[1999] OLRB REP. SEPTEMBER/OCTOBER 804
1504-99-R International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Local 58, Applicant v. Canadian Opera Company, Responding Party
BEFORE: David A. McKee, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
DECISION OF THE BOARD; September 10, 1999
1This is an application for certification. The sole issue at this time is the request of the applicant, the International Alliance of Theatrical and Stage Employees Local 58 ("IATSE") to withdraw the application and the request of the responding party, the Canadian Opera Company ("COC") that certain conditions be imposed on the applicant.
2The application was made on August 20, 1999. The COC responded in accordance with the Rules on August 24, 1999. A vote was ordered on August 25, 1999 to be held on August 31. The applicant proposed a bargaining unit which covered the City of Toronto. It became apparent from the COC's reply that there were in fact two locations rather than just the one that IATSE anticipated, and that, if the COC was correct, there were also more employees than IATSE anticipated in its proposed unit. The COC proposed a single location unit. On August 30 at 3:28 p.m. IATSE advised the Board and the responding party that it withdrew its application. The parties were advised by the Manager of Field Services that the vote scheduled for August 31 was cancelled.
3The COC has objected to the fact that this decision was made administratively and without submissions from the COC. If the applicant wishes to withdraw, it is entitled to say so. There is no need for the Board to expend its limited resources (a consideration the COC wishes the Board to take into consideration at page 9 of its submissions) conducting votes when the applicant no longer seeks to have a vote held. The very tight time frames mandated by the Act often require decisions to be made quickly. The only issue once the Union has indicated it wishes to withdraw its application is the one now raised by the COC, which it has been given the opportunity to address at length. The decision to cancel the vote was the appropriate decision to have made in the circumstances.
4The COC asserts that, based on past Board jurisprudence, the Board's practice is to impose a bar on further applications for a period of time if the withdrawal was caused by knowledge on the part of the union that the application would fail due to inadequate support. This is an overly broad statement; it was true only in situations where a vote had already been held. Even in circumstances where a vote had been held, a bar was not imposed in every case: see Amarcord Carpenters Ltd., [1989] OLRB Rep. June 531; Metropolitan General Hospital, [1991] OLRB Rep. Apr. 547. The Board's practice was generally to permit the withdrawal of an application for certification at any time prior to a vote without a bar, unless manifest abuse of the Board's process was demonstrated. This was invariably in the case of multiple applications in a short period of time, see Airline Limousine, [1988] OLRB Rep. Oct. 997 and Southern Express Lines of Ontario Limited, [1988] OLRB Rep. Oct. 1107. For this sort of consideration, an application by IATSE for the same bargaining unit in 1994 is not relevant.
5In dealing with a request to withdraw an application before the taking of a representation vote, the Board in Sara Lee Bakery Ltd., [1996] OLRB Rep. May/June 480 said:
Against this backdrop, the Board considers the interpretation of section 7(9) of the Act. In our view, section 7(9) gives the Board a dual discretion. The Board has the discretion to determine whether or not to impose a bar following the withdrawal of a certification application before a vote is taken. In addition, the Board has the discretion to determine length of the bar, up to a period of one year. The use of the word "may" in section 7(9) indicates that both the imposition of a bar, and the length of any such bar are matters of the Board's discretion.
The Interpretation Act, R.S.O. 1990, c. 1.11, s. 29(2) states:
In the English version of an Act, the word "shall" shall be construed as imperative and the word may as permissive.
- It is a basic principle of statutory interpretation that the use of the word "may" rather than "shall", indicates that the power conferred is discretionary, rather than mandatory:
Expressions such as "The Board has the power to ..." or "The Commission may ..." by their very wording grant powers whose exercise is optional. The permissive character of the word "may" is confirmed in the Interpretation Acts. (Pierre-Andre C6t~, The Interpretation of Legislation in Canada, 2d ed. (Cowansville: Les Editions Yvon Blals Inc., 1991) at199.
Had the Legislature intended the imposition of the bar to be mandatory, and only the length of the bar to be discretionary, the use of the word "shall" in place of the word "may" in section 7(9) would have accomplished that end. In our view, the choice of the word "may" clearly indicates the Legislature's intention to grant the Board the dual discretion referred to above.
Section 7(9) must be contrasted with the other sections of the Act dealing with the imposition of a bar. Sections 10(3) and 160(3) contemplate the imposition of a bar for a period of one year upon the dismissal of a certification application after an unsuccessful vote. Section 10(3) relates to industrial certification applications; section 160(3) relates to the construction certification applications. Section 7(10) and section 160(3) contemplate the imposition of a bar for a period of one year upon the withdrawal of a certification application after the representation vote is taken. Those sections mandate the imposition of a bar and the length of the bar, through the use of the word "shall". Section 7(9), by contrast, contemplates the dual discretion described above, through the use of the word "may".
In our view, the permissive nature of the word "may" in section 7(9) conforms to the object or purpose of the new Act.
As stated earlier, the Act contemplates that bargaining rights can be acquired primarily by obtaining the support of the majority of the employees voting. The Act also contemplates a period of repose, following the testing of the wishes of the employees in the bargaining unit by means of a vote. The focus of the bar provisions is on whether the wishes of the employees have been tested by means of a representation vote. It is only after the wishes of the employees have been tested by means of a representation vote, that a bar of one year will be imposed. In our view, this reinforces our view that section 7(9) gives the Board a discretion whether or not to impose a bar, before a vote is taken. Subject to our comments below, prior to the taking of the vote, the wishes of the employees have not been tested with sufficient certainty to justify the imposition of a bar against a further application by the applicant trade union.
