[1992] OLRB Rep. July 786
0490-92-R; 0491-92-R Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Applicant v. The Douglas MacDonald Development Corporation c.o.b. Chimo Inns, Respondent v. Group of Employees, Objectors
BEFORE: M. G. Mitchnick, Chair, and Board Members J. A. Rundle and H. Peacock.
DECISION OF THE BOARD; July 3, 1992
1These are applications for certification, filed by way of Pre-hearing vote on May 12, 1992, for a unit of full-time and part-time employees respectively of the respondent in the Regional Municipality of York. Upon attending the usual pre-hearing vote meeting with a Labour Relations Officer of the Board and after a review of the lists of employees filed by the respondent, the applicant has requested leave of the Board to withdraw both of the present applications.
2The applicant earlier, on April 7, 1992, had made an ordinary application for certification for the same employees of the respondent (full-time and part-time combined). After reviewing the list of employees filed by the respondent, it made an unopposed request to the Board, on May 6th, 1992, to have the application withdrawn, and the Board by decision dated the same day granted its leave. The respondent notes that in both that and the present applications there were filed as well by employees of the respondent statements of desire in opposition to the Union's application for certification (although with respect to the present two applications, to the extent that it matters on a pre-hearing vote application, it appears from the record that such statements were filed with the Board subsequent to the terminal date). On the basis of the foregoing the respondent submits that:
(1) the application should be dismissed rather than withdrawn and
(2) a six-month bar to any further application should be imposed, and
(3) the respondent should be advised of what the membership position of the applicant was in the two applications that are being dismissed.
The grounds upon which these submissions are made are set out in a letter to the Board which reads as follows:
As you are aware, on April 7, 1992, the Union filed an Application for Certification (Board File No. 0070-92-R) relative to the employees of the Respondent hotel in the Regional Municipality of York.
After the replies had been delivered and the lists disclosed to the Applicant trade union, it requested the leave of the Board to withdraw the Application (May 6, 1992) which request was subsequently granted by the Board.
The Board declined to grant our request to disclose the count.
Following this withdrawal, the Union then on May 12, 1992 filed two additional Applications for Certification (Board File Nos. 0490-92-R and 0491-92-R) (one for the full-time and one for the part-time units) and requested a prehearing vote. The Applicant also requested that the Board provide it with the lists of employees as soon as possible. The terminal date was set for Friday, May 22, 1992 and a meeting with the Labour Relations Officer (Ms. Michelle Lapointe) was scheduled for Tuesday, May 26, 1992 at 10:00 a.m. at the employer's premises. Notwithstanding our express objection both in writing and to Ms. Lapointe to the disclosure of the lists to the Applicant in advance of the LRO meeting, we understand that the lists were given to Union counsel on Monday, May 25, 1992.
There were a considerable number of petitioning employees relative to all three proceedings.
On Tuesday, May 26, 1992, we attended with our client for the purposes of meeting with the Union and the LRO, reviewing any disputes in the bargaining unit, receiving the count, and, if the Union was eligible for a prehearing vote, to proceed with the necessary voting arrangements.
The meeting was convened at 10:00 a.m. at which point the Labour Relations Officer advised us that the Union wished additional time to review the lists. They were permitted well in excess of one hour to do so whereupon we were then advised by the Labour Relations Officer that the Union was withdrawing its Applications. We do not consent to such requests to withdraw these Applications for Certification.
In these circumstances, we wish to make the following submissions to the Board and we are quite prepared to attend any hearing in order to present verbal argument thereon.
- The Applicant has seen fit to purport to withdraw both of the instant Applications in circumstances where it applied for a prehearing representation vote, an examiner had been appointed and had met with the parties.
The Board should accordingly decline to allow the Applicant to withdraw its Applications and instead, in accordance with Practice Note No. 7, should dismiss the Applications.
- The Applicant has filed and purported to withdraw two separate proceedings (three Applications for Certification) within the last three weeks. They have been provided with full lists of the employer on two occasions within a very short space of time.
In these circumstances it seems clear that the Union is abusing the procedures of the Board by filling a multitude of applications in order to obtain frequent disclosure of the employer's lists for tactical objectives.
Having launched two separate proceedings within such a short period of time and then opting to withdraw from the processes, in our submission this is an appropriate circumstance for the Board to issue a six-month time bar against the Union. We accordingly request that the Board proceed to do so.
- While we are aware of the Board's decision in Centre de Rdeeducation Cor Jesu De Timmins Inc. /Cor Jesu re-education Centre of Timmins Inc., on the particular facts of this case, three separate Applications were made and withdrawn within a very short space of time. The Union has been given a copy of the lists in each case. There was only one material dispute relative to the configuration of the bargaining unit. Both proceedings contained a large number of petitioning employees who were denied any meaningful role in the process because of the Union's withdrawals. No challenges were made to the lists on either occasion.
