United Food and Commercial Workers International Union, Local 175 v. S & R Car Rentals Toronto (Central) Ltd., 1995 CanLII 10007

United Food and Commercial Workers International Union, Local 175 v. S & R Car Rentals Toronto (Central) Ltd.

[1995] OLRB Rep. November 1410

1977-95-R; 2241-95-R; 2242-95-R; 2414-95-R United Food and Commercial Work­ers International Union, Local 175, Applicant v. S & R Car Rentals Toronto (Cen­tral) Ltd., Responding Party; United Food and Commercial Workers Interna­tional Union, Local 175, Applicant v. S & R Car and Truck Rentals Ltd. Toronto (Central), Responding Party

BEFORE: S. Liang, Vice-Chair, and Board Members Orval R. McGuire and K. S. Brennan.

APPEARANCES: Kelvin Kucey, Mark Flannigan, Chris Scott, Phil Palahnuk and Abdi Dahir for the applicant; M. E. Geiger, June Hagen, Les Dickins and Barb Kirby for the responding party.

DECISION OF THE BOARD; November 27, 1995

1. These matters are all applications for certification, brought by the same applicant with respect to various bargaining units of employees employed by S & R Car Rentals Toronto (Cen­tral) Ltd. (referred to herein as "S & R"). A hearing was originally scheduled into Board File No. 2414-95-R, the most recent application for certification. Since the issues raised in that Board file concerned the other three files, none of which had been disposed of by the time of this hearing, the parties agreed that this panel should hear and determine the outstanding issues relating to all of these applications. Since the hearing, the Labour Relations and Employment Statute Law A mend­ment Act, 1955 has been enacted, bringing into force the Labour Relations Act, 1995 ("the new Act"). The differences between the new Act and the "old" Labour Relations Act have no bearing on our determinations; references to statutory provisions in this decision are references to those as they existed before November 10, 1995.

2. To briefly summarize the status of these applications, Board File No. 1977-95-R is an application relating to all employees of S & R employed in Metropolitan Toronto, filed on August 21, 1995. Board File Nos. 2241-95-R and 2242-95-R, which were filed on September 12, 1995, relate to bargaining units of employees in the Towns of Oakville and Markham respectively. In its response to Board File No. 1977-95-R, the employer took the position that the appropriate bar­gaining unit should be described to include all employees employed in the greater Metropolitan Toronto area which would include the Municipalities of Peel, Markham, Oshawa and Metropolitan Toronto. On September 18th, the parties met and discussed these three applications. The parties agreed to adjourn all three of these applications, with the applicant undertaking to consider the appropriateness of the employer's proposed bargaining unit, which was described in the agreement as employees in the greater Metropolitan area, including Oakville, Milton, Vaughan and the Muni­cipalities of Peel, Markham, Oshawa and Metropolitan Toronto. The employer agreed to provide the union with a list of the employees in its proposed bargaining unit, by September 21st. On Sep­tember 22nd, the applicant sought leave to withdraw these three applications, and filed a new application, Board File No. 2414-95-R, which proposed a bargaining unit description which is iden­tical to the one proposed by the employer on September 18th.

3. The parties have met with respect to Board File No. 2414-95-R. Based on the agreed bargaining unit, the parties understand that, subject to a further check of the membership evidence by the Board, the applicant is numerically in a position to receive a certificate. A hearing was scheduled in order to hear the evidence and submissions of the parties on certain issues raised by the employer, outlined below.

4. The employer takes the position that the Board ought not to allow the applicant to with­draw the applications in Board File Nos. 1977-95-R, 2241-95-R and 2242-95-R and that it ought to instead dismiss them and impose a bar on further applications by the applicant for a period of four months, based on the Board's powers under section 105(2)(i) of the Labour Relations Act. Assum­ing that the Board imposes such a bar, the result would be that Board File No. 2414-95-R could not proceed. In the alternative, if the Board chooses not to impose a bar, the employer requests that the Board conduct a representation vote in Board File No. 2414-95-R to dispel what it calls a "cloud" over the membership evidence filed by the applicant.

5. Section 105(2)(i) states that the Board has power

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.

6. In addition to these applications, there was a previous application (the "City Core application"), in which the union sought bargaining rights pertaining to certain downtown Toronto locations of the employer. This application was withdrawn by leave of the Board on August 10, 1995. The employer agreed to the withdrawal, which occurred after two days of evidence. The union undertook not to file a further application which related to a bargaining unit smaller than Metropolitan Toronto, and the employer agreed not to seek a bar to a further application.

