Teamsters Local Union No. 419 v. Supply Chain Management Inc.
2841-99-R Teamsters Local Union No. 419, Applicant v. Supply Chain Management Inc., Responding Party.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; June 21, 2000
1This is an application for reconsideration of the Board’s decision of March 27, 2000 made by the responding party, Supply Chain Management Inc. (“Supply Chain”).
2Supply Chain makes four arguments. The first is that the letter submitted by counsel to the Board on March 8, 2000 constituted a withdrawal of the application.
3Counsel points out that he did not receive a copy of the letter from counsel for the union. Counsel for the union should know the Board’s Rules well enough to know that he ought to have copied counsel for Supply Chain. The Board acknowledges its error in not checking the letter to determine whether or not it indicated that it had indeed purported to have been sent to counsel for the responding party. The letter states as follows:
“We wish to inform the Board that we will not be filing any further information as contemplated in the Board’s decision of February 21, 2000. We further wish to inform the Board that our client consents to this application being dismissed in accordance with paragraph 7 of subsection 8.1(5) of the Act.
In light of the foregoing, we would request that the Board return all of the original membership evidence submitted in this application by the applicant. We request that the documentation be returned directly to the applicant to the attention of Mr. Paul Dunne”.
4This does not constitute a withdrawal. Rather, it is an acknowledgement that it cannot succeed in the application. The decision in Northam Development Corporation [1997] OLRB Rep Sept/Oct 915 is not of assistance. In that case the Board found that in fact section 10(3) of the Act applied to the dismissal of the application. Its comments about section 111(2)(k) were a response to an attempt on the part of the applicant in that case to avoid the intended result of the statute by a strained (and ultimately incorrect) interpretation of the statute.
5Supply Chain has made lengthy submissions about what it describes as an “important policy issue” relating to what it perceives as “the conduct of the union”. Its submissions state:
“If a union determines that it does not have valid membership cards for at least 40% of the employees who have not been challenged, it has a duty to withdraw its application before the representation vote is held”.
This representation is predicated on the belief that the applicant in this case was aware that it did not have forty per cent of the employees as members prior to the vote. On the facts, the Board came to a different conclusion.
6Contrary to the assumptions made by Supply Chain, there were no stale or invalid cards. From the Board’s examination of the cards, there were a number of them signed by persons whose names appeared to be similar, but not identical, to the names of persons on the employer’s list of employees. In some cases, the difference was only with respect to the first name. The applicant might well have concluded that in fact errors were to be found in the employer’s list or that the same individual might have used slight variations of his or her name when signing documents. There was also a large number of seasonal employees on that list and a number of employees who were laid off immediately before the application date. Finally, there was also an issue between the parties with respect to the inclusion of the employees on Schedule ‘B’. All of these variables would clearly affect the calculations made by the applicant in assessing its likely chances of success of having sufficient support on the application date to bring the application and to win the vote. Once again, the Board does not find it unreasonable that the applicant does not, at the very beginning of a litigious process, accept at face value the statement made by Supply Chain about its list of employees. The fact that it later concluded that it was wrong simply saved the responding party lengthy and expensive litigation.
7On the day set for hearing, counsel assured the Board that it was his belief that the applicant did in fact have more than forty per cent of the employees in the bargaining unit as members on the date the application was filed. The Board does not know what specific potential challenges the union contemplated making to the list or what its belief was about the identity of persons who signed cards. We can only conclude that the union, after a lengthy period of time examining the cards with a Labour Relations Officer (who did not report back the results of this meeting to the Vice-Chair), concluded that, even if were successful on all of its challenges, it could not demonstrate membership evidence for at least forty per cent of the persons in the bargaining unit. As counsel for the responding party knows, 39.9 per cent is close, but is not good enough.
8Supply Chain submits that the Board, in its March 27 decision failed to consider one assertion made by it. That assertion is that there was an additional piece of evidence suggesting that the union ought to have known that it lacked the necessary forty per cent membership level. Supply Chain states that this fact was that the union itself had estimated the number of employees at 800 on July 30, 1998. Supply Chain is incorrect in assuming that the Board did not consider that submission. The Board simply did not consider the submission one on which comment was necessary. The possibility that a very large workforce, which is supplemented by seasonal employees, might fluctuate between 800 on July 30, 1998 and 688 or 717 (depending on one’s calculations) on December 15, 1999 does not strike the Board as a startling or unreasonable proposition.
9On the information and evidence available to the Board (including the cards which, in fairness, counsel for the responding party has not seen), the Board does not come to the conclusion urged on it by counsel that the union had “cynically submitted stale or invalid membership evidence” (that is something it did not do), or that it knew or ought to have known prior to the representation vote that it lacked the forty per cent necessary for a successful application.
10Finally, Supply Chain submits that the Board fettered its discretion in stating that the “normal sequence which is mandated by section 8.1” is a dismissal without a bar. The Board rejects this submission. Section 10(3) applies to all applications for certification, except those which are dismissed pursuant to paragraph 7 of section 8.1(5). Indeed, section 160(3) applies to all applications for certification in the construction industry without exception, since section 8.1 does not apply to those applications. Section 10(4) states as follows:
- (4) For greater certainty, subsection (3) does not apply with respect to a dismissal under paragraph 7 of subsection 8.1(5).
11That is, the normal consequence of a dismissal of an application, ie. a bar, does not automatically arise in those circumstances. The Board does, of course, retain a discretion under section 111(2)(k) of the Act to impose a bar in any event. In considering whether or not to exercise that discretion, the Board considered it entirely appropriate to look at the manner in which section 8.1 is structured and the legislative history of that section. Given the fact that paragraph 7 represents a departure from the normal sequence of events in an application for certification, and given the legislative history of section 8.1 and the compromise evident in it, the Board does find that when an application is dismissed under paragraph 7, a bar should not be applied absent some circumstance which would cause the Board to exercise its discretion under section 111(2)(k) in favour of applying a bar. In this case, the only basis on which Supply Chain suggests that the Board ought to exercise its discretion is its assertion that the union knew, or ought to have known, that its application was doomed from the start. Since the Board does not accept as a factual matter this assertion, there is no basis on which to exercise the Board’s discretion.
12Accordingly, this application for reconsideration is dismissed.
“David A. McKee”
for the Board```