[1992] OLRB Rep. October 1059
0816-92-R; 3874-91-R Dirk Koehier, for the employees of the Cambridge Reporter, Applicant v. The Southern Ontario Newspaper Guild Unit, Cambridge, Ont. (Local 87), Respondent v. Cambridge Reporter, Intervener
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members R. W. Pirrie and B. L. Armstrong.
APPEARANCES: Dirk Koehier, Sue Gage, S. Shannon Russet for the applicant; L. A. Richmond, P. Murdoch and F. Soboda for the respondent; F. G. Hamilton and Jim Carnaghan for the intervener.
DECISION OF THE BOARD; October 26, 1992
This is an application for termination and an application for reconsideration of the dismissal of an earlier application for termination. On July 16, 1992, a majority of the Board, Board Member Pirrie reserving, issued a brief decision dismissing both applications and stating that reasons would follow at a later date. These are our reasons.
It is appropriate to provide a brief history of the bargaining relationship between the respondent union and the intervener employer, the Cambridge Reporter. An interim certificate was issued by the Board on April 27, 1990. Due to disputes over the inclusion of editorial positions in the bargaining unit, a Board Officer was appointed to inquire into and report to the Board on their duties and responsibilities. The parties agreed to attempt to resolve those matters at the bargaining table and adjourned that portion of the dispute sine die in September, 1991. On July 31, 1992, the union asked that the editorial exclusion issues be relisted for hearing. Dates have now been set in October, 1992 to hear those matters. Bargaining took place between the parties between September 1990 and November 1991. When negotiations broke down, a strike commenced which lasted into February 1992. An application for first contract arbitration was filed in November 1991 and heard by the Board over a course of 12 days concluding on February 11, 1992. First contract arbitration was directed on February 21, 1992 by the Board (differently constituted). The reasons for that direction are reported as the Cambridge Reporter, [1992] OLRB Rep. March 271. Union counsel advised the Board that it had also carried certain section 91 complaints against the employer.
On March 30, 1992 an application for termination of bargaining rights was filed by the same applicant as in the present application under sections 57 and 58 of the Act. It was dismissed on the basis of section 41(23) of the Labour Relations Act which provides that an application for a declaration that a trade union no longer represents the employees in the bargaining unit after the Board has given a direction for first contract arbitration is of no effect unless it is brought after the first collective is settled. The Board found that the application was clearly untimely as it had been brought prior to the settlement of the first collective agreement by arbitration.
On June 12, 1992 the current application for termination was filed under section 59 which provides as follows:
If a trade union has obtained a certificate by fraud, the Board may at any time declare that the trade union no longer represents the employees in the bargaining unit and, upon the making of such a declaration, the trade union is not entitled to claim any rights or privileges flowing from certification and, if it has made a collective agreement binding upon the employees in the bargaining unit, the collective agreement is void.
When this matter came on for hearing on July 15, 1992, Mr. Koehler, the applicant appeared unrepresented and requested an adjournment. This adjournment was opposed by the respondent union. The employer took no position on the request for an adjournment. The adjournment request was made on the basis that the applicants' lawyer of choice was on vacation and that it would be unfair to go ahead without him.
Before going on vacation, applicants' counsel had contacted union counsel to see if the union would consent to an adjournment. The union had initially agreed and entered into negotiations with the applicants' lawyer to find a mutually agreeable date for continuation. The mutually agreeable dates were apparently considered unacceptable by the applicants; their counsel wrote to the union on June 30, insisting on proceeding on July 15. The union had no advice prior to the morning of the hearing that the lawyer's clients intended to change course and ask for an adjournment. Having considered the submissions of the parties, the Board gave the following oral ruling at the hearing, denying the adjournment:
The Boards jurisprudence is clear that adjournments will not be granted for the convenience of counsel. This is ever more the case where the clear representation to the party opposite is an insistence on proceeding.
Adjournments are granted on consent or where circumstances truly beyond a party's control are at play. Consent is not present here. As the applicants could have engaged other counsel, we do not consider the circumstances of this case to have been beyond their control.