In all of these circumstances, we respectfully submit that in this particular case, it would be appropriate for the Labour Relations Officer to disclose to the employer the level of support filed by the Union as it appears to us that the Union is simply utilizing the Board's processes in order to obtain frequent discovery of the names on the lists while at the same time leaving the employer and employees affected by these proceedings in a knowledge vacuum.
All of which is respectfully submitted.
The respondent amplified those submissions in a further reply to the comments of the applicant as follows:
It is interesting that in the Applicant's submission, it has been unable to point to any decisions by the Board which contain facts similar to those which exist in this case. It is significant that in this particular case, the Union filed three applications for certification within a very short period and deliberately withdrew such applications to avoid a test of its membership evidence. In each case, the Union had been given the list of employees and a considerable number of employees had expressed their wishes by having filed petitions. This is precisely the type of situation where the Board must exercise its discretion to dismiss the applications and impose a 6-month bar in order to avoid multiple applications and to restore a sound employee/employer relationship.
Also conspicuously absent from the Applicant's submissions is any reference to the clear wording of the Board's own Practice Note No. 7, paragraph 5 which provides:
"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 noted the request to withdraw and has dismissed the application."
This is precisely what occurred in this case inasmuch as (i) the Union sought a pre-hearing representation vote; (ii) an examiner, Ms. Michelle Lapointe had been appointed; and (iii) Ms. Lapointe met with the parties on May 22, 1992. After the commencement of that meeting and after having been provided with the lists of employees and extensively reviewing same for over an hour, the Applicant requested leave to withdraw its applications. The Board's Practice Note is clear that in cases such as this, the Board will exercise its discretion to dismiss the application(s).
With respect to our request for disclosure of the level of support filed by the Union, the Applicant simply suggests that to do so would be to "arm (the Respondent] with tactical knowledge in the event that the Applicant - or indeed any other trade union - should apply in the future with respect to the subject group of employees." This is not the case at all. We request disclosure of the count so as to confirm that the Union is simply abusing the Board's processes to itself gain a tactical advantage over the Respondent in that now it has obtained on three occasions a list of all of the employees whom the Applicant seeks to represent. It is also significant that there was virtual agreement on the appropriate bargaining unit in these applications such that to disclose the count would not be inconsistent with the Board's normal practice in any event.
Without repeating the submissions set out in our letter of May 26, 1992 upon which we rely in full to support our position, we find absolutely nothing in Mr. Rood's letter of June 3, 1992 that should militate against granting our requests for a withdrawal of these application, the imposition of a 6-month time bar against the Union and disclosure of the count.
All of which is respectfully submitted.
3We agree with the respondent that the circumstances of the present two applications are such that they are to be dismissed rather than withdrawn. While the terms of Board Practice Note No. 7 may not be entirely clear in this regard, that Practice Note, tying the request for a withdrawal to the old "hearing" date scheduled by the Board, has not in fact kept pace with Board practice. As the Board noted in Sheraton Parkway Hotel, [1991] OLRB Rep. Feb. 271:
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. 5o 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 preceding 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.
4With respect to the imposition of a six-month "bar" to further applications, the practice of the Board in that regard was reviewed relatively recently in Amarcord Carpenters Ltd., [1989] OLRB Rep. June 531. That case reveals that the Board even where a pre-hearing vote has been held but not counted has not been disposed to grant the imposition of a bar. As the Board noted from an earlier decision in Campbell Soup Company Ltd., [1968] OLRB Rep. Feb. 1091:
17.... Except in very extenuating circumstances, the Board's practice with respect to the imposition of a bar against an unsuccessful applicant is exercised only where a representation vote is held and the applicant fails to obtain the necessary majority to be entitled to certification. In such a case, the support enjoyed by the applicant among the employees of the company would be fully tested by a representation vote and the Board will not entertain a new application by the same applicant until such time as the employees have had a chance to properly reconsider their position. The Board does not consider repetitious applications where the membership evidence has been fully tested by a vote to be in the interest of sound Labour Relations.
And then commenting on its own:
No bar is ordinarily imposed when an applicant under section 7 fails to establish sufficient membership support in the bargaining unit to entitle it to a vote or who seeks to withdraw in the face of the possibility of such a failure. In our view, no bar should be imposed on an applicant under section 9 who is in a similar position, even though a pre-hearing representation vote has been conducted in the meantime. The fact that a pre-hearing representation vote has been conducted should only trigger a bar if it was clear when the request for withdrawal was made that the wishes expressed in the vote would have determined the success or failure of the application. No bar should be imposed by reason of the conduct of a vote where, as here, the applicant seeks to withdraw at a stage when its opponents are saying that it cannot be certified even if a majority of the ballots cast in the vote were cast in its favour.
