Teamsters Local Union 938 v. Mackie Moving Systems Corporation
Teamsters Local Union 938, Applicant v. Mackie Moving Systems Corporation, Responding Party v. Professional Personal Ltd.; 1083859 Ontario Ltd. carrying on business as Adams Services, Intervenors.
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Tim Bartkiw, Randy Doner and Pat Murdock for the applicant; Arthur Tarasuk, M. Watson, S. Sullivan and S. Dunn for the responding party; Alan Brabender for Professional Personal Ltd.; Michael Horan, Randy Adams and Blair McCreadie for 1083859 Ontario Ltd. carrying on business as Adams Services.
DECISION OF THE BOARD; March 28, 2000
1This is an application for certification.
2The primary issue in this matter is whether or not the responding party is the employer of the employees who the applicant seeks to represent. The responding party claims that it is not the employer of the employees, but that the intervenors are, in fact, the respective employers. The intervenors agree with that position.
Preliminary Motion and Reconsideration Request re: The Counting of the Ballots
3At the commencement of the hearing on March 6, 2000, the Board entertained a motion by the applicant (“the union”) to open the sealed ballot box and count all but the eight ballots challenged by the union. Over the objections of the responding party (“Mackie”) and the intervenors, the Board ordered that the ballots be counted, except the eight challenged ballots. The Board did so because the result of the vote might render moot all or some of the issues in dispute; and even if no issues were resolved, there would be no prejudice to the rights of Mackie or the intervenors in this matter by counting the ballots.
4Following the issue of my ruling on this point, a Labour Relations Officer attempted to count the ballots. However, when the ballot box was opened and the envelopes containing each ballot examined, it appeared from the markings made by another Labour Relations Officer who supervised the voting on February 9, 2000 that the union had challenged not eight, but 23 voters. An examination of the certification worksheet filled out by the Labour Relations Officer at the vote indicated that the union, the responding party and the intervenors had challenged all 35 of the voters who voted on February 9, 2000.
5The Board reconvened the hearing to entertain further submissions of the parties. Counsel for Mackie took the position that, in the circumstances, the Board should rescind its previous order, as it was alleged that the union was attempting, in challenging eight voters, to resile from its position at the vote, which counsel Mackie contended was a challenge to 23 voters. The union argued that there was no voters’ list available at the vote (because of the responding party’s position that it was not the employer), and that it therefore, as a precaution, challenged all voters. Regardless of whether it challenged 35 or 23 voters (no one was able to explain why 23 ballots appeared to be marked as challenged by the union), it has since made its position clear regarding the eight challenges, both in its February 15 post-vote submissions and at the March 1, 2000 regional certification meeting. The union argued that in the absence of information which Mackie was in a better position to know and produce, but did not do so, the union could not be accused of resiling in any sense.
6Having considered the submissions, the Board ruled that, in the somewhat confusing and unique circumstances of this case, it did not consider the union to have resiled from its previous position. However, the Board amended its original ruling by specifying by voter name the eight ballots that were to remain sealed and segregated.
7The Labour Relations Officer counted the 27 remaining ballots, and it was determined that more than fifty per cent of the ballots cast by employees in the voting constituency were cast in favour of the union. In fact, the margin of the vote was such that the issue of the eight challenged voters was rendered moot, and is therefore no longer in dispute.
8Following the taking of the vote, the Board resumed the hearing. Counsel for Mackie indicated that he would be seeking a reconsideration of my ruling in respect of counting the ballots. Indeed, on March 13, 2000, the Board received correspondence from counsel for Mackie requesting reconsideration of my ruling. The basis for Mackie’s request is the assertion that two of the eight voters challenged by the union, allegedly for the first time on March 6, 2000, were not among the twenty-three that the union allegedly challenged at the representation vote. Counsel suggests that to allow the raising of new challenges leaves open the possibility of gerrymandering of the voting constituency by a party with knowledge or a perception of how individuals voted. Counsel argues that my ruling regarding the counting of the ballots should be rescinded, the results of the original representation vote vacated, and a new vote ordered.
9It is not accurate to suggest, as counsel for Mackie did in his reconsideration request, that the union’s alleged change of position took place on the first day of the hearing in this matter, March 6, 2000, twenty-eight days after the taking of the representation vote. The fact is that the union clearly and unequivocally made its position known on the eight challenged voters as early as February 16, 2000, in its post-vote submissions, which submissions were, according to the Certificate of Delivery, delivered to the responding party, the intervenors, and their respective counsel on that date. The union consistently maintained this position from February 16, 2000 up to and including the first day of hearing in this matter.
10As indicated above, there appears to be a contradiction between the certification worksheet completed by the Labour Relations Officer at the vote, and the markings on the envelopes containing the ballots. However, at the hearing in this matter, neither Mackie nor the intervenors disputed the union’s assertion that, at the vote, the union challenged all 35 of the ballots cast (as did Mackie, Adams and Professional for that matter) because of the uncertainty created by the absence of a completed voters’ list. A review of the materials filed by Mackie in response to the application shows that it provided no information concerning the identity of individuals in the bargaining unit proposed by the union, on the basis that any such individuals were not employees of Mackie. The union’s assertion is consistent with the Labour Relations Officer’s certification worksheet, signed by all the parties at the vote. In reply to the union’s motion to count the ballots, counsel for Mackie took the position that the best evidence of the union’s voter challenges was to be found on the twenty-three of the thirty-five envelopes containing the ballots. No authority for that proposition was put forward by counsel for Mackie.