We then proceeded to hear the preliminary motion of the union. The union asked the Board not to entertain any of the allegations contained in the applications nor to entertain either of the applications on the following grounds:
The application does not disclose a prima facie case that would cause the Board to revoke the union certificate;
the allegations are untimely; all of them could have been discovered much earlier, up to 26 months earlier, and
despite a request for particulars, none has been forthcoming and therefore it is impossible to deal with the allegations.
The union submits that the matters pleaded therefore disclose no violation of the Act or any reason to revoke the certificate. A very brief summary of the arguments made follows.
Noting the lengthy litigation which has occurred between the parties, union counsel asks the Board to take account of the fact that it was only when the direction for arbitration of the first contract was handed down that the application for termination of bargaining rights was submitted. Further, he says that the current application is just an attempt to avoid the result of the dismissal of the previous application for termination. Counsel maintains there is no reason to undo either the certificate or the dismissal of the earlier application for termination. Union counsel detailed his reasons for stating that none of the allegations made out a prima facie case and were so devoid of particularity as to make a proper preparation impossible. He relies on Rule 72 and the Board's jurisprudence to ask the Board to dismiss the applications.
The applicant's response is that he intended to apply on the grounds of fraud by alleging lying and cheating in the first application for termination. Mr. Koehler says that because the first application was thrown out on a technicality, the Board should deal with all the matters now. Mr. Koehler says that the reason that the allegations were not made sooner is that the union is powerful and intimidating and a lot of the employees did not know what was going on; the allegations were always there but people did not know what to do about them. He says that during and after the strike people became more knowledgeable and fed up; the allegations only became known and solidified at the end of the strike. Further, he says that it has been a long process to get these allegations together and that more allegations will be forthcoming in the future. Mr. Koehler says that he represents the majority of the people in the bargaining unit and that this is as good a time as any for justice to occur. He said that the strike vote was illegal and that we should not allow a first contract to be settled by arbitration.
Mr. Koehler, who started working for the employer in November of 1990, several months after the union had been certified, complained that he had never been approached to sign a union card. Also, he says there were people who were there at the time of the organizing campaign who were not approached and were "steamrolled" into the union.
As to the question of particulars, Mr. Koehler says that the people involved were willing to have their names disclosed only if subpoenaed; the names would be disclosed on the date of hearing or immediately prior.
Referring to one of the applicants' allegations to the effect that persons who signed cards submitted by the union on the certification application had not paid a dollar (a non-pay allegation), employer counsel argued that the Board's process for dealing with non-pay allegations reflects the idea that "non-pays" cannot be subject to Rule 72. That is because of the requirement to keep membership evidence confidential unless the Board otherwise orders. Making reference to the Board's high reliance on the accuracy of the union's Declaration Concerning Membership Documents, Form 9, counsel argues Rule 72 has not been applied by the Board to non-pays, and there is no time constraint on when they can be brought to the Board. Mr. Hamilton submitted that the Board should ask for the names involved in the non-pay allegations made by the applicants to be given to the Board in secrecy.
On the issue of delay, employer counsel says that a person cannot benefit by its own misdeeds; if someone was stolen from a long time ago for example, the thief should not be able to rely on the length of time as a defence. Further, decisions of the Board often alter relationships that have been relied on by the parties for years. He notes the Board is often hearing evidence going back more than 24 months as it did on the hearings on the application for first contract arbitration involving these parties. Further, he submits there is no principle that binds the Board that a new person whose rights are affected cannot bring the matter to our attention. He took the position that whenever a non-pay comes to the attention of the Board the Board should look into it. Counsel notes that the collective rights of others are adversely affected if appropriate standards of membership evidence are not met.
We were referred to the following cases in argument by one or both counsel: Detroit River Construction Ltd., 63 CLLC 1115, (OLRB), General Crane Industries Ltd., [1975] OLRB Rep. Jan. 39; CCH Canadian Ltd., [1977] OLRB Rep. June 351; Cable Tech. Wire Co. Ltd., [1978] OLRB Rep. June 496, 229704 Contracting Ltd., [1971] OLRB Rep. June 337, Alderbrook Industries Ltd., [1981] OLRB Rep. Oct. 1331, Roytec Vinyl Company, [1990] OLRB Rep. June 727, N.J. Spivak Limited, [1976] OLRB Rep. Dec. 857; Easy Enterprises Inc., [1987] OLRB Rep. July 994; Ontario Taxi Association 1688, [1981] Sept. 1280.
