[1999] OLRB REP. JANUARY/FEBRUARY 24
2928-98-R National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Customized Transportation Ltd. (CTL), Responding Party v. United Steelworkers of America, Local 9042, Intervenor #1 v. Direct Driver Personnel, Intervenor #2 v. Premier Personnel, A Division of 1038520 Ontario Inc., Intervenor #3 v. Metro Wide Personnel, Intervenor #4
Certification - Employee - Employer - Practice and Procedure - Timeliness - Responding party responding to union's certification application by asserting that individuals sought to be represented by applicant actually employed by three personnel agencies and not by it - Responding party providing particulars in support of its position in accordance with Board direction, but applicant failing to do so - Applicant providing submissions in support of its position only two days prior to hearing and representing that it was doing so in accordance with timetable for submissions called for in Board's Information Bulletin No.4 regarding status disputes - Board ruling that issue of identity of employer not fairly described as status dispute (at least outside of construction industry) - Board refusing to receive union's late submissions -Board dismissing union's certification application for failure to make out prima facie case that responding party employed the employees in the proposed bargaining unit
BEFORE: Russell G. Goodfellow, Vice-Chair.
APPEARANCES: Frank Luce, Buddy Kitchen and Shalini Konanur for the applicant; Robert A.MacPherson, Federico Soda, Trevor Lawson and Angelo Farranto for the responding party; David Defrancesco and Bob Harper for Premier Personnel; David Doorey and Peggy McComb for United Steelworkers of America; Kevin Coon for Direct Driver Personnel; no one appearing for Metro Wide Personnel.
DECISION OF THE BOARD; February 15, 1999
This is an application for certification. On January 19, 1999 I dismissed the application for a failure to establish a prima facie case that the responding party is the employer of the employees in the applicant's proposed bargaining unit. I indicated that I would provide brief reasons for this decision at a later date. These are my reasons.
The application was filed on November 25, 1998. The response and four interventions were filed thereafter. On December 4, 1998, the Board issued its decision directing a vote. Paragraph 7 of that decision states:
There are substantial issues in dispute including whether the responding party is the employer of the employees the applicant seeks to represent. Further, even assuming the responding party is the employer, there is a question as to whether the bargaining rights being sought are already held by the intervenor trade union. In the circumstances the Board directs that the ballot box be sealed unless the parties agree otherwise or the Board so directs.
Paragraph 10 of the decision states:
Any party or person who wishes to make representations to the Board about any issue remaining in dispute which relates to the application for certification, including any matters relating to the representation vote, must file a detailed statement of representations with the Board and deliver it to the other parties, so that it is received by the Board within five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken.
The vote was held on December 8, 1998. In accordance with the Board's decision, the ballot box was sealed. The parties at the vote, including the applicant, signed the Labour Relations Officer's certification worksheet, thereby confirming its accuracy. The portion of the worksheet allowing for the identification of issues in dispute relating to the "status of individuals" was stroked-out along with other matters that did not apply.
The response and, to a lesser extent, the interventions contained detailed factual submissions and representations as to the identity of the employer. The response and the intervention filed by intervenor #1 also contained representations in support of the assertion that the bargaining rights applied for were already held by intervenor #1. Accordingly, no further material was required to be filed by these parties in relation to those issues.
On December 14, 1998, the second to last day for the filing of the "detailed statement of representations" required by the Board's December 4 decision, the applicant wrote to the Board, with copies to the other parties, as follows:
It is the position of CAW-Canada that the employees in dispute in this application, are the employees of Customized Transportation Ltd. (Cm).
It is also the position of CAW-Canada that the employees in dispute are not covered by the collective agreement between Customized Transportation Ltd. (CTh) and the United Steelworkers of America.
It is also the position of CAW-Canada that the segregated ballots be counted.
- On December 15, 1998, the last day for filing representations, counsel for the responding party wrote to the Board, with a copy to the other parties, as follows:
We are writing to make representations on behalf of the Responding Party, Customized Transportation, Ltd. (CTh) in connection with the above-noted Application for Certification.
The Applicant claims that CTL is the employer of the employees which the Applicant seeks to represent. The Applicant has, however, failed to allege any facts or to provide any particulars or documentary evidence in support of its claim that CTh is the employer.
CTh and the various Intervenors have, on the other hand, provided the Board with detailed submissions in support of the position that CTh is not the employer and that the employees the Applicant seeks to represent are, in fact, employed by Premier Personnel, Direct Driver Personnel or Metro Wide Personnel.
It is submitted that the Applicant bears the onus of proving who is the employer of the employees which it seeks to represent. Having failed to allege any facts or provide any particulars or documentary evidence in support of its position that CTh is the employer, the Applicant has failed to establish even a prime [sic] facie case in support of the Application.
Accordingly, CTh submits that the Board should dismiss the Application without a hearing.
The applicant did not respond to this letter and did not file the material required by the Board's December 4 decision until January 14, 1999, 2 days before the scheduled hearing dates of January 18 and 19. On January 13, however, at the Labour Relations Officer's regional certification meeting, the applicant had advised the Officer and the other parties present of its position that the Board's Information Bulletin #4, dealing with "status disputes" in certification applications (non-construction), applied to the question of the identity of the employer and, therefore, that its representations on that issue did not need to be filed until a later date. The parties then made written submissions to the Board on the applicability of Information Bulletin #4, leading to the adjournment of the January 18 hearing date and the following decision from the Alternate Chair bearing that same date:
This is an application for certification. The parties are requesting an interim decision to assist them in moving forward with the litigation. The specific question put to the Board is whether or not one of the issues in dispute is a status dispute to which the Board's Information Bulletin #4 applies. The parties were given an opportunity to make submissions and the Board has reviewed the submissions made.