11In the circumstances, in clarifying its position concerning eight challenged voters, the union was not attempting to resile from its original position challenging voters for any improper purpose. In the absence of a completed voters’ list, the union, apparently out of an abundance of caution, challenged all the voters. Subsequently, within a week of the vote, it clarified its position, identifying eight challenges, and the rationale behind the challenges.
12In light of the Board’s findings, the premise giving rise to the reconsideration request (i.e. that the union challenged 23 voters, and that two of the eight voters later challenged by the union were not among the original 23 challenges) is faulty. The union challenged all 35 voters, and it did so because Mackie, which was in a better position than the union to obtain and disclose information about the voters, did not do so.
13The request for reconsideration is denied. The vote results stand. However the Board wishes to make clear to the employees who are the subject of this application that the vote results are not finally determinative of this matter. If it is determined that the employees are not employed by Mackie, this application for certification will fail.
Preliminary Motion: Status of the Intervenors
14The Board next dealt with the question of the intervenors right to participate as parties. The union opposed their participation. Counsel for the union argued that the issue in this case is whether Mackie is or is not the employer for the purposes of the certification application. The union is not seeking any remedy as against the intervenors. Furthermore, counsel pointed out, there is no related employer application pursuant to section 1(4) of the Labour Relations Act, 1995 (“the Act”), which would suggest that Mackie and the intervenors are related and a single entity for purposes of the Act. Even if the intervenors are the employer for purposes of other employment-related legislation (and the union did not concede that the intervenors were such employers of the employees who are the subject of this application) that does not confer a right on the intervenors to participate in the instant proceeding which will determine whether Mackie is the employer for the purpose of the application for certification. In any event, counsel argued, merely making bald assertions of being the employer, as the intervenors have done, is not sufficient to ground a right to participate in the proceeding. At best, counsel contended, the intervenors should continue to have notice of the continuation of the hearing and receive copies of any decisions issued in relation to this matter. But they should not be permitted to participate. Counsel referred the Board to a number of decisions in support of its position: City of Pointe Claire (1997), 1997 CanLII 390 (SCC), 146 D.L.R. (4th) 1; Napev Construction Limited and Vepan Leaseholds Limited, [1976] OLRB Rep. Mar. 109; International Brotherhood of Electrical Workers, [1996] OLRB Rep. Feb. 70; Diamond Taxicab Association (Toronto) Limited, [1992] OLRB Rep. Nov. 1143; Surelink Foodservice (SWO) Dist., unreported decision of Arbitrator Kenneth P. Swan (Grievance No. 7274) (September 22, 1999); Ontario Hydro, [1998] OLRB Rep. May 663; Canadian Union of Public Employees v. Canadian Broadcasting Corp. (CBC), 1992 CanLII 108 (SCC), [1992] 2 S.C.R. 7; Diamond Taxicab Association (Toronto) Limited, [1995] OLRB Rep. June 753; Napev Construction Limited, [1979] OLRB Rep. Sept. 886.
15Counsel for the intervenor, Adams, contended that it had a direct, legal interest in this matter because of its alleged legal relationship with the employees who are the subject of the application. Counsel also argued that it had a commercial interest, and that if the Board found that individuals who Adams had always considered and treated as its employees were, in fact, the employees of Mackie, that determination would have a substantial impact on the business of Adams. Counsel for Adams submitted that where an intervenor in a matter such as this claims to be the employer of the employees sought to be represented by a trade union, it should be permitted to participate in the hearing of the matter. Counsel contented that the assertion by Adams that it is the employer of a number of the subject employees in this matter is not a frivolous claim. The Board was referred to the two cases in support of Adams position: Canadian Union of Shinglers & Allied Workers, [1995] O.L.R.D. No. 2505; Alpha Taxi Ltd., [1984] OLRB Rep. Feb. 165.
16Mr. Brabender, the representative on behalf of the other intervenor, Professional Personnel Ltd. (“Professional”), maintained that, like Adams, Professional had a material interest in the issues in this case, the outcome of which could affect Professional’s operation. Mr. Brabender argued that Professional and Adams are in the best position to provide the information concerning its relationship with the subject employees of this application, and that the Board would be in an optimal position to understand the case if the intervenors are entitled to participate as parties.
17Counsel for Mackie supported the status of the intervenors as parties in this matter. Counsel submitted that the de facto issue in this case is not merely whether Mackie is or is not the employer for purposes of the Act, but rather, the issue, in these unique circumstances, is who is the real employer. In this regard, counsel relied on comments from the then Chief Justice of the Supreme Court of Canada, writing for the majority in the City of Pointe Claire case, cited above, where at paragraph 47, Chief Justice Lamer said, “I agree with the more comprehensive approach propose for identifying the real employer in tripartite relationships”. Counsel argued that whether or not the intervenors should be added as parties as of right, the Board has broad discretion pursuant to Rule 48 of the Board’s Rules of Procedure to add or remove parties. Counsel referred the Board to the following cases in support of his arguments: United Parcel Service Canada Ltd. v. Ontario Highway Transport Board et al, [1989] 44 C.P.C. (2d) 213 (Div. Ct.); Damien and Ontario Human Rights Commission, 1976 CanLII 855 (ON HCJ), [1976] 12 O.R. (2d) 262.
