[1998] OLRB REP. JULY/AUGUST 755
0560-97-R United Food and Commercial Workers Union, Local 1977, Applicant v. White Rose Crafts and Nursery Sales Limited, Responding Party
BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
APPEARANCES: John R. Evans, Mitch Healey and Scott Penner for the applicant; John Mastoras, Morrie Zucker, Beth Burrows and Deirdre O'Connell for the responding party.
DECISION OF THE BOARD; July 6, 1998
This is an application for certification. The employer asserts that the application is barred or that the Board should refuse to entertain the application having regard to an earlier unsuccessful application by the United Food and Commercial Workers International Union (the "International").
The Board recently completed 11 days of hearings into the matter. The hearings took 10 months to complete. At the conclusion of the hearings, the parties requested a bottom line decision. The Board has chosen to provide brief reasons. No further reasons will follow.
The application was filed on May 14, 1997. The applicant is the United Food and Commercial Workers Union, Local 1977 (the "applicant" or the "Local"). Approximately 8 or 9 weeks prior to the filing of this application, the Board dismissed an application for the same bargaining unit that had been filed by the International. The dismissal followed a vote in which the International lost by a respectable margin.
The campaign leading up to the present application began either two or three days after the vote was held and the results were announced in the earlier application. The two union organizers in the first application were representatives of the Local. There were no organizers from the International. One of the two organizers, the Vice President of the Local, Mitch Healey, was also the principal organizer in the second campaign. The applicant's evidence is that its two organizers had been "seconded" to the International for purposes of the first campaign.
The two campaigns were contiguous if not continuous. Immediately following the first vote, one of the key inside organizers asked Mr. Healey what the employees could do. Mr. Healey said that he would look into the matter and get back to her. He did so within two days. He advised the employee that they could commence a second campaign under the aegis of his Local. He testified that he gave this information on the basis of legal advice and because he believed that the employees would simply continue their efforts at organizing with another union altogether. Accordingly, the very next day (i.e. 3 days after the first vote), Mr. Healey met with the same inside organizers, all of whom signed cards in the name of the Local, and the second campaign was underway.
Without reviewing the evidence in detail, the Board is satisfied that the employees would not reasonably have perceived any meaningful differences between the two applicants or between the two campaigns. The human face of the union was essentially the same in both applications and there was some considerable overlap in the identity of the union in the documentation used in each. At most, some employees may have been told that the Local was like a "subsidiary" of the International.
The parties argued this matter over the course of one and one-half days. The Board will not reproduce those arguments. Suffice it to say that the employer relied on Titan Tool and Die Limited, [1997] OLR.B Rep. March/April 281, decried the attempt by the Local to circumvent the mandatory bar imposed on the International, and invited the Board to apply a "reasonable perception of employees" test. The employer asked the Board to dismiss the application either on the basis that the applicant was caught by the mandatory bar or through the exercise of its discretion to bar or refuse to entertain an application under section 111 (2)(k). The employer requested, further, that a bar be imposed for up to one year against any additional applications by the International, its locals or, perhaps, any other trade union.
The applicant relied on the principle of "workplace democracy" (which is said to underlie the changes to the Labour Relations Act brought about by Bill 7), the fact that a vote had already been held and partially counted (the results being, as of yet, inconclusive), the assertion that it was not caught by the mandatory bar imposed against the International pursuant to section 10(3), the further assertion that the Board's discretion to bar or refuse to entertain an application pursuant to section 111 (2)(k) had been supplanted by the provisions of sections 8 and 9, and a substantial body of Board case law which, according to the applicant, gives substantial, if not decisive, weight to the existence of two separate legal entities and the signing of fresh membership evidence in the second application. The applicant suggested, with the greatest of respect, that Titan Tool and Die Limited could not reasonably have been intended to depart from that basic approach.
In Titan Tool and Die Limited, the Board was faced with a similar application and, while allowing the application to proceed in that case, attempted to place the exercise of its discretion on a proper footing. The Board articulated a series of factors to be considered in cases such as these (see paragraph 13 of that decision) which, the applicant appeared to acknowledge, do not cut in its favour.
