1509-99-U Alfred Smith, Ray Blanchette and Tom Tuckwell, Applicants v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW Canada); and National Automobile, Aerospace, Transportation and General Workers Union of Canada Local 525 Responding Party.

BEFORE: Patrick Kelly, Vice-Chair.

APPEARANCES: Ernest Rovet, Alfred Smith, Ray Blanchette and Tom Tuckwell for the applicants; L. N. Gottheil, John Saxton and Carol Deacon for the responding parties.

DECISION OF THE BOARD; March 3, 2000

1. This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging a violation of subsection 87(2) of the Act.

2. Subsection 87(2) provides as follows:

3. (2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall,

(a) discriminate against a person in regard to employment or a term or condition of employment; or

(b) intimidate or coerce or impose a pecuniary or other penalty on a person,

because of a belief that the person may testify in a proceeding under this Act or because the person has made or is about to make a disclosure that may be required in a proceeding under this Act or because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.

3. The hearing in this matter took place on December 14, 1999.

4. The parties agreed that the facts asserted in the responding party’s (the “union”) response were undisputed. The applicants also did not dispute additional facts sought to be adduced by the union. The Board sets out below the combined material facts.

5. The applicants were all members of the local union bargaining committee of the union which held bargaining rights for approximately 90 employees at Bartek Ingredients Inc (“Bartek”) in the City of Stoney Creek.

6. The applicant Blanchette was chairperson of the local union bargaining committee (“the committee”) and a member of the local union executive board. The applicant Smith had held union office for five years, while the others had been in office for one year at the time of the incident giving rise to this application. The applicants swore an oath of office and committed themselves to preserve the union’s constitution. The applicants either had a copy of the constitution or easy access to it.

7. The committee was entrusted with the responsibility of representing employees in the bargaining unit, by, amongst other things, processing and presenting grievances to management, administering the collective agreement, participating in the bargaining of new collective agreements, taking up health and safety and working conditions issues and disputes with management, and otherwise acting in the best interests of the employees in the bargaining unit with respect to their employment relationship with management.

8. On or about May 5th, 1999, the applicants filed an application for termination of bargaining rights of the union. The application for termination of bargaining rights was ultimately dismissed because a majority of employees of Bartek voted to maintain CAW-Canada union representation, and reject the position put forward by the applicants.

9. On May 14th, 1999, prior to the representation vote, two general membership meetings of the Bartek unionized employees took place at the CAW-Canada Local Union 525 hall. Reasonable notice of the meetings was provided by the union by way of hand distribution of pamphlets, at the workplace, and bulletins posted inside the workplace.

10. The subject of the meetings was the application for decertification which had come to the attention of the employees sometime before May 14th, 1999. Two meetings were held in order to accommodate the differing schedules of the affected workers.

11. Approximately 55 Bartek employees in total attended the two meetings. Local union president John Saxton (“Mr. Saxton”) attended both meetings. The issue of the committee members filing for decertification came up at both meetings. There was a loud and strongly stated view expressed by many members, at both meetings, in which anger, disbelief, and criticism of the applicants was plainly set forth. The membership was deeply angered by the actions of the applicants.

12. There was a consensus that the applicants, as committeepersons, ought to be removed from union office, particularly if the application for termination of bargaining rights was dismissed. On or about May 14th, 1999, the applicants were suspended from holding any office in the local union. The person who made the initial decision to suspend the applicants from holding union office, Mr. Saxton, did so because he believed the applicants were in an intractable conflict of interest. He wrote a letter to each applicant. The letter to the applicant Blanchette, which is representative of the others, is set out below in-part:

May 14, 1999

Ray Blanchette

Bartek Inc.

Pending the out come of The National Office investigation into the charges of advocating dual unionism, undermining the Union as an institution, and conduct unbecoming a member you are suspended from holding any office in the Union.

Article 25 of the constitution gives you the right to appeal this decision to the Local Executive Board.

John Saxton

President CAW Local 525

13. On June 8th, 1999, Basil Hargrove, Nation Union President, communicated to the applicants that they had been indefinitely suspended from holding any position in the union pursuant to the provisions of the Constitution of the National Union. The contents of Mr. Hargrove’s letter to the applicant Smith, which is representative of the letters to the other applicants, are set out below:

June 8, 1999

SENT VIA REGISTERED MAIL

Mr. Al Smith

C/o CAW Local 525

51 Stuart Street, Unit 2

Hamilton ON L8L 1B5

Dear Mr. Smith,

Re: Eligibility for Positions in the Union

Attached you will find correspondence from your local union. The issue being raised is your eligibility to be a candidate based on your involvement in the decertification process.

