Ontario Labour Relations Board
[1991] OLRB Rep. February 271
2561-90-R; 2562-90-R Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Applicant v. Sheraton Parkway Hotel, Respondent v. Group of Employees, Objectors
BEFORE: Brain Herlich, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
APPEARANCES: Craig Flood for the applicant; E. L. Stringer, R. Kaptyn and S. Kaptyn for the respondent; M. Hammond for the objectors.
DECISION OF BRAM HERLICH, VICE-CHAIR, AND BOARD MEMBER H. PEACOCK: February 26, 1991
The name of the respondent is amended to read: "Sheraton Parkway Hotel".
These are applications for certification involving separate full and part-time bargaining units of the respondent's employees.
The applications were filed on December 28, 1990 and a terminal date of January 16, 1990 was set in respect of both files which continued through the process together.
In accordance with Board's recently implemented procedure, the Registrar advised the parties, by letters dated January 7, 1991 as follows:
Please be advised that a Board Officer from the Ontario Labour Relations Board will convene a meeting of the parties to this application for certification in its Board Room, 6th Floor, 400 University Avenue, Toronto, Ontario on Friday, January 25, 1991 at 9:30 am.
The purpose in attending the Officer's meeting will be to address all questions that may be raised in connection with the appropriateness for collective bargaining purposes of the units proposed in the application and any reply, the membership support for the union, and such other issues as may arise as a result of the application filed. This meeting may result in the Board issuing a decision in this matter without an oral hearing, taking into consideration agreements reached between those attending the meeting
[emphasis added]
- Attached to these letters were, inter alia, documents (Form 2 in the case of the applicant, Form 4 in the case of the respondent) advising that:
“……the hearing of the application by the Board will take place at the Board Room at 400 University Avenue, Toronto, Ontario, on the 1st day of February, 1991, at 9:30 o'clock in the forenoon…..”
[emphasis added]
(The above information regarding the scheduled Officer's meeting and Board hearing was conveyed to employees via Form 6 which was posted in the workplace on January 9, 1990.)
By letter dated January 23, 1991 the applicant advised that "... in the event the applicant is not entitled to automatic certification in this matter, the applicant hereby applies for certification pursuant to section 8 of the Ontario Labour Relations Act ..."
Particulars in support of that claim were filed and in addition a section 89 complaint was filed in relation to the same allegations particularized in support of the application under Section 8.
The parties, including a representative of a group of objecting employees, met with a Board Officer on January 25, 1991 as scheduled and entered into the following written agreement:
(a) The parties agree to adjourn the hearing of these matters to a date(s) to be fixed by the Board based upon dates agreed to by the parties' solicitors.
(b) The parties agree to use February 1st as a meeting day with the Officer.
[emphasis added]
- Having regard to their agreement, the Registrar advised the parties by letter dated January 30, 1991 and transmitted by fax as follows:
Having regard to the agreement of the parties, hearing in these matters scheduled for February 1, 1991 hereby adjourned to a date to be fixed by the Board. Please be advised that a Labour Relations Officer shall convene a meeting of the parties on February 1, 1991 commencing at 9:30 a. m.
[emphasis added]
The parties met with the Officer on February 1, 1991 as scheduled and prior to various challenges to the list of employees being resolved and prior to the Officer announcing the count, the applicant sought, in writing, leave of the Board to withdraw the present applications including the applications under section 8. The parties then appeared before this panel of the Board on February 1, 1991 to deal with the applicant's request.
Subsequent to the hearing in this matter the applicant, on February 5,1990 filed fresh certification applications (Board Files 2871-90-R and 2872-90-R hereinafter referred to as "the subsequent applications") in respect of the same employees affected by the present applications. By letter dated February 13, 1991 referring to both the present and the subsequent applications, the respondent has requested that the Board, pursuant to section 103(3)(a) treat the subsequent applications as having been made on the date of the making of the present applications and that all four of the applications in question be consolidated. The applicant, by letter dated February 18, 1991 opposes this request.
