Ontario Labour Relations Board
Randy A. Burke v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada)
[1993] OLRB Rep. June 572
0182-93-R Randy A. Burke, Applicant v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Responding Party v. Venture Industries Canada, Ltd., Intervenor
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members G. O. Shamanski and D. A. Patterson.
APPEARANCES: Randy A. Burke for the applicant; Michelle McPhee, Dan Flynn, D. Charlton and J. Parker for the responding party; Anna Vannelli and Francine LeBlanc for the intervenor.
DECISION OF THE BOARD; June 7, 1993
1This is an application for a declaration terminating the bargaining rights which the responding trade union (the "CAW") holds with respect to "all regular plant employees of Venture Industries Canada, Ltd. at its plant in Wallaceburg, Ontario, save and except foreman, persons above the rank of foreman, office and sales staff, and students employed during the summer vacation." Although originally made under sections 58, 59, 60 and 61 of the Labour Relations Act, it became clear at the hearing on May 25, 1993 that section 58(2)(a) was the only applicable provision.
2At the hearing, the CAW moved that the Board exercise its discretion under section 105(2)(i) of the Act to refuse to entertain this application, and, further, that the Board bar termination applications like this one for a period of ten months.
3The applicant voiced some objection to the Board entertaining the motion because it had not been "filed" by the terminal date. Although the CAW did not fully particularize its motion prior to its May 18 and 20, 1993 letters in that respect, after the terminal date, the issue was sufficiently raised and identified in the CAW's reply which was filed by the terminal date. The Board therefore considered it appropriate to hear the motion.
4The material facts in that respect were not in dispute. The CAW was certified by the Board on March 15, 1989. It was unable to negotiate a collective agreement with the intervenor and applied to the Board for a direction that a first collective agreement be arbitrated. That direction was granted and subsequently a collective agreement was arbitrated. This collective agreement was effective July 23, 1990 and expired on July 22, 1992. The CAW gave notice to bargain a new collective agreement to the intervenor in June, 1992. Subsequently, the CAW and the intervenor met to bargain on July 9, August 14, and August 19, 1992. On August 13, 1992, two employees (neither of whom was the applicant herein) filed an application for a declaration terminating the CAW's bargaining rights (Board File No. 1446-92-R - the "first application"). At their August 19, 1992 meeting, the CAW and the intervenor agreed to suspend further collective bargaining pending the disposition of the first application.
5By decision dated March 5, 1993, the Board (differently constituted) determined the voter eligibility issues which arose in the first application. The Board held that all three persons whose eligibility to vote was in dispute were entitled to vote and directed that their ballots, which had been segregated, be counted.
6By letter dated April 1, 1993, the intervenor sought reconsideration of that decision. By decision dated April 21, 1993. the Board dismissed this request for reconsideration, and, because not more than fifty per cent of the ballots cast in the representation vote had been marked against the CAW, dismissed the first application.
7By letter dated May 6, 1993, the intervenor renewed its request for reconsideration and requested that its request be put before a different panel of the Board. This May 6,1993 request had not been dealt with by the Board at the time this application came on for hearing on May 25, 1993. Nor was it before this panel at that time.
8The CAW and the intervenor met to bargain again on April 15, 1993. They were unable to conclude a collective agreement. On the same day, this application was filed (that is, before the first application had actually been dismissed).
9The CAW submitted that the Board should refuse to entertain this application and bar further such applications because the employee's wishes had been tested in the first application and the CAW and intervenor had not had a reasonable opportunity to bargain since the first application had been disposed of. The CAW submitted that there were no special circumstances which justified permitting this application to proceed on the heels of the first.
10The applicant pointed out that it had been nearly a year since the first collective agreement had expired and that the employees he "represented" were not happy with the CAW, which he said had accomplished nothing for them. He argued that the vote in the first application, which was a tie vote, proved nothing and that it was appropriate to give the employees another vote.
