[1995] OLRB Rep. August 1065
0999-95-R United Food and Commercial Workers International Union, Applicant v. Oshawa Group Limited, c.o.b. as Dutch Boy Food Markets (Weber Street), Responding Party
BEFORE: M. A. Nairn, Vice-Chair, and Board Members S. C. Laing and K. S. Brennan.
APPEARANCES: Micheil Russell and Michael Church for the applicant; Fred Hamilton for the responding party.
DECISION OF M. A. NAIRN, VICE-CHAIR AND BOARD MEMBER K. S. BRENNAN; August 23, 1995
1This is an application for certification. Pursuant to a decision of the Board dated July 19, 1995, a hearing was scheduled for Monday, August 14, 1995 to inquire into apparent irregularities with respect to membership evidence filed on behalf of an employee in the application. On Friday, August 11, 1995, the applicant (the "trade union") advised the Board that it was seeking leave to withdraw its application. The responding party (the "employer") opposed that request. Following an adjournment of the proceedings on August 14, the matter convened on August 15, 1995 to deal with the issue of whether or not the Board ought to grant leave to the trade union to withdraw its application.
2The facts giving rise to this issue are, in most respects, a matter of record and there was no dispute concerning them. The union merely noted that it did not necessarily agree with the employer's characterization of some of the facts.
3This application was filed on May 6, 1995. Following the usual notice to the employer and employees, the parties met with a Labour Relations Officer. Two documents from employees had been filed. At the Officer's meeting, the parties were informed that the dates on the membership evidence filed by the trade union post-dated the date of a first petition. The parties were further informed that the second document had been filed with the Board after the application date. In the circumstances, the parties understood that, in light of the timing of the collection of signatures and the operation of section 8(4) of the Labour Relations Act (the "Act"), neither document was relevant to the application. No objecting employee attended the Officer's meeting.
4At that meeting, the parties reviewed, in the normal course, the description of the bargaining unit. Subject to certain challenges to the list of employees the parties were informed of the "count". The parties were further informed that the challenges would not negatively affect the applicant's right to certification based on the membership evidence filed. The parties had the opportunity to review the A-4 Form filed. At the meeting the employer raised certain issues in an attached letter. Subsequently however, the employer consented to a decision issuing and waived its right to a formal hearing. The Board acted on that letter and cancelled the hearing that had been scheduled. Subsequently, the parties received the decision of the Board dated July 19, 1995. That decision reviews the application and the parties' agreements. It indicates that the union is in an interim certifiable position pursuant to section 6(2)of the Act.
5However, the decision also identifies that, during the course of the Board's usual second check of the membership evidence filed in support of the application, the Board identified a signature on a card submitted which did not appear to match the corresponding specimen signature filed by the employer. As the decision sets out, the Board dispatched a Labour Relations Officer to interview the employee concerned. During the course of that interview the employee denied signing the application for membership in the applicant union and indicated that he believed another employee had signed the card without his consent.
6In light of that report of the Officer, the decision of July 19, 1995 sets the matter down for hearing, as set out earlier, to inquire into this irregularity.
7On Friday, August 11, 1995, counsel for the trade union advised counsel for the employer that the union was seeking to withdraw its application. On being asked why the request was being made so close in time to the hearing date and not earlier, counsel for the union advised that the union had sought to obtain additional membership evidence which it had been successful in doing by August 10. Therefore the request to withdraw was made August 11. Counsel for the trade union further advised counsel for the employer that the union intended to file a new application as a result.
8That new application was filed on Friday, August 11 late in the day. That application seeks to transfer some of the membership evidence from the first application. Additional membership evidence has also been filed. The second application is virtually identical to the application before us.
9The employer would also rely on two earlier decisions of the Board between these parties dated January 3, 1995 and April 5, 1995 [now reported at [1995] OLRB Rep. Apr. 477] (dealing with applications for certification for other locations) wherein, the employer submits, the conduct of the trade union is such that the Board ought to take it into account in dealing with this request to withdraw.
10In seeking to oppose the withdrawal of this application, it is the employer's position that the matter ought to proceed on its merits. The employer does not seek to have the application dismissed. It seeks to have the matter proceed and, given its understanding of the membership evidence filed, to have the Board direct a representation vote. The employer submits that absent the membership card under question, the union would no longer enjoy the support of more than fifty-five percent of the employees in the bargaining unit but would be in a vote position. It is the position of the union that the Board ought to grant leave to withdraw the application, or in the alternative, to dismiss the application without a bar.
11The union submitted that the Board has no jurisdiction to proceed with the application on its merits. As noted in the Board's decision in C.F.M. Inc., (decision dated June 9, 1995, as yet unreported) (now reported at [1995] OLRB Rep. June 725], it is not clear whether the Board retains any residual discretion to consider a matter once the party that has brought an application no longer wishes to pursue it. The Board refers to the case in Boal Quay Wharfingers Ltd. v. King's Lynn Conservancy Board, [1971] 3 All E.R. 597 at pages 602-5. The employer in the instant case argues that the Board does have jurisdiction, else why would an applicant require leave to withdraw. An applicant seeks leave to withdraw an application in order to avoid the dismissal of that application which result may have different consequences for the applicant. Unlike a court, the Board has no inherent jurisdiction. Its jurisdiction must be founded in its enabling statute. Once the basis for the exercise of that jurisdiction is no longer being pursued, it is not at all clear that the Board has jurisdiction to continue. However, we will assume for purposes of this decision that the Board does have jurisdiction to determine whether or not to refuse leave to withdraw and proceed with the merits of the application.
