[1992] OLRB Rep. April 503
2423-91-R; 2684-91-U Bakery, Confectionery & Tobacco Workers International Union AFL-CIO-CLC, Applicant/Complainant v. R.J.R. MacDonald Inc., Respondent v. Group of Employees, Objectors
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. A. Correll and K. Davies.
APPEARANCES: Susan Ballantyne, Domenic Ricci, Dave Gibbons and Sean Kelley for the applicant; R. W. Kitchen and G. Tribble for the respondent; C. J. Abbass, Max Meharg and Bill Fulkerson for the objectors.
DECISION OF THE BOARD; April 28, 1992
I
1This is an application for certification which was scheduled for hearing together with a related unfair labour practice complaint. Both proceedings were disposed of, with brief oral reasons, at a hearing of the Board on Friday, April 3, 1992.
2In order to appreciate the way in which these matters were dealt with, it is necessary to sketch in some background. It is also useful to set out section 105(2)(i) [formerly section 103(2)(i)] of the Labour Relations Act which reads as follows:
105.-(2) Without limiting the generality of subsection (1), the Board has power,
(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing the employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application.
II
3The certification application was filed on October 24, 1991, and originally came on for hearing before the Board (differently constituted) on November 22, 1991. At that hearing, various issues were resolved, but the parties remained in dispute about a number of matters, including the description of the "appropriate" bargaining unit. The applicant union asserted that certain seasonal workers should be included in the bargaining unit. The respondent employer asserted that the "seasonals" should be excluded.
4In a decision of the Board dated November 27, 1991 (i.e., five days after the hearing), the Board issued a "bottom line" determination ruling that the "seasonals" should be included in the bargaining unit, as the union had argued. The Board indicated that its reasons for this determination would follow, and noted that the remaining issues would be dealt with by another panel of the Board (this panel, as it turned out).
5The original panel's reasons were issued on February 14, 1992. After dealing with the bargaining unit question, the panel noted that the remaining matters in dispute would continue before a differently-constituted panel (this panel) on March 11, April 2, 3, 9, 16 and May 11, 1992. It is not clear why the hearing could not have been convened earlier; however, the Christmas period intervened, and it may have been necessary to make some accommodation for the schedules of counsel, who were already briefed and immersed in the case. In any event, the case did come on for hearing before this panel on March 11, 1992.
6As of March 11, 1992, the Board had before it both a certification application, and an unfair labour practice complaint which had been filed on November 18, 1991, a few days before the first hearing day. The allegations in that complaint need not be reproduced here. It suffices to say that they arose in connection with the union's ongoing organizing campaign, and prompted the union to seek relief under both section 91 [formerly 89] and section 8 of the Act. Section 8 reads as follows:
- Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.
Obviously, the certification application and the unfair labour practice complaint were intertwined.
7On March 11, 1992 the Board ruled that the objectors had status to intervene in these consolidated proceedings. The parties then made an effort to settle the case, but they were not successful. They did however agree on an order of procedure, and undertook to exchange further particulars.
8The hearing of April 2, 1992 was adjourned in a further unsuccessful effort to resolve the dispute in its entirety.
9The proceeding resumed on April 3, 1992 as scheduled. At that hearing, the union sought leave to "withdraw" both the certification application, and the unfair labour practice charges. The other parties opposed those requests.
10The respondent argued that the Board should dismiss the certification application, with an endorsement specifically reserving the respondent's right to argue that there should be a "bar" pursuant to section 105(2)(i), if the union filed a new certification application. The respondent urged the Board to dismiss the unfair labour practice complaint, "with prejudice" - that is, in such manner as to preclude the union from filing any new complaint relying upon the "old" allegations.
11The objectors also argued that the Board should "dismiss" the certification application; however, they urged the Board to impose an immediate six-month bar to prevent any new application for certification from being made. The objectors argued that the Board should also "dismiss" the unfair labour practice complaint "with prejudice", in the same manner urged upon us by the respondent - that is, so as to preclude any future reference to the same allegations. Counsel for the objectors argued that, given the passage of time and employee turnover, the union should be required to "re-sign" employees into membership, and should be permitted to file a new certification application only after a six-month interlude. The respondent and the objectors both noted that this proceeding has been outstanding for some time, and that they have been put to considerable trouble and expense responding to the union's application and complaint.
12It will be convenient to deal separately with the application and complaint - as we did in our brief oral reasons given at the hearing.
III
13The purpose of the Labour Relations Act is to encourage the practice and procedure of collective bargaining. That purpose is set out in the Preamble to the Act, and is reflected, inter alia, in section 3 which guarantees employees the right to join a trade union and participate in its lawful activities. Certification is the mechanism whereby a union can become established as the employees' bargaining agent if that is the wish of the majority of them. Where there is no subsisting collective bargaining relationship, an application for certification can generally be made at any time (see section 5 of the Act).