Decision
We will deal first with the application for reconsideration of the previous application for termination. Although there is no right of appeal from a decision of the Board, section 106(1) gives the Board the discretion to reconsider and change any decision it makes. It does not do so often as it is important to labour relations that disputes, once resolved, can be put behind the parties. Practice Note No. 17 indicates in a general way the situations in which the Board has reconsidered decisions in the past. They can be summarized as situations in which a party proposes to call new, practically conclusive, evidence which could not have been obtained earlier with due diligence or wishes to make representations or objections which it had no opportunity to raise with the Board previously. In addition, important policy issues have led the Board to exercise its discretion to reconsider.
No grounds have been disclosed by the applicants which would cause us to reconsider the previous application. The main thrust of the submission is that the applicants intended to allege fraud in the earlier application by alleging lying and cheating, although they did not make reference to fraud or allege the facts alleged in the current application. The matters that Mr. Koehier raises now are ones that could have been raised at the time of the earlier application and were not. His submissions were that he knew of them by the end of the strike, which was February 27, 1992. These are not matters of public policy or other grounds such as have caused the Board on occasion to reopen a decided matter. The fact that the applicants are not content with the earlier decision of the Board is not adequate basis for reconsideration.
The following is a summary of the allegations made in support of the fresh application for termination before us, in approximate chronological order:
(a) In early 1989, Carole Racine and Anne Watkins, referred to as union organizers and whose names appear on the list of employees, induced an unnamed employee to sign membership evidence by making false representations to the effect that her earnings would increase from $350 to $700 if she signed a union card and that the union would not call employees out on strike in the event it was certified. Subsequently, the union held a strike vote and went out on strike from November 6, 1991 until February 27, 1992.
(b) Prior to April, 1990 unnamed employees were told by an unspecified source that various managerial people including an editor and city editor had signed union cards. Based on this allegedly false representation certain employees signed cards.
(c) An unnamed employee was told by Carole Racine on an unspecified date that if he signed a union card he would receive the same wage rate as at the Brantford Expositor, which was said to have an average wage of $900 per week.
(d) The same unnamed employee as in paragraph (c) above was told he would receive information on the progress of the organizing campaign and be invited to meetings. Having signed the union card, the union withheld information and correspondence from him in the belief that he was not loyal to the union cause.
(e) Throughout the course of the organizing campaign employees who were perceived by the respondent as having loyalties to management were denied access to information in order to make a decision.
(f) Certain unnamed employees were falsely told by unspecified sources at unspecified times that in order to get information about the union, they had to sign a card.
(g) During the course of the organizing campaign a party was held where free alcohol was provided to prospective members by the union. An unnamed employee who wished to obtain more information about the union's position on a strike was denied that information by an unnamed individual and signed a union card at the meeting. Subsequently, the employee continued to complain that he got no information from the union about negotiation rules and was not invited to any union meetings.
(h) Unnamed employees did not pay a dollar when they signed their cards and these cards were filed by the union to obtain certification. This situation was first discovered by the applicant in the course of preparing the petition and application for termination in February and March 1992.
(i) During the strike, unnamed employees, including the one referred to in paragraph (g), were subjected to property damage, vandalism, threatening phone calls, personal threats and surveillance by union representatives. Some were subjected to verbal abuse for crossing picket lines.
Based on the above allegations the applicant states that the union obtained its certificate by fraud, by reason of making false representations knowingly or without belief in their truth or falsely or recklessly as to whether they were true or not, and therefore their bargaining rights should be terminated, pursuant to section 59 [formerly section 58], set out above.
All of the allegations relating to strike misconduct (paragraph (i) above) can have no bearing on the assertion that the certificate was obtained by fraud, since they occurred well after the certificate was obtained and that portion of the application was dismissed for that reason on the basis that they made out no prima facie case.