It is clear from the documents provided and the information from the local union, that you have been involved with trying to decertify the national union in your workplace. This is a violation of Article 11. Section 5, of the CAW Constitution.

Accordingly, your right to hold a position in the union is suspended. This suspension of privilege is to take effect immediately. In the future, upon providing satisfactory assurance to the local union that you are not and will not try to decertify the union, you may apply to have this suspension removed. You may, within thirty (30) days following receipt of this letter, appeal this suspension to the National Executive Board.

In Solidarity,

(“Buzz Hargrove”)

BASIL “BUZZ” HARGROVE

President

BH/bmkopeiu343

Enclosure

cc R. Dhallwal

J. Saxton

14. Section 5 of Article 11 of the union’s National constitution states:

Section 5

(a) No member is eligible for any position in the union if s/he is trying to decertify the National Union or any subordinate body or is helping a group or union that wants to replace CAW-Canada as the recognized collective bargaining agent.

(b) If, after an investigation, the National President or the National Executive Board is convinced that a member has violated this section, either may immediately suspend the member from any position or the right to seek a position. They will notify the suspended member promptly. The member may, within 30 days of receiving the notice, appeal to the National Executive Board under Article 25. The suspension will be lifted automatically if the National Executive Board does not rule on the appeal within 120 days of the member beginning the appeal.

(c) If the member does not appeal, of if the National Executive Board upholds the suspension by a two-thirds vote, the position(s) will be declared vacant. The member will not be eligible to hold any position until the suspension is lifted by a two-thirds vote of the National Executive Board.

(d) The member may appeal the National Executive Board decision either to the Public Review Board or the Convention Appeals Committee.

(e) The procedure in this section is in addition to any other action which may be taken against the member.

15. The applicants did not take advantage of their right to appeal pursuant to the union’s National constitution.

16. The applicants’ employment status has remained the same since their suspension from office. They remain members of the union. They may attend union meetings and vote on union issues as they wish like other members of the union. The applicants voted during the contract ratification process that followed the settlement of a strike against the company in August, 1999.

The Arguments

17. Counsel for the applicants argued that all the elements of a section 87(2) violation are present, most importantly the issuing of a “penalty” within the meaning of the subsection by the union against the applicants. Counsel submitted that a penalty includes any act that would tend to indicate publicly that a person is in disfavour, and includes the removal of a person from a position of power or status in a trade union. Counsel also submitted that the union’s motivation must be taken into account in determining if a penalty was imposed. In this regard, he urged the Board to draw an inference from the timing of the applicants’ removal from office in the midst of the decertification application and before the taking of the representation vote. The inference to be drawn, counsel urged, is that the union was attempting to influence the outcome of the vote and send a signal to the membership that attempts to decertify the union - or any other expression of dissent - would have negative repercussions for those initiating such activities.

18. Counsel for the applicants acknowledged that the legitimate invocation of internal union discipline should not draw the Board’s scrutiny. However, when the issue in dispute is one so fundamentally tied to the whole scheme of the Act, counsel argued that the Board should intervene. The core of the Act, counsel submitted, is directed at the granting, maintenance and removal of bargaining rights. When employees apply to decertify their trade union, they are not merely acting against their union’s interests, they are exercising a fundamental right, and the union has no corresponding legal right to interfere with the expression of that right by employees. The applicants, in assuming office and taking their oaths, never agreed to forego their rights under the Act.

19. If the applicants owe a fiduciary duty to the union as elected officers, counsel contended, the duty does not extend so far as to prevent the applicants from exercising their fundamental rights under the Act. The duty is one characterized by honesty and integrity in the carrying out of their roles. They would breach that duty, for example, if they used union funds to finance a termination application. They would not breach that duty, counsel submitted, if they simply availed themselves of rights under the Act. This is especially so where the applicants had a reasonable belief that the membership wanted to rid itself of the union, a fact that counsel suggested could be inferred by the representation vote count which indicates a significant percentage of the voters no longer wished to be represented by the union. In any event, counsel argued, the fiduciary duty owed by the applicants should not be permitted to be used by the union to stifle dissent or prevent the exercise of rights under the Act. The union’s own democratic processes ultimately determine which views prevail, and the union could have let the membership decide the applicants’ worthiness for office through the next election campaign. Instead, counsel argued, the union ignored its democratic traditions and took matters, unlawfully, into its own hands.