7. In arguing that the Board ought to impose a bar to the current application, the employer states that in filing this series of applications, the union has sought to ensure that the company has been prevented, by the provisions of section 81 of the Labour Relations Act ("the statutory freeze") from altering terms and conditions of employment and in particular from imple­menting wage changes. The union has used this freeze, it is submitted, as an organizing tool by conveying to employees that it is only through unionization that they will be able to achieve better terms and conditions of employment. The employer acknowledges that it has no direct evidence that this is the union's organizing strategy, but states that it is the only logical inference from the sequence of events. As part of this theory, the employer asserts that it has been clear to the union from the beginning what the appropriate bargaining unit is, and that it could not be anything less than the one which the parties have now agreed to. The applications preceding the current one, therefore, have been nothing but shams~ designed to impose a statutory freeze and pave the way to an organizing effort which culminated in the current application.

8. The employer outlined the facts on which it based its argument and the union agreed to virtually all of these. To the extent that there were some minor differences, they were of nuance only and not of any significance to our determinations. We assume for the purpose of this decision the accuracy of the facts as described by the employer.

9. We are not persuaded that the facts support the inferences which the employer asks the Board to draw from them. We are not persuaded ultimately that there is any compelling reason to impose a bar to the current application before us, or to order a representation vote.

10. We find no evidence for the suggestion that the union has applied for bargaining units which it knew to be inappropriate, with the intention of imposing a freeze and ultimately with­drawing the applications. Firstly, there is every indication that the appropriate bargaining unit for this employer is an issue which has been both uncertain, and alive. To the extent that the employer asserts that a unit based on the greater Metropolitan Toronto area is the only appropriate unit, it is an issue which has never been litigated to its conclusion. When the employer agreed to the with­drawal of the union's City Core application, it was aware that the union might well file an applica­tion based on Metropolitan Toronto, and not the greater Metropolitan Toronto area, based on its undertaking. The employer accepted this possibility and agreed to have the litigation of the bar­gaining unit issue discontinued.

11. Indeed, the union did what might have been expected, and followed through with appli­cations which related to Metropolitan Toronto, complemented by two applications pertaining to municipalities outside of Metropolitan Toronto.

12. When it appeared that there was still disagreement about the bargaining unit, the employer and the union agreed to adjourn these three applications so that the union could consider the appropriateness of the unit proposed by the employer. The employer also agreed to provide a list of the employees in its proposed unit to the union. It could hardly have come as a surprise that the union decided that it would agree to that unit. It was not an unreasonable response from the union to withdraw the three applications covering bargaining units which formed discrete parts of the unit now agreed to, and re-file an application for the broader unit. It is arguable that the union did not have to re-file a new application, but could have requested its membership evidence from the three applications to be consolidated into one of these three. Instead, it chose to start with a fresh application, which, besides ensuring that all of the membership evidence from the three applications could be taken into account, would also have ensured that all employees affected would have proper notice of the scope of the bargaining unit affected. We cannot conclude from its decision to choose this route, even taking into account all of the other facts relied upon by the employer here, that there was anything duplicitous or objectionable in the union's conduct.

13. Further, the employer bases its notion that the union knew that there was only one appropriate bargaining unit, on portions of the Board's decisions in Budget Car Rental Toronto Limited, Board File No. 0050-94-R and 0168-94-R, decision dated July 26, 1994 (unreported) and Tilden Car Rental Inc., Board File No. 3963-93-R, decision dated May 16, 1994 (unreported). We have read those decisions and find them less than compelling as support for the proposition that, with respect to S & R, there is only one appropriate unit and that unit consists of the greater Met­ropolitan Toronto area.

14. We might also note that although the employer states that it has taken a consistent posi­tion throughout as to the scope of the appropriate bargaining unit, the one to which the parties have agreed currently makes reference explicitly to Oakville, Milton and Vaughan, which had not been referred to in the employer's responses previously.

15. With respect to the notion that the union sought to keep the employer in a state of perpetual freeze" in order to assist its organizing efforts, the facts do not lead to this conclusion. First, if this had been the intention, the union would hardly have wished to withdraw its City Core application before the date on which it filed the Metropolitan Toronto application. In fact, there was a "gap" in the period of any statutory freeze between the dates that these two applications were alive.

16. Further, the employer has itself taken the position that the very changes to terms and conditions of employment that it alleges the union sought to freeze during its organizing drive, were not in any event prohibited by the provisions of section 81 of the Act. In its memorandum to employees of September 19th, the employer states that it has determined that it is legally entitled to implement its planned increases in wages and benefits, and that these would be implemented immediately.

17. As well, the employer's theory is that the union has used the lack of increases as a tool in its organizing campaign, representing to employees that it will only be through union representa­tion that they will gain better terms and conditions of employment. Not only is there admittedly a complete lack of any evidence that the union made any such representations, it cannot be inferred from the facts before us. In fact, on August 21st, the company sent a memorandum to its employ­ees attributing the delay in implementing changes to the union's City Core certification applica­tion, and stating that upon the withdrawal of this application the company would proceed to imple­ment the changes. Upon the filing of the union's further application on August 23rd, it is certainly a possibility following on this sequence of events that some employees might even see the union as being responsible for yet a further potential delay in their receiving increases.

