[1992] OLRB Rep. September 983
0890-92-R Energy and Chemical Workers Union, Applicant v. A & L Canada Laboratories East, Inc., Respondent
BEFORE: Judith McCormack, Vice-Chair, and Board Members G. O. Shamanski and K. Davies.
DECISION OF THE BOARD; September 17, 1992
This is an application for certification in which the Board issued a certificate on July 8, 1992 after the parties reached agreement on all matters in dispute and agreed to waive their right to a formal hearing.
Since that time however, the respondent has written to the Board indicating that it had not previously sent in sample signatures, that it was now doing so and that a Board Officer had been advised of this and had said that a certificate would not be issued until the signatures were received. The respondent asks that the Board revoke its earlier decision and re-issue a new one after completing its normal signature check.
Section 4 of the Board's Rules of Procedure provides, among other things, that the Registrar shall serve the respondent in an application for certification with a notice of application and of hearing in Form 4. In this case, that notice to the respondent established a terminal date of July 2nd, 1992 and contained the following paragraphs:
You shall send to the Board your reply as well as the material listed below so that:
(a) it is received by the Board not later than the terminal date shown in paragraph 4; or
(b) if it is mailed by registered mail addressed to the Board at its office. 4th Floor, 400 University Avenue, Toronto, Ontario, M7A 1V4, it is mailed not later than the terminal date shown in paragraph 4;
A list arranged as in the Schedules attached hereto of all employees in the bargaining unit described in the application as at June 22, 1992 the date when the applicant's application was made.
Documents, from among existing employment records, containing signatures of the employees whose names appear on the list referred to above arranged in alphabetical order.
(emphasis in original)
The Board received correspondence from the respondent by registered mail on July 2, 1992 enclosing the material required by Form 4 except for the sample signatures of employees. The respondent's accompanying letter indicated that sample signatures would follow under separate cover.
On July 8, 1992 the parties reached agreement on all matters in dispute between them with the assistance of a Board Officer. On July 10th, the Board sent the parties a letter confirming their various agreements in this regard which contained the following paragraph:
A written decision of the Board will issue, in the near future, bearing the waiver date of July 8, 1992.
There was nothing in the material before the Board or in the Board's letter which reflected a request or assurance along the lines the respondent has indicated.
A decision dated July 8, 1992 certifying the applicant was then issued to the parties with an accompanying letter dated July 15, 1992. The respondent's letter and the sample signatures were not filed until July 20, 1992. Even then signatures were not filed for all the employees listed on the employer's list, although it appears that signatures were submitted for all those included in the count. It is in these circumstances that the respondent asks us to revoke our decision and issue a new one after reviewing the sample signatures.
There is no doubt that the use of sample signatures is an important part of the Board's procedures with respect to membership evidence. When they are filed by an employer, they are used to compare against the signatures on membership cards to provide an additional safeguard with respect to membership evidence. However, there are cases where sample signatures are not filed as a result of unwillingness or inability on the part of an employer. When that happens, the Board cannot await the filing of the signatures indefinitely. Indeed, it is well established that expedition is crucial in labour relations matters. In Unlimited Textures Company Limited. [1984] OLRB Rep. Jan. 138 the Board observed as follows:
The need for expedition in labour relations matters is well recognized: Hotel and Reswurant Employees Union v. Nick Masney Hotels Ltd., [19701 1970 CanLII 478 (ON CA), 3 OR. 461 (CA.): Jordon v. York University Faculty Association (1978) CLLC ¶14,132 (Div. Ct.); Re Flamboro Downs Holdings Ltd. and Teamsters Local 879. (1979) 1979 CanLII 1669 (ON HCJ), 24 OR. (2d) 400 (Div. Ct.): and, Journal Publishing Company of Canada Ltd. et al v. The Ottawa Newspaper Guild, Local 204 et al, (unreported. Ontario Court of Appeal. March 31. 1977) wherein Estey. C.J.O. (as he then was) observed:
In the law which has grown up around labour relations in this province, and indeed elsewhere where the common law is pursued. the overriding principle invariably applied is that labour relations delayed are are [sic] labour relations defeated and denied.
This is particularly so in certification cases where delay may erode or undermine the appetite of employees for collective bargaining. The effect is that delay in certification cases is measured in days, rather than in weeks or months. In recognition of this fact, the Board has developed and refined sophisticated pre-hearing procedures designed to elicit information from the parties and facilitate the disposition of applications for certification.
In this context, the Board must weigh the desirability of a double-checking mechanism such as sample signatures with the necessity for expedition. In doing so, it has struck a balance between these considerations by requiring sample signatures, but where they are not filed in a timely manner, deciding the matter on the other evidence before it. In arriving at this approach, the Board is cognizant of the fact that there are other safeguards associated with the membership including a verifying declaration.
In this case, we are not in a position to comment on the respondent's assertion with respect to any remarks made to the Board Officer, except to say that if any such request was made, it was not put before the panel. We do note, however, that the signatures were not filed until nineteen days after the date by which the respondent was directed to file them. This is a significant period of time in the context of the expedited procedures and deadlines associated with certification applications. We also note that the parties had reached agreement on the matters contained in the Board's decision and had also agreed to waive their right to a hearing. In these circumstances, and having reviewed the sample signatures filed with the respondent's request, we are not persuaded that there is any reason to reconsider our decision of July 8, 1992.