[1999] OLRB REP. NOVEMBER/DECEMBER 378
2791-98-R; 2846-98-R United Steelworkers of America, Applicant v. CFM Majestic Inc., Responding Party
Certification - Union withdrawing earlier certification application after employer disagreed with union's estimate of number of employees in bargaining unit and gave notice under section 8.1 of the Act - Pursuant to section 8.1, employer asserting that there were 475 employees in unit - Union's application withdrawn one day after Board ordering representation vote - Union filing new certification application on same day that earlier application withdrawn - Form A-4 filed by union in new certification application indicating that there were 475 employees in union's proposed bargaining unit - Employer asking Board to impose bar on future certification applications under section 7(9) as condition of permitting union to withdraw earlier application -Board declining to impose bar
BEFORE: Timothy W Sargeant, Vice-Chair.
APPEARANCES: Michael Horan for the employer; Paula Turtle for the Union.
DECISION OF THE BOARD: June 28, 1999
File 2791-98-R is an application for certification (the "first application"). File No. 2846-98-R is also an application for certification (the "second application").
In a decision dated May 12, 1999 the Board decided that the applicant was permitted to withdraw the first application without any conditions and therefore without a bar to the second application.
In that decision the Board indicated that full reasons for the decision would be provided in due course to the parties.
This decision sets out the full reasons for its decision issued orally on May 11, 1999 and confirmed in writing on May 12, 1999.
The first application was received by the Board on November 16, 1998. In that application the applicant indicated that there were 350 employees that the applicant believed to be in the proposed unit. A response to this application was received by the Board on November 18, 1998 which invoked section 8.1 of the Labour Relations Act, 1995 (the "Act"). In that response the responding party indicated that there were 475 employees in the proposed unit. The form A-4 filed in support of the application indicated membership evidence on behalf of 180 persons, and alleged there were 350 persons in the proposed bargaining unit.
On November 19, 1999 the Board ordered that in regards to the first application that the vote be held on November 23, 1999, but "having reviewed the material filed, the Board directs that the ballot box should be sealed until the parties agree or the Board otherwise orders".
On November 20, 1998 the applicant, in a letter received by the Board on November 20, 1998, sought to withdraw the first application. Subsequent to the receipt of this letter from the applicant, on November 20, 1998 the Board received the second application (Board File No. 2846-98-R).
In the second application the applicant indicated that there were 350 employees in the proposed unit. The A-4 form however, indicated there were 475 persons who were employees of the responding party in the proposed unit.
As noted in the earlier decision dated May 12, 1999:
On November 23, 1998 the Board issued a further decision in regards to the two applications in Board File Numbers 279 l-98-R and 2846-98-R. The Board noted in that decision that the responding party "seeks the suspension of the Board's consideration of the second application, pending the Board's determination of the conditions, if any, of the Board's leave to withdraw the first application".
The Board did not accede to this request and processed the second application.
It was left to this panel, however, to determine what if any conditions should apply to the leave to withdraw the first application.
At the hearing held on May 11, 1999 to consider whether the conditions should attach to the withdrawal of the first application, the Board heard from one witness Mr. Brando Paris ("Paris").
Mr. Paris testified that he has been an organizer for close to fifteen (15) years. He indicated that if interest is shown by employees in the union, he first tries to set up a meeting with two or three employees and establish them as an inside committee. In regards to collecting membership cards he tells such employees "what to do and what not to do". The campaign then starts. Mr. Paris tries to the best of his ability to determine the number of employees at the location in question. When he feels he has support of 60% of such individuals he applies to the Board for certification.
In relation to the campaign with this employer ("CFM") Mr. Paris testified he received a phone call from an employee that the employees wished a union at CFM. At the time he was told there were between 300 and 350 employees working at CEM - about 300 employees, 80 additional employees from hiring agencies (temporary employees). Out of this number he understood 30 to 35 were supervisors.
Mr. Paris set up a first meeting for Saturday, October 31, 1998 at the Mississauga office of the applicant. He was surprised when 12-16 employees showed up - as he only expected 3 or 4 employees. He had never seen so many employees at a first meeting. Again, he inquired about the number of employees and was given the information again as set out in paragraph 12 above - i.e. 350 employees approximately. He asked the employees present to count the punch time cards.
Three or four days later another meeting was held. Again Mr. Paris was surprised when 60 to 70 people attended. Again, he was told there was approximately 350 employees at the location.
Mr. Paris testified that during the campaign he had never seen membership cards signed so quickly. In the circumstances he filed the first application for certification on November 16, 1998. When asked on cross-examination why he did not wait until he had membership evidence of 60% as was his practice, Mr. Paris replied because of the momentum in this campaign and the number of calls he was receiving he felt he should apply for certification. He was always confident that the union would be successful in any vote ordered.