We shall deal first, to the extent we need to, with the respondent's request under section 103(3). We note, first of all, that section 103(3) of the Labour Relations Act is designed to assist the Board with the procedural difficulties which may arise when multiple certification applications involving the same (or at least overlapping groups of) employees are currently before the Board. The section, not surprisingly, is most often applied when the applications are filed on behalf of different applicants. In this context the Board has developed certain rules of thumb in respect of the application of the section. Specifically, where a subsequent application has been filed on or before the terminal date of the first application the Board normally applies the provisions of section 103(3)(a); section 103'(3)(b) is normally applied where a subsequent application has been filed after the terminal date of the first application (see for example M. Pickard Construction Co. Ltd., [1989] OLRB Rep. Oct. 1046). Thus, even if section 103(3) should or would be applied to the subsequent applications it would appear that the Board would postpone consideration of those applications until a final decision has been issued on the present applications. However, we neither need nor propose to make any final determination with respect to the application of section 103(3) to the subsequent applications. The present applications, however, are a different matter. A hearing has been held, the parties have had the opportunity to call all relevant evidence and make their full submissions to the Board. We see nothing in the respondent's request to apply section 103(3) to the subsequent applications which either does or should preclude us from issuing a final decision on the present applications. Any issues regarding section 103(3) and the subsequent applications can be raised with the panel hearing those matters.
Prior to appearing before the panel on February 1, 1991, the respondent had filed with the Board allegations that seven named individuals had signed membership cards but did not pay the required $1.00. In accordance with its usual practice the Board initially determined which of the named individuals were employees included on the list of employees filed by the employer and on whose behalf the applicant had filed membership cards. Prior to the applicant announcing its intention to seek leave to withdraw its application, the Board had commenced and completed its initial investigation with respect to two of those individuals. One of the individuals confirmed having both signed a card and paid a dollar. The second individual confirmed signing a card but denied having paid the dollar which the application for membership indicates was paid. Had these applications continued in the normal course the Board would have completed its investigation in respect of the other individuals. In any event, a hearing would have been held and witnesses would have been summonsed by the Board to testify and be cross-examined by the parties with respect to (at least) the one individual who apparently now denies having paid a dollar.
The applicant argued that, in the circumstances, it ought to be permitted to withdraw its applications.
The respondent (all of whose arguments were adopted by the objectors) argued that the applications ought to be dismissed. Quite apart from whether withdrawal or dismissal was the ultimate fate of the applications, the respondent made further submissions. In view of the non-pay allegations and the "real possibility" of a "fraud upon the Board" the respondent argued that the union ought not to be permitted to escape the consequences which would flow from such a determination. The Board should therefore, notwithstanding the applicant's request to withdraw, proceed to adjudicate and determine the non-pay issues. Alternatively if the Board declines to pursue the non-pay allegations, it should endorse the record so as to reserve the employer's right to raise these allegations anew in any subsequent application. Further, in the circumstances, the Board ought to confiscate, or at least retain for six months, all membership evidence filed in support of the present applications so as to prevent any improper tampering with the cards by the applicant.
A related argument was raised in relation to the applicant's request to withdraw its applications under section 8. The respondent argued that the Board ought to adjudicate the section
8 allegations or, alternatively, that the effect of the applicant's request ought to be to dispose of the section 8 allegations and to consequently preclude the applicant from relying on those allegations in any subsequent certification application.
Dealing first with the respondent's argument that the Board ought to adjudicate the non-pay and section 8 allegations, we find these submissions to be entirely without merit. These allegations arise in the context of certification applications and are only relevant in that context. Once the applicant indicates that it does not wish to pursue the applications there is simply no reason to force the litigation which might otherwise have occurred. To have the Board adjudicate matters of no immediate relevance to the application or complaint currently before it would be nothing more than a wasteful allocation of the Board's limited resources. We also note that in the case of the section 8 allegations, if the respondent's primary objective is to see these matters litigated, it would appear that objective will likely be realized since the applicant has indicated no intention to withdraw its section 89 complaint which is founded upon substantially identical allegations. Similarly, in the case of the non-pay allegations, the respondent conceded that even a successful prosecution of those allegations would result in nothing more than a dismissal of the present applications, a result which the respondent may otherwise be entitled to in the present case.
Having determined that it would be inappropriate to litigate the non-pay or section 8 allegations in the context of the present applications, neither do we feel it appropriate to, at this point, spell out the consequences, if any, of the applicant's request for any future application. Nor would our view change in this matter if there were no outstanding section 89 complaint.
