United Food & Commercial Workers, Local 206 v. Lynn Management Ltd., 2000 CanLII 1574

United Food & Commercial Workers, Local 206 v. Lynn Management Ltd. c.o.b. as Tim Hortons

0561-95-R United Food & Commercial Workers, Local 206 chartered by the United Food and Commercial Workers International Union, CLC, AFL-CIO, Applicant v. Lynn Management Ltd. c.o.b. as Tim Hortons, Responding Party v. Keith Fralick, Objecting Employee.

BEFORE: R. O. MacDowell, Chair.

DECISION OF THE BOARD; August 21, 2000

I – Introduction

1. This is a request for reconsideration of a decision of the Board released on November 19, 1999. The Board’s power to “reconsider” an earlier decision is found in section 114 of the Labour Relations Act, which reads as follows:

114. (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling. [emphasis added]

2. The Board has a discretion to reopen and reconsider a decision whenever the Board considers it advisable. However, in order to appreciate what such reconsideration might involve in this case, it is necessary to sketch in what the underlying application was about, and what the Board has already decided.

3. I will then consider whether reconsideration is “advisable” in all the circumstances.

II – What this case is about: in general

4. This is an application for certification in which the union seeks to represent a grouping of employees working at a single “Tim Horton’s” store (“Store No. 502”) located on Parkdale Avenue, in Hamilton, Ontario. Store No. 502 is one of 11 “Tim Horton’s” outlets in the Hamilton area, run by an entity known as Lynn Management Ltd. The 11 stores are all within a few miles of each other.

5. The union’s certification application was considered by a 3-person panel of the Board. In accordance with the requirements of the Labour Relations Act, a hearing was scheduled to receive the parties’ evidence and representations on the various matters in dispute. That hearing turned out to be quite lengthy.

6. On November 19, 1999, the Board majority issued a decision finding that the “single store bargaining unit” that the union sought to represent, was not a “unit of employees appropriate for collective bargaining”. That finding was made pursuant to section 9 (1) of the Act, which is reproduced below. The majority then dismissed the certification application, because in the panel’s opinion, the union could not possibly demonstrate majority support among any larger employee grouping than the single store unit that the union had applied for. It was not necessary to consider any of the other issues in the case, because, in the majority’s view, the union’s certification bid was bound to fail, regardless of the resolution of those other issues.

7. In other words, once the Board had decided that the “appropriate” bargaining unit was not what the union had requested, but rather something bigger, it became obvious that the union could never be certified, because the union could not demonstrate employee support in any broader employee grouping than the single store that it had tried to organize. The union had concentrated its effort on the employees of that single store number 502. The union had not organized employees at any of the other ten stores. But, in the result, the union’s support was simply “too thin” to support certification in anything other than the single store employee grouping. Thus, the bargaining unit issue was dispositive of the application.

8. The dissenting member issued her reasons on February 3, 2000. She would have accepted the union’s proposal, and found that the applied-for single store bargaining unit was “appropriate” for collective bargaining - despite the fact that there were ten other similar stores in the vicinity. She would then have gone on to consider the other issues raised by the parties.

9. So the key issue in the case – and the one that divided the panel - was the description of the “appropriate bargaining unit”. Did the single store – one of 11 local outlets – encompass an “appropriate” grouping of employees for collective bargaining purposes? Was it sensible, from a labour relations perspective, to sanction this “island of collective bargaining” in a “sea” of unorganized stores/employees? Or should the collective bargaining structure be broader than that?

10. The Board majority opted for the latter view, finding that a single store was not appropriate for collective bargaining. The minority member reached the opposite conclusion.

11. Ordinarily, an application for reconsideration is dealt with by the hearing panel, which heard the evidence and representations in the first place, and in thus in the best position to determine whether it is advisable to reexamine the result. In the present case, though, the original Board panel cannot be reconstituted. So the request for reconsideration must, perforce, be considered by another Board panel.

