Communications, Energy and Paperworkers Union of Canada v. Buchanan Northern Hardwoods Inc., 1998 CanLII 18272

Ontario Labour Relations Board

[1998] OLRB REP. NOVEMBER/DECEMBER 910

0326-98-R Communications, Energy and Paperworkers Union of Canada, Applicant v. Buchanan Northern Hardwoods Inc., Responding Party v. IWA Canada, Intervenor

BEFORE: Gail Misra, Vice-Chair.

APPEARANCES: J. James Nyman and Kim Ginter for the applicant; Derek L. Rogers, Yves L. J. Fricot and Joseph W Ryan for the responding party; Elizabeth Mitchell and Harold Sachs for the intervenor.

DECISION OF THE BOARD; November 5, 1998

1This is an application for certification in which a request for reconsideration has been filed by Buchanan Northern Hardwoods Inc. ("Buchanan") regarding a decision of the Board (panel differ­ently constituted) dated September 15, 1998.

2In order to comprehend the reconsideration application it is necessary to provide some background. The chronology of events is undisputed. It would appear that Buchanan operates a hardwood sawmill facility in Thunder Bay and commenced this operation around July 1, 1996. On January 30, 1998 the IWA Canada ("IWA") filed an application for certification for a bargaining unit of Buchanan employees. It subsequently filed a related unfair labour practice complaint. The IWA lost the initial representation vote held on February 6, 1998 but, in reliance on the unfair labour practice complaint, had applied for certification pursuant to section 11 of the Labour Relations Act, 1995.

3While the unfair labour practice complaint and certification application were still unre­solved, on April 23, 1998, the applicant in this case (the "CEP") also filed a certification application with respect to Buchanan's employees. Pursuant to section 111(3)(b) of the Act, on April 28, 1998, the Board (differently constituted) decided that although the CEP could maintain its certification application date, the Board would postpone consideration of, and thus the conduct of a vote in the CEP application until a final decision had been issued in the original IWA certification application. The CEP intervened in the IWA proceedings and filed a request for reconsideration of the Board's decision to postpone consideration of its certification application.

4By a letter dated May 1, 1998 counsel for Buchanan wrote to the Board and indicated he did not comprehend the significance, if any, of the Board's decision with respect to the application date. Further, counsel stated as follows:

…..It is, at this point, premature for the responding party to make submissions to the Board with respect to the significance of the application date, the application of section 111(3) to the Board's determination of the application date and how the Board ought to proceed should a representation vote be directed after a final decision has been issued in the application made by the IWA.

The responding party reserves the right to make representations to the Board with respect to how the Board should proceed with the instant application including submissions with respect to the appropriate application date and voter eligibility after the Board issues a final decision in the I.W.A. application. (emphasis added)

5On July 8, 1998 the IWA filed another application alleging further unfair labour practices by Buchanan.

6On July 21, 1998 all of these parties met with a Labour Relations Officer to attempt to settle the matters in dispute between the TWA and Buchanan. The CEP was present as an intervenor. A number of issues were resolved and the parties entered into minutes of settlement. Pursuant to the minutes of settlement, on July 24, 1998, the Board (panel differently constituted) issued a decision ordering that a new representation vote be held on August 19, 1998 in respect of the IWA application for certification. In accordance with paragraph 1 of the settlement, the Board ordered that those who would be eligible to vote would be those employees who had an employment relationship with Buchanan on August 7, 1998. Further, and in accordance with paragraph 4 of the settlement, the Board directed that Buchanan should not hire any bargaining unit employees between August 7 and the date of the vote, August 19, 1998, except in the event of unforeseen circumstances.

7Paragraph 6 of the settlement states:

"CEP" agrees that no determination be made on its reconsideration request or its application for certification (Board File No. 0326-98-R) prior to the objection deadline date in this application (August 28/98). Nor shall anything herein be construed as impacting that application. (emphasis added)

8On July 29, 1998 the CEP filed an unfair labour practice complaint alleging that Buchanan had violated the Act.

