Teamsters Local Union No. 419 v. Supply Chain Management Inc., 2000 CanLII 12398

File No.: 2841-99-R Date: March 27, 2000

Between: Teamsters Local Union No. 419, Applicant v. Supply Chain Management Inc., Responding Party.

Before: David A. McKee, Vice-Chair.

1By decision dated February 21, 2000 the Board directed the applicant, within fifteen days, to clarify its position with respect to challenges to the list of employees in the bargaining unit in this application. The decision concluded:

If the applicant fails to do so by that date, the list submitted by the responding party will be deemed to be accurate and this application will be dismissed pursuant to paragraph 7 of subsection 8.1(5).

2By letter dated March 8, 2000 the applicant has indicated that it will not be filing any further information in this application. By virtue of the February 21 decision, this amounts to an acceptance of the list of employees filed by the responding party, perhaps subject only to the 27 names challenged at the time of the vote. On this basis, it is apparent that the union has filed membership evidence in respect of less than forty per cent of the persons in the bargaining unit.

3The responding party has written to the Board requesting that the Board exercise its discretion under section 111(2)(k) of the Act to refuse to consider another application for certification for a twelve-month period. That is, the responding party asks the Board to impose a "bar" on further applications for certification by the applicant for a period of one year. The use of a "bar" has changed over the years, along with the statute itself. The Labour Relations Act, 1995 changed the Board's practice under the previous statute by legislative direction. Bars were to be imposed more frequently and automatically. In 1998, by "Bill 31" (S.O. 1998, ch. 8) the legislature refined the use of the bar further. The legislature was apparently concerned that trade unions were filing applications for certification, knowing full well that they had less than forty per cent of the bargaining unit as members but hoping to take their chances in a subsequent campaign leading up to the vote. Section 8.1, which was introduced in 1998, was intended to prevent this from happening and to enable a responding party to litigate the issue of whether or not the trade union was entitled to bring the application at all, rather than simply determining the application on the basis of the results of the vote. As part of this change, the legislature directed its attention specifically to the issue of the consequences of a finding that the trade union lacked the necessary forty per cent support to make the application. If the employer is ultimately successful in demonstrating that the union lacked forty per cent of the bargaining unit as members on the day it made the application, paragraph 7 of section 8.1(5) provides as follows:

If the percentage determined under paragraph 6 [i.e. the percentage of the bargaining unit who were members of the union on the application date] is less than 40 per cent, the Board shall dismiss the application for certification and, if the ballot boxes were sealed, the Board shall direct that the ballots be destroyed without being counted.

Further, section 10 was amended to provide as follows:

(3) If the Board dismisses an application for certification under this section, the Board shall not consider another application for certification by the trade union as the bargaining agent of the employees in the bargaining unit until one year has elapsed after the dismissal.

(4) For greater certainty, subsection (3) does not apply with respect to a dismissal under paragraph 7 of subsection 8.1(5).

Notwithstanding this legislative direction with respect to these types of facts, the responding party seeks to have the Board impose a bar pursuant to section 111(2)(k).

4Section 8.1 represents a very specific direction by the legislature about how certain issues are to be dealt with by this Board. It clearly represents a change from the manner in which the Board interpreted the Act prior to 1998, and provides very specific and detailed directions to the Board about how it is to treat this issue when it arises in an application for certification. The results may appear harsh. In Renaissance Fallsview Hotel [1999] OLRB Rep. Dec. 1086 the ballots were counted and the union received a majority of votes cast. The Board nevertheless dismissed the application as the applicant had not submitted membership evidence on behalf of 40% or more of the bargaining unit as part of its original application. The specific provisions of section 8.1 override the general purpose of the statute contained in section 2, paragraph 1 of encouraging collective bargaining between employers and trade unions that are the freely-designated representatives of the employees. Accordingly, while the Board may retain a discretion to do something other than what is mandated in section 8.1 and section 10(4), such discretion must be exercised sparingly.

5In this case, the responding party in its response gave notice under section 8.1 of the Act. This invoked the process which is set out in section 8.1(5) of the Act, a process which concludes with either paragraph 7 or paragraph 8, depending on the outcome of the Board's inquiry. At the hearing scheduled for this matter, the parties made various submissions on options that might be available to shorten or telescope the time required for disposing of the application. The applicant, not surprisingly, suggested that it wished to know the results of the representation vote to determine whether in fact anything needed to be litigated. The responding party, again not surprisingly, relied on the mandatory provisions of section 8.1 and refused to withdraw its notice. Not only was it within its rights to do so, it would likely be the position of many employers faced with that suggestion. However, it was pointed out to the responding party during the hearing that the consequence of success on the section 8.1 issue was likely a dismissal pursuant to paragraph 7 of section 8.1(5). Notwithstanding this consideration, and again understandably, the responding party insisted on continuing with the process required by section 8.1. The responding party would now like to depart from the normal sequence which is mandated by that section.