In the case of the non-pay allegations, the respondent's submissions are premised on the validity of the allegations. The allegations, of course, can only be found to be well founded after a hearing before the Board, which we have already determined would be of no value in the context of the present applications. There is no reason at the present time for the Board to make any assumptions regarding the validity of the allegations. More importantly, however, there is no reason for the Board to make any assumption regarding the relevance of the allegations in any subsequent certification application. In short, the relevance of the non-pay allegations or the validity of any membership evidence currently before the Board in any subsequent application is a matter upon which it would be unwise to speculate.
In these circumstances we are not persuaded that we ought to accede to any of the respondent's alternative requests. The respondent summarized its aim as seeking to ensure that it was not precluded from challenging the validity of membership evidence submitted to date in any subsequent application. While we are not granting the respondent's requests neither do we see this decision as precluding it from challenging membership evidence in the subsequent applications. The relevance, propriety and the merits of any such challenge are matters for the panel dealing with the subsequent applications to determine.
Finally, we must deal with the ultimate disposition of the present application: ought the applicant to be permitted to withdraw?
We were referred to Practice Note No. 7, the relevant portions of which provide as follows:
Where, on an application for certification or for a declaration terminating bargaining rights, the applicant has notified the Board, before the hearing on the application and at a time when the Registrar has been able to notify the parties that the hearing has been cancelled, that it was desirous of withdrawing the application, the Board has permitted the applicant to withdraw the application. (See Kitchen Installations, 63 CLLC ¶16,273.
Where a request for leave to withdraw is made,
(i) at a hearing, or
(ii) before the hearing at a time when the Registrar has not been able to notify the parties that the hearing has been cancelled and the respondent or any
other interested person or trade union has attended at the hearing, or
(iii) after a hearing has been held,
it has been the practice of the Board to endorse the record to show that, although the applicant has requested leave to withdraw its application, the application has been dismissed. See, however, paragraph 3 below.
Where, on a construction industry application, and prior to any hearing being directed by the Board, an applicant requests leave to withdraw its application after an examiner has been appointed and has met with the parties, the Board in its endorsements in a number of recent cases has noted the request to withdraw and has dismissed the application.
Where, on an application for a pre-hearing representation vote, after an examiner has been appointed and has met with the parties, an applicant requests leave to withdraw its application, the Board in its endorsement has note the request to withdraw and has dismissed the application. See Lake Simcoe Ice & Enterprises Limited, [1963] OLRB Rep. June 159.
The union argues that paragraph #1 is the operative provision in this case. Although a hearing was initially scheduled for February 1, 1991, that hearing was adjourned on the consent of the parties. Although the parties met on two different occasions with a Labour Relations Officer, the applicant's request to withdraw was clearly made "before the hearing on the application". The requirement that the Registrar be able to "notify the parties that the hearing has been cancelled" is not relevant since at the time of the request no hearing had yet been scheduled.
The respondent's submissions would have us focus on the stage in the "proceedings" at which the request was made. Counsel argues that the Board will normally permit withdrawal of an application where the request is made prior to the commencement of the proceedings. In view of the role of the Board Officers in certification applications, we should treat the "proceedings" as having commenced once the officer convened the first meeting of the parties on January 25,1991. No withdrawal should be permitted after that time.
We agree with the applicant's submission that a meeting with an officer, whether or not part of the "proceedings", does not constitute a "hearing" in the way that term would normally be understood. In that respect there is some force to the applicant's submission. We are also of the view, however, that we cannot properly determine the issue without considering other portions of the Practice Note and, perhaps more importantly, without considering the development of the role of the Labour Relations Officer in certification proceedings.
The importance of Labour Relations Officers in certification applications simply cannot be overemphasized. While at one time virtually every certification application may have resulted in a hearing before a panel of the Board, recent and current Board practice results in the vast majority of certification applications being resolved between the parties through the participation of a Labour Relations Officer. Until very recently certification applications were routinely scheduled on Fridays but rather than proceeding immediately to a hearing before a panel of the Board, the parties were directed to a Labour Relations Officer whose participation, far more often than not, resulted in the disposition of the application without the necessity of a hearing before a panel of the Board.