The allegations relating to provision of information in paragraphs (d), (e) and (g) above do not contribute to a prima facie case for the relief sought. There are no specific obligations on a union as to whom to approach or what information to provide during an organizing campaign. See Roytec Vinyl, supra, at paragraphs 20 and 21.
We have determined that it is unnecessary to determine finally if the other allegations set out above amount to a prima facie case given our conclusions set out below. However, we would note that there is no allegation that the union or its officers made any of the allegedly false or fraudulent statements set out above. Thus this is not to be taken as a finding that there is a prima facie case made out on these facts.
The remaining allegations relate to the collection of membership evidence. We dismissed these on two bases: lack of particularity and delay.
Rule 72 provides as follows:
72(1) Where a person intends to allege, at the hearing of an application or complaint, improper or irregular conduct by any person, he shall,
(a) include in the application or complaint; or
(b) file a notice of intention that shall contain,
a concise statement of the material facts, actions and omissions upon which he intends to rely as constituting such improper or irregular conduct, including the time when and the place where the actions or omissions complained of occurred and the names of the persons who engaged in or committed them, but not the evidence by which the material facts, actions or omissions are to be proved, and, where he alleges that the improper or irregular conduct constitutes a violation of any provision of the Act, he shall include a reference to the section or sections of the Act containing such provision.
(2) Where, in the opinion of the Board, a person has not filed notice of intention promptly upon discovering the alleged improper or irregular conduct, he shall not adduce evidence at the hearing of the application of such facts, except with the consent of the Board and, if the Board deems it advisable to give such consent, it may do so upon such terms and conditions as it considers advisable.
(3) Where a statement in an application or complaint or in any document filed under these Rules in respect of the application or complaint is so indefinite or incomplete as to hamper any person in the preparation of his case, the Board may, upon the request of the person made promptly upon receipt of the application, complaint or document, direct that the information stated be made specific or complete and, if the person so directed fails to comply with the direction, the Board may strike the statement from the application, complaint or document.
(4) No person shall adduce evidence at the hearing of an application or complaint of any material fact that has not been included in the application or complaint or in any document filed under these Rules in respect of the application or complaint, except with the consent of the Board and, if the Board considers it advisable to give such consent, it may do so upon such terms and conditions as it considers advisable.
- Section 8 of the Statutory Powers Procedure Act provides as follows:
Where the good character, propriety of conduct or competence of a party is an issue in any proceeding, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.
Union counsel asked the applicants for particulars by letter dated June, 25, 1992. Applicants' counsel wrote to Mr. Koehier on June 26, 1992 asking him to supply the particulars so that he could forward them to union counsel. Mr. Koehler did not do so, and took the position at the hearing of this matter that he would supply them on the hearing date, presumably referring to some future hearing date, since he did not provide them on the hearing date scheduled before us. Section 8 of the Statutory Powers Procedures Act is specific that reasonable information is to be provided prior to the hearing.
As the allegations presently stand, they are devoid of reference to dates except of the most general kind, such as "prior to April of 1990" and material facts such as the names of the people involved in the majority of the allegations which would be necessary to allow the union to identify the conversations said to constitute fraud. The reason given for this is that the people involved did not want their identities disclosed until the last possible minute. We did not find that this was sufficient reason to allow the applicants to proceed to call evidence of the many material facts absent from their complaint. If it were sufficient reason, it would be an exception to Rule 72
which could soon swallow the rule. As is clear from the Board's jurisprudence, the purpose of Rule 72 is to avoid embarrassment and delay by allowing a party to prepare for the case and make decisions about it with adequate information about it. This was not afforded by the applicants in this case. Although the Board has the discretion to allow the calling of such evidence on conditions, there were not sufficient reasons put forward to lead us to exercise that discretion in this case.
Even if the matters had been sufficiently particularized, we are of the view that the amount of time which has passed since the events complained of, would lead us to refuse to grant the relief sought, which is the exercise of the discretion given us by section 59 to terminate bargaining rights where the union obtained a certificate by fraud.