20. Counsel for the applicants urged the Board not to draw any conclusions adverse to the applicants’ position in this matter by virtue of the fact they did not appeal the final decision of Mr. Hargrove to suspend them from office. Counsel argued that Mr. Saxton’s decision of May 14, 1999 to remove the applicants temporarily from office was a strong prima facie breach of the Act, and as such the applicants were not then obligated to exhaust internal union appeal processes. In addition, counsel argued that there was no practical reason for the applicants to appeal once Mr. Hargrove, the highest-ranking and well-known union leader, had spoken. The appeal, it was argued, would have been meaningless as far as the applicants perceived.

21. Counsel for the applicants referred the Board to several cases. He cited Canadian Textile and Chemical Union [1971] OLRB Rep. August 469, by way of contrast to the facts in the present case, as an example in which the union’s removal of its President for having signed up members to a rival union and for having assisted in the rival union’s raid was a justified response because the President was not exercising any statutory rights, but rather was simply acting to the detriment of the union to which he owed a duty of fidelity. Ivan Gudelj [1989] OLRB Rep. August 850 was submitted as authority for the proposition that the Board will, in the appropriate circumstances, inquire into a complaint involving internal union matters such as the removal from union office, although the Board in that matter declined to make such an inquiry. Counsel also referred the Board to Louis Lauzon [1994] OLRB Rep. June 717 in which the Board found that the refusal of Mr. Lauzon’s union to accept payment of his dues was a penalty within the meaning of what was then subsection 82(2), (now subsection 87(2)) of the Labour Relations Act as it then was for having initiated proceedings against the union pursuant to the Labour Relations Act.

22. Counsel invited the Board to give careful consideration to International Assn. Of Bridge, Structural and Ornamental Iron Workers, Local 700 [1998] O.L.R.D. No. 3027 (hereinafter referred to as “Iron Workers” or the “Iron Workers case”) in support of the applicants’ position in this matter. In that case, the Board found that union representatives’ threats to “file charges” against union members for attempting to look into the union’s finances or otherwise exercise rights under the Act, amounted to violations of section 87(2), even though the threats were never carried out. In that case, the applicants in question were union members who alleged that the union’s hiring hall practices were corrupt. They brought proceedings before the Board against their union. The union representatives’ threats occurred within the context of those proceedings. The Board issued a declaration by way of remedy. Counsel for the applicants in the instant case suggested that the facts in this case go far beyond the unlawful behaviour in Iron Workers, where unfulfilled threats were viewed as unlawful by the Board. In the instant case, counsel argues, the union took unlawful action rather than bother with any threats, resulting in the applicants’ removal from office on May 14, 1999.

23. Other cases brought to the attention of the Board by counsel for the applicants were: Mary Ann Green, [1994] OLRB Rep. June 677; “GMP” – Glass, Molders, Pottery, Plastics & Allied Workers International Union, [1994] O.L.R.D. No. 1152; Hank Brouwers, [1995] OLRB Rep. September 1160; International Association of Bridge, Structural and Ornamental Ironworkers, [1982] OLRB Rep. 1487; International Union of Bricklayers and Allied Craftworkers, [1998] O.L.R.D. No. 1056 (MacDowell); Conlin and C.U.P.W. (1994), 27 C.L.R.B.R. (2d) 149; Mangatal and CAW- Canada (1997), 38 C.L.R.B.R. (2d) 88; Ronald Wheadon (1983), 5 C.L.R.B.R. (N.S.) 192, application for judicial review refused (1985), 85 C.L.L.C. 14, 036 (Fed.C.A.); James Carbin (1984), 59 di 109; Beaudet-Fortin and C.U.P.W. (1997), 40 C.L.R.B.R. (2d) 161; Nowotniak, [1979] 2 Can. L.R.B.R. 466; Latrémouille (1983), 50 di 197, affirmed (1983), 50 di 197 (note) (Fed. C.A.), leave to appeal to S.C.C.refused (1984), 55 N.R. 156n (S.C.C.).