9On August 12, 1998 Buchanan wrote to the Board indicating that it understood that since the IWA application was about to be dealt with, that following that the CEP application would also be addressed. Buchanan advised the Board as follows:

There will be a number of issues in the CEP. application which I submit must be addressed by the Board prior to any vote being ordered (assuming the same to be appropriate) in the event the present I.W.A. application is unsuccessful.

If necessary, I plan to meet with Mr. Rogers following final disposition of the I.W.A. application to review the issues and prepare initial submissions. In the interim, I would ask that we be kept advised of the time at which the C.E.P. application will commence to be considered by the Board.

10On August 19, 1998 the IWA lost the second representation vote, and subsequently filed two additional unfair labour practice complaints.

11On August 28, 1998 the Board received a second request for the reconsideration of its April 28th decision to postpone consideration of the CEP application. The Board (panel differently consti­tuted) issued a decision on August 31, 1998 adverting to the two reconsideration applications, and advising the parties that the panel was considering whether the Board should now hold a representation vote in the CEP application. The Board stated as follows:

3. The Board therefore hereby directs the parties to file any submissions with respect to whether a vote should now be ordered in this application, as well as the submissions with respect to any other issues related to such a vote on or before September 11, 1998. The parties should also provide copies of their submissions, if any, to each other. (emphasis added)

12While Buchanan made submissions to the Board, it only addressed itself to whether a vote should be held or not. By a decision dated September 14, 1998, the Board (panel differently constituted) dismissed the IWA's application for certification. On September 15, 1998, with the deadline for the making of any submissions having passed, another panel of the Board issued a decision ordering that a representation vote be held in the CEP application. The panel directed that "all individuals who had an employment relationship with the responding party in the voting constituency on April 23, 1998, the certification application date, who are still employed as at the date of this decision are eligible to vote."

13It is this latter direction which the responding party Buchanan and the IWA object to, and which both parties are seeking to have reconsidered. By a letter dated September 17, 1998 Buchanan advised the Board that it "strenuously" objected to the Board's direction regarding eligibility to vote. Buchanan indicated that "both the Board and the CEP agreed to the propriety of the arrangement" which the TWA and Buchanan had reached with respect to the IWA vote, so it was of the view that the same regime should prevail in the CEP vote. Counsel for Buchanan argued that employees who had been permitted to vote in the August vote should be permitted to vote again. By a letter dated September 28, 1998 the IWA also asked the Board to reconsider its decision.

14On September 22, 1998 the vote was held. One hundred and forty (140) votes were cast. As a consequence of the issue of who could vote, 28 ballots cast were segregated. The remaining 112 ballots were opened and counted with the result that 65 ballots were cast in favour of the CEP and 46 were cast against. The segregated ballots are therefore of significance in the determination of this application. One of those ballots was cast by an individual whose employment with Buchanan had been terminated and whose status is the subject of an unfair labour practice complaint; the remaining 27 segregated ballots were cast by new employees who have been hired by Buchanan since April 23, 1998, the certification application date.

15At the hearing held to consider the reconsideration request, Buchanan argued that the 27 persons in question represent one sixth of the bargaining unit, and that that number of persons should not be disenfranchised as a result of the Board's decision. This is particularly so when most of these persons had the opportunity to vote in the TWA vote in August. Counsel for Buchanan suggests that the Board permitted employees hired up to August 7, 1998 to vote in that application, and seeks an explanation for why the Board did not do so in this instance.

16Buchanan argues that there is no obligation on the Board to preserve the April 23rd date as the point of departure, except for the purposes of determining the 40% issue of employee support for the CEP's application. To maintain that date as the Board did in this instance has the effect of disenfranchising 27 employees. Counsel suggests it is no consolation to these employees that they will be able to vote in subsequent ratification and/or strike votes. It is suggested that the rights established through the legislation are not substitutes for each other, and that even if there is a ranking, the right to choose one's bargaining agent comes before the other rights regarding voting on collective agreement ratification and regarding strike action.

17Buchanan conceded that this is not a classic build-up of the bargaining unit case given the percentage of employees involved. However, counsel argued that the principles which the Board considers in those instances have application to the circumstances of this case.