12The employer's opposition to the union's request can be summarized in three broad categories; maintenance of the Board's integrity and reputation, avoiding an abuse of process, and thirdly, an argument with respect to the operation of section 8(4) of the Act. On a careful review of those submissions, it is apparent that much of the employer's concern and argument arises and is focused on the fact that the union filed its second application on the same day that it sought leave to withdraw this one. It argues that a request to withdraw is not usually contested because there is an expectation of a trade union abandoning its application. However, in this case the union continues to seek to acquire the right to become the bargaining agent. The timing of the filing of the second application underlies the employer's argument with respect to the operation of section 8(4) of the Act. The employer argues that by virtue of choosing this date to both withdraw and reapply, the trade union is manipulating the process so as to preclude employees from opposing the second application, thereby denying employees a right under the Act. The employer argues that the issue of the alleged non-sign in this application is not moot in that the trade union is still seeking the right to represent employees.
13The employer argues that it would undermine the Board's processes and be an attack on the Board's integrity to allow the trade union to avoid an inquiry into the alleged non-sign. The employer argues that it is a Board-initiated hearing and in order to protect the integrity of the Board and its reputation in the eyes of the employer community, the Board must review the membership evidence to ensure against any reprehensible conduct on the part of the trade union. The employer argues that absent that inquiry there is no loss or lesson to be learned by this trade union or other unions coming before the Board. The employer argues that the perpetrator of the forgery can mislead the Board and avoid public inquiry.
14These submissions assume first of all that a forgery has been established. That is not the case. At this stage of the proceedings, there is an allegation arising as a result of the Board's review of the membership evidence. In our view, the Board's reputation with respect to the standard that it requires of the membership evidence filed in support of an application does not come under question. It was the Board, in "policing" its procedures on its usual review of the evidence, that both detected and raised the concern.
15There is an obvious and serious loss to a trade union that relies on membership evidence that is deficient or otherwise fails to meet the standard required by the Board. It will not be considered reliable by the Board and cannot be used as evidence of support. In this case, the union has chosen not to rely on this membership evidence. Inherent in that decision is the potential for both a loss of support among the employees and a delay in pursuing the right to represent the employees.
16The employer argued that if an interim certificate had issued and the allegation of a non-sign was later discovered, that matter could be brought back to the Board under section 59 of the Act. In our view, this highlights the risk of loss to a trade union in seeking to withdraw an application. If a certificate had issued and the Board subsequently found that a fraud had been committed in respect of the membership evidence relied on, the right to represent those employees would be terminated. Similarly, in this case, the applicant will be unable to obtain the right to represent employees through this application. If the trade union were to seek to rely on the same membership evidence in a subsequent application, the Board would inquire into that membership evidence. Should the trade union seek to rely on different membership evidence, the trade union is obligated to seek and obtain that membership evidence and to convince employees that they ought to support the trade union.
17In the same vein, the employer argues that it is necessary to hear the evidence with respect to the allegation and publicly identify what was involved in attempting to mislead the Board. The employer argues that a party is not entitled to withdraw in order to avoid the discovery of improprieties. The employer argues that a party cannot stop an action because it does not like the way the case is proceeding, and then refile the same application.
18This analogy in our view is a misapprehension of the certification process. While the Board might well exercise its discretion not to inquire into an unfair labour practice complaint if the matter was, in essence, res judicata, a certification application is of a different character. An application for certification is more akin to a licensing process in which an applicant is required to meet certain obligations, the most critical being obtaining the support of employees in the bargaining unit. (See R.J.R. MacDonald Inc., [1992] OLRB Rep. April 503).
19The employer argues that it would be an abuse of process to allow the trade union to withdraw and reapply. The parties had completed the process at the Board. Allowing the trade union to withdraw and to pursue its second application would involve time and expense to both the employer and the Board. There would be confusion in the minds of employees who had been told they had certain rights under the first application and would now be subject to a second application. In our view, these arguments are more appropriately directed at the question of whether or not the Board ought to allow the trade union to proceed with its second application rather than an issue of whether it disentitles the union from withdrawing the current application. To the extent that the union's conduct in earlier applications involving other locations of the employer is relevant, if at all, those arguments too are more appropriately directed to consideration of the second application.
20The employer argues that to allow the union to withdraw this application and file a second application on the same day allows the union to artificially and arbitrarily foreclose any opportunity for anyone other than the trade union to express views concerning support. The employer notes that while the Board was seized with this application, the union sought and obtained fresh membership evidence which it has filed in its second application. The trade union, the employer argues, would be forbidden from filing such fresh membership evidence in support of this application. Section 8(4) of the Act provides that the cut-off date for the receipt of evidence of support or opposition is the date of application. The employer notes that reasonable employees would be of the view that they were no longer entitled to file opposition to the trade union pursuant to the Board's notice filed in the workplace. Therefore the timing of the second application prejudices the rights of employees in that respect.