11The intervenor submitted that the Board's practice is to exercise its discretion to refuse to entertain an application like this one only where numerous previous applications have been dismissed within a short period. It submitted that it was not the Board's practice to refuse to entertain a second application. Further, the intervenor stated that there are different employees in the bargaining unit now than when the first application was made. It argued that this constituted a special circumstance such that when balancing the competing interests of the trade union and the employees, the employees should be given the vote they have requested. The intervenor submitted that the question of the bar should have been raised in the first application, and that while the Board could refuse to entertain a subsequent application by other employees, it could only bar the actual previous unsuccessful applicants.
12Upon considering the representations of the parties, the Board ruled, orally, that it has the jurisdiction to refuse to entertain this application and that it found it appropriate, in the circumstances, to do so. However, assuming the Board has the jurisdiction to do so, the Board declined to impose a bar as requested by the CAW. In making this ruling, the Board indicated that it understood and was sensitive to the concerns expressed by the applicant and the tensions which obviously existed in the bargaining unit. However, the employee's wishes have recently been tested, the CAW has not had a reasonable opportunity to bargain since then, and the Board was not satisfied that there were special circumstances which made it appropriate to proceed with this application. In the result, this application was dismissed.
13In making this determination, the Board considered the Board's decisions referred to by the parties; namely, 7-Up (Ontario) Limited, [1971] OLRB Rep. Dec. 791, Ontario Hospital Association (Blue Cross), [1981] OLRB Rep. Apr. 468, and Browning-Ferris Industries Ltd., [1982] OLRB Rep. Sept. 1253. In addition, in Cara Operations Limited, [1992] OLRB Rep. March 295 (request for reconsideration dismissed June 16, 1992, unreported), the Board dealt with a similar motion to the one herein as follows:
- The respondent argued that the representation issued raised by this application had been tested and determined in the first application and that the respondent has not had a reasonable opportunity to pursue collective bargaining since then. The respondent urged the Board to balance what is characterized as being the competing interests and policy considerations behind sections 58 and 105(2)(i) (that is, the representation interest versus the protection of existing collective bargaining relationships) by dismissing this application with a bar. The respondent argued in that in balancing the two interests the Board should ask itself the following questions:
(1) has the applicant had a fair chance to raise the representation issue?
(2) if so, has the union had a reasonable opportunity to bargain since that issue was disposed of?
(3) are there any exceptional circumstances?
In support of its position, the respondent relied upon the Board's decisions in Seven-Up (Ontario) Limited, [1971] OLRB Rep. Dec. 792; Dunville Supermarket Limited, [1980] OLRB Aug. 193; Browning-Ferris Industries, [1982] OLRB Rep. June 816 and [1982] OLRB Rep. Sept. 1253; Storwall International Inc., [1985] OLRB Rep. Nov. 1679 and R.L.D. Electric, [1986] OLRB Rep. Aug. 1145, and it submitted that, in this case, the Board should conclude that the questions it had submitted should be answered "Yes", "No", and "No", and that the application should therefore be dismissed with a bar.
The applicant agreed that it was appropriate to seek a balance between the right to test representation rights and the right to maintain and pursue a collective bargaining relationship. However, counsel submitted that the true wishes of the employees had not been tested with respect to the representation issue in this case and that the disruption to the collective bargaining relationship complained about by the respondent is inherent in any termination application and is therefore specifically contemplated by the Act. Counsel sought to distinguish the cases relied upon the respondent and also referred to the Board decisions in Soo Dairies Limited, [1971] OLRB Rep. July 439 and Repac Construction & Materials Limited, [1978] OLRB Rep. Jan. 91. The applicant argued that balancing of interests in this case favoured allowing this application to proceed in order to permit the representation issue to be truly tested.
The intervener employer quite properly took no position with respect to the respondent's motion as such. It limited its submissions to the denying the respondent's allegations, in argument, that the intervener had refused to bargain and to responding to the applicant's complaints with respect to the quality of the list of employees filed in the first application.