18The TWA allies itself with Buchanan's position. It believes that since it agreed with the employer to allow all employees hired since the date of its application to vote in the second representa­tion vote, so should the CEP Counsel suggests that the scheme of the Act regarding certification applications envisages a quick vote within five days, and in those circumstances it makes sense to preserve the date of application because there should be little change in the possible bargaining unit composition between the date of application and the date of the vote. However, in this instance, there was a five-month hiatus between the date of application and the vote date and 27 persons were added to the employee compliment in that time. The TWA concedes that the Board, in its September 15, 1998 decision, applied its normal practice with respect to the ordering of a first vote. However, it contends the Board should not have followed this normal practice because the circumstances were unusual. Like Buchanan, the TWA argues that there is nothing in the legislation to require the Board to use the certification application date as the operative date. Rather, the Board has the jurisdiction to determine who is eligible to vote.

19The CEP takes the position that the Board's direction limiting who could vote was correct because by so doing the Board limited the prejudice which flows to the CEP as a result of not having been given a quick vote after its application was filed in April. The applicant argues that it had no control over the time it has taken for the IWA application to be dealt with finally, but it was forced to wait as a consequence of the Board's April decision. In the applicant's view the Board, by freezing the application date, also inferentially froze who would be in the voting constituency as of that date. When a vote was finally ordered after the dismissal of the IWA application, the applicant is of the view that the Board fashioned a compromise so that the CEP's interests would not be prejudiced by the lapse of five months from the time it had applied to be certified. In any event, the CEP argues, the statute provides for mandatory strike and ratification votes, so that all of the new employees hired after April 23, 1998 will be able to have an impact on the substance of bargaining.

20The CEP argues that the Board gave the parties an opportunity to raise any issues they wished to before the vote was ordered, and, since the parties did not address themselves to any issue except the holding of the vote, they have forgone the right to complain about that now. The CEP further points out that there are no employees here complaining, but only the employer and the TWA.

21With respect to the merits of the Board's decision, the CEP argues that the Board did what it now always does in certification applications in the vote-based regime. It suggests in these circum­stances there is no reason to reconsider the Board's decision. While the CEP is of the view that the Board erred in the first instance by not ordering the vote in April and sealing the ballot box at that time, it suggests that the only way to preserve a union's position in circumstances like these is to do as the Board did: It relied on the certification application date as the pertinent date for the purpose of determining who should be permitted to vote. The CEP states that its application reflected the support of the employees of Buchanan at that point in time. Since then, as a result of the Board's April 23rd decision not to hold a vote and the slow movement of the IWA application, there has been the passage of five months before a vote was held. Further, Buchanan has hired 27 employees in the intervening time. The CEP argues that this delay in holding the vote is prejudicial to the union and to those employees who had been asking the Board in April to certify the CEP as their bargaining agent because there would have been a diminution in the level of support over the lapsed period of time, in addition to the introduction of the new employees into the workplace.

DECISION

22Pursuant to section 114(1) of the Act the Board has a broad discretion to reconsider any decision or order made by it and to vary or revoke any such decision or order. However, the Board has repeatedly indicated that it will not reconsider its decisions unless there are good reasons for doing so. This approach furthers the interest of finality in Board decision-making and, in practical terms, discourages parties from seeking to delay the implementation of Board orders. The Board has been prepared to reconsider an earlier decision or order where that decision contains an obvious error; where the request raises important policy issues which have not been adequately addressed; where new evidence is sought to be presented which could not, with the exercise of due diligence, have been obtained and presented previously and which could, if accepted, make a difference to the decision; and, where representations are sought to be made which the party had no previous opportunity to make.

23In May 1998 counsel for Buchanan had specifically advised the Board that it was reserving its right to make representations regarding the appropriate application date and voter eligibility in the CEP application. In August Buchanan again informed the Board that there would be a number of issues in the CEP application which it was of the view the Board must address before any vote could be ordered in the CEP application. Further, Buchanan indicated it wanted to be "kept advised of the time at which the C.E.P. application will commence to be considered by the Board".

