3275-99-R Ontario Public Service Employees Union, Applicant v. Complex Services Inc. c.o.b. as Casino Niagara, Responding Party.
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Richard Blair and Pat Honsberger for the applicant; Simon E.C. Mortimer and Bruce Caughill for the responding party.
DECISION OF THE BOARD; April 28, 2000
The style of cause is hereby amended to reflect the correct name of the responding party: “Complex Services Inc. c.o.b. as Casino Niagara”.
This is an application for certification.
A representation vote was held in this matter on February 14, 2000 pursuant to a decision of the Board dated February 10, 2000. The representation vote was held in a bargaining unit comprised of security guards employed by the responding party (the “casino”). A majority of employees in the bargaining unit (the “security guards”) voted in favour of the applicant Ontario Public Service Employees Union (“OPSEU” or the “union”).
The casino has two objections to the application. First, it says that the Board ought not to hear the application because OPSEU is not a supplier registered under the Gaming Control Act and therefore it cannot be certified as the bargaining agent for the security guards. Second, the casino objects under section 14 of the Labour Relations Act, 1995 to OPSEU bringing this application because, the casino asserts, the certification of this bargaining unit would place these security guards in a conflict of interest. The union reply to the casino’s first argument is to acknowledge that it must be a registered supplier under the Gaming Control Act prior to being certified by the Board, but that obligation does not pertain until the trade union is actually in a position to be certified. The union asserts that the Board should therefore delay issuing any certificate in this matter, once the union is in a position to be certified, until it has obtained the necessary supplier registration. The union also asserts that if it were to be certified to represent the security guards that would not result in a conflict of interest and therefore the casino’s objection under section 14 of the Labour Relations Act, 1995 must be rejected.
A hearing was held on April 25, 2000 to consider these issues. At the commencement of the hearing the parties indicated that they would be arguing a number of preliminary issues prior to dealing with the merits of the casino’s objections. The first preliminary issue was the casino’s request that this application be adjourned pending a decision by the Alcohol and Gaming Commission with respect to OPSEU’s application to be registered as a supplier under the Gaming Control Act. The parties also each sought orders respecting production of documents and direction as to which party will be required to proceed first on the hearing of the issue under section 14 of the Labour Relations Act. This decision deals with all of these preliminary issues.
The Board first considers the casino’s adjournment request.
There is no dispute that before the applicant can be certified as the bargaining agent for the security guards (assuming that certification is appropriate under the Labour Relations Act) it must become a registered supplier in accordance with the Gaming Control Act. In this regard, section 4(1.2) of that Act states:
In addition to any provision of the Labour Relations Act, 1995 no trade union within the meaning of that Act shall represent persons employed in gaming premises unless the trade union and such of its officers, officials and agents as are prescribed by the regulations are registered suppliers.
The Act and its Regulations detail the steps that a trade union and its officers agents and officials must fulfill in order to become a registered supplier. An applicant for registration must pay a fee and be the subject of an investigation by the Alcohol and Gaming Commission. In addition, there may be a hearing to determine whether a supplier should be registered. The purpose of these requirements is to ensure the integrity of gaming in Ontario.
OPSEU applied for registration on April 20, 2000, nearly 6 weeks after it made this application for certification. It is uncertain how long it will take for OPSEU to become a registered supplier assuming that the Alcohol and Gaming Commission approves its application. However, it is fair to say, as the casino asserts, that registration is not automatic and may take weeks or months or perhaps longer.
The casino’s argument for adjourning this application was primarily that this application must be dismissed if OPSEU’s application for registration is unsuccessful. It would therefore be prudent to adjourn this hearing; otherwise the casino and the Board might expend resources on proceedings that may, as a result of an adverse decision by the Alcohol and Gaming Commission, be moot. The casino notes that the union is not presently in a certifiable position due to the requirements for registration. Moreover, the casino may be placed in the position of having to turn over sensitive security documents to the union as part of its disclosure in this application when the union is not a registered supplier and may never become one. The casino relies on Surex, [1992] OLRB Rep. May 642 where the Board adjourned an application under the first contract provisions of the Labour Relations Act, 1995 pending a decision by the Minister of Labour regarding whether the employer in question was covered by the Hospital Labour Disputes Arbitration Act. In that case the Board held :
Whether or not to defer to the process under the HLDAA at this stage of the proceedings is a matter in the Board’s discretion. We are not currently without jurisdiction to proceed as there has been no determination that the respondent is a hospital. We are not of the view that the union’s application under HLDAA warrants the dismissal of this application for abuse of process. Rather, we decided the interests of both sides could best be served by adjourning the matter and did do on April 24, 1992. Given the original estimate that it would take three days to complete the matter, the overwhelming balance of convenience favoured the adjournment to the dates that were available around the previously set June date. This is because the matter could be finished in approximately the same time frame and the possibility existed that the Minister’s decision would be available prior to the next scheduled date. The question remaining however, is whether the matter should proceed on June 11 in the event that the Minister has not yet released its decision. If the Minister has released a decision that the respondent is not a hospital it is clear that the matter should proceed on June 11. If the decision is that the respondent is a hospital, the June 11 hearing should not proceed. The union has undertaken to withdraw the application in that event.