The situation before the Board in this case was analogous to one in which a trade union applies to be certified for a bargaining unit of employees already represented by another trade union, discovers that it has miscalculated its membership position, subsequently seeks to withdraw its application, but has its application dismissed because of the stage of the proceedings. In those circumstances, a subsequent application by the same union would not generally be dismissed by the Board in the exercise of its discretion under section 105(2)(i) of the Act, mainly because the Board does not consider that the representation issue in such circumstances has been both raised and determined. Accordingly, the first question is not quite as characterized by the respondent. As the Board's jurisprudence demonstrates, that question is not just whether there has been a fair opportunity to raise the representation issue, but whether the representation issue has been raised and determined.
As the Board said in the often quoted paragraph 16 of Seven-Up (Ontario) Limited, supra:
- The Trinidad Leaseholds Case and subsequent decisions based on its principles stand for the proposition that when a second application for certification or termination is made upon the heels of a prior application involving the same parties, in determining whether it should refuse to entertain the second application, the Board must balance the right to test an incumbent trade union's strength among the employees it represents at an appropriate time against the maintaining of continuity and stability in an existing collective bargaining relationship. Stated another way, once a representation issue has been dealt with on its merits and in the absence of special circumstances, then an incumbent trade union ought to be afforded a reasonable opportunity to demonstrate, without undue impediment, its ability to bargain with that employer for a collective agreement on behalf of those employees it represents.
[emphasis added]
Certainly, the mere fact that there has been one representation application which has been dismissed does not mean that a second one, made soon after, should necessarily not be entertained by the Board. In order for the Board to properly exercise its discretion to entertain a representation application which is otherwise properly made, it must, in our view, be satisfied that the representation issue was truly determined in the first proceeding and that, in all the circumstances, it is appropriate to refuse the second one to proceed in the interest of labour relations stability. Seven-Up (Ontario) Limited, supra, Dunville Supermarket Limited, supra, Browning-Ferris Industries, supra, Storwall International Inc., supra, and R.L.D. Electric, supra, are all examples of cases in which the Board was so satisfied. Soo Dairies Limited, supra and Repac Construction & Materials Limited, supra are examples of circumstances in which the Board was not so satisfied. The jurisprudence also demonstrates the idiosyncratic nature of such cases.
Obviously, discretionary determinations such as this, must be made judiciously on the basis of the circumstances peculiar to each case. It is neither possible nor appropriate to establish a catalogue or set of rules in that respect. In this instance, the Board was satisfied that, in the circumstances of described, the situation was analogous to that described in paragraph 11 above. The Board was satisfied that, what appears to be a very real representation issue was not truly determined in the first application, and that in the interests of both short and long term labour relations considerations, it should be. We find it neither necessary nor appropriate to comment further.
The respondent's motion under section 105(2)(i) of the Act is therefore dismissed aforesaid.
In dismissing a request that the Board reconsider that decision, the Board wrote:
Perhaps the analogy drawn in paragraph 11 of our March 13, 1992 decision, to which the respondent so strongly objects (even though one of the cases upon which the respondent relies in support of its request for reconsideration, Trinidad Leaseholds (Canada) Ltd. 52 CLLC ¶ 17005, suggests that very analogy) is imperfect. However, the dismissal of the respondent's motion under section 105(2)(i) of the Act did not depend upon that analogy. The point of it was to demonstrate that the "... question is not just whether there has been a fair opportunity to raise the representation issue, but whether the representation issue has been raised and determined."
Section 105(2)(i) of the Act gives the Board the 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;
This provision gives the Board a broad discretion. It does not require any particular result.
The Board's jurisprudence, both as set out in the written submissions of the parties and otherwise, includes cases in which the Board has exercised its discretion to impose a section 105(2)(i) bar and cases in which the Board declined to do so. As a result, certain practices or policies had developed in the sense that the Board's tendency to treat like case alike results in a certain predictability to the Board's response to given situations. For example, the Board generally imposes a six month bar where employee have been tested by a representation vote and an application has been dismissed for lack of employee support. However, the Board is not bound to impose a bar even in such cases.
