United Steelworkers of America v. 526093 Ontario Inc. c.o.b. as Taxi-Taxi, 1998 CanLII 18266

[1998] OLRB REP. NOVEMBER/DECEMBER 1026

0545-98-R; 0546-98-U United Steelworkers of America, Applicant v. 526093 Ontario Inc. c.o.b. as Taxi-Taxi, Responding Party

BEFORE: Kevin Whitaker, Vice-Chair.

APPEARANCES: Jeff Andrew, Guy Havell for the applicant; Michael Horan, David Zaritsky, Donald Wortman and S. Wortman for the responding party;

DECISION OF THE BOARD; November 13, 1998

I

1. This matter consists of a certification application pursuant to section 11 of the Labour Relations Act, 1995 (the "Act") and an application pursuant to section 96 of the Act. The latter alleges a breach of sections 70, 72 and 76 of the Act. The facts pled with respect to both applications are identical.

2. The applications were filed on May 8, 1998. It did not appear that 40 per cent or more of the individuals in the proposed bargaining unit were members of the applicant at the time of application. The applicant did not seek a vote and none was ordered.

3. Hearings commenced on June 8, 1998 at which time the respondent employer began to call evidence. The matter was not completed on June 8, 1998. Continuation dates were set, the next one being October 28, 1998.

4. On June 26, 1998, Royal Assent was given to most portions of Bill 31. This Bill is entitled "An Act to promote economic development and create jobs in the construction industry, to further workplace democracy and to make other amendments to labour and employment statutes". Amongst other things, Bill 31 amended section 11 of the Act, effective June 29, 1998.

5. When the hearings reconvened on October 28, 1998, the respondent moved to have the application under section 11 of the Act dismissed and that a "bar" be imposed. The respondent argued that as a result of the amendments to section 11 in Bill 31, a trade union could only be certified pursuant to section 11 if an initial representation vote had been conducted. The applicant contested the motion. The applicant took the position that the motion should be deferred until final argument and in the alternative, dismissed at this point. In the further alternative, the applicant argued that if the application for certification was dismissed, no "bar" should be imposed.

6. For reasons which follow, the application for certification is dismissed. No "bar" will be imposed on the applicant.

II

7. Prior to Bill 31, a trade union could apply to be certified under the Act in two different ways. The first and most common type of application was pursuant to sections 7, 8, 9 and 10 of the Act. This type of application required the trade union to demonstrate an appearance of membership equal to or greater than 40 per cent of the proposed bargaining unit at the time of the application. Where such an appearance was demonstrated, the Board was obliged to order a representation vote pursuant to section 8(2) of the Act. The second and less common type of application was pursuant to section 11 of the Act. Where a trade union was at the time of application unable to demonstrate membership support which would entitle it to a representation vote under section 8(2) of the Act, the only way in which it could apply to be certified would be pursuant to section 11.

8. As mentioned earlier, the applicant was unable to obtain a vote pursuant to section 8(2) of the Act. The application for certification was made pursuant to section 11 of the Act.

9. When the applications were filed on May 8, 1998, the provisions of section 11 were as follows:

11.(l) Upon the application of a trade union, the Board may certify the trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

1. An employer, employers' organization or person acting on behalf of an employer or employers' organization has contravened the Act.

2. The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

3. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

4. The trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board to be appropriate for collective bargaining.

2. Upon the application of an interested person, the Board may dismiss an application for certification of a trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

1. A trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions has contravened the Act.

2. The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about

being represented by the trade union.

3. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

(3) The Board may consider the results of a representation vote when making a decision under this section.

(4) Subsections 10(1) and (2) do not apply with respect to a representation vote taken in the circumstances described in this section.

10. Section 23 of Bill 31 provides that the provisions of section 11 as amended, apply to applications made before, but continuing beyond August 21, 1998:

11. Ontario Labour Relations Board shall not exercise any power under section 11 of the Labour Relations Act, 1995, as it read before being amended by section 5, even with respect to applications made before section 11 of the Labour Relations Act, 1995 was amended.

12. Section 5 of Bill 31 amended section 11 of the Act. Eight discrete portions of text in section 11 of the Act were repealed. Seven new discrete portions of text were added to section 11 of the Act:

13. (1) Subsection 11 (1) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

(1) Upon the application of a trade union, the Board may order another representation vote in the following circumstances:

(2) Paragraph 2 of subsection 11 (1) of the Act is repealed and the following substituted:

2. The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

(3) Paragraph 3 of subsection 11 (1) of the Act is repealed.