We have considered the union’s argument that the employer has waived its right to object or is estopped from so doing. We do not agree that the facts support such a conclusion. There was no evidence that the employer had made any representation as a basis for the estoppel. Even if there were, it is doubtful that the detrimental reliance necessary to support an estoppel is present here. Although it is true that some arrangement might have been possible had the employer raised the matter earlier, this is not a detriment akin to those in the cases on waiver or estoppel, including Regency Towers, supra. It is not the loss of an opportunity to satisfy a legal requirement, the loss of a right, or even the loss of an opportunity to raise something in collective bargaining that is at issue here. Nor is it akin to waiver of a defect in a grievance by treating it on its merits subsequent to the defect for example, by making submissions to the Minister on the HLDAA application. It is at most a postponement of the union’s right to pursue its rights under the Labour Relations Act or the HLDAA.
We are not aware of any decision of the Board directly on point in this unusual set of circumstances. Normally, an application under section 41 is handled in the most expeditious manner possible because of the legislative intention for speed that is expressed in the time limits in that section. However, and obviously, in the absence of good reason, it is not advisable to embark upon a proceeding, especially a lengthy one as this may be, which could well be a nullity. In considering this matter, we note that it is the applicant that is the author of the current situation. It waited almost 11 months after certification to have the matter of the respondent’s status under the HLDAA determined. Where it is the applicant who has changed its view of the appropriate governing legislation after having filed the section 41 application, we do not think the factor of expedition in hearing the section 41 application should weigh as heavily as it otherwise would.
This matter was originally estimated to take three days to hear. At the hearing of this matter in April, employer counsel was of the view that it could take considerably longer than that. Several days of hearings represent a considerable investment of public and private resources in themselves, beyond what has already been spent in preparation of this matter. Adversarial proceedings of any kind are not necessarily helpful to a collective bargaining relationship, even the most mature one, especially if they turn out to have been for nought. In the circumstances of this case, we do not see sufficient reason to embark on a hearing that may be a nullity. Different considerations might well apply if the Board had started the hearings, or there were other countervailing factors not present here.
The casino also argued that it would be difficult to proceed unless and until the union is registered because the casino is prohibited by the Gaming Control Act from entering into any contracts with organizations who are not registered as suppliers. Therefore, the casino could not settle any matters with the union and perhaps could not agree to anything procedural in nature, which would adversely affect the efficient running of the hearing.
The union argued that it would be harmed if this proceeding were adjourned. Any delay in the hearing will only add to the delay caused by the difficulty in scheduling expeditious hearing dates at the Board. The union relied on the labour relations axiom that labour relations delayed are labour relations denied. OPSEU is concerned that its support will erode if these proceedings are delayed. As for the casino’s other concerns, the union argued that they could be resolved. Any document disclosed as part of pre-hearing production could be subject to the requirement that they only be used for the purposes of this litigation. Moreover, OPSEU was in the same position as anyone else who engages the casino in litigation. If a casino patron were to sue the casino, documents would have to be disclosed as part of that litigation even though the patron was not a registered supplier. Finally, even if the casino is precluded by the Gaming Control Act from dealing with OPSEU in any way, any procedural issues could be dealt with by Board order.
