National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW - Canada) v. C.F.M. Inc., 1995 CanLII 9982

[1995] OLRB Rep. June 725

3742-94-R; 4369-94-M; 4361-94-U National Automobile, Aerospace, Transporta­tion and General Workers Union of Canada (CAW - Canada), Applicant v. C.F.M. Inc., Responding Party v. Olsten Services Limited, Intervenor; National Automobile, Aerospace, Transportation and General Workers Union of Canada (CA W-Canada), Applicant v. C.F.M. Inc., Responding Party

BEFORE: Roman Stoykewych, Vice-Chair.

APPEARANCES: Barrie Chercover, Lisa Kelly and Sheila Fardy for the applicant; Michael Horan, Kristin Taylor, Cohn Adamson, Heinz Reiger and Elaine Bent for the responding party.

DECISION OF THE BOARD; June 9, 1995

1These matters are an application for certification, an application pursuant to section 91, and an application for an interim order in each case brought by the trade union.

2Although all three applications were listed for hearing before me on April 5, 1995, the parties were advised in the Board's endorsement scheduling the hearing that the purpose of the hearing would be to enquire into several apparent "non-sign" issues that emerged upon the Board's review and subsequent investigation of the applicant's membership evidence submitted with respect to the certification application.

Jurisdiction to Sit Alone

3Upon the commencement of proceedings, counsel for the responding party employer took the position that I was without jurisdiction to hear the matter sitting alone. Counsel took the position that, under the provisions of subsection 104(12) of the Labour Relations Act, the decision to have a Vice-Chair sit alone was one that required the application of criteria to objective circum­stances. It was submitted that the failure of the Board to provide his client an opportunity to address the Chair with respect to her scheduling decision in this respect constituted a failure of nat­ural justice. It was counsel's position that I should adjourn the present proceedings to permit him to make such submissions. Counsel for the applicant trade union did not object to having me hear the matter sitting alone.

4After receiving the submissions of the parties on the matter, I ruled orally as follows:

Having considered the matter, I am satisfied that I have jurisdiction to hear the present matter sitting alone. The decision as to whether a three-member panel or a Vice-Chair sitting alone is to hear the present matter is an administrative determination made by the Chair or the Alter­nate Chair in her stead. In this respect, I am satisfied that I have been authorized to sit alone by the Alternate Chair. Furthermore, I am satisfied that it would not be appropriate for me to adjourn these proceedings to permit the parties the opportunity to make submissions to the Alternate Chair with respect to this matter or for him to provide reasons for his decision. Accordingly, the objection raised by Employer counsel is dismissed.

5The following are my reasons for so ruling. Section 104 (12) provides in relevant part as follows:

104.-(12) Despite section (9), (10) and (11), the chair may sit alone or authorize a vice-chair to

sit alone in any of the following circumstances to hear and to determine a matter and to exercise all the powers of the Board when doing so:

2. In the case of any other proceeding:

i. if the chair considers that the possibility of undue delay or other prejudice to a party makes it appropriate to do so or

ii. if the parties consent.

6In the present case, the Alternate Chair, acting in the temporary absence of the Chair, had authorized a Vice-Chair to sit alone to ensure the expeditious resolution of the case in light of the scheduling commitments of the Board's Vice-Chairs and Board Members. As an application for certification, the case is scheduled to be heard on a day-to-day basis in order to ensure its speedy resolution. It was apparent from a review of the materials filed by the parties that the issue before me, entailing an inquiry into the circumstances surrounding the signing of three member­ship cards as well as the steps that the applicant took to ensure the validity of the evidence it sub­mitted, would require the calling of numerous witnesses and the holding of at least several days of hearing.

7The nature and the underlying purpose of the discretion of the Chair or Alternate Chair to determine whether a three-member panel or a single Vice-Chair sitting alone should hear a mat­ter was discussed fully by the Board in Robert Dumeah, [1994] OLRB Rep. June 655:

9. There may be occasions where scheduling problems or other difficulties in constituting a tri­partite panel can lead to undue delay or other prejudice to a party. One purpose of these new legislative provisions was to deal with this problem, to provide the Chair with the ability to ensure that Board hearings proceed expeditiously, consistent with the truism that "labour rela­tions delayed is labour relations denied". It would be inconsistent with that purpose if the Chair had to afford an opportunity to parties to a proceeding to participate in the decision as to whether a single Vice-Chair sits alone or not. Parties would have to be given adequate notice of the decision of the Chair that she might exercise her discretion, a meaningful opportunity to par­ticipate in the process, and arguably, reasons for the Chair's eventual decision, To read the stat­utory scheme as requiring such a process would undermine the very purpose of the scheme. Hearings would inevitably be further delayed if the Chair considered exercising her powers to reduce delay.

10. Section 104(12)1 limits the Chair's discretion to where the "Chair considers it advisable".

This is a general, unrestricted discretion which in essence depends upon the Chair's opinion.

And it is only the "possibility" of undue delay or prejudice which need be present under section

104(12)2. The powers in this subsection are thus dependent, if at all, upon the opinion of the

Chair as to whether a possibility of undue delay or other prejudice is present. It is the mere pos­sibility that triggers section 104(12)2, and it is solely the Chair who is to consider the possibility.

11. When the particular language is considered, in the context of the overall scheme for consti­tuting panels, and in light of the purpose of the Board and of section 104(12), the decision exer­cised by the Chair, pursuant to section 104(12), is properly characterized as purely administra­tive in nature. The Chair need not provide an opportunity to the parties to the proceeding to participate in this decision, nor is the Chair required to issue written reasons justifying the exer­cise of her discretion. To require either of these actions would effectively defeat the very pur­pose of the statutory amendment.