12. Pursuant to section 110 (14) of the Act, I have determined that a single adjudicator can, and should, review the union’s request for reconsideration. Moreover, given the regrettable circumstances of the case (see below), it is appropriate that such task be undertaken by the Chair of the Board. And for these reasons, it is perhaps necessary to make a more fulsome response than might otherwise attend a reconsideration request.

III - Some further background

13. The union’s application for certification was filed with the Board on May 13, 1995 – which is to say, more than five years ago, under what might be described as the “Bill 40 version” of the Labour Relations Act. “Bill 40” was in effect from January 1993 until November 1995. The statute has since been substantially amended, twice, (in 1995 and 1998), including significant changes to the certification provisions. In consequence, the current legal framework for certification is very different than it was when this application was filed.

14. On an application for certification, a union (then and now) is required to show that it enjoys the support of the majority of the employees in a “unit of employees appropriate for collective bargaining”. The bargaining unit is determined pursuant to section 9 (1) of the Act. That section reads this way:

Subject to subsection 2, upon an application for certification, the Board shall determine the unit of employees that is appropriate for collective bargaining, but in every case the unit shall consist of more than one employee and the Board may, before determining the unit, conduct a vote of the employees of the employer for the purpose of ascertaining the wishes of the employees as to the appropriateness of the unit.

The term “bargaining unit” is defined in section 1 of the Act as follows:

“bargaining unit” means a unit of employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or a subdivision of either of them

15. The bargaining unit is the basic building block in the collective bargaining scheme. It is the employee constituency within which the union must establish majority support, in order to be “certified” as the employees’ exclusive bargaining agent; and once the union is certified, the “bargaining unit” is the employee grouping for whom the union bargains, and to which any collective agreement will apply. Accordingly, the bargaining unit has a labour relations significance well beyond the inception of bargaining rights. It also defines the framework for future bargaining - which is why there is a “policy component” to bargaining unit determination, that transcends the tactical squabbles in which parties sometimes engage at the certification stage.

16. The Board determines the “appropriate bargaining unit” having regard to the circumstances of the case before it, collective bargaining practice, and labour relations policy considerations. (See the discussion in Hospital for Sick Children, [1985] OLRB Rep. Feb. 266 and Governing Council of the Salvation Army in Canada and Bermuda, [1994] OLRB Rep. Jan. 85; and see generally: Sack & Mitchell Ontario Labour Relations Board Law and Practice, Third Edition, Chapter 3.) . In United Steelworkers of America v. 622111 Ontario Limited and 1017522 Ontario Limited, carrying on business as Tim Horton’s Donuts (File 1802-95-R, decision released October 13, 1995), another “donut store case”, the Board described the process this way:

18. The determination of appropriate bargaining units is one of the fundamental ways in which the Board seeks to promote harmonious collective bargaining relationships. It is an area in which the Board's discretion is substantially informed by its labour relations expertise. In making a determination with respect to the appropriateness of a bargaining unit, the Board acknowledges the tension between the need for employers and unions to be able to conduct themselves in an environment in which serious labour relations problems resulting from the bargaining unit configuration have been minimized and the need to ensure access to collective bargaining. In the Governing Council of the Salvation Army in Canada and Bermuda, [1994] OLRB Rep. Jan. 85 at para. 19 and 20 the Board stated:

19. Both in Hospital for Sick Children and in later cases, the Board has explored the tension between bargaining structures that facilitate organizing (one of the goals of the Statute), and bargaining structures that are likely to be more stable and effective in the long-run (another goal of the Act). The former objective points to smaller employee groupings which are more readily organized. The latter goal points to broader-based bargaining units that have the organizational mass and bargaining power to survive over time and in changing market conditions.

20. These goals must be harmonized within a framework that now recognizes that there is no single unique and indisputably "appropriate" unit. There are degrees of appropriateness; or to put the matter another way, sensible, alternative ways in which one can define the bargaining unit without triggering (as the Board in Hospital for Sick Children put it) "serious labour relations problems". A trade union need not seek to represent the most comprehensive or most appropriate bargaining unit; and as the applicant or moving party, union has a degree of flexibility in deciding what unit to organize. As long as the unit it seeks does not generate serious labour relations difficulties for the employer, it will be granted the unit it applies for.