24. The argument made by counsel for the union rested on three points:

(i) the union was not acting under an improper motive in removing the applicants from union office;

(ii) the union’s action in removing the applicants from union office was a legitimate, reasonable, measured and entirely appropriate internal decision which addressed and remedied a fundamental breach of the union’s constitution and the applicants’ breach of their fiduciary duty to the union; and

(iii) the union did not impose a “penalty” within the meaning of subsection 87(2) of the Act;

25. With respect to the union’s motivation in suspending the applicants from union office, the only evidence on this point, counsel argued, was that the decision-maker, Mr. Saxton, believed the applicants to be in an intractable conflict of interest as union leaders while at the same time being the initiators of a legal proceeding that, if successful, would result in the demise of the union’s bargaining rights. How does this conflict arise? Not only were the applicants, as union bargaining committee members responsible for a wide range of responsibilities, as outlined in paragraph 7 above, but they had access to rights under the collective agreement in their capacity as union representatives to use company time to pursue union business. Had they remained in office, counsel argued, they might have attempted to use those rights for the purpose of campaigning on the decertification application. Moreover, as union representatives, they had access to union resources. Had they been so inclined – and there was no evidence that they were so inclined – they could have improperly used those resources to bolster their position in the decertification campaign. Finally, counsel pointed out that had the applicants wanted to (and again there was no evidence to suggest any improper acts on the part of the applicants) they could have brought routine union business, such as the processing of grievances, to a halt, perhaps in an attempt to discredit the union, thus exposing it to claims of unfair representation, and to concomitant liability under section 74 of the Act. The fact that they did not resort to any of these tactics is not the point, counsel for the union suggested. By initiating the application to end the union’s bargaining rights, the applicants were in a position, if so tempted, to abuse their rights and privileges as union leaders to further their interest in winning the application. This, counsel argued, was essentially the perception of an “intractable conflict of interest”, upon which the local president acted in removing the applicants from office.

26. In support of his contention that the union had every right to remove the applicants from office out of concern for what they might do to the prejudice of the union, counsel referred the Board to McMillin v. Yandell (1971) 1971 CanLII 587 (ON HCJ), 22 D.L.R. (3d) 398, a decision of the Ontario High Court in which several members of Local 172 of the Operative Plasterers’ and Cement Masons’ International Association of the United States and Canada (“Local 172”) applied for an injunction to prevent, among other things, their local business manager, Mr. Yandell, from entering into any merger agreement with another union (thus ending the existence of Local 172) and from making use of Local 172 resources in furtherance of the merger negotiations. Mr. Justice Houlden granted the injunction, and observed at p. 402:

It seems to me to be fundamentally unfair for the defendant Yandell to have continued in the employment of Local 172, to have accepted remuneration from it, and at the same time to have used its facilities and records to destroy it. I agree with counsel for the plaintiffs that to act in this manner is contrary to the constitution of the union.

27. Was the decision to remove the applicants from office a measured and reasonable response? Could the conflict of interest have been resolved in some less drastic fashion? Counsel for the union went on to highlight the events and reasons that led to the applicants’ suspension, suggesting that, taken together, they suggest the decision to suspend was a measured and reasonable response to both a breach of the applicants’ fiduciary duty to the union and a breach by the applicants of the union’s constitution.

28. As a practical matter, counsel for the union asked the Board to consider that while employees have a right to apply to rid themselves of their bargaining agent, so too does the trade union have a right to challenge such an application, and fight for the hearts and minds of the bargaining unit members prior to a vote. Counsel referred to Johnson and Amalgamated Transit Union [1976] C.L.R.B. Rep. Decision No. 14/76 321, in which three officers of the Amalgamated Transit Union (“ATU”) actively assisted another union in a raid. When the remaining ATU executive learned of these circumstances, it suspended the officers from office, and when the officers intensified their efforts following the suspension, their union membership in the ATU was suspended as well. The British Columbia Labour Relations Board dismissed the complaint of unfair representation and coercion and intimidation brought by the suspended officers against the ATU. The panel in that case observed at page 325 that:

A union has the right and obligation to protect its own existence. Such a union has the right to resist a raid. The union would have the right to discipline, suspend, or otherwise deal with members of its executive who may be acting contrary to the interests of the union. It has the right to regulate its own affairs, keeping in mind the duty of a union to represent fairly all the employees in the bargaining unit, whether they are members of the trade union or not, pursuant to s. 7(1) of the [Labour] Code [of British Columbia].

