 5, 1989, both parties were notified of this decision. We note that the respondents did not file a reply or a list of employees in response to this application (presumably because it was never notified of the application).
In the meantime, on December 1, 1989, the applicant had filed two further applications for certification (Board Files 2180-89-R and 2181-89-R). It is somewh2t of a misnomer to refer to two applications because, in fact, one of the applications related to a s r' dard construction labourers ICI and Board Area 16 bargaining unit, while the other related to construction labourers in Board Area 16 only. These two applications are therefore "overlapping" applications covering essentially the same employees. The applicant was unable to explain why it found it necessary to file two applications.
In those two applications, a terminal date of December 14, 1989 was fixed and notice of that was sent to the applicant. The respondent posted the notices that it was required to post and filed two replies and lists of employees prior to the terminal date. Neither the replies nor the lists of employees were forwarded to the applicant at any time because, by telegram sent on December 15, 1989, the applicant sought leave of the Board to withdraw the applications. In its submissions before the Board, the applicant stated that these applications were withdrawn because the applicant had "forgotten" to file some of the membership evidence. By decision of the Board dated December 19, 1989, leave to withdraw was granted. By letter dated December 28, 1989, the parties were notified of this decision.
In the interim however, the applicant had again filed two further applications for certification (Board Files 2289-89-R and 2290-89-R) on December 15, 1989, (the same day on which it had requested leave to withdraw the two earlier applications). Agairl, the applicant filed "overlapping" applications. One related to a standard ICI and Board Area 16 bargaining unit, while the other related to Board Area 16 only. January 4,1990 was fixed as a terminal date in each of these applications. The respondent posted the notices and filed the replies and the lists of employees prior to the terminal date. In this case, the respondent's reply, but not the list of employees, was forwarded to the applicant. An unfair labour practice complaint and a request to be certified pursuant to section 8 of the Act was also filed by the applicant.
By letter to the Board dated January 15, 1990, counsel for the respondent requested that the Board exercise its discretion under section 103(2)(i) and refuse to entertain these two applications for certification (Board Files 2289-89-R and 2290-89-R) and bar the applicant from making further applications until June 15, 1990. That request was opposed in a letter to the Board dated January 19, 1990 by counsel for the applicant.
A hearing in Board Files 2289-89-R and 2290-89-R was scheduled and held before a panel of the Board (differently constituted) on February 1, 1990. At the conclusion of that hearing the Board orally ruled to dismiss the applications but did not impose a bar.
At the hearing before us, the reasons for that oral ruling had not been issued by that panel of the Board. Although the parties were unaware of the reasons, there was no dispute that Board Files 2289-89-R and 2290-89-R had been dismissed on February 1, 1990. Therefore section 103(3) of the Act is not applicable to the issues before us as there was no pending application before the Board when the application currently before us was filed.
Since the preliminary motion was argued before us, the written decision and reasons of the Board dismissing Board Files 2289-89-R and 2290-89-R were issued in a decision dated March 26, 1990. We have had the benefit of reading that decision. The decision is brief and states:
This is the latest in a series of applications in which the union seeks to represent various groupings of the respondent's employees. The pattern of those applications need not be set out here. It's [sic] suffices to say that there have been a number of them, and in each case the union sought and was granted leave to withdraw. In some instances, new filings were made before a final disposition of the earlier proceedings.
The employer characterizes the present proceedings as repetitive and vexatious, and urges that they be dismissed pursuant to sections 103(1)(i) or 103(l)(3) [sic] of the Labour Relations Act. The union expressly agrees that we have jurisdiction pursuant to section 103 to dismiss the current applications, but asserts that the previous applications have not resulted in a particularly onerous burden upon the employer, and further that it is important to give weight to the statutory right to union representation - particularly in the construction industry where employment relationships are fluid.
Having considered the representations and agreement of the parties concerning the facts and the Board's jurisdiction, we are unanimously of the view that these applications should not be entertained and should therefore be dismissed.