21. In the retail sector, the tension described generally leads to the conclusion that a single location bargaining unit is appropriate if sought by the union. This approach reflects the Board's understanding of the difficulties faced by employees in this sector who wish to organize and who may not have any contact with employees at other locations of their employer particularly where there may be many locations in one or more municipalities. The Board also recognizes the difficulties that unions face in trying to organize employees in more than one location. (See Collegiate Sports, supra, and Canadian Tire Petroleum, supra.) The Board has, however, been cognizant of the potential labour relations problems which may be caused by fragmentation, particularly where the various locations are functionally integrated with respect to product and employees.

[emphasis added]

17. The bargaining unit determination is an exercise of informed labour relations judgement, applied in the context of a particular case, against a background of Board jurisprudence. However, as the Board noted above: in striking a balance between competing policy considerations, there is often something to argue about, as well as some “tactical advantage” in one bargaining unit configuration or another. Indeed, as the instant case illustrates, the bargaining unit determination may facilitate or inhibit the union’s bid for certification, (depending on whether the union has organized what the Board finds is “appropriate”).

18. As the law stood when this certification application was filed, (i.e. under Bill 40) a union could be certified as the employees’ bargaining agent, if the union could establish by means of signed membership cards, that a majority of employees in the bargaining unit wanted the trade union to represent them. Certification therefore involved a two-step process: first determining the “appropriate bargaining unit”, then counting the number of union supporters within that employee grouping. If the union could establish the support of a “clear majority” (more than 55%), then no representation vote was necessary. Alternatively, if the union’s level of support was less than 55% but more than 40%, then the Board was obliged to hold a representation vote to test employee wishes.

19. In the instant case, the union’s proposed bargaining unit encompassed the employees at a single store; and in support of its bid for certification, the union tendered membership cards on behalf of 15 individuals, said to be employees working at that location. Lynn Management, the responding party, indicated that there were a total of 29 employees working at Store No. 502. And to complicate the picture, some number of employees – including some of those who had originally signed membership cards – filed a “petition” indicating that they did not wish to be represented by the trade union after all.

20. As will be seen therefore: if the employee list is accurate, and if all of the union’s membership cards match names on that employee list, then the union enjoyed the (apparent) support of a bare majority (52%) of the workers at Store No. 502 (discounting the fact that some of the union supporters had recanted). However, it is not clear whether there was ever a final determination of the number of employees working at Store No. 502. Nor was there ever any representation vote to test the wishes of those employees. Because the case went off in another direction - whether the employees of a single store comprised an “appropriate bargaining unit”. And the parties had quite different views about that.

21. The union claimed that the employees of a single store comprised a grouping that was appropriate for collective bargaining - relying on a number of Board cases said to support that proposition. The union pointed, in particular, to those cases suggesting that the Board should not demand bargaining units that were too big to organize (see the emphasized passage from the earlier Tim Horton case, mentioned above). In the union’s submission, “ease of organization” was a critical factor supporting its proposal, because, it was said, a more broadly-based bargaining unit would pose a barrier to the establishment of any collective bargaining at all. In the union’s submission, it was realistic and “appropriate” to organize on a store-by-store basis, and unduly onerous to require any broader organizing effort.

22. By contrast, Lynn Management Ltd. proposed a bargaining unit encompassing all 11 stores that it operated in the Hamilton / Stony Creek area. Lynn Management urged the Board not to subdivide, for collective bargaining purposes, what the employer claimed was an integrated operation. In Lynn Management’s submission, the employees at the 11 stores shared a community of interest, and should not be “balkanized” into separate bargaining units. Lynn Management asserted that the employees at Store number 504 should not be segregated from their fellow workers at other locations in the area.