There may be cases, as in "ordinary" applications, in which some further enquiry must be made about the circumstances in which withdrawal was sought before one can say how the Board's discretion ought to be exercised under clause 103(2)(i) [now 105(2)(i)]. Once a request to withdraw is made, however, it makes little sense to engage in a further evidentiary enquiry in order to determine whether to bar further applications. If the propriety of a bar is not clear at the time the request is made, any further enquiry in that regard is best left to be pursued only if and when a subsequent application is filed: Mathias Ouellette, supra; Mount Sinai Hospital, [1985] OLRB Rep. Dec. 1780. We say this recognizing that if a pre-hearing vote were requested in a subsequent application and the prerequisites of subsection 9(2) were satisfied, the Board would ordinarily conduct the vote and seal the box before entertaining evidence and argument with respect to the application of clause 103(2)(i): The Corporation of the City of Glouchester, [1989] OLRB Rep. Apr. 352.
5That we see as the correct disposition of the present matter as well. At this stage the only real "disruption" to the various parties involved has been the time and expense of attending the Officer's meeting. And it is precisely that time and expense that the Board has sought to relieve parties from, where possible, in its current practice of disclosure with respect to the "employee list". As the Board noted most recently in Polytarp Products for example (Board File No. 3920-91-R, reported at [1992] OLRB Rep. April 502):
The Board recently set out its views regarding disclosure of the Employee List in Cor Jesu (as yet unreported), Board File No. 2718-91-R, decision dated March 16, 1992. As the Board there indicated, holding the List back from the applicant until the parties actually come together for a Board meeting or hearing is no longer acceptable. The List ought to be circulated and discussed prior to either such formal convening taking place, in the hope that the time and expense of either a hearing or a meeting can perhaps be avoided. That is particularly true in the case of a Pre-hearing Vote application, a procedure specifically designed to treat time as being of the essence, and where virtually any of the matters that may be in dispute are deferred until after the vote in any event.
In the present case, there simply was not the opportunity, given the receipt of the material, to involve a Board Officer in any kind of a "waiver" process, and a panel of the Board (Mr. Shamanski reserving) made the decision to circulate the List immediately, for whatever preparatory opportunity the weekend might provide for the applicant. In doing so, the Board noted that communicating the List on the Friday versus the Monday had no bearing whatever on the respondent's concern over potential "abuse". As the Board has stated in a variety of cases, the applicant would have an absolute right to see the List at some point in the proceedings, and the question of "abuse" is, as it always has been, simply one for the Board to address by way of refusal to entertain if and when a subsequent application for certification comes to be filed (again, see Cor Jesu, supra, and the cases cited therein).
This practice of the Board with respect to the lists is new enough that the objection of the respondent to their disclosure in this case might better have been brought to the attention of the Board for a ruling; the handling of the matter by the Officer was, we note, however, consistent with the views of the Board that had already been expressed in the above unreported decision in Polytarp. But on the respondent's main point, it is the decision to "dismiss" at this stage which provides the Board the foundation to consider the exercise of a discretion "not to entertain" under section 105(2)(i), as indicated in Amarcord , supra, after hearing from the applicant, should a further application for certification in fact come to be filed in close proximity to the two proceedings already aborted.
6On the question of releasing the applicant's membership count to the respondent, counsel in his letter of June 26, 1992 refers to the "normal" practice of the Board once the matter of the bargaining unit has been agreed to. The sequence of the Board's practice is set out in full, once again, in the Cor Jesu case referred to above, but that sequence in any event has no bearing upon a situation where the applicant has elected not to proceed with any further determination of its application. The relevance to the respondent to the application in those circumstances of the number of cards filed directly is not apparent. To the extent such information might go inferentially to the question of "abuse", as suggested by the respondent in its letter, the Board has that information readily at hand, and can easily make reference to it on its own~ should that question of abuse come before it in a relevant manner and time as discussed above.
7For all the foregoing reasons the applicant's request to withdraw is denied in this case, and the applications are hereby dismissed.
ADDENDUM OF BOARD MEMBER J. A. RUNDLE: July 3, 1992
While I concur with the majority decision I will make the following comments.
While the Board's practice with respect to the lists as set out in, Polytarp Products (Board File No. 3920-91-R) reported at [1992] OLRB Rep. April 502), is new, the respondent's objection, in the present case, to the disclosure of the lists should have been brought before the Board for a ruling.
Secondly, while I concur with the current disposition of this matter I would view quite differently a subsequent application and withdrawal involving the same parties. I rely on paragraph 19 in the Amarcord Carpenters Ltd., [1989] OLRB Rep. June 531 quoted at page 10 of the present decision. Clearly a future application and withdrawal involving the same parties would, in my view, require the Board to enquire into the reasons for such a withdrawal request which would then determine how the Board ought to exercise its discretion under clause 105(2)(i).
Actions by the applicant of the sort described in this decision do little to encourage harmonious labour relations in the province.