(4) Subsection 11(2) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

(2) Upon the application of an interested person, the Board may order another representation vote in the following circumstances:

(5) Paragraph 2 of subsection 11 (2) of the Act is repealed and the following substituted:

2. The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

(6) Paragraph 3 of subsection 11 (2) of the Act is repealed.

(7) Subsections 11 (3) and (4) of the Act are repealed and the following substituted:

(3) The Board may consider the results of a prior representation vote when making a decision under this section.

(4) Subsections 10 (1) and (2) do not apply with respect to a prior representation vote if a new representation vote is ordered under this section.

(5) Without restricting its powers under section 96, the Board may do anything to ensure that a new representation vote ordered under this section reflects the true wishes of the employees in the bargaining unit.

12. Section 11 of the Act as it read prior to Bill 31 permitted the Board in the appropriate circumstances to certify a trade union applicant without any representation vote being held. If for example, in a case where an employer had committed an unfair labour practice which prevented a union from being able to demonstrate an appearance of membership equal to or greater than 40 per cent of a proposed bargaining unit, and where the threshold requirements of subsection 11 (1) were met, the Board could certify the union pursuant to section 11.

13. In the present case, the union alleges that it was unable to demonstrate an appearance of membership at the time of the application which would entitle it to a representation vote because of the employer's conduct. In other words, it is alleged that the union could only be certified pursuant to section 11 and not be certified pursuant to sections 7, 8, 9 and 10 of the Act, because of the employer's illegal action.

14. The respondent argues that as a result of the amendments to section 11 of the Act in Bill 31, the Board is unable to certify the applicant pursuant to section 11, regardless of whatever factual determinations are made on the merits of these applications. The argument very simply is that all of the amendments to section 11 of the Act contemplate that the remedy available under that section is the ordering of a second representation vote, where a first representation vote does not likely reflect the true wishes of employees in the bargaining unit.

15. Of the seven portions of text which are added to section 11 as a result of Bill 31, each and every portion refers to circumstances where a first vote was ordered and a second vote is the potential remedy. For the sake of completeness, I will again set out section 5 of Bill 31 with the relevant references underlined:

16. (1) Subsection 11 (1) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

(1) Upon the application of a trade union, the Board may order another representation vote in the following circumstances:

(2) Paragraph 2 of subsection 11(1) of the Act is repealed and the following substituted:

2. The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

(3) Paragraph 3 of subsection 11(1) of the Act is repealed.

(4) Subsection 11(2) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

(2) Upon the application of an interested person, the Board may order another representation vote in the following circumstances:

(5) Paragraph 2 of subsection 11 (2) of the Act is repealed and the following substituted:

2. The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

(6) Paragraph 3 of subsection 11 (2) of the Act is repealed.

(7) Subsections 11 (3) and (4) of the Act are repealed and the following substituted:

(3) The Board may consider the results of a prior representation vote when making a decision under this section.

(4) Subsections 10 (1) and (2) do not apply with respect to a prior representation vote if a new representation vote is ordered under this section.

(5) without restricting its powers under section 96, the Board may do anything to ensure that a new representation vote ordered under this section reflects the true wishes of the employees in the bargaining unit.

16. The applicant does not suggest that these amendments do not reflect on their face, an assumption that a first vote had to have been ordered to obtain a remedy under section 11. The applicant argues however that this interpretation is inconsistent with a portion of section 11 that remains unchanged by Bill 31. The applicant also submits that the result sought at this point by the respondent is contrary to a number of other provisions of the Act.

17. Dealing with the applicant's first point, paragraph 4 of subsection 11(1) remains unchanged by Bill 31. In fact, it would appear to be the only discrete portion of section 11 that was not amended by Bill 31. This paragraph requires as a pre-condition to a remedy under section 11 that a trade union has membership support adequate for purposes of collective bargaining.

18. The applicant argues that this paragraph would be rendered meaningless if a union always needed to satisfy the requirements of membership appearance in section 8(2) of the Act in order to get an initial representation vote ordered. On this basis, the applicant argues that this paragraph is inconsistent with the amendments to section 11 which appear to restrict remedies under that section to a second vote only.

19. The applicant also relies on sections 2, 5, 96, 11 l(2)(h) and (5) of the Act. Those sections provide as follows:

20. The following are the purposes of the Act:

21. To facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees.

22. To recognize the importance of workplace parties adapting to change.

23. To promote flexibility, productivity and employee involvement in the workplace.

24. To encourage communication between employers and employees in the workplace.

25. To recognize the importance of economic growth as the foundation for mutually beneficial relations amongst employers, employees and trade unions.

26. To encourage co-operative participation of employers and trade unions in resolving workplace issues.

27. To promote the expeditious resolution of workplace disputes.

28. Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.

29. (1) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.