21The employer acknowledges that in the normal course an applicant has the opportunity to choose its application date and having done so, by operation of section 8(4) of the Act, employees would be foreclosed from any opportunity of filing evidence of opposition to the trade union. In this case however the employer is relying on the timing of the second application. It is somewhat ironic to note that had the union in this case not informed counsel for the employer that it intended to file a second application immediately, the matter may have gone unopposed on the employer's argument that there was an expectation of an abandonment of the right to represent employees. Had the union been less forthcoming with the employer, much of the employer's argument would have been foreclosed.
22In any event, in our view, any limitation on an employee's opportunity to voice opposition to the trade union arises as a result of the operation of section 8(4) of the statute. Under the Act, an applicant does have the opportunity to choose its application date, and by doing so, limit the opportunity of others to oppose that application. In our view, the fact that the employees were aware that this application was pending and that the time for filing opposition for it had passed, does not disentitle them from opposing any potential second application. While we agree that an employee is entitled to rely on the Board's notice with respect to the first application, we see no basis for concluding, given the statutory framework, that the employee suffers any greater loss of opportunity in the second application because the first application is sought to be withdrawn at the same time.
23There are many examples in the caselaw where a trade union has withdrawn an application or has had an application dismissed without a bar and a subsequent application has been filed within a relatively short period of time (for example, see cases cited in Transcor Inc., [1993] OLRB Rep. Nov. 1233). The more unusual circumstance is the fact that this trade union has sought to withdraw and reapply on the same day. However, this too is not without precedent. In General Signal Limited, [1993] OLRB Rep. June 509 the trade union sought leave to withdraw and on the same day filed a second application. The following day the Board refused leave to withdraw the first application and determined instead that it should be dismissed.
24The Board has also allowed an applicant not to pursue an application (whether withdrawn or dismissed without a bar) in the face of allegations or findings arising out of non-sign or non-pay concerns (see Hydro Electric Commission of Hamilton, (1958) CLLC 1738 and Flo-Con Canada Inc., [1989] OLRB Rep. July 752). In those cases subsequent applications for certification were filed and were dealt with by the Board on their own merits, and in light of the earlier applications.
25We do not find the cases relied on by the employer to be of specific assistance in that the facts and, in some, the prevailing statute, are different. In fact, the decisions in Circlet Food Inc., [1993] OLRB Rep. May 406 and Leco Industries Limited, [1979] OLRB Rep. May 404 would support the position of the applicant in this case. The Board's conclusion in C.F.M. Inc., supra, that any interests are protected by permitting the responding party the opportunity to raise issues in the second application is highlighted in the circumstances of this case where much of the employer's argument against allowing the withdrawal herein arises only because of the contemporaneous filing of the second application. We note that the trade union has acknowledged that the employer is free to raise any issue in respect of the second application should it choose to do so.
26To the extent that there were arguments between the parties about whether or not an issue was moot, the trade union, by no longer seeking to rely on certain membership evidence in its first application, renders moot for this application the question of whether or not the membership evidence can be relied on by the Board to indicate the level of support enjoyed by the union. The employer's position that the matter proceed to a vote is, at best, premature and speculative. It assumes the result of an inquiry when there are a number of possibilities which might flow, including certification, a vote, or dismissal of the application with or without a bar.
27It has been the Board's practice to dismiss an application if the request for leave to withdraw comes after the parties have met with a Board Officer. This is consistent with paragraph 5 of Practice Note No. 7. In this regard, we adopt the reasoning in the Board's decision of Sheraton Parkway Hotel, [1991] OLRB Rep. Feb. 271, paras. 33-35.
28This application is therefore dismissed.
DECISION OF BOARD MEMBER S. C. LAING; August 23, 1995
1It is fair to say that in most cases when an applicant seeks leave to withdraw an application, there is an assumption that the claim sought is being abandoned, and therefore the Board has commented on the lack of utility in continued litigation. (Sheraton Parkway Hotel, [1991] OLRB Rep. Feb. 271 and C.F.M. Inc., decision dated June 9, 1995, as yet unreported) [now reported at [1995] OLRB Rep. June 725].
2The circumstances of this case however, do not fall within that ambit. There exists before the Board, at the time of these proceedings, an additional application which is essentially the same as the present one.
3Clearly, at this juncture, the applicant union is not abandoning its claim to represent the employees of the proposed bargaining unit. Rather, in light of improprieties uncovered during the Board's usual practices, the applicant union now seeks leave to adjust its membership evidence to alleviate such inadequacies.
4This being the circumstance surrounding the union's request, the Board need not be concerned that it may expend resources on issues which are essentially moot or have no immediate relevance. The issues in the present application are still very much alive and will no doubt require further allocation of Board resources.
5For these reasons, in these circumstances, it is appropriate to deny the applicant union's request for leave to withdraw its application.