6The responding party suggests a number of reasons why the Board should exercise its discretion. Counsel submitted that the union should have known all along that it had less than forty per cent support. The Board disagrees. The responding party points to the fact that the application was submitted twice. That is, on the application date one application was delivered to the responding party which contained a proposed bargaining unit which did not include all of the persons ultimately considered in this application. It was not filed with the Board. Later that day, a second application (labeled "amended") was delivered to the responding party and filed with the Board. This is in fact the only application filed with the Board. This application contained a proposed bargaining unit (a unit description with which the responding party agreed) which described a wider bargaining unit. The applicant did not change the estimated number of employees in the bargaining unit, although the responding party submits that the number of employees in the second described unit is much larger. When the applicant filed the second application, it described the first application to the responding party as essentially an error. It appears from a review of the documents that the application which was ultimately filed may simply have been amended to correct an error found in the first version of the application delivered to the responding party. On the evidence before it, the Board is not prepared to conclude that the applicant was deliberately understating the number of employees in a larger bargaining unit in its final version of the application.

7The responding party also suggests that the applicant should have known that it had fewer than forty per cent of the bargaining unit as members because the responding party told them so. It does not surprise the Board that parties engaged in litigation do not necessarily accept the conclusions offered by one another, particularly at an early stage in the process. The process of determining the actual count was not a simple task. On January 17, 2000, when this matter first came on for hearing, the applicant's counsel still believed that his client had submitted membership on behalf of more than forty per cent of the bargaining unit. That is why the Board adjourned the hearing until the applicant could determine, with the assistance of a Labour Relations Officer, its exact "card count". This was done by the applicant and the Labour Relations Officer, without the responding party present, as this would involve an examination of a large number of cards that had been filed with the Board as part of the application for certification. Pursuant to section 119(1) of the Act, this information is confidential and is not to be released to the responding party. Needless to say, counsel for the responding party was very familiar with the Board's process and the responding party took no objection to the process of a further examination of the cards and the list. It was only after that process of examination and clarification of names that the applicant concluded that the responding party was, in fact, correct. The applicant was tardy in communicating this to the Board (hence the need for the February 21 decision), but that tardiness alone would not cause the Board to exercise its discretion under section 111(2)(k).

8Counsel also submits that the application of a bar is consistent with the Labour Relations Act, specifically section 7, and with previous Board jurisprudence. He does, however, concede that "there appear to be no reported decisions in which the Board has been asked to impose a bar in the context of dismissing an application for certification under paragraph 7 of subsection 8.1(5) of the Act. Sections 7 and 10 are sections of general application to applications for certification. Section 8.1 is a very specific section directed at this very specific process, invoked by the responding party. A dismissal without a bar is the norm prescribed by section 8.1 and is therefore the approach most consistent with the process envisioned by the Act.

9With respect to previous Board jurisprudence, counsel relies on the rationale in decisions ranging from 1955 through to 1989. Suffice it to say that the statute was very different at the time each of those decisions was cited, and specifically there was nothing resembling section 8.1. The rationale in those decisions, while entirely appropriate to the statute and the manner in which the Board dealt with certification applications at the time, is of no assistance in determining this issue.

10Finally, the responding party states that the Board has previously stated: "that it does not consider repetitious applications to be in the interest of sound labour relations". That is generally true. In this case the applicant (according to the responding party) made a previous application in 1995. A subsequent application in 1999 is hardly repetitious, and is in any event, well beyond the maximum bar that could have been imposed in 1995. On the basis of one attempt at certification, where the union discovered that it had underestimated its support relative to the size of the bargaining unit (the very situation that section 8.1 contemplates), the Board is not prepared to say that this application represents a "repetitious" series of applications or an abuse of the Board's process.

11Accordingly, the Board dismisses the application for certification and directs that the ballots cast in this application be destroyed without being counted, pursuant to paragraph 7 of section 8.1(5). Pursuant to section 10(4) of the Act, no bar is imposed. The Board declines to exercise its discretion under section 111(2)(k) to impose any further bar.

"David A. McKee"

for the Board