Mr. Paris testified that the campaign still continued after the filing of the first application. Indeed some cards submitted in the second application had been procured between the date of the first application and the date of the second application. When cross-examined that such additional cards would provide a better chance of wining a subsequent vote, Mr. Paris was adamant that he never had any question in his mind from the outset of the campaign that the applicant would be successful in a vote. In his view this was only an indication that the "win" was even going to be bigger than he first thought.
When Mr. Paris received the reply to the first application he "almost fell off [his] chair" when he saw that the employer had indicated 475 as the number of employees in the proposed unit.
Mr. Paris investigated the matter with employees at a meeting. He was told that certain individuals on the list of employees submitted by the employer in its reply to first application did not work there, were supervisors or were located in the office area.
Nevertheless given the support for the Union, Mr. Paris decided to withdraw the first application because in his words "we didn't want 8.1 protracted litigation". The applicant therefore withdrew the first application and reapplied (the second application) with 20 or 30 additional cards the applicant had subsequently obtained. Even after the second application was filed the applicant continued to sign more membership cards until the voting day.
Mr. Paris testified he was never worried about losing a vote. Such a concern never formed part of his decision to withdraw the first application. His intention was always to avoid section 8.1 litigation.
When cross-examined as to why the application for the second application listed 475 employees in the A-4 form and yet 350 in the application itself, Mr. Paris indicated the application should have listed 475 employees.
When asked why he would submit 475 employees as the proper number when he felt the number was inflated, Mr. Paris indicated that he wished to avoid long hearings on the issue, and was satisfied that the applicant would be successful in any vote - that he knew the Union "would win big".
The employer argued that in circumstances a bar should be imposed on the withdrawal of the first application. In counsel's submissions the applicant used the days between the withdrawal of the first application and the day of the vote ordered in the second application to strengthen its position because it was worried about a defeat in the forthcoming vote. Counsel argued that you would expect Mr. Paris to deny this as the real reason, but on Mr. Paris' own evidence he had not followed his usual procedure of filing a certification application with 60% support, and continued to obtain additional support during the period of time from the filing of the first application to the date of the vote ordered in the second application.
Counsel for the employer argued that under the previous legislation certification was based on a card-based system, whereas now certification is based on a vote based system. The legislation now contemplates a quick vote, five days after the application. There are now four sections in the Act which impose a bar: 1) section 7(8) - under this section counsel points out that a Union is not allowed to withdraw a certification application as a right 2) if withdrawn before the vote then according to section 7(9) the onus is on the Union to demonstrate why a bar of a year should not be imposed 3) section 7(10) imposes a mandatory bar of one year after the vote has been taken and the application is withdrawn and 4) section 10(3) - if the Board dismisses an application under section 10 a bar of one year is imposed. In counsel's submissions the intention of the legislation is clear, if the applicant withdraws an application for certification, a bar, in the normal course, will be imposed. There are no more "free" withdrawals.
Counsel for the employer submits that when section 7(8) is read with section 7(9) in instances such as before this Board, though the language does not compel a bar it certainly implies a bar. Counsel asks rhetorically why have section 7(9) in the Act otherwise, when section 7(8) is already there.
Counsel for the employer submits the action of the Union in this instance was just an excuse to get an extension of the five day time limit to conduct a vote after an application is filed. In this case the applicant in effect had 10 days from the date of the first application to the date of the vote. Thus the applicant did indirectly what it could not do directly. The applicant should not be allowed to "get away with" such a procedure and in essence avoid the legislative scheme.
Counsel for the applicant submitted that no bar should be imposed, as it does not make labour relations sense. Counsel submitted there is a discretion given to the Board and in her view it was never the intention of the legislation that a bar be imposed in these circumstances. There is no evidence that the withdrawal of the first application and filing of the second application was either frivolous or vexatious. There is no evidence that the employer was prejudiced by such action.
Counsel for the applicant submitted that the case law supports the proposition that a bar should not be granted unless the applicant had withdrawn the first application because it was seeking to avoid a defeat at the polls. Clearly the evidence in this instance does not support such a finding. Mr. Paris testified the applicant was always confident it would win any vote. It had only withdrawn the first application to avoid protected litigation under section 8.1 There is no reason not to accept such evidence. Section 7(9) does not mandate a bar in these circumstances, and the Board should not, given the facts of this situation, impose a bar on the withdrawal of the first application.
