Ontario Labour Relations Board
[1993] OLRB REP. MAY 406
0083-93-R United Steelworkers of America, Applicant v. Circlet Food Inc., Responding Party
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members G. 0. Shamanski and C. McDonald.
APPEARANCES: R. Healey and B. Paris for the applicant; T. English and Allan Greenspoon for the responding party.
DECISION OF THE BOARD; May 14, 1993
This is an application for certification, which the applicant seeks to withdraw. The respondent says it should be dismissed with a six month bar on further applications. In furtherance of this the employer wishes us to hear evidence of allegations of intimidation.
This application was filed on April 8, 1993. By letter to the union dated April 30, 1993, an employee made an allegation of forgery on one of the cards submitted. The union investigated and by letter to the Board dated April 27 sought to withdraw its application. The meeting with the Labour Relations officer had been set for May 5 and the hearing of this matter for May 10, 1993.
A second application for certification has been filed and the union has requested the Board transfer some of the membership evidence filed in support of this application to the second application. The employer wishes the membership evidence collected in the first application to be declared of no value and for the Board to prevent its being transferred to the second application on the basis of the fact of fraudulent membership evidence and its allegations in intimidation.
The employer argued in the alternative that if the Board was not willing to accept the evidence of its allegations of intimidation, that the union's admission that a signature that had been submitted was fraudulent is enough to taint all of the membership evidence collected for this application and have it not be accepted at all.
Employer counsel referred to Dominion Stores Limited, [1964] OLRB Rep. Dec. 447, Stanley Steel Company Limited, [1972] OLRB Rep. Feb. 181, Emanuel Products Limited, [1977] OLRB Rep. Feb. 37 and Crock & Block Restaurant and Tavern, [1980] OLRB Rep. Apr. 424 in support of its submissions.
The union says that these matters should be dealt with in the context of the second application and that there is nothing to prevent it from withdrawing in the circumstances of this case. It sought to withdraw a week before the Labour Relations Officer's meeting was scheduled and almost two weeks before the hearing date. The union argued that the applicable principles were those set out in the former Practice Note #7 which indicates that if a request for leave to withdraw is made in sufficient time before a hearing or before the Labour Relations Officer's meeting the applicant has been permitted to withdraw. Counsel argues that there has been no representation vote or other event which would trigger a dismissal in this case. The union argues that the allegations of intimidation now go to membership evidence relevant to the second file and not to the first application. The card which had a bad signature has not been transferred to the new file. Counsel also relied on the case of West gate Nursing Home Inc., [1981] OLRB Rep. Apr. 503 where reference was made to the Board's practice of transferring cards from one file to another.
The union also argues that the allegations of intimidation were insufficiently pleaded as there were no dates, indication of location or circumstances pursuant to Rule 16 of the Board's Rules of Procedure. Counsel argues that the dates were of particular importance since when the alleged statements were made, i.e., before or after the organizing campaign, would be crucial. Counsel maintained that the union was not in a position to call evidence because of its lack of information on these allegations. He said that if he were required to proceed that he would bring a motion to dismiss because the pleadings in their current state do not make out a prima facie case. Union counsel also asked for an order directing particulars of the allegations on which the respondent intends to rely in the second application.
After recessing to consider the submissions of the parties the Board ruled orally that it would not hear evidence of the allegations of intimidation in the context of this application, as follows:
The issue of taint from any intimidation allegations which are made out on the membership evidence in the second application is more properly dealt with in the context of the whole ensemble of the membership evidence within that application. It is not necessary to determine the merits of the allegations of intimidation in order to determine whether or not the applicant should be allowed to withdraw this application. Nor do we think it a wise use of anyone's resources to litigate the matter in the context of this application.
The particulars are also not sufficient to require the union to litigate these allegations today and this is an additional reason to defer this issue to the second application.
The Board reserved on the issue of whether the applicant should be allowed to withdraw. Having further considered the submissions of the parties we are of the view that the applicant should be allowed to withdraw this application. There is nothing in the new Rules or in the Bill 40 amendments to the Act that changes the considerations underlying the Board's previous practice as set out in former Practice Note 7. Given the stage of the proceedings at which the applicant sought to withdraw, it should be permitted to do so.
We have carefully considered the authorities filed by the respondent. They all pertain to situations where the applicant did not seek to withdraw but where, after litigation of an issue, the Board found against the applicant. That is a situation quite distinguishable from this case where the union investigated and sought to withdraw the application well before the Officer's meeting or hearing.
On the question of a bar to further applications, see also Leco Industries Limited, [1979] OLRB Rep. May 404 at para. 7 where it is observed that the Board will not generally impose a bar where leave to withdraw has been requested upon the discovery of defective membership evidence. It further observes that even where allegations of defective membership evidence have been substantiated the greatest effect would normally be a dismissal of the application rather than a bar.
In the result leave is granted to withdraw this application.
The respondent may pursue its allegations of intimidation in the subsequent application. Its attention is drawn to its obligation under Rule 16 which provides as follows:
Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, and when and where it happened, and the names of any persons said to have acted improperly.
As an administrative matter the membership evidence that the union has asked to be transferred to the second file will be transferred. All issues concerning the use of that evidence may be raised with the panel hearing the second application.