There are no specific applicable time lines in the Act. However, Rule 72 of the Board's Rules, in line with general principles of fairness, imposes an obligation to act with reasonable promptness. Fraud is an allegation of wrong doing and there is no exception from the application of rule 72 for it. The Board explained the balancing involved in Roytec Vinyl, supra, as follows (after having referred to the Board's usual process of screening non-pay allegations which are often considered to be allegations of fraud.)
Although the Board has formulated this specialized approach to non-pay and non-sign allegations, we reject the employer's argument that they are so unique that Rule 72 does not apply to them at all. It cannot seriously be argued that an allegation, for example, of forging signatures on membership cards does not amount to "improper or irregular conduct" within the meaning of Rule 72, and the purposes of the rule in preventing delay, prejudice and disruption and ensuring natural justice, are as cogent with respect to these allegations as with any other. The difference is that because of the importance of membership evidence in the certification process, the Board in its discretion under Rule 72 has traditionally struck a balance in non-pay and non-sign cases in which the reliability of the membership evidence has often taken precedence over other interests.
In this case, we had some serious concerns about the manner in which the second set of allegations was raised. It appeared that at least one of the petitioners, who was the source of the allegations, had been in possession of the relevant information for approximately four months before they were raised. For approximately three of those months, he was represented by counsel. Again, no mention was made of these allegations when the Board reviewed the outstanding issues and they were only raised when it appeared that the petitions were not numerically relevant.
On the other hand, it appeared that the employer had only become aware of the information in the allegations the day before they were made, and because certain hearing days had been adjourned at the request of the parties, the allegations were made at a relatively early point in the case. As the next hearing day had been assigned some six weeks later to accommodate the parties' schedules, it appeared that it would be possible to receive the particulars, screen them and subpoena any necessary witnesses in the interim. In other words, by an accident of scheduling, any delay or disruption could be minimized at that point. In addition, the screening process would provide at least some degree of protection against vexatious allegations. Having regard to the Board's jurisprudence in this area and the specific circumstances of this case, a majority of the Board dismissed the union's objections. We did not, however, preclude the very real possibility that the Board might decide differently in other circumstances where delay and prejudice could not be minimized in this fashion.
Employer counsel is quite correct that the principles of confidentiality as to membership evidence have led the Board to handle the provision of the name on the disputed card differently than the provision of other particulars. They are provided directly to the Board in the first instance, and then to the parties, if the Board's investigation suggests that there is cause to proceed to a hearing on the matter. However, this does not address the question of the applicability of the timeliness aspect of Rule 72. On the case before us, for well over two years, the names on the disputed cards were provided to no one; more importantly, the issue was never mentioned.
The now well accepted principle that delay produces particularly deleterious effects in labour relations has been elaborated by the Board in jurisprudence relating to a number of areas. These include cases where Rule 72 has been invoked, as well as cases involving the Board's discretion under section 91 as to whether to inquire into a complaint and the exercise of the Board's remedial powers in areas as different as applications under s. 1(4) and unfair labour practices. The considerations in each of these areas necessarily vary according to the provisions of the statute and the factual context. However, the common thread running through these disparate areas is the conviction that expedition is particularly crucial in the area of labour relations. This is partly because we are dealing with ongoing collective relationships which involve the daily reliance on the finality of previous litigation such as certification proceedings.
These principles were expressed in the Corporation of the City of Mississauga, [1982] OLRB Rep. March 420, in the context of a section 91 complaint, as follows:
In recognition of the fact that it is dealing with statutory rights, the Board has not, heretofore, adopted any rigid practice with respect to the matter of delay - holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is established. However, whatever the merits of this approach, the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties' current collective bargaining relationship - quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board's view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.
A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.
With few exceptions that measure of time - months rather than years - has been followed when the issue is raised. In the context of ruling on new allegations of wrong doing under Rule 72, a few weeks, or even days, of delay without good reason has lead the Board to refuse to entertain the allegations. In arbitral jurisprudence, because of similar labour relations considerations, unreasonable delay in the order of months has been held to be. a bar to relief which would otherwise be available. See among others, Re Oil and Chemical and Atomic Workers and Dow Chemical of Canada Limited, (1966) 18 L.A.C. 51 and Re. Clements and the Crown in Right of Ontario (LLBO) (1981) 1981 CanLII 4399 (ON LA), 28 L.A.C. (2d) 289.