18The Board is of the view that, while it is not clear that Adams and Professional should be added as parties as of right, nevertheless this is an appropriate case to grant them party status pursuant to the Board’s discretion pursuant to Rule 48 of the Rules of Procedure. Rule 48 states:
- The Board may direct that any person be added or removed as a party or be sent any document, as the Board considers advisable.
19The Board considers it advisable to include Adams and Professional as parties for the following reasons. The issue in this case remains whether Mackie is or is not the employer of the subject employees of this application for certification. However, given the relationship of Mackie to Adams and Professional – and it does not appear disputed by anyone that there is some kind of relationship between Mackie and the two intervenors – the question of Mackie’s status as employer may be answered in part by determining the nature of the relationship that Adams and Professional have respectively with any of the subject employees in this application. It is true that this could be determined through evidence led by Mackie alone. However, the participation of Adams and Professional as parties on the issue of the identification of the employer, will finally determine that issue for purposes of the Act, including future certification applications, if any, involving Mackie, Adams, or Professional and the subject employees of this application.
20The Board is not convinced that the participation of Adams and Professional as parties will unduly delay completion of the case, and thus prejudice the union or the employees. In response to questions from the Board, counsel for Adams estimated that its evidence might take up to two days of hearing in chief, and the representative for Professional indicated his belief that his evidence might require a day of hearing in chief. A review of the post-vote submissions of Mackie and the union suggest that there is a very substantial number of material facts in dispute concerning the usual indicia of an employer-employee relationship. It would appear that these disputes will require the calling of considerable evidence, including evidence regarding the roles that Adams and Professional play vis-a-vis the subject employees of this application. In the circumstances, the participation of Adams and Professional as parties will not likely unduly lengthen the hearing of this matter.
21Having said that, the Board wishes to make it clear that the participation of the intervenors as parties is not unlimited. Their participation will be limited to calling evidence, cross-examining on and making submissions concerning the nature of their business and the relationship that they have with Mackie and with any of the subject employees of the application. They are not permitted to raise other issues or objections in connection with the certification application. For example, they are not entitled to raise issues, objections, call evidence, or make submissions concerning the bargaining unit proposed by the union in this matter, or the number of employees that fall within that bargaining unit, or with respect to any alternative bargaining unit that the intervenors may feel is appropriate. Nor are the intervenors entitled to challenge the status of the employees who are the subject of the application.
22The Board directs that Adams and Professional be added as intervenor parties in this matter. Adams is directed to file and deliver its intervention on or before April 13, 2000. Professional is directed to amplify its filed intervention by stipulating all material facts regarding its assertion that it is the employer of one or more of the individuals who are the subject of this application.
Preliminary Motion: Order of Proceeding
23At the conclusion of the first day of hearing, the Board discussed with the parties how the issue of the order of proceeding in this matter might be resolved. The union had, prior to the commencement of the hearing, filed written submissions which assert that Mackie should lead its evidence first. These submissions were made on the union’s view that Adams and Professional should not be permitted to participate as parties. Counsel for Adams, during his submissions on the issue of intervenor status, offered to put his case in first, if afforded party status. In any event, all the parties agreed that the issue of order of proceeding could be dealt with by the Board through the filing of written submissions after the issue of this decision, and prior to the next hearing date to be scheduled.
24The Board directs the parties in this matter to provide to one another and to the Board written submissions concerning the order of proceeding. These submissions are to be provided on or before April 20, 2000.
Production of Documents
25Finally, counsel for the union raised the prospect of requiring production of documents. It was common ground that prior to the first day of hearing, the union had served each of the intervenors with a subpoena duces tecum. Now that the Board has granted party status to the intervenors, it may be that a party will seek from another party production of documents relevant to the issues in dispute. To ensure the efficiency of the hearing in this matter, any party requiring production is directed to make reasonable request of another party for production of documents on or before April 20, 2000. To the extent the party requested to produce has any objection to any part of such a timely request, that party is directed to provide to the Board and the requesting party the basis for such objection. That objection is to be provided on or before May 4, 2000, and the Board will provide further direction. To the extent there is no objection to a part or the whole of any request to produce, the party requested to produce documents is to produce those documents to which it has no objection on or before May 11, 2000. Should the parties mutually agree to another acceptable procedure for production, they may depart from the procedure set out by the Board in this paragraph.
26Mackie, Adams and Professional are directed to post a copy of this decision at a location within their respective workplaces where it is likely to come to the attention of any individuals affected by this application for a period of 30 days from the date of decision.
27This matter is referred to the Registrar in order to schedule dates for the continuation of the hearing.
28I am seized.
"Patrick Kelly"
for the Board