It is not entirely clear from the decision whether the Board in fact relied upon section 103(3) or section 103(2)(i) in refusing to entertain the applications. Certainly, unlike the case before us, the panel which dealt with Board Files 2289-89-R and 2290-89-R was dealing with "subsequent applications" made at a time when "a final decision of the [previously filed] applications [had] not been issued by the Board" (section 103(3)). The issue before us is not complicated by such factor and can be dealt with pursuant to section 103(2)(i). There is no dispute that in these circumstances we have jurisdiction pursuant to that section.
The respondent asserts that the frequency of the applications should cause us to dismiss the application. It is argued that the series of applications have caused confusion and upheaval amongst the employees, and have caused hardship to the employer who must respond to the applications by posting the forms, filing replies and, although not argued, attending at the hearing. Evidence was not called in support of these submissions. We also note that a statement of objection to any of the applications for certification has not been filed with the Board by any employee.
In the present circumstances, we are not prepared to exercise our discretion and refuse to entertain this application or bar the applicant notwithstanding the previously withdrawn applications or the dismissal of the earlier applications on February 1, 1990. We find that in all of the circumstances, the mere frequency of the applications do not warrant a dismissal and the imposition of a bar to future applications.
In view of all the circumstances including the fact that there has not been a meeting with a Labour Relations Officer or discussion amongst the parties in respect of the list of employees (not yet seen by the applicant), the bargaining unit or any other matter raised in the various replies (some of which were never provided to the applicant), we have concluded that the mere frequency of the applications is insufficient to dismiss this application and impose a bar. These are not "special and extreme" circumstances nor do they represent an abuse of the Board's process.
The Board does not condone the apparently slipshod manner in which this applicant has dealt with these applications for certification. Under the circumstances however we do not find that they constitute an abuse of the Board's process. It would be punitive for the Board to dismiss the application and bar the applicant thereby potentially depriving employees of their right to trade union representation for a period of time.
There may be instances where repeated filings of applications which are ultimately not proceeded with does constitute an abuse of process, as for example by keeping the employer in a perpetual "freeze" period for a lengthy period of time. Similarly, and in the construction industry in particular, repeated applications may effectively deny another trade union an opportunity to represent employees or to have its applications for certification dealt with expeditiously. Given the nature of the construction industry and the transitory nature of employees within that industry, and in view of the importance which the "date of application" has in certification applications which relate to the construction industry (which may make the options available to the Board in section 103(3) unattractive), repeated applications may be vexatious or an abuse of process. In our view, the present circumstances, however do not raise these concerns.
For all of these reasons, the Board declines to exercise its discretion to dismiss this application and impose a bar. This application will proceed. The Registrar is directed to list this matter for hearing. The purpose of the hearing is to hear the evidence and representations of the parties in respect of all outstanding issues arising from this application for certification including the list and composition of the bargaining unit and the request of the applicant made in its letter dated March 12, 1990 to be certified pursuant to section 8 of the Act.
DECISION OF BOARD MEMBER W. GIBSON; April 17, 1990
I dissent.
This application for certification before us, dated February 1, 1990, is the fourth application made by this union since November 23, 1989 for the same bargaining unit (sixth application in total if you count the unnecessary twin applications made on December 1,1989 and December 15, 1989).
The union came before us, and admitted, quite frankly, that they had made errors in the filing of the first and second applications, for which they apologized. Accepting this apology still leaves us with the unnecessary paperwork inflicted on both the OLRB and the employer, plus, even more importantly, the disruption to the employers operations while this application is continually being filed, withdrawn, and re-filed. Also these parties have been held in a statutory freeze since November 23, 1989.
This union's prior application for this same unit of employees on December 15, 1989 was dismissed by another panel of this Board, and I would have dismissed this one too, and this time imposed a six month bar. I do not see this as being punitive, but rather as the sending of a message to this union that it is not unreasonable for the OLRB to expect that a union, particularly one like the Labourers’ union, well versed in the practices and policies of the OLRB, to be able to file a properly completed application for certification in less than "4 tries".