The Board’s general practice is to refuse to adjourn a hearing in the absence of the agreement of the parties or compelling reasons. Having said that, I am satisfied that the casino’s adjournment request arises out of legitimate concerns and is not simply an effort to delay proceedings. In determining whether this application should be adjourned the Board must balance the casino’s interests and the protection of the Board’s scarce resources against the right of the employees and the trade union to have expeditious resolution of the issues surrounding this application for certification. As the Board discussed in Royalguard Vinyl Co., [1994] OLRB Rep. June 775 applications for certifications must be dealt with expeditiously:
In contrast, the harm to the union of staying the Board’s certification is considerable. As the Board observed in Loeb Highland, both the Board and the Courts have recognized the corrosive effects of delay in labour relations:
Moreover, both the Board and the Courts have long recognized that delay poses special problems in labour relations matters. In Consolidated-Bathurst Packaging Ltd. v. I.W.C., Local 2-69 (1984) 2 O.A.C. 277, the Court noted:
… there is a fundamental principle of labour law that injustice and detriment to the labour relations of an employer and employee will result if the process is delayed. In my opinion, it is fair to say that the thrust of jurisprudence not only in the Board but in the courts may be summarized by saying:
In the law which has grown up around labour relations in this province and indeed elsewhere where the common law is pursued, the overriding principal invariably applied is that labour relations delayed are labour relations defeated and denied: The Journal Publishing Company of Ottawa Ltd. v. The Ottawa Newspaper Guild, Ont. C.A. released May 17/77 (unreported) [since reported [1977] 1 A.C.W.S. 817 (Ont. C.A.)].
Similarly, in Re United Headwear and Biltmore/Stetson (Canada) Inc. (1983), 1983 CanLII 1852 (ON HCJ), 41 O.R. (2d) 287, the Court commented that delay in labour relations matters often works unfairness and hardship. To some extent then, the Board must ensure that delay does not in itself decide a case.
This is particularly so in certification cases. In Bemar Construction (Ontario) Inc., [1992] OLRB Rep. May 565 the Board made these comments:
It is now well established that “time is of the essence” in certification matters – especially in the construction industry where commercial activity and employment opportunities are transitory. In the words of Estey, C.J.O. (as he then was), the “overriding principle invariably applied, is that labour relations delayed are labour relations defeated and denied” (see Journal Publishing Company of Ottawa Limited v. Ottawa Newspaper Guild, et al [unreported March 31, 1977, Ontario Court of Appeal]. In Hotel and Restaurant Employees et al v. Nick Masney Hotels Limited, (1970) 70 CLLC ¶14020, Laskin, J.A. put it this way:
“The Ontario Labour Relations Board deals in certification matters with fluent situations which cannot be judged by the more leisurely standards that operate in the prosecution of a claim for damages for a tort or for a breach of contract, where the situation is fairly well frozen when the tort or the breach of contract has occurred. Expedition is important to the union, to the employees, and to an employer, and certification is merely the first step of a laborious collective bargaining process”.
This proceeding involves a certification application, as well as an application under section 126 of the Act; moreover, the Legislature has itself indicated the need for expedition in section 126 proceedings by prescribing that the Board must hold a hearing within fourteen days of the filing of such applications.
(See also Hawk Security Systems Ltd., [1993] OLRB Rep. Aug. 751, Pinkerton’s of Canada Ltd., [1989] OLRB July 783 and Canada Dry Bottling Company (Kingston) Ltd., [1978] OLRB Rep. Nov. 976.)
The Board has recognized that the economic dependency of employees on their employer makes a union organizing drive a relatively fragile enterprise. Employees who perceive their employer as hostile or resistant to unionization may be apprehensive about taking steps which may alienate the source of their livelihood or those who control their working conditions. In this context, delays in the certification process can erode employee support for collective bargaining by suggesting to them that it represents a risk without benefits. They may also prolong a period of uncertainty involving considerable tension in the workplace. As the Board noted in A & L Canada Laboratories East, Inc., [1992] OLRB Rep. Sept. 983, delay in certification cases is measured in days rather than weeks or months because of its potential to undermine the appetite of employees for collective bargaining. For this reason section 6(2) of the Labour Relations Act specifically provides an interim certification power in certain cases pending the conclusion of the certification litigation. The Board has also developed sophisticated pre-hearing procedures in certification applications to provide for their expedition, together with a fast track for hearing them, along with other time-sensitive cases. There is little doubt that this is an area where the Board must be constantly vigilant that cases are determined on their merits, rather than by delay.
While I agree with the employer that it is not certain that OPSEU will become a registered supplier under the Gaming Control Act, I am also satisfied that OPSEU will likely succeed before the Alcohol and Gaming Commission. In this regard I note that the Canadian Autoworkers Union is a registered supplier and there is nothing before me to suggest that any different result would apply to OPSEU. It is therefore not certain that they will become a registered supplier, but it appears likely.