The legislative scheme of the Act with respect to the imposition of a bar in certification application cases does not deviate significantly from the the Board's approach to that issue under the previous Act. In the past, the Board had a discretion to decide whether or not to impose a bar and the length of bar, following an unsuccessful certification application. The Board's approach in the past was twofold. The Board generally imposed a bar following an unsuccessful representation vote. This approach has now been codified in section 10(3) of the Act. In keeping with that approach, the Board also imposed a bar where the trade union sought to withdraw its application for the purpose of avoiding an unfavourable result at the vote. In those cases, the certification process had advanced sufficiently so that the Board was satisfied that the wishes of the employees were clear. The focus of the Board's inquiry was whether the wishes of the employees to be represented by the applicant trade union had been clearly tested. Section 7(10) may be seen as a codification of that approach. Where the representation vote has been taken, a withdrawal by the applicant will still trigger the one year bar. Finally, in the past, the Board has imposed a bar where the applicant trade union made repeated, unsuccessful certification applications in a short period of time. Again, the focus of the Board was on the wishes of the employees, which had been tested with some degree of certainty through the mechanism of repeated, unsuccessful applications. The purpose of the bar, the Board has stated, is to foster orderly labour relations by means of a period of repose, after the wishes of the employees have been tested. (See Amarcord Carpenters Ltd., and R.J.R. MacDonald Inc., supra).
The Board's jurisprudence is still useful in guiding the Board in the exercise of the discretion in section 7(9) of the Act. In our view, the Act contemplates that the focus of our inquiry should be on whether the wishes of the employees on the issue of representation by the applicant have been tested with sufficient certainty so as to give rise to the need for a period of repose on that issue. The Board must also be satisfied that the union is not abusing the Board process by, for example, making repeated applications.
On the facts of this case, we are satisfied that the wishes of the employees have not been tested at all, in Board File No. 3308-95-R, nor has the union engaged in actions which constitute an abuse of process and therefore, can see no basis for the exercise of our discretion to impose a bar of any length.
We reject the employer's argument that the Board should embark upon an inquiry into an applicant's request to withdraw its application. In this case, the request to withdraw was made after receipt of the employer's response to the certification application, and prior to an order of the Board directing a vote. In those circumstances, the Board sees no need to inquire into the reasons for the request to withdraw. The Board makes no findings with respect to the applicant's reasons for withdrawing in this case.
It may often be the case that the applicant trade union will discover information from the employer's response that will cause it to withdraw its application. A trade union's ability to obtain accurate information about the identity of the employer, the configuration of the workplace, the number of employees, and other matters which may be relevant to the certification application, is limited. The employer's response to the certification application may provide new information to the applicant to cause it to reconsider the advisability of pursuing the application. Although an employer may suffer inconvenience in responding to a certification application which is subsequently withdrawn, the employer suffers no prejudice in the withdrawal of a certification application prior to the taking of a vote, and the subsequent refiling of a new application. We recognize that the subsequent application may be based upon information the union has gained from the first application but we see nothing improper in this.
The Board grants leave to the applicant to withdraw its application in Board File 3308-95-R. The Board declines to impose a bar on the applicant pursuant to section 7(9) of the Act. The request to reconsider is denied.
6In any event, all of the Board's jurisprudence must be read in the context of the statute as it stood at the time the decision was rendered. Since 1998 the Act has prescribed a different regime for applications for certification and the Board's approach has changed with the statute. While it is not universally true in every situation, the existence of the mandatory bar and the provisions of section 8.1 do encourage unions to assess their positions immediately before a vote is taken. In Ion Plaster & Drywall Contractors Ltd., (unreported, Board File 1791-96-R, February 21, 1997), the Board refused to permit an employer to add names to the list after a vote was held, precisely because it would have deprived the union of the opportunity to assess its position in light of the employer's list and consider whether or not to withdraw, thus avoiding a loss and the mandatory bar. In that case the Board said:
- The materials served on the employer clearly set out what is required. The employer chose not to respond in a timely fashion as is required under the Rules. The employer did not post notices as required but delivered them to each employee. The Board's past case law is not helpful in light of the changes in the legislation. Under Bill 7 the Act requires a vote be held within 5 working days after the day on which the application is filed with the Board. If the union is unsuccessful a mandatory twelve months bar is applied to any subsequent application for certification. Had the applicant been aware of the employer's list in a timely fashion it could have made an informed decision on whether to withdraw to avoid the possibility of a twelve months bar or attempt to organize some of the other employees. The list was provided too late in the day prior to the vote for the applicant to make any choices. The reasons in these circumstances for not complying with the Board's Rules are not acceptable in light of the applicant's prejudice of having a twelve months bar imposed should it lose the vote. Being too busy to retain counsel is not a reason to allow the employer to extend the time limit for filing its response.
(See also Baron Metal Industries Inc., [1999] OLRB Rep. May/June 363.)
7Accordingly, we see no abuse in the withdrawal of the application by IATSE that would cause us to impose a bar.
8The COC also points out that the application, on its submission, was doomed because it lacked the requisite support of 40% of the bargaining unit. For the purposes of this decision IATSE agrees, and we will assume this to be true. In that case the combined effects of paragraph 7 of section 8.1(5) and section 10 (4) would have meant that no bar would have been imposed. However, the COC argues that this application was not dismissed under section 10(4) but was withdrawn, and that section 7(9) gives the Board the discretion to impose a bar. This reading of the statute is correct. However, in these circumstances, it is hard to understand why the Board should impose a bar when the applicant saved the Board and the COC the expense and effort of running to the end of the exercise, thereby ensuring a dismissal with no bar of any sort.
9Accordingly, this application is withdrawn by leave of the Board. No conditions are attached to this withdrawal.