24After the TWA lost the second representation vote on August 19, 1998, the Board began to consider again the CEP application. As has been noted in paragraph 11 above, in its decision of August 31, 1998 the Board advised the parties that it was considering whether to hold a representation vote in the CEP application. The Board specifically directed the parties to make submissions on whether it should hold a vote, AND to make submissions with respect to any other issues related to the vote. Clearly the Board was being responsive to Buchanan's two requests to be given the opportunity to make submissions. Thus in this case the parties had an opportunity to make submissions regarding any issues related to the representation vote prior to the Board ordering that vote in the CEP application.

25Although Buchanan had identified in May that it was reserving the right to make submis­sions about voter eligibility, when invited to make submissions it made none. The TWA was also invited to make submissions regarding any issue it perceived as relating to a possible vote, but it too made no submissions regarding voter eligibility.

26It cannot be said that voter eligibility could not have been an issue in the minds of these parties because Buchanan and the TWA had clearly turned their minds to it in reaching the settlement which led to the holding of a second representation vote in the TWA application. Those discussions had just taken place in July 1998 and had led to an agreement that employees who were employed as of August 7, 1998 would be eligible to vote in the second representation vote. It was also clear from the terms of that settlement that the CEP had ensured that nothing in the Buchanan/TWA settlement was to be construed as having an impact on the CEP application. Thus it cannot be said that the Board should have simply followed the same pattern in the CEP application as the parties had agreed would govern the TWA second vote.

27When parties arrive at a settlement and require the Board to make orders or directions arising out of that settlement, so long as the Board is satisfied that what it is being asked to direct or order is consistent with its jurisdiction, the Board words the decision to reflect the parties' agreements. Nothing in the TWA second vote decision can therefore be taken to have had a bearing on how the CEP application would have been dealt with by the Board. In any event, the TWA vote was a second representation vote, while the CEP had still not had a vote held with respect to its application. The Board, in the absence of any arguments made by the parties to the contrary, followed its normal practice in respect of the holding of a vote in a certification application.

28Having considered the entire chain of events in this application the issue of voter eligibility had been identified by Buchanan early on and had been reiterated as an outstanding issue; the Board invited the parties to make submissions on any and all issues of interest to them regarding the holding of a vote in the CEP application; and, having received no submissions regarding voter eligibility, the Board ordered the vote in the CEP application in the normal course. Only after the vote decision issued did Buchanan and the TWA indicate they objected to the Board's direction regarding voter eligibility. In my view that was simply too late.

29Parties are given opportunities to make submissions so that the Board can consider differing points of view before reaching a decision. This is not a case in which the parties were deprived of the right to make submissions. It is also not a case where the parties could not have known what would be salient matters when a vote was ordered: Buchanan had raised the issue of voter eligibility in May, and Buchanan and the TWA had just completed negotiations on this subject in the TWA application in July.

30In all of the circumstances of this case I can find no reason to reconsider the decision of the Board dated September 15, 1998. The 27 ballots cast by persons who did not meet the voter eligibility criterion set by the Board in that decision may therefore not be counted.

31As noted earlier, pursuant to the Board's direction of September 15, 1998, a representation vote was taken on September 22, 1998. No statement of desire to make representations, other than the reconsideration request dealt with above, has been filed with the Board within the time fixed by the Board following the taking of the representation vote pursuant to the Board's direction of September 15, 1998.

32Having regard to the agreement of the parties. the Board finds that:

all employees of Buchanan Northern Hardwoods Inc. in the Township of Paipoonge, save and except supervisors, persons above the rank of supervisor, office, clerical, technical and professional employees, sales staff and security guards,

constitute a unit of employees of the responding party appropriate for collective bargaining.

33As noted earlier, 28 ballots were segregated when the vote was held and counted on September 22, 1998. However, since the Board has determined that 27 of those ballots were cast by persons who were not eligible to vote, those 27 ballots will not be counted. The one remaining segregated ballot cannot effect the outcome of the vote. On 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 favour of the applicant.

34A certificate will issue to the applicant.

35The Registrar will destroy all 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.