No practice or policy can be more than a general guideline. The very nature of practices and policies is such that there must be limits and exceptions to them, especially in matters of discretion. No practice or policy is written in stone, and cannot operate as a fetter on the proper exercise of the Board's discretion. The Board's practices and policies must both reflect labour relations reality and be responsive to individual cases.
The dismissal of a certification or termination application does not, by itself, constitute a basis for refusing to entertain a subsequent application or imposing a bar (see, for example, General Freezer Limited, (1962) 63 CLLC p. 16294; Dalacoustic Contractors Ltd. [1971] OLRB Rep. Jan. 22; Soo Dairies Limited, [1971] OLRB Rep. July 439; Freuhauf Trailer Company of Canada Limited, [1974] OLRB Rep. Jan. 6; Repac Construction & Materials Limited, [1978] OLRB Rep. Jan. 91 and Storwal International Inc., [1985] OLRB Rep. Nov. 1679). Indeed, apart from cases in which a representation vote was taken, or where an application has obviously been withdrawn to avoid a vote, the Board has been reluctant to bar or refuse to entertain a subsequent representation application except in exceptional circumstances, such as where there had been numerous unsuccessful applications within a short period of time (see, for example, J. W. Crooks Co. Ltd.,[1972] OLRB Rep. Feb. 126; Repac Construction & Materials Ltd., supra; Campbellford Memorial Hospital, [1978] OLRB Rep. Aug. 722; Erie & Huron Beverages Ltd. [1979] OLRB Rep. July 640; Sonora Cosmetics Inc., [1982] OLRB Rep. June 954; and Storwal International Inc., supra).
In this case, the parties met with a Labour Relations Officer with respect to the first application, but their only appearance before the Board was to make submissions with respect to the applicant's request for leave to withdraw that application. The only determination which the Board made in the first application was with respect to that request and not with respect to anything having to do with the merits of the representation issue raised in that application, and subsequently in this one. In addition to and quite apart from the analogy drawn in paragraph 11 of our March 13, 1992 decision, we were not satisfied that the representation issue had been determined in the first application. Further, there was nothing before the Board, then or now, which suggested that either the first application or this one was frivolous, vexatious or made for any improper purpose, and it was our sense that the labour relations interest in having the representation issue finally determined on its merits outweighed the respondent's collective bargaining interest. Accordingly, we found it appropriate to exercise our discretion to not refuse to entertain this application and impose a bar as requested by the respondent trade union.
14As the Board pointed out in Cara Operations Limited, supra, the legislative scheme of the Labour Relations Act attempts to balance employee wishes with respect to representation and collective bargaining stability. In this case, collective bargaining between the CAW and the intervenor began in a timely manner. There was no suggestion that anything unusual had occurred in that respect before it was interrupted, relatively early in the collective bargaining process, by the first termination application, or that there was anything wrong with suspending that collective bargaining pending the disposition of the first application. It was apparent that all concerned expected that the first application would be dismissed before the Board decision in that respect actually issued. The CAW and the intervenor resumed bargaining on April 15, 1992 and this application was filed on the same day, six days before the Board dismissed the first application. The ability of the CAW and the intervenor to engage in collective bargaining was again impaired, even before the first application had been formally disposed of. It was readily apparent that the CAW and intervenor have not had a reasonable opportunity to bargain a new collective agreement.
15On the other hand, the employee wishes with respect to representation were tested in the first application. That application was dismissed because the applicants for termination lost the vote. Although the vote result in the first application suggests that the CAW enjoys something less than their enthusiastic support, the bargaining unit employees have had a full opportunity to express their wishes. Further, the fact that there has been a change in the actual composition of the bargaining unit does not constitute a special or exceptional circumstance which justifies retesting the employee wishes so soon after the first application was dismissed. Employees who have just entered or re-entered a bargaining unit must take the situation as they find it. It would be unrealistic and unduly disruptive to collective bargaining to require a trade union to establish that it enjoys the support of the bargaining unit it represents every time there is a change in the employees who make up that bargaining unit.
