[1997] OLRB REP. NOVEMBER/DECEMBER 991
2159-97-R Patrick Melville-Laborde, Applicant v. Brewery. General and Professional Workers' Union, Responding Party v. Diversey Lever Canada, A Division of U.L. Canada Inc. (Equipment Division), Intervenor
BEFORE: Pamela Chapman, Vice-Chair, and Board Members J. A. Ronson and H. Peacock.
DECISION OF THE BOARD; November 17, 1997
1Further to the Board's decision dated October 17, 1997, the Board has now received and reviewed the submissions of the parties concerning the only issue remaining in dispute in this application for a declaration terminating the bargaining rights of the responding party ("the union").
2That issue is outlined at paragraphs 2 through 5 of the earlier decision. The union asks that the Board refuse to process the application and/or give effect to the results of the representation vote, because the applicant failed to deliver to it copies of the Board's Interim Certification and Termination Rules, Information Bulletin #2 - Vote Arrangements, and a blank response form. It is not disputed that the applicant delivered to the union, and to the employer, a copy of the application itself.
3The employer, and the applicant, assert first that the union cannot now request this relief from the Board as the matter is res judicata. In its decision ordering a vote, on September 22, 1997, the Board (differently constituted) stated:
- The responding party has not filed a response to the application. It has, however, sent a letter to the Board claiming that the application does not "include all of the materials required by the Board's rules". As such, it asks for the application to be dismissed. Unfortunately, the letter does not indicate in what respect the application is deficient, and it appears to the Board to be sufficient. Accordingly, it will be processed in the normal course.
4The union argues that this decision does not constitute an explicit exercise of the Board's discretion pursuant to Rule 22, or that if the Board did exercise its discretion it did so based upon a perverse finding of fact". This panel will not consider the latter argument, as no request for reconsideration of the September 22, 1997 decision has been made.
5With respect to the question of whether or not the Board decided the issue raised by the union concerning the sufficiency of the materials delivered to it by the applicant, we have concluded, based upon the language of the decision, that it did. The Board makes no explicit reference to Rule 22, which is not surprising given that it did not have before it a specific request by the applicant to abridge the rules. It is not clear, however, that in deciding the matter the Board need have referred to Rule 22. There is no penalty set out in the body of Rule 43bb for a failure by an applicant to comply with all or part of the rule. However, Rules 17 to 22, under the heading "Where Rules Not Complied With", describe the possible consequences of a failure to comply with any of the Rules of Procedure. Rule 17 provides that "an application or response may not be processed if it does not comply with these Rules (emphasis added)". A careful reading of the Board's decision of September 22, 1997 suggests that the Board considered the union's claim that the application as delivered to it was deficient under the Rules, decided that it was sufficient, and then declined to exercise its discretion under Rule 17 to not process the application because of the alleged deficiencies. Instead, the Board ordered that the application be "processed in the normal course". This, in the context of Rule 17, seems to be a decision rejecting the union's submissions.
6In any event, even if the matter were not res judicata, we would not be inclined to accept the union's claim that the failure to deliver certain of the materials required to be delivered to the union pursuant to Rule 43bb ought to in these circumstances result in a dismissal of the application.
7It is not disputed that the application itself was delivered to the union in a timely fashion; indeed, certain materials not required to be delivered pursuant to the rules, including a copy of the evidence of employee wishes filed with the Board, were also provided to the union. There can be no claim, therefore, that the union did not have proper notice of the application, as was confirmed by their prompt correspondence to the Board four days after the application was filed. Had the union been prejudiced in its ability to complete and file a response properly through the lack of a copy of the Interim Rules, the Information Bulletin on vote arrangements, or a blank response form, nothing prevented it from asking the Board for a copy of these documents, or for additional time to complete and file its response, if required. The union decided not to ask for such an accommodation, however, and instead sought the dismissal of the application. When it learned by the Board's decision on September 22, 1997 that the Board intended to process the application in the normal course, and to proceed to hold a representation vote, nothing prevented the union from participating in that process, and again it demonstrated that it was fully aware of the Board's intentions by writing to the Board on September 23 and October 3, 1997. In all of its correspondence to the Board concerning this issue, on September 16, 23, October 3, 24, 30, and November II, 1997, the union has not pointed to any prejudice to its position on the termination application, or to its ability to participate fully in the proceedings, arising out of the failure of the applicant to deliver the documents listed above together with the copy of the application it did provide.
8The union relies upon the Board decisions in Ontario Public Service Employees Union, [1996] OLRB Rep. January 23 and Call-a-Cab Limited, [1997] OLRB Rep. January/February 5, in support of its position that the Board should strictly enforce Rule 43bb and dismiss any application that has not complied with its requirements concerning delivery. However, neither case is analogous to the matter presently before us, having regard to the nature of the deficiencies and the relevant rules considered by the Board. In both the OPSEU and Call-a-Cab decisions, the Board found that the applications were not filed in a timely fashion, as the date of filing with the Board, determined with reference to Rule 43, was the date material was actually received at the Board, rather than the date on which it was mailed. In Call-a-Cab, the applicant had also failed to deliver a copy of the application itself to the responding parties before filing it with the Board. There was no issue relating to delivery in the OPSEU case.
9Therefore, we would have no difficulty in concluding, were the question raised by the union not res judicata, that it would not be appropriate in the present circumstances to refuse to process the application because of the applicant's failure to deliver to the union certain of the documents required pursuant to Rule 43bb. There being no other issues in dispute, the results of the representation vote will therefore govern the outcome of this application.
10On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in opposition to the responding party.
11The Board declares that the responding party no longer represents the employees of Diversey Lever Canada, A Division of U.L. Canada Inc. (Equipment Division) for whom it has heretofore been the bargaining agent.
12The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
13Meeting and hearing dates set previously are hereby cancelled.
14The employer is directed to post copies of this decision immediately, adjacent to all copies of the "Notice of Vote and of Hearing" posted previously. These copies must remain posted until the date that had been set for the hearing.