29. The same panel also noted at page 326 that union officers have different obligations than do union members (and thus are subject to different responses by the union):

It has been argued, and the Board would agree, that the obligations and responsibilities of the officers of a trade union are greater than those of the general membership. There is obviously a difference between a rank and file member of a trade union, and an officer of that trade union. An officer is elected to office by the membership, or, in some cases, appointed. Officers volunteer and are entrusted with leadership. They may or may not receive remuneration; if they do, it would come from union dues paid by the membership. At all times, the wishes of the members are paramount, and the officers represent those members. Union officials have a position of trust and responsibility, and a duty to represent. In some offices … their undivided time and attention is required for the duties of the union, and for such purposes, they are accorded leave or absence from their job.

30. In the circumstances of this case, counsel argued, had the union simply allowed the applicants to continue in office, it would have risked depriving itself of mounting a campaign against the termination application, because the applicants could have used their office to thwart any such effort by the union. By leaving the applicants in power, counsel submitted, the union was risking the silencing of its own voice in the decertification campaign. On this ground, therefore, and in the absence of any offer by the applicants to resign their office (which counsel argued was the only right and honourable thing for the applicants to do have done in the circumstances), the union, in counsel’s submission, made the only practical decision it could in order to preserve its own defense: it removed the applicants from office.

31. Counsel pointed out further that the decision to oust the applicants from union office took place after two general membership meetings on May 14, 1999; a large number of bargaining unit members attended those meetings; and a great deal of outrage was expressed by a number of the attendees against the applicants’ action in filing the decertification application. Counsel argued that the union had no legal obligation to hold those meetings prior to making its decision regarding the applicants’ suspension, but it did so notwithstanding. There was general support for the removal of the applicants from office. Counsel for the union submitted that proper notice of these meetings was provided throughout the workplace. The applicants could have made their position on the decertification application known at that meeting. They could have explained why they had taken the steps they did, and why they should be allowed to remain in office. They did not attempt to do so at the May 14 meetings. Following the meetings on May 14, Mr. Saxton, who had been in attendance at the meetings, wrote to the applicants, advising them of their immediate suspension from office.

32. As we now know, the applicants lost the representation vote in the decertification application. Following that defeat, Mr. Hargrove issued the letter confirming the indefinite suspension from holding union office pursuant to the union constitution. He advised the applicants of how they might undo the suspension by providing assurances that they would not again seek to decertify the union. The letter also advised of the right to appeal the suspension to the National Executive Board of the National Union. Counsel for the union pointed out that this right of appeal is a protected right under the union’s constitution, and that the constitution provides a de novo right of appeal, so that the applicants, had they availed themselves of their union constitutional rights, could have had their entire case reconsidered by the appellate body on the merits. Moreover, counsel submitted that the union constitution provides for a final appeal from the National Executive Board to an entity called the Public Review Board. The Public Review Board is comprised of individuals who have no direct connection to the Canadian Auto Workers. Counsel for the union argued that it was inappropriate for the applicants to argue the alleged illusory nature of their appeal rights, not having exercised them.

33. Was the removal of the applicants from office a “penalty” within the meaning of section 87(2) of the Act? Counsel for the union argued that the response of the union in removing the applicants from office was an internal union matter that, as such, attracts no public interest, and which section 87(2) was never intended to cover. If the removal from union office is a “penalty” within the meaning of section 87(2) of the Act, then how, counsel asked rhetorically, can a union not only enforce the fiduciary duty or duty of fidelity owed by officers to their trade union, but also, more importantly, ensure that union officers will fulfill their duty of fair representation to the members?

34. Counsel argued that the applicants’ removal from office should not be seen as a response by the union to the applicants’ exercise of rights under the Act. Rather, the applicants’ initiation of a legal proceeding to terminate the union’s bargaining rights was the signal to Mr. Saxton, and apparently others, that the applicants, as officers of the union, were now in a conflict of interest. It was perfectly appropriate for the applicants to see the legal proceeding through, but not while simultaneously holding union office. In the absence of their resignations, the union did the only thing appropriate from the perspective of self-preservation. It stripped the applicants of their authority, meanwhile keeping the door open for them to again hold office in the event that they gave assurances not to repeat any termination application while holding union office. The removal from office had no bearing on the applicants’ terms and conditions of employment nor on their rights to participate in the affairs of the union in their capacity as bargaining unit members.