(2) The labour relations officer shall forthwith inquire into the complaint and endeavour to effect a settlement of the matter complained of.

(3) The labour relations officer shall report the results of his or her inquiry and endeavours to the Board.

(4) Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of,

(a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of;

(b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.

(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

(6) A trade union, council of trade unions, employer, employers' organization or person affected by the determination may file the determination, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.

(7) Where a proceeding under this Act has been settled, whether through the endeavours of the labour relations officer or otherwise, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties, the trade union, council of trade unions, employer, employers' organization, person or employee who have agreed to the settlement and shall be complied with according to its terms, and a complaint that the trade union, council of trade unions, employer, employers' organization, person or employee who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).

(8) The Board shall not, under this section, certify a trade union as the bargaining agent of employees in a bargaining unit.

111. . . .

(2) Without limiting the generality of subsection (1), the Board has power,

(h) to enter upon the premises of employers and conduct representation votes, strike votes and ratification votes during working hours and give such directions in connection with the vote as it considers necessary;

(5) Where the Board determines that a representation vote is to be taken amongst the employees in a bargaining unit or voting constituency, the Board may hold the additional representation votes as it considers necessary to determine the true wishes of the employees.

20. The essence of the applicant's second point is that the Act should be interpreted in such a manner that will best permit the achievement of those purposes and freedoms set out in sections 2 and 5. The respondent argues that if section 11 were to be read in the manner suggested by the respondent, it would have the effect of unduly restricting the Board's remedial authority as contemplated by sections 96 and Ill of the Act.

III

21. There can be little doubt that the seven discrete portions of text added to section 11 by Bill 31 and identified in paragraph 15 above, appear to contemplate exclusively, a set of circumstances where an initial "first" vote is ordered, and section 11 relief is available in the form of a "second" vote. Conversely, it is also beyond doubt that a "first" vote, ordered pursuant to section 11 would be inconsistent with these provisions. These observations were not seriously challenged by the applicant.

22. Although it would appear on first blush that paragraph 4 of subsection 11(1) would be unnecessary on the respondent's theory, on reflection, there is a way of reconciling these provisions. Section 8(2) of the Act requires the "appearance" of membership in order to obtain a vote. Paragraph 4 of subsection 11 requires the Board to determine in fact, the adequacy of membership support. It is certainly the case that the appearance of membership at the time of the application may be extremely probative with respect to the factual question of actual membership support for purposes of paragraph 4 of subsection 11(1). It cannot be said however that the two inquiries are identical. Appearance and fact will not always coincide.

23. I accept the applicant's submission that the Act should be interpreted in such a manner which most broadly preserves the Board's remedial authority. "Unfair labour practices" is an open-ended category and if remedies are to be effective, their scope must also remain open-ended.

24. I also accept the applicant's submission that the Act should be interpreted in a way which best permits the achievement of those purposes and freedoms described in sections 2 and 5 of the Act.

25. The difficulty for the applicant is that these propositions of law do not go far enough to

render the explicit language of section 11 as it now exists, ineffectual. Given my reading of paragraph 4 of subsection 11(1) of the Act, there is no ambiguity or conflict within section 11 as a whole.

26. Even if the applicant was correct that the purposes and freedoms described in sections 2 and 5 of the Act were compromised by the respondent's proposed reading of section 11, there is no principle of law which would permit the Board to "read out" in the sense in which that term is used in constitutional law, explicit statutory language based on a "Purposes and Application" section of the same statute.

27. If I am wrong in this regard and the Board could in fact disregard such explicit language, I am not convinced that the provisions of section 11 presently go that far. The Board has yet to attempt to construct remedies pursuant to section 96 following the passage of Bill 31, which deal with the type of allegations made against the respondent in this case. It may very well be that if the applicant's allegations are made out at the end of the day, a remedy could be fashioned which would fully redress the respondent's conduct and in that way safeguard the rights and obligations contemplated by sections 2 and S of the Act.

28. The adjudication of the respondent's motion will not be assisted in any way by subsequent factual determinations that may be made. For that reason, I will not defer my ruling. Where, as in this case, the application for certification was made exclusively on the basis of an application pursuant to section 11, and no argument was made as to why that application should subsist if no section 11 relief is available, it is appropriate to dismiss the application for certification. Accordingly, the application in Board File No. 0545-98-R is hereby dismissed.

29. The respondent has requested that a "bar" be imposed to preclude the applicant from bringing a subsequent certification application. The wishes of the membership with respect to this applicant have not yet been tested and I am not at this point prepared to conclude that such a subsequent application would cause the respondent any particular hardship. In these circumstances, it is not appropriate to impose a "bar".