While that system was efficient in terms of disposing of applications, it had one significant undesirable effect. Numerous panels of the Board would be on "standby" to commence hearings. However, because of the high success rate of the Labour Relations Officers many of those panels were never required to sit (or, alternatively, even in cases where it was ultimately determined a hearing before a panel would be required, that determination was made so late in the day that it would make little practical sense to commence the hearing at that time). The result, of course, was that a significant amount of available panel time was left unused despite the large volume of cases (certification or otherwise) always currently before the Board.
In order to remedy that problem and to provide a more efficient use of Board resources, the Board's standard scheduling of certification procedures has recently been changed. As in the present case, parties are no longer sent a notice of hearing with the implicit understanding that a meeting with a Labour Relations Officer will replace, or at least precede, the hearing. Rather, parties are advised that a meeting with a Labour Relations Officer will be held on the first Friday (Thursday, outside of Toronto) and a hearing will be held (if necessary) on the following Friday (or Thursday). In this fashion the Board is able to predict with a much higher degree of certainty how many applications actually need to be listed for hearing the following week. So far this new system appears to be serving the needs of both the community and the Board well.
Returning more specifically to the issue at hand we note that under the former procedure (meeting and hearing scheduled on the same day) an applicant seeking leave to withdraw at the meeting with the Labour Relations Officer and before the hearing would see its application routinely dismissed.
We attach no significance to the fact that there were two separate meetings with the Labour Relations Officer in the present case. However, we do not see why the applicant in the present case should be in any better position than the applicant described in the preceeding paragraph.
Thus, while an extremely literal reading of paragraph one of the Practice Note might support the applicant's position, it is clear that the paragraph was drafted prior to the recent change in the Board's procedures. Thus, it could not have contemplated and, when read in conjunction with other paragraphs of the Note, does not contemplate or catch the facts with which we are currently dealing.
We have already indicated that we do not view the officers meeting as a "hearing" - the Officer essentially records the parties' agreement and dispute, she performs no adjudicative function, delegated or otherwise. Consequently, neither can we conclude that paragraph 2 of the Note, which is linked to the "hearing", applies and necessitates a dismissal in the present case.
The paragraphs of the Note which we find more helpful are paragraphs 4 and particularly 5. These paragraphs contemplate that once a Labour Relations Officer has met with parties in the context of the application contemplated therein, an applicant's request to withdraw will result in a dismissal.
We see no reason why, in the context of the issue currently before us, an applicant seeking certification via the pre-hearing representation vote procedure should be treated less favourably than an applicant who follows the "regular" certification procedure. The reality is that (apart from differences not material to the issue currently before us including, of course, the critical distinguishing factor i.e. the holding of a vote prior to the hearing) there is now a distinct similarity in the procedures followed in both types of applications. The inconvenience to (all) parties of having to attend a Labour Relations Officer meeting is no greater in the case of a pre-hearing application.
Consequently in view of our conclusion that Practice Note No. 7 does not specifically address the situation currently before us but considering the spirit and intent of the Note as whole, we are of the view that the current applications ought to be and are hereby dismissed.
DECISION OF BOARD MEMBER J. A. RONSON: February 26, 1991
This is a certification application in which the parties met with a Board Officer on January 25, 1991. The matter was scheduled for hearing before the Board on February 1, 1991.
Prior to the meeting on January 25th, the union filed a Section 89 complaint against the employer and requested that it be certified pursuant to Section 8 of the Act.
At the meeting with the Board Officer On January 25th the parties adjourned the certification hearing to a date to be agreed upon by the parties. The parties also agreed to meet with the Board Officer again on February 1st.
During the ensuing week the employer filed "non-pay" allegations against the union membership evidence. The Board instituted its usual investigation with respect to the allegations. Had the certification application proceeded, the Board Would have ordered a formal hearing into the allegations.
The parties met with the Board Officer on February 1st and the union then submitted a written request for leave to withdraw it certification application. Given its request for certification pursuant to Section 8, the subsequent request for withdrawal could only be described as a surprise.
I differ from my colleagues' disposition of this matter in but one respect. If there is a fraud on the Board with respect to the membership applications cards in the possession of the Board and taking into account that the Board would have scheduled a hearing into the "non-pay" allegations, then potential evidence of the alleged fraud should be retained by the Board. I would direct that the photocopies of the membership applications should be made and retained in this file before the original documents are returned to the union.