18. In sum, the facts on which the employer relies in its argument do not present a compel-

ling case for the inferences which it asks the Board to draw. In addition to the difficulties which we have outlined above, it would take an extraordinarily generous view of this union's intent and abil­ity to implement such calculated machinations of the Board's processes to conclude from this that the union initiated all of these applications, and went through two days of evidence on one of them, all with the intent to use a statutory freeze as part of an organizing strategy and all with the prior intention of withdrawing them later. We cannot so conclude from the facts before us.

19. The employer relies on a number of cases where the Board has discussed the circum­stances in which it will impose a bar to a further application for certification. These cases include: J. W. Crooks Company, Limited, [1972] OLRB Rep. Feb. 126; St. Joseph's Hospital at Sarnia, Ontario, [1984] OLRB Rep. Sept. 1264; Sonora Cosmetics Inc., [1982] OLRB Rep. June 954; D.J. Venasse Construction Limited, [1990] OLRB Rep. Apr. 419; D.J. Venasse Construction Limited, [1990] O.L.R.D. No. 563; R.J.R. MacDonald Inc., [1992] OLRB Rep. Apr. 503; Patchoque Plym­outh Hawkesbury Mills, A Division of Amoco Canada Petroleum Company Ltd., [1972] OLRB Rep. July 747; Fruehauf Trailer Company of Canada Limited, [1974] OLRB Rep. Jan. 6; Belair Restoration (Ontario) Inc., [1992] OLRB Rep. Jan. 13 and Re Poulter v. Office Employees Interna­tional Union, Local 131, 65 CLLC ¶16,045.

20. None of the principles in these cases lead to a conclusion that a bar is appropriate in the current situation. We agree with the discussion by the Board in Sonora Cosmetics regarding the Board's discretion to impose a bar:

3. The purpose of the Labour Relations Act is to encourage the practice and procedure of collec­tive bargaining, and certification provides a mechanism whereby a union can become estab­lished as the employees' bargaining agent. where there is no subsisting collective bargaining relationship, an application for certification can generally be made at any time (see section 5). Section 103 [now 105] provides a limited temporary bar to the exercise of statutory rights where the Board, in its discretion, considers it advisable; however, the Board has been reluctant to exercise that discretion where the employees have not had the opportunity to express their wishes concerning trade union representation in a Board supervised representation vote. In Repac Construction and Material Limited, [1978] OLRB Rep. Jan. 91 at 94 the Board summa­rized its approach to section 103(2)(i) (then section 92(2)(i)) as follows:

As a general principle the Board is quite reluctant to either bar, or refuse to enter­tain, a subsequent application for certification filed by a previously unsuccessful appli­cation. Indeed, such action is usually only taken either where employee desires have been tested by a representation vote in which the union failed to receive sufficient support to be certified (See: Campbell Soup Company Ltd., [1976] OLRB Rep. Feb. 1091), or where the union has sought to avoid an unfavourable vote result by with­drawing its application following the ordering of such a vote. (See: Mathias Quellette 56 CLLC ¶18,026). Exceptional circumstances may, however, also lead to the Board invoking the provisions of section 92(2)(i) in other situations. The leading example of this is the J. W. Crooks Company case, [1972] OLRB Rep. Feb. 126, where "in light of the special and extreme circumstances confronting the Board", namely four unsuc­cessful applications for certificate made by the same applicant in a little over three months, the Board imposed a six month bar on any future applications by the same applicant. In its consideration of any request pursuant to section 92(2)(i), the Board, concerned that the wishes of employees be given effect to, has always been careful not to use its authority under that section merely to punish an unsuccessful applicant union, even in those instances where the union may have engaged in previous irregu­lar or improper conduct. (See Fruehauf Trailer Company of Canada Limited, [1974] OLRB Rep. Jan. 6.).

(To the same effect, see: Patchoque Plymouth Hawkesbury Mills, [1972] OLRB Rep. Nov. 794; Bernardine of Canada Limited, Board File 1437-75-R, decision dated January 26, 1976, - unre­ported; and Mor-Alice Construction Limited, [1977] OLRB Rep. Oct. 668.)