8The reasoning in the foregoing passage of the Robert Dumeah decision has direct appli­cation to the case before me, and I am satisfied that it has equal force to circumstances, such as the present ones, in which the Alternate Chair of the Board has acted in the Chair's absence (See sub­section 104 (12.1) of the Act). Accordingly, I am satisfied that I am authorized under the provi­sions of section 104(12) to hear these matters. For those reasons, I dismissed the employer's objec­tion and proceeded with the hearing of the matters before me.

Request to Litigate "Non-Signs" in Face of Withdrawal

9As noted above, the matter scheduled before me was the issue of the apparent irregu­larity in the membership evidence submitted by the applicant on behalf of three employees of the responding party. In an endorsement of the Board's record dated March 22, 1995, the parties were advised as follows:

1. As part of its normal second check of the membership evidence, the Board has been advised by three employees as follows:

(1) one employee indicated that he/she did not sign the membership card but authorized a friend to sign it;

(2) a second employee indicated that he/she did not sign the card but that the card was signed by the employee's spouse. The spouse provided the Board with further signature which appears to correspond with the signature on the card;

(3) a third employee denied signing a card and refused to provide the Board with any additional information.

2. The collector of the cards in each case appears to be the same employee organizer.

10Thereafter, the parties were advised by the Board that a hearing would be scheduled for April 5, 1995 to deal with the issues raised in the Board endorsement.

11Upon commencement of the proceedings before me, counsel for the applicant trade union advised the Board that it wished to withdraw the certification application. Counsel explained that, upon a review of the steps taken by the applicant to vouchsafe the validity of the membership evidence, it became apparent to his client that the necessary checks were not taken and that the application would not withstand the scrutiny of the Board. In light of this, he conceded, his client was of the view that it would be inappropriate to pursue the certification application further. While counsel, as noted, asked the Board for leave to withdraw the application, he acknowledged that it was the Board's practice in such circumstances to dismiss an application.

12Counsel for the responding party employer refused to consent to the withdrawal of the application and instead, urged the Board to conduct its inquiry into the matter of the non-signs, which he characterized both as a fraud upon the Board and a fraud upon his client. In this respect, he stressed that the integrity of the Board's certification processes depends upon the credibility of the documentary membership placed before it, and that it was therefore in the interest of the Board to ensure that the matter was fully investigated. Furthermore, it was pointed out that, ear­lier in the proceedings (and prior to being advised by the Board that the membership evidence may have been faulty), the employer had relied upon the ostensible validity of the membership evi­dence proffered by the union to enter into a settlement of these matters that included the holding of a representation vote. Finally, it was urged upon me that to refuse to enquire into the non-sign issue would be a denial of natural justice to the employer inasmuch as it would effectively deny his client an opportunity to pursue the issue of the conditions that were to be placed upon the dis­missal of the application, namely, a bar to further applications.

13Upon considering the parties' submissions, I ruled orally that it would not be appropri­ate to proceed with the litigation of the non-sign issues in light of the trade union's withdrawal of the application and that the application was dismissed. The following are my reasons for so ruling.

14As a general matter, it is not the practice of the Board to proceed with the litigation of matters whose underlying application has been withdrawn. In Sheraton Parkway Hotel, [1991] OLRB Rep. Feb. 271, the Board dealt with a matter similar to the present one, in that the employer sought to litigate matters, including non-pay allegations, notwithstanding that the appli­cant trade union had sought to withdraw the certification application out of which the issues arose. The Board noted that the allegations arose in the context of a particular application and that they are therefore relevant only in the context of that application. The Board continued:

Once the applicant indicates that it does not wish to pursue the applications there is simply no reason to force the litigation which might otherwise have occurred. To have the Board adjudi­cate matters of no immediate relevance to the application or complaint currently before it would be nothing more than a wasteful allocation of the Board's limited resources.

15It is, in any event, far from clear whether the Board retains a residual discretion to con­sider a matter once the party that has brought an application no longer wishes to pursue it (See, for example, Boal Quay Wharfingers Ltd. v. King's Lynn Conservancy Board, [1971] 3 All E.R. 597 at pages 602, 604, 5). However, even were the Board to possess such a power, I am satisfied that it ought not to be exercised in the present circumstances. While the Board, of course, is vitally inter­ested in the quality of the membership evidence that is submitted before it, I cannot accept the employer's suggestion that declining to further enquire into the circumstances of the collection of the membership evidence in the present application implies that fraudulent conduct will be toler­ated by the Board. Within days of being advised of the apparent irregularity in the membership evidence, the applicant advised the employer that it would seek to withdraw the application and then did so before the Board at the commencement of proceedings. In such circumstances I cannot accept the employer's characterization of the trade union's actions as impunious. Certainly, what­ever benefit that might be derived from the Board's investigation into the apparent irregularities in the membership evidence in these circumstances is outweighed by the substantial public and pri­vate costs entailed in the litigation of a lengthy and, in all probability, highly contentious issue arising out of a matter that is essentially moot.

16Moreover, and to the extent that the employer's interest lies in its ability to challenge membership evidence collected in the context of the present application that the trade union may wish to rely upon in a subsequent application, or to otherwise persuade the Board that it ought not to consider further applications by this trade union with respect to the same employees, I am satis­fied that such interests are protected by permitting the responding party the opportunity to raise the issue in the event that any such application is filed. The relevance, propriety and the merits of any such challenge, of course, are more easily ascertained by the panel hearing any such subse­quent matter before the Board and accordingly, is more appropriately dealt with at that time. For that reason, I advised the parties in my oral ruling that the although no bar would issue with respect to subsequent applications by the trade union, my decision should not be taken to preclude the employer from raising these matters upon the trade union filing a subsequent application for certification of these employees.

17For these reasons, at the hearing of April 5, 1995 I dismissed the certification applica­tion.