35. In support of his contention that the applicants’ removal of office was not a penalty or matter of public interest, counsel for the union referred the Board to a decision of the Canada Labour Relations Board (the “CLRB”), Paul Horsley et al., [1991] 15 CLRBR (2d) 141, in which the applicants were shop stewards in the Letter Carriers’ Union of Canada (“LCUC”) which was merged with the Canadian Union of Postal Workers (“CUPW”). CUPW acquired the bargaining rights for the combined bargaining unit, and the applicants continued in their capacity as shop stewards in the new entity. The applicants were suspended from union office because they refused to relinquish their membership in LCUC, which had publicly declared its intention to get its bargaining rights back again. The suspension was removable in the event the applicants adhered to the insistence of CUPW that they give up their membership in LCUC.

36. Ultimately, CUPW took a further step, and purported to strip the applicants of their CUPW membership. This latter response resulted in the applicants’ complaining to the CLRB, and asking for reinstatement into CUPW membership so that they could resume participating in the affairs of the union. The Board found that CUPW had violated the Canada Labour Code’s (“the Code”) provision prohibiting a trade union from expelling or suspending or imposing “any form of penalty” on an employee for having refused to perform an act contrary to the Code. The violation occurred not in the removal of the applicants from union office, which the CLRB characterized as an internal conflict of interest having little or no public interest, but rather as a result of CUPW’s action in imposing on the applicants a life-time ban on holding membership in CUPW which affected their job security. That action was viewed by the CLRB as the imposition of a penalty. The applicants were reinstated into membership by the CLRB.

Decision

37. The Board is persuaded by the arguments of the union. There was no dispute that the local president, Mr. Saxton, was motivated to remove the applicants from their union positions out of what he perceived to be a serious conflict of interest. The applicants took no position challenging Mr. Hargrove’s motivation in confirming the suspension in his capacity as National President. Counsel for the applicants conveyed concern that Mr. Saxton did not have the authority to do what he did under the union’s constitution. The Board is not concerned with the niceties of the union constitution on this point; what is of importance is the nature of and reason for the union response to the applicants’ decertification application, as opposed to who initiated that response. In that regard, there is no evidence of any substance that the union’s response was motivated out of any improper consideration.

38. The applicants were quite entitled, as bargaining unit employees, to bring an application to rescind the union’s bargaining rights. However, in doing so they found themselves, in their capacity as union officers, in violation of the union’s constitution and their fiduciary duty to the union.

39. Article 26 of the constitution requires local union officers to pledge “to bear true and faithful allegiance to the [union]”. Clearly that pledge was breached when the applicants brought legal proceedings purporting to effectively put an end to the union in the workplace. Just as clearly, they were in breach of the constitution’s prohibition against union officers attempting to decertify the union. Faced with a situation ripe for conflict of interest, the union removed the applicants from authority. In the circumstances, and in the absence of any other reprisal or restriction on the part of the applicants to continue to participate in the affairs of the union as bargaining unit members, the union’s response was a proportionately measured, legitimate expression of self-preservation. Had the applicants respected their obligations under the union constitution they would have resigned their offices within the union prior to initiating the decertification application. That would have been their proper course of action. By failing to do so they invited the sanction which the union was empowered to impose under its constitution.

40. There was no breach of section 87(2) of the Act by the union. The sanction or penalty it imposed upon the applicants was not because they exercised rights under the Act in applying to decertify the union. The sanction was imposed because of their abuse of the positions as officers of the union. They were not penalized for doing what, as employees, they were entitled to do. Counsel for the applicants invited the Board to draw negative inferences about the union’s motives from the fact that the applicants were suspended from office after the application for decertification was filed, but before the taking of the representation vote. In and of itself, the timing of the union’s actions is no more consistent with that inference than it is with the possibility that the union was anxious to eliminate what it saw as a conflict of interest. As I have indicated earlier, it was not disputed that the local union president took the decision to suspend the applicants because he was concerned about that conflict of interest.

41. The application is dismissed.

“Patrick Kelly”

for the Board