4. In exercising its discretion under section 103, the Board has not been blind to practical (or tactical) realities of the situation. A certification proceeding may appear very straight-forward to an experienced labour law practitioner, familiar with the Board's rules, policies, and jurispru­dence, but to a layman or a union official who does not regularly appear before the Board, the certification process may not seem so simple. In the Board's experience, it is neither unusual nor particularly surprising that from time to time, certification applications have to be withdrawn, or are dismissed because they are not properly launched or supported in accordance with the Act and Rules. But this fact alone does not justify the imposition of a bar to a further exercise of the employees' statutory rights, nor does the Board's established practice of permitting such appli­cations seriously inconvenience the employer. No doubt, if the union tries again, the employer must file a new employee list and post new notices on its premises advising employees of the pending application for certification. However, this is a minor inconvenience, which must be carefully weighed against the result of prohibiting employees from making any application at all. Moreover, the Board is well aware of the potential effect on the momentum of the union's orga­nizing campaign if employees who have joined a union and indicated their desire for collective bargaining are prohibited from realizing this goal for as much as ten months. Unless there are exceptional circumstances which warrant prohibiting employees from proceeding with their attempt to organize (the J. W. Crooks Limited involved four unsuccessful applications in three months), the Board has been relatively lenient in imposing a bar under section 103. We are aware of no cases, nor did the respondent refer to any, where the Board has imposed a bar after the second unsuccessful application - especially where, as here, neither application ever matured into an actual hearing before the Board, and the employer is in the Toronto area so that there would be no serious inconvenience in attending at the Board offices on the day fixed for the hearing.

21. The issue of a bar has always arisen in a context where an applicant has made several unsuccessful applications covering the same or overlapping bargaining units, as in Sonora Cosmetics. In balancing the policy reasons for imposing a bar and the desire not to unduly restrict employees' statutory rights to organize, the Board saw no reason in that case to impose a bar after two unsuccessful applications. The facts of this case more closely resemble those in Sonora Cosmet­ics Inc. than they do those in J. W. Crooks Company, to which the Board referred in the excerpt above. The first application relied upon to support the request for the bar is the City Core applica­tion, which was withdrawn on the agreement of the parties. Next, the union filed three applications which must be taken together as complementary applications and not as three successive ones, since they cover three distinct bargaining units, Metropolitan Toronto, Markham and Oakville. Taken together, the three applications are consistent with the union's undertaking not to file a sec­ond application which contained a bargaining unit smaller than the Metropolitan Toronto. In this respect, therefore, there have only been two unsuccessful applications by the applicant covering overlapping bargaining units, based on which the employer requests that the Board impose a bar. As the Board indicated in Sonora Cosmetics Inc., there are no Board cases where the Board has imposed a bar after a second unsuccessful application.

22. In D.J. Venasse Construction Limited, the Board referred to instances where repeated filings of applications which are ultimately not proceeded with constitutes an abuse of process, for example, by keeping an employer in a perpetual "freeze" for a lengthy period of time. In the con­text of the other Board cases in this area, it seems unlikely to this panel that the Board in D.J. Venasse Construction was referring to a situation where there had only been two unsuccessful over­lapping applications, particularly since in that case, the Board had declined to impose a bar even upon the dismissal of a fifth application.

23. The employer asserted that if the Board had any doubts about the appropriate conclu­sions in this case, it ought to take into account the provisions of Bill 7, a bill proposing amend­ments to the Labour Relations Act. In particular, it directed the Board to provisions of that Bill which impose a mandatory bar of a year after an unsuccessful application for certification or the withdrawal of an application. It would, of course, be inappropriate to take any account of the pro-

visions of that Bill in applying the provisions of the Act currently in force. Not only does the Bill have no legal relevance to the issues before us, even as a practical matter a newly-introduced Bill is unlikely to be passed into law in exactly its original state [indeed, since the hearing of this applica­tion, changes were made prior to its enactment].

24. For the reasons expressed above, as well as the early stage of proceedings at which the request for leave to withdraw Board File Nos. 2241-95-R and 2242-95-R is made, the Board hereby grants leave and these files are withdrawn. Since Board File No. 1977-95-R had been processed to a point where the Board's normal practice has been to dismiss, we hereby dismiss that file, but without a bar.

25. Also for the reasons expressed above, we decline the employer's request to order a rep­resentation vote in Board File No. 2414-95-R and we find no reason to refuse to entertain this application. There is nothing exhibited in the facts of this case which casts a "cloud" over the cir­cumstances of obtaining membership evidence which has led the Board in other cases to exercise its discretion to order a vote.

26. We therefore find, with respect to Board File No. 2414-95-R, that on agreement of the parties:

all employees of S & R Car Rentals Toronto (Central) Ltd. in the greater Metropolitan Toronto area including the Cities of Oakville, Milton, Vaughan and the Municipalities of Peel, Mark­ham, Oshawa and Metropolitan Toronto, save and except Assistant Managers, persons above the rank of Assistant Manager, office, sales and clerical staff and persons in bargaining units for which any trade union held bargaining rights as of August 21,1995,

constitute a unit of employees of the employer appropriate for collective bargaining.

27. The Board has found the applicant to be a trade union within the meaning of section 1(1) of the Act.

28. 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 September 22, 1995, the certification application date, had applied to become members of the applicant on or before that date.

29. A certificate will issue to the applicant.