The issues in dispute were succinctly captured at paragraph 7 of the Board's December 4, 1998 decision directing a representation vote:
There are substantial issues in dispute including whether the responding party is the employer of the employees the applicant seeks to represent. Further, even assuming the responding party is the employer, there is a question as to whether the bargaining rights being sought are already held by the intervenor trade union. In the circumstances, the Board directs that the ballot box be sealed unless the parties agree otherwise or the Board so directs.
The issues remain unchanged. A dispute about who is the employer cannot be fairly characterized as a status dispute. There is no apparent status dispute in this case. Consequently, Information Bulletin #4 is inapplicable.
The Board understands that the parties have agreed to convene the hearing on January 19, 1999 to deal with preliminary issues.
The January 19 hearing date proceeded as planned, with the parties agreeing to use it to deal with a number of preliminary issues. Central among these issues was the responding party's request (predicated on the assertion that the Board should refuse to accept the applicant's January 14 statement of representations) that the application be dismissed for failing to plead a prima facie case that the responding party was the employer of the employees in the bargaining unit. The responding party's motion was supported by the intervenors (other than intervenor #1, which took no position on the issue). The applicant opposed the request, explaining that it had not filed its statement of representations until January 14 because it had a reasonable belief that the question of the identity of employer was a "status issue" within the meaning of Information Bulletin #4. As such, its submissions were not required to be filed until January 20, 1999, with a hearing to follow thereafter. The applicant also submitted that there was no prejudice to the responding party or to the intervenors arising out of the late filing and, further, that the Board must have found a prima facie case when it made its vote decision or that such a case could now be found on the basis of other factors.
After hearing the parties' submissions on these issues, I ruled as indicated at the outset. The reasons for my ruling are as follows. First, I share the view expressed in the Alternate Chair's January 18 decision that a "dispute about who is the employer cannot be fairly characterized as a status dispute" (at least outside of the construction industry) and that "there is no apparent status dispute in this case". Indeed, this seems to me to be both plain and obvious; status disputes relate to the status of individuals as employees in the bargaining unit. In the words of the Information Bulletin, such disputes "typically focus on whether certain individuals exercise managerial functions, are employed in a confidential capacity in matters relating to labour relations, perform work of a classification that is or ought to be excluded from the bargaining unit or have a sufficient connection to the workplace to warrant inclusion in a bargaining unit"; they do not relate to the identity of the employer of the employees in the bargaining unit. Hence, Information Bulletin #4 clearly did not apply.
Second, whether or not it was "reasonable" for the applicant to believe that the issue that arose in this case was subject to Information Bulletin #4, it was unreasonable for it to fail to so advise the Board in response to its December 4 decision, the responding parties' December 15 letter and, indeed, at any time prior to the regional certification meeting. Given the (at best) highly debatable nature of the proposition upon which the applicant relied, its silence in the face of the Board's December 4 decision and the responding party's December 15 letter was heedless and ill-considered.
Third, the failure to identify the issue as a status issue on the certification worksheet, and the filing of the December 14 letter in apparent answer to the December 4 decision, leaves me in considerable doubt as to the genuineness of the applicant's belief. In the circumstances, it seems to me a more likely scenario that the characterization of the matter as a status issue arose as an ex post facto ttempt to overcome the failure to comply with the Board's December 4 decision.
Fourth, consistent with the Board's recent decision in Associated Contracting Inc., [1998] OLRB Rep. Nov./Dec. 903, I find that ignorance of the Board's practices and procedures is not a sufficient basis for failing to comply with its requirements. As the Board stated in that case:
Even if the Board were to accept that the reason for the delay in delivery was that the applicant had misunderstood the Rules, the Board is not satisfied that such a mistake provides sufficient reason to extend the time. It is difficult to see how the two day delivery requirement in Rule 43cc would continue to have any meaning if an expressed misunderstanding of the relevant Rules would alone be enough to lead the Board to relieve from their requirements. The timing requirement for delivery of a termination application is a matter spoken to directly in the Act. The need for expedition is important enough that it has explicit statutory treatment.
Whether because no reason has been given for the failure to deliver in time, or because the only reason given was a misreading of the Rules, the Board declined to relieve from the requirements of Rule 43cc. Delivery of the application to the union was not therefore made within the time required under the Rules. That requirement is mandatory (absent the Board granting relief from it). An application is only properly made when it is filed and delivered. The consequence of failure to deliver in a timely manner is therefore that an application is not properly made. As the application was not made within the time prescribed by the Act, it was dismissed.
Fifth, although there may be nothing more than "the usual prejudice" to the responding party of uncertainty concerning the disposition of the certification application (a prejudice which is typically thought to be offset, if not well exceeded, by the effects of delay on the trade union and the employees whom it seeks to represent), there is another and, indeed, more general concern that operates here; that is to ensure that parties who come before the Board understand the need to make timely compliance with its decisions (absent a reasonable or plausible excuse) especially in certification applications. The fact that it is the responding party that raises the issue in this case does not weaken this general point; the Board's approach must be the same regardless of the identity of the party raising the objection.
Accordingly, and on the basis of the foregoing, I refused to accept the applicant's late filing.
Finally, I was unable to accept the applicant's submission that a prima facie determination of the identity of the employer either was made or was required to be made by the Board when it issued its decision directing the vote. There is nothing in the statute to that effect and the Board's December 4 decision is entirely to the contrary (see paragraph 7 of the decision set out in paragraph 2 above). Further, I could find nothing in the attendance of the employees at the vote or in any other fact allegedly before the Board that could support such a determination in this case.
In the result, I concluded that the applicant had failed to establish aprimafacie case that the responding party is the employer of the employees in the proposed bargaining unit and, accordingly, the application was dismissed.