[1993] OLRB REP. OCTOBER 957
1592-93-R Labourers' International Union of North America, Local 247, Applicant v. Crane Canada Inc., Responding Party
BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members R. M. Sloan and B. L. Armstrong.
APPEARANCES: Carolyn Hart and Victor Claro for the applicant; Alan Whyte for the responding party.
DECISION OF THE BOARD; October 15, 1993
I
This is an application for certification.
There is no dispute and the Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
The parties have agreed and the Board finds that the unit of employees appropriate for collective bargaining should be framed as follows:
all employees of Crane Canada Inc. at its Crane Supply Division in the City of Kingston, save and except Branch Manager, persons above the rank of Branch Manager, office, clerical, sales and technical staff.
In accordance with the Board's Rules and section 8 of the Act, some seventy-five per cent of the employees in the above-described bargaining unit have indicated their wish to be represented by the applicant trade union.
There is no dispute about the "voluntariness" or validity of this union membership evidence, nor its practical and legal import: a substantial majority of the employees have signified their desire for trade union representation.
The issue raised by the employer is whether the Board should refuse to entertain the union's certification at this time, or, in the alternative, refuse to certify the applicant without the confirmatory evidence of a representation vote.
Some of the provisions of the Act to which reference will be made, are as follows:
5.-(1) Where no trade union has been certified as bargaining agent of the employees of an employer in a unit that a trade union claims to be appropriate for collective bargaining and the employees in the unit are not bound by a collective agreement, a trade union may, subject to section 62, apply at any time to the Board for certification as bargaining agent of the employees in the unit.
60.-(1) If a trade union fails to give the employer notice under section 14 within sixty days following certification or if it fails to give notice under section 54 and no such notice is given by the employer, the Board may, upon the application of the employer or of any of the employees in the bargaining unit, and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.
(2) Where a trade union that has given notice under section 14 or section 54 or that has received notice under section 54 fails to commence to bargain within sixty days from the giving of the notice or, after having commenced to bargain but before the Minister has appointed a conciliation officer or mediator, allows a period of sixty days to elapse during which it has not sought to bargain, the Board may, upon the application of the employer or of any of the employees in the bargaining unit and with or without a representation vote, declare that the trade union no longer represents the employees in the bargaining unit.
104.-(13) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceeding to present their evidence and to make their submissions.
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
The facts are not in dispute.
In 1992 the union was certified as the bargaining agent for the employees in the above-described bargaining unit. Thereafter, the union either failed to give timely notice to bargain or failed to diligently pursue bargaining within the time frame contemplated by section 60. That lapse prompted the employer on July 22, 1993 to apply to the Board for termination of the union's bargaining rights.
When the Board receives an application for termination of bargaining rights like the one mentioned above, it normally schedules a hearing to ascertain the facts, and receive representations on whether or not the union's bargaining rights should be terminated, with or without a Board-supervised representation vote. However, that is not what happened here.
Upon receiving notice of the termination application, the union ascertained from the employees that they still wished to be represented by the union; but instead of contesting the employer's termination application, the union advised the Board that it consented to the issuance of a Board Order declaring that it no longer represented the employees in the bargaining unit. The union calculated that the employees' interests would be better served by avoiding the expense, delay, and potential complications of a hearing before the Board, in Toronto - a hearing which might or might not have resulted in a termination of bargaining rights, either following or perhaps without a representation vote. To avoid this process and possible result, the union made a "tactical" decision. The union consented to the termination of bargaining rights with the belief and expectation that, since it continued to enjoy substantial employee support, it could promptly reap-ply for certification.
And that is what the union did.
By decision dated July 30, 1993 the Board declared that the union no longer represented the employees in the bargaining unit. Since the union was not resisting the termination application, this result flowed relatively quickly. There was no need for a hearing. However, two weeks later on August 13, 1993 the union re-applied for certification based upon fresh documentary evidence from the employees indicating that they wished to be represented by the union. It is that certification application which is currently before the Board.
The employer argues that the Board should not entertain this new certification application and should bar any new application for a period of six months. The employer concedes that the circumstances here do not fall within the ambit of section 105(2)(i), because the union is not an "unsuccessful" applicant within the meaning of that section. However, the employer contends that the new application is "vexatious" or an "abuse of process" and thus should not be entertained. In the employer's submission, the authority to refuse the union's application can be found either in section 104(13) of the Act, or in the Board's general power to control its own processes confirmed by the Statutory Powers Procedure Act.
III
When the certification application was filed on August 13, 1993, the employees were unrepresented. There was no outstanding Board certificate relating to them, nor were they bound by a collective agreement. On the surface, therefore, this application is timely, because section 5 specifies that a certification application can be made "at any time".
Does section 104(13) provide a basis for refusing the certification application, or imposing some kind of six-month bar? We do not think so.
First, it is difficult to characterize the refusal of an otherwise timely certification application as a matter of "practice and procedure". What is involved are substantive rights - rights, moreover, which are affirmed in sections 2.1, 3, and S of the Act. Second, where the Legislature has limited the right to bring a representation application, it has done so expressly: in the timeliness requirements of section 62 of the Act, and the limited discretion granted to the Board under section 105(2)(i) - which, we repeat, has no application here. Against that background, we do not think we can lightly infer some other discretionary power to impose a "bar" or refuse to entertain an otherwise timely certification application.
And even if the Board had such discretion, we are not persuaded that we would exercise it here.
The employer's termination application was not based upon a lack of employee support. The employer's complaint was that the union was not diligently pursuing collective bargaining and that the employer was therefore prejudicial. There were no employees intervening to support the application or otherwise indicate their views in the manner contemplated by the Rules. In those circumstances, it is highly unlikely that the Board would have terminated bargaining rights unless there was no valid excuse and the union had "lost" a representation vote.
And even in that scenario, if the matter had been fully litigated, would there have been a "bar" under section 105? In our view, the answer is "no" because there would be no "unsuccessful" application within the meaning of section l05(2)(i). It would be curious if the employer were in a better position where there is no negative vote from employees, and, on the contrary, every indication that the majority want the union.
More fundamentally, though, the purpose of the Act is to facilitate collective bargaining; and even section 105(2)(i) has never been regarded as a "penalty" provision. That section has not been invoked unless there have been repetitive applications for certification, or the employee wishes have been tested in a representation vote so a period of stability is called for. None of those circumstances are present here, nor does the employer identify any real prejudice, other than having to return to the bargaining table - where, paradoxically, it might have been anyway, if it had pressed the union to bargain, rather than petitioning the Board to terminate bargaining rights on the basis of the union's inactivity.
No doubt the employer is surprised (and perhaps annoyed) by the sequence of events it set in train. However, despite the unusual circumstances of this case, we think predominant weight should be given to the employees' desire to participate in collective bargaining through a trade union of their choice. They should not be deprived of that opportunity because of the union's earlier failings.
For the foregoing reasons, the Board is prepared to entertain this certification application, and sees no reason, if the union is otherwise "certifiable", why the Board should exercise its discretion to order a representation vote.
The Board is satisfied, on the basis of all the evidence before it, that more than fifty-five per cent of the employees of the responding party in the bargaining unit on August 13, 1993, the certification application date, had applied to become members of the applicant on or before that date.
A certificate will issue to the applicant.