16In the result, the Board was satisfied that the CAW should have an opportunity to pursue collective bargaining and that it was appropriate for the Board to exercise its discretion not to entertain this application (which discretion we were satisfied the Board has for the reasons given in Browning-Ferris Industries Ltd., supra). The application was therefore dismissed as aforesaid.
17However, the Board was not satisfied that it could or should bar either this or other bargaining unit employees from making a further termination application. For the reasons given in the Blue Cross case (supra, at paragraph 28), the applicant herein is not an "unsuccessful applicant" for the purposes and within the meaning of section 105(2)(i) of the Act. Nor are bargaining unit employees other than the actual applicants in the first application. Further, and in the alternative, we were not satisfied that it would be appropriate to impose a bar where, as in this case, the employees have been without a collective agreement for nearly a year. While the CAW is entitled to an opportunity to bargain, it and the intervenor may not be entitled to the same luxury of time which they may have enjoyed in July and August, 1992.
18It may be that a further termination application will be filed. Certainly, the CAW is on clear notice that there is dissatisfaction in this bargaining unit. Whether the Board will entertain any subsequent termination application will depend on the circumstances, including when it is made and what has transpired in the interim. It would be inappropriate for us to make any further comment in that respect.
19On May 31, 1993, as this written decision was being prepared, the Board received the following letter from the applicant:
In a recent hearing with the O.L.R.B. on Tuesday May 25, 1993 at 9:30 A.M. in reference to my application on termination of the C.A.W. bargaining rights at Venture Industries in Wallaceburg, Ontario. I say that the panel of the three men who sat on the panel that day did not give me a fair hearing.
When an application is put forth with 9 out of 13 names on it, of people who do not wish to have the CAW. represent them. That application is turned down, I think there has been a great injustice done.
The chairman said "that the union has not had sufficient time to negotiate". Well, 9 employees think they have. I think we should have been given a chance, not only to defend our petition, but to have a vote. I felt that the chairman's attitude was that, he did not really care what I had to say, or for that matter what the other employees wanted. I know we're only a small plant, but we consider ourselves, very important to the economy.
We feel that if not given an opportunity to vote the Union is going to put us right out of a job.
I conclude this letter by pleading with you to reconsider our jobs, families, and our well being. Let us have a vote as to whether or not, the C.A.W. Local 127 should have bargaining rights or not.
Listed here you will find the names of all the employees who do not wish the union be in control and bargain for us and our jobs.
20The Board's decision in this case was a unanimous one, made by the whole panel, not just the Vice-Chair. The panel listened to and carefully considered the representations of all the parties, including the applicant. All of the parties, including the applicant, had a full opportunity to make whatever representations they wished with respect to the CAW's motion that the Board should exercise its discretion to refuse to entertain this application. In concluding that the Board should not entertain this application, the panel considered the legitimate interests and expectations of all parties. In that respect, and as we have already noted, the employees in this bargaining unit have recently had an opportunity to express their representation wishes. On the other hand, the CAW has not had an opportunity to bargain.
21To the extent that the applicant's post-hearing letter constitutes a request for reconsideration, it asserts no fact and makes no representations which the applicant did not already make at the hearing on May 25, 1993, and which the Board considered at the time. Indeed, the applicant's letter does nothing more than express his dissatisfaction, and the apparent dissatisfaction of his supporters, with the Board's decision. The fact that one or more parties or affected persons is not satisfied with a decision (which is almost always the case when a labour relations matter is litigated) is not a reason to reconsider that decision. Nor is there any other reason for the Board to reconsider its decision herein, and the Board declines to do so.