In this case, unlike Titan Tool and Die Limited, the second application was filed within almost two months of the date of the dismissal of the first application and there was virtually no break in the two campaigns. Accepting the applicant's evidence at face value, the application was also filed solely in anticipation of the possibility that employees might wish to go elsewhere. Unfortunately, they were never given the chance. Mr. Healey obviously elected not to follow the approach taken by an official of another UFCW local who had been only nominally involved in the first campaign, who testified that, "I lost, so I just moved on". Mr. Healey, regrettably, just kept going.
Indeed, the involvement of the other official in the first campaign is instructive for another reason. In an effort to rebut evidence called by the employer to establish that the International and the Local were involved in a scheme whereby it was always the intention of the International to "transfer" any bargaining rights it might win in the first application to the Local, the official (and others from the International) testified that it was his Local - 1993 - and not Local 1977 that was the intended recipient of the bargaining rights. This fact, together with evidence from another of the applicant's witnesses to the effect that an official of the International decides "which local employees go into" even where, it would seem, the International is the applicant, tends to reduce the significance that the Board can attach to the separate legal identities of the applicant and the International in this case. Finally, it is noteworthy that the same official, who also holds senior office with the International, could recall no other case in which a local commenced an organizing campaign for the same bargaining unit within days of the International having lost a vote.
In the result, and having regard to all of the foregoing and the Board's decision in Titan Tool and Die Limited, we decline to entertain the application. To the extent that this decision may be seen by the applicant as something as departing from the Board's former approach to the exercise of its discretion set out in such cases as The Clorox Company of Canada Ltd. [1980] OLRB Rep. Feb. 184 and Creeds Storage Ltd. [1984] OLRB Rep. May 712, we note that the matter has never been quite so "cut and dried" as the applicant suggests and, to some extent at least, the cases are distinguishable for the reasons given by employer counsel in argument.
"Entertain", it must be added, is something of an odd choice of words in a labour relations statute. However, we do not believe that by receiving the application and by processing it to this point the Board has irrevocably committed itself to some other form of resolution. To conclude otherwise would require the Board to litigate such issues before any votes were held, thereby frustrating another important statutory objective. We prefer an interpretation of this term that is compatible with the policy of "quick votes" and which still allows the provision room to operate.
For the sake of completeness, and for the reasons given in Titan Tool and Die Limited, the Board is of the view that the "mandatory" bar does not apply. We are also satisfied that the provisions of the Act dealing with the holding of votes and the imposition of bars in other circumstances do not displace the discretion conferred by section 111 (2)(k). Given that we are dealing here with at least a nominally different "applicant", we are also of the view that the first part of section 111(2)(k) does not apply. Hence the exercise of our discretion under the latter part.
Finally, we decline to go further and impose a bar on any subsequent applications. While it is true that this employer has been subject to a statutory freeze for an almost uninterrupted period of 18 months, this is at least partly the product of the length of the present litigation - a factor to which the conduct of both parties and, indeed, the Board's scheduling, has contributed. It is not something that can be laid entirely at the feet of the applicant. Moreover, the Board was made aware of no case (whether it be in the context of an application for certification or an application to terminate bargaining rights) in which the refusal to entertain a second application (the rationale for Venture Industries Canada, Ltd., [1993] OLRB Rep. July 707 included that it was really a third) led to a bar on a subsequent application. Although Ms. Rundle would clearly have favoured a somewhat different result, believing that a reasonable "cooling-off' period is warranted in the circumstances (which include the lengthy and acrimonious nature of the litigation and the apparent dissension in the workplace), the Board as a whole is of the view that the balancing of interests between employee freedom of choice and the factors underlying the refusal to entertain provision favour no such bar. Any further applications will need to be considered by the panel receiving them.
Finally, and while joining in the Board's decision for the reasons given, Mr. Montague is troubled by its timing. Mr. Montague holds passionately to the view that this is not the best of times for trade union organizing in the Province of Ontario and believes that any decision that precludes effect being given to employee wishes is, according to the express purposes of the current legislation, to be avoided. However, every principle has its limits and, regrettably, those limits were reached in this case.
Accordingly, the Board exercises its discretion to refuse to entertain this application.