14Section 105(2)(i) envisages the possibility of a temporary bar to the exercise of these statutory rights where an applicant has been unsuccessful and the Board, in its discretion, considers such bar to be appropriate. However, the Board has not normally exercised its discretion to impose a bar unless the employees have had the opportunity to express their wishes in a Board-supervised representation vote, or there have been several unsuccessful applications in rapid succession. (See generally: Repac Construction and Material Limited, [1978] OLRB Rep. Jan. 91; Sonora Cosmetics Inc., [1982] OLRB Rep. June 954; Amarcord Carpenters Ltd., [1989] OLRB Rep. June 531; Southern Express Lines of Ontario Ltd., [1988] OLRB Rep. Oct. 1107; and Mor-Alise Construction Ltd., [1977] OLRB Rep. Oct. 668.)
15Section 105(2)(i) requires the Board to balance the rights of employees to form or join a trade union and the interests of employers (or objectors) to have that matter settled as simply and expeditiously as possible. That is why the Board will almost always impose a bar after a decisive testing of employee wishes in a secret ballot vote, or if there has been a series of unsuccessful applications which have been cumulatively disruptive. In either case, orderly labour relations demands a period of repose. But the Board has been careful not to use its discretion under section 105(2)(i) to unduly circumscribe employee rights or "punish" an unsuccessful applicant - especially when such applicant will seldom have complete information about an employer's organization, and no means of acquiring that information apart from the application itself. In that context, it is difficult to ascribe "fault" for the way in which a proceeding develops - even though the employer will inevitably be put to some inconvenience responding to its employees' efforts to organize themselves. In the instant case, for example, some expense and delay are attributable to the bargaining unit dispute which was ultimately resolved in the union's favour; but it would be wrong to ascribe "fault" to any of the parties for pursuing this question.
16After considering the parties' representations, the Board saw nothing in the circumstances of this case which would warrant a departure from its well-established approach to the imposition of a bar. Nor were we persuaded that there is anything which, at this stage, would preclude the applicant from making a new application - provided such application was otherwise timely, and processed in accordance with the Act and Rules. No doubt the employer and the objecting employees have been put to some inconvenience and cost replying to this application and complaint and litigating the bargaining unit question; however, that, in itself, is not a sufficient reason in our opinion to impose a bar pursuant to section 105(2)(i).
17Counsel for the respondent and the objectors both directed argument to a supposed distinction between a "withdrawal" of a certification application and "dismissing" that application. Quite frankly, in the context of a certification proceeding, we see little distinction between these terms (whatever might be the case in a civil action before the Courts) apart from a literal reading of the words of section 105(2)(i) which appear to require a "dismissal" to confirm the lack of "success" which makes available the Board's discretion to order a bar. The real question is whether the applicant should be permitted to reapply; and for the reasons outlined above, we see no reason why this applicant should not be permitted to do so in the circumstances of this case. Nothing really turns on whether the present certification application is "dismissed" without bar or "withdrawn" without bar, except in the technical sense mentioned above. However, it is customary to "dismiss" the certification application without a bar, and that is what we have done here.
18Similar observations apply to the union's request to "withdraw" its unfair labour practice complaint, and the respondents' argument that it should be "dismissed", "with prejudice".
19Since there has been no adjudication on the merits, no findings of fact, no legal determination of the parties' rights, and no Board decision on the validity (or otherwise) of the union's claim it is doubtful whether any doctrine of res judicata would apply if a later complaint is filed relying upon some or all of the allegations raised in this one (see Becker Milk Company Limited. [1974] OLRB Rep. Sept. 621). Again, it is difficult to see any distinction between a "dismissal" and a "withdrawal"; moreover, there are good reasons not to preclude a party withdrawing a statutory claim from later asserting its statutory rights. Certainly the statute contains no limitation period, nor is there any Rule that a complaint, once filed, cannot be withdrawn, or can only be withdrawn "with prejudice".
20On the other hand, under section 91 the Board always has a discretion whether to entertain any unfair labour practice complaint; and in exercising that discretion, the Board might consider the fact that an earlier complaint had been filed and withdrawn or dismissal, as well as the passage of time between the incidents relied upon by the complainant, and the filing of the new complaint - just as the Board would be reluctant to hear "stale allegations" if only one complaint had been filed. Similarly, the passage of time, or the withdrawal or dismissal of an earlier complaint, might be factors for the Board to consider in fashioning a remedy, even if the Board were disposed to entertain a new complaint. However, it is difficult to see why the discretion would be exercised differently only because the earlier proceeding was "dismissed" without a hearing on the merits, rather than "withdrawn", or vice versa.
21But all of these considerations are matters which would be relevant, if at all, only if a new complaint was filed. At this stage, it is sufficient to rule, as we did, that the complainant union would be permitted to withdraw its unfair labour practice complaint, without prejudice to the positions that any of the parties might take if a new complaint is filed. The panel hearing that complaint (if there is one) will determine how its discretion should be exercised in the circumstances then before it.
22For the foregoing reasons, the Board ruled that the certification application would be dismissed, but without the imposition of any bar pursuant to section 105(2)(i) of the Act, and the unfair labour practice complaint can be withdrawn, with the caveat mentioned in the previous paragraphs.
23It is inappropriate to comment upon whether in a new certification application the union could rely, on the membership cards filed in this one, or whether evidence which otherwise demonstrates "membership" within the meaning of section 1(1)(l) of the Act, should be given diminished weight because of the passage of time, because it was filed in connection with an earlier proceeding, or for some other reason. Those, too, are matters which can be addressed if another certification application is filed, and if the panel constituted to hear that application is called upon to decide those questions.