I also agree that the concerns raised by the casino regarding document production and resolution of procedural issues can be overcome. In this regard I note that OPSEU should be in no different position than any other party that engages the casino in litigation. I am also satisfied that any concerns regarding the efficient conduct of the hearing are manageable.
I must balance the relatively unlikely chance that OPSEU will be denied registered supplier status against the imperative for expedition in certification cases. I am of the view that the circumstances of this case are more akin to a party’s request for an adjournment so that it may seek judicial review, where the Board almost never grants such an adjournment, than they are to the circumstances which were before the Board in Surex. Under these circumstances, I am not inclined to adjourn this application.
As for production of documents, having considered all of the arguments advanced by the parties I hereby order production of the following:
By the Casino:
Any policy manuals, administration manuals, employee training manuals, or procedural manuals touching on the duties or functions performed by Security Guards.
Job descriptions which relate to the duties performed by Surveillance Officers. OPSEU will be permitted to renew its request for more full disclosure of surveillance information during its cross examination of casino witnesses.
Any Security Department policy manuals, employee training manuals, or procedural manuals, training material, instructional material relating to the duties or expectations of Security Guards.
Any and all security reports, incident reports, or occurrence reports made or completed by the Security Guards relating in any way to the conduct of employees of the casino, whether or not resulting in disciplinary action against any employee of the casino, for a period commencing December 1, 1999 until the date of this decision.
Any and all memoranda or internal correspondence relating in any way to the duties of the Security Guards.
Any job descriptions, position descriptions, or similar documentation relating in any way to the duties of Security Guards.
By OPSEU:
Cases and records of all OPSEU disciplinary decisions involving issues of membership obligations under OPSEU’s constitution and oath which arise out of the performance of workplace duties. The member’s name can be obscured.
List of work sites/bargaining units where OPSEU represent guards and non-guards and date of certification.
All written communication between OPSEU and casino employees generally including, but not limited to, pamphlets, mailings, and leaflets. Written communication that is not for distribution to the general population of Casino employees need not be produced.
Any current or past union discipline proceedings under OPSEU’s constitution or oath arising out of the performance of workplace duties against any member of the Alcohol Gaming Commission of Ontario bargaining unit.
Organizational charts, policy manuals, administration manuals and other materials which will, inter alia, demonstrate the structure of the union and the practice with respect to decision making at the local and provincial level (grievances, arbitrations, negotiations, etc.).
To the extent they are in OPSEU’s possession or control, job descriptions, position descriptions, procedural manuals and the like for OPSEU represented investigators at the Ontario Human Rights Commission, the Ministry of Labour and guards at the Metropolitan Toronto Housing Authority.
All of these documents must be produced subject to the Order that they be used for any purpose other than in connection with this litigation and not disclosed to any person who does not have a direct interest or material involvement with this litigation.
Finally, I turn to the order of proceeding. The casino relied on the provisions of section 14 of the Act which provide that once an employer makes an objection that the application to represent security guards will result in a conflict of interest the onus is on the trade union to satisfy the Board that no such conflict exists. The casino distinguishes Burns International Security, [1997] OLRB Rep. Jan./Feb. 1, where in similar circumstances the Board directed the employer to proceed first. The casino argues that unlike in the Burns case, it has and will provide particulars of its concerns to OPSEU and therefore the applicant is and will be aware of the casino’s concerns and knows the case it has to meet.
While I accept that the casino is right that the trade union may be able to call evidence on the objections specifically raised by the casino, I am also satisfied that proceeding in that fashion would result in a much lengthier hearing than if the employer were to proceed first. The casino has pleaded, among other things, that over a three month period the security guards prepared 29 incident reports involving other employees. That may mean that at the hearing into this matter, were it be required to proceed first, the union will have to call 29 witnesses (more or less) to give evidence about those incidents. On the other hand, it is the Board’s experience that in these types of cases if the employer proceeds first, the casino may have to call only one or two witnesses to explain its concerns and in doing so citing the 29 incidents. The union can then cross-examine the witnesses to extract information that it requires and to highlight areas of disagreement. The union can then call its own evidence with respect to the areas of disagreement which will likely be relatively brief.
As the master of its own procedure the Board has the discretion to determine the order of proceeding. In this case one method of proceeding will probably result in an extended hearing while the other will likely lead to the efficient revelation of the facts that the Board requires to determine the complex issues which arise in this case. Accordingly, the Board directs that the casino proceed first.
The matter is referred to the Registrar. The parties are directed to contact the Registrar to schedule hearing dates. I am seized.
“Brian McLean”
for the Board