During the course of argument counsel for the employer and counsel for the union referred to a number of cases including: Mathias Quellette 56 CLLC page 18,026; Sara Lee Bakery Canada [1996] OLRB Rep. May/June 480; Shoppers Drug Mart [1996] OLRB rep. March/April 303; Mor-Alice Construction Limited [1977] OLRB Rep. October 668; A-i Rent-A-Tool Ontario Ltd. [1995] OLRB Rep. January 1; Amarcord Carpenters Ltd. [1989] OLRB Rep. June 531; Koehring Canada [1986] Rep. Nov. 1530; Dryden District Roman Catholic Separate School Board [1996] OLRB Rep. Jan. 1, and Marks & Spencer Canada Inc. a decision dated March 26, 1999, File No. 4306-98-R.
DECISION
The Board is satisfied on the evidence presented that the first application was not withdrawn because the applicant was seeking to avoid a defeat at the polls, or trying to manipulate Board procedure in order to have an extension of the five day limitation period to conduct a vote. In such circumstances I ruled orally on May 11, 1999 (confirmed in writing in a decision dated May 12, 1999) that I was not prepared to exercise my discretion and impose any conditions on the withdrawal of the first application. The first application was withdrawn prior to any vote being taken. Thus there is no mandatory bay imposed. The matter is then a discretionary one and given the Board's view of the evidence, the Board was not prepared to exercise that discretion and impose a bar on the withdrawal of the first application.
I am supported in this conclusion by a recent decision of the Board. In that decision the Board considered whether a bar should be imposed on a withdrawal under subsection 7(9) of the Act. On this issue in Baron Metal Industries Inc., [1999] OLRB Rep. May/June 363 the Board stated:
The union withdrew its second certification application once it had received the employer's response. It acquired a copy of the employee list and it then submitted its third certification application. Presumably it checked its membership evidence against the employer's employee list and it determined from the list the names of the persons whom it regarded as being employees. It then gave a different (a larger) number of employees as its estimate of the number of employees in its proposed bargaining unit than it had given in its second certification application. The employer regards the union's action as being an abuse of process which should warrant the imposition of a bar on the third application.
Under subsection 7(9) of the Act, the Board has a discretion to impose a bar on a certification application which is withdrawn prior to the holding of a representation vote. The Board has, on several occasions, determined that if a certification application is withdrawn in the face of certain defeat (such as is contemplated under subsection 7(tO) which has a mandatory bar), or if the withdrawal and subsequent application together constitute an abuse of the Board's processes or amount to harassment of the employer or are disruptive of the working relationship between the employer and its employees, the Board will exercise its discretion and impose a bar. The Board has, in Sara Lee Bakery Canada [1996] O.L.R.B. Rep. May/June 480 considered the situation in which a certification application follows on the heels of an earlier application. At paragraph 46, at page 487, the Board stated:
- 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 abut 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 union's first certification application is irrelevant to my consideration of whether a bar should be imposed following the withdrawal of the second application. The union complied with the burden imposed upon it when it lost the representation vote which was ordered in that application. It was barred from making a new application and it complied with that bar. That bar is analogous to a sunset clause in a collective agreement -when the period has expired, there is a "washout" of the prior conduct.
The union withdrew the second application upon receipt of the employer's response, which included a challenge to the union's estimate of the number of employees in its proposed bargaining unit and a notice under section 8.1. of the Act. As stated in Sara Lee Bakery, a union has a limited capacity to make an accurate assessment of the number of employees in its proposed bargaining unit. It cannot itself check the information given to it by the employees who support its efforts to be certified. It must rely upon their information until it is able to receive the information provided by the employer in its response. In this case the union relied upon the information it had obtained in the first certification application. It was only after receiving the employer's response in the second application that it was apprized of the change in circumstances. The information showed that the union's initial impression of the number of employees in its proposed bargaining unit was inaccurate and it chose to amend it. Such clarification, particularly in the context of a further certification application which follows quickly thereafter, as in this case, suggests a bonafide attempt to provide the Board with accurate information and to avoid unnecessary litigation.
I do not find the union's second certification application to be a mere reconnoiter to determine the lie of the land, without a serious intention to proceed further. The union showed that was not the case when it immediately launched a fresh application. The third application was not an abuse of process - on the contrary, it appears more to have been an attempt to perfect an application which the union found, on being better informed, to be factually incorrect.
The employer suggests that in a vote-based system, as opposed to a card-based system under which the Board's jurisprudence in this area was developed, a withdrawal after receipt of the employer's response is tantamount to a recognition that the union could not win the vote, and hence a bar should be imposed. That view is not borne out by the facts in this case. The union did not withdraw the second certification application and then proceed no further. It withdrew only to correct its estimate of the number of employees in its proposed bargaining unit. That suggests a desire to provide the Board with accurate information, not an endeavour to avoid a defeat at the poll.
In all of these circumstances, this is not an appropriate case to impose the discretionary bar contemplated under subsection 7(9) of the Act.
- For these reasons the Board decided that the applicant was permitted to withdraw the first application without any conditions and therefore without a bar to the second application.