Here we are dealing with a delay of over two years and two months for the allegations which date from shortly before the application for certification. The allegations from "early 1989" are over 3 years old. Indeed, there is no indication that any cards signed in 1989 were submitted by the union. During this period of time, as set out above, the parties have been involved in bargaining, lengthy litigation of various kinds, including a previous application for termination, and a protracted labour dispute. At none of these various opportunities or at any time in between did anyone seek to raise any of the issues raised by the applicants.
The reasons given by the applicants for not raising these matters earlier do not relate to their inaccessibility of discovery with reasonable inquiry. They appear to be related to the level of discontent engendered by the strike, the first contract direction and the dismissal of the earlier application for termination. Before this, anyone who may have had knowledge of the alleged facts did not choose to raise them. These are not the kinds of reasons for delay which have led the Board to overlook delays of the magnitude involved here.
Mr. Koehler seeks to rely in part on the fact that he was not in the employ of the Cambridge Reporter at the time of the certification application. This cannot assist the applicants. To find that a person who had no legal interest in the matter at the time it was litigated can at whatever time in the future question the foundation of the relationship, simply because he was not there at the time, would render meaningless the principles of finality so important to any adjudication system. In any event, he has been in the employ of the intervener since November, 1990, more than a year and a half before any of these matters were raised. He could have raised the facts raised here three months earlier in his previous application for termination, by which time he personally knew of them, but did not. Res judicata as a technical defence was not argued before us. Nonetheless, issues about the finality of the litigation of both the certification application and the previously dismissed termination application are of concern and were raised by the union in the form of the argument that the new application for termination is just a manoeuvre to avoid the dismissal of the earlier one.
Although employer counsel is correct that the Board is sometimes in a position of considering evidence of events two years ago and more, as apparently happened in the first contract application, there is an undeniable prejudice that goes with the litigation of events long past, particularly when there has been no indication that they would be in issue. In some circumstances, the balancing of the interests involved will result in such litigation being necessary. Sometimes neither party objects. Here, the prejudice argued by the union to itself and its members in having relied on the finality of the certification proceedings to engage in collective bargaining, a protracted labour dispute and lengthy litigation, is more specific and evident than the general prejudice in litigation of stale claims. The impact on the pattern of relationships developed in the interim is fundamental. No opportunity to address the issues when fresh or to alter positions to deal with them was available. The reasons for the delay are not particularly persuasive. The length of the delay is in the range referred to as extreme and unacceptable in the Board's jurisprudence.
Employer counsel also argues that one should not be allowed to profit by one's own improper conduct. By definition, Rule 72 applies to allegations of wrongdoing; if those alleged to have done wrong were exempt from invoking it, it is difficult to see what application it would have. Although section 59 allows issues of fraud to be raised at any time, it gives the Board discretion as to whether or not it will terminate bargaining rights, even where fraud is found.
We have considered the importance and fundamental nature of issues relating to membership evidence and have given it due weight in balancing the competing interests present here. We are of the view that the considerations of finality of litigation and prejudice to all parties in light of the history of this bargaining relationship in the last two years should, on the facts of this case, take precedence. We are of the view that this is a case in which the delay is so long and the prejudice to the parties so evident that it is an appropriate case to find that the delay is a bar to any relief otherwise available under the section. If the relief would not be granted, and given the lack of particularity discussed above, it would be fruitless to engage in the litigation desired by the applicants.
Subsequent to our brief "bottom line" decision dismissing the applications, the Board received a letter from one of the applicants asking for clarification as to what would be necessary to persuade the Board to order a representation vote. It made reference to how the Board deals with petitions in certification applications. We would observe that this is a termination application and that it is not appropriate for the Board to provide legal advice or opinions on applications not currently before it.
For all the above reasons, we dismissed the applications.