23. Finally, it should be noted that a group of objecting employees also intervened in the proceeding, and also had something to say about the bargaining unit. These employees proposed a two-store configuration: store No. 502, plus another store with which it was said to be closely associated. In the intervenors’ view, the employees of these two stores shared a community of interest, and should be grouped together for collective bargaining purposes. In their submission, the appropriate bargaining unit encompassed two stores.

24. So, from the Board’s perspective, there were a range of bargaining unit options: one store, two stores, 11 stores, or some other subdivision (see again the statutory definition of “bargaining unit”). Which option was “appropriate” in the circumstances?

25. It is important to recognize, though, that this was not an abstract exercise of labour relations policy-making. There were practical consequences flowing from each bargaining unit choice. Given “the arithmetic” recorded above, if the “appropriate bargaining unit” turned out to be anything broader than the single store proposed by the union (i.e. if the “appropriate unit” embraced two or more stores), the union’s certification application was in real trouble, because even in the target store, the union’s level of support was not overwhelming. Indeed, given the absence of any employee support beyond the target store on Parkdale Avenue, any of the alternative proposals would probably defeat the application.

26. In order to determine the bargaining unit perimeter, the Board decided that it had to hear evidence about what the employees did, and how the employer operated. The Board needed to know more about the organizational and employment context.

27. The record indicates that this phase of the hearing consumed a total of 12 scheduled days. The initial block of 9 hearing days was completed in June 1995. But, on the union’s request, the matter was reopened in November 1996, in order to consider the union’s allegation that earlier material put before the Board had been “tainted”. That further evidence was received and considered. The case was finally concluded in December 1996.

28. There was a delay of 17 months between the initial completion of the case in June 1995 and the reopening of the case (at the union’s request) in November 1996. Thereafter, there was a further delay of almost 36 months until the majority decision was issued in November 1999. I will return to the significance of that delay later.

29. The majority decision speaks for itself, and will not be analyzed here in any detail. It suffices to say that the panel majority carefully reviewed the facts, (as it found them), including: the similar nature of the work and employee skills at all 11 stores in the Hamilton area; the common employment conditions and practices as between stores; the degree of organizational integration; the production and supply relationships as between stores; the direct involvement of Lynn Management personnel in key employment-related decisions (hiring, training, discipline, discharge) at each store; the mobility of employees between stores on a permanent or casual basis; the common payment arrangements at all stores, through a common payroll firm; the role of local management; and so on. These factors were weighed in light of the arguments presented and the applicable Board “jurisprudence” (i.e. the legal and policy considerations explained in other Board decisions). The majority concluded at paragraph 83:

In reviewing the evidence, we have concluded that the single‑store unit would cause serious labour relations problems for the employer. In particular, such a unit would cause undue fragmentation [see below] of the employer's functionally integrated enterprise.

30. The Board majority was not sanguine about a bargaining unit that involved only the single store on Parkdale Avenue. Nor was the Board enthusiastic about an analysis which, if accepted, might support ten, other single-store bargaining units, in the same general area. That is what the Board meant by the term “fragmentation”: the prospect of almost a dozen, single-store bargaining units - each encompassing a handful of employees, each potentially covered by a separate collective agreement, each potentially comprising a separate seniority and pay equity district, each potentially represented by a separate trade union, and so on. The majority was not attracted to the prospect of such a checkerboard of bargaining rights – or to a small island of collective bargaining, within a broader grouping of unorganized employees and stores. In the majority’s opinion, a single-store unit was not “appropriate” for collective bargaining.

31. The dissenting Board member took a different view of the facts and the relevant policy considerations – particularly the impact that a larger bargaining unit might have on the ability of employees to organize themselves for collective bargaining purposes. (This tension was also discussed in Salvation Army and Hospital for Sick Children to which the majority referred). In the dissenter’s opinion, a single store encompassed a sufficiently coherent grouping of employees to be considered “appropriate for collective bargaining”, even though a multi-store unit would also be appropriate. She would have accepted the union’s position on the bargaining unit, then gone on to deal with the other issues in the case.

32. Interestingly, neither the majority nor the minority addressed the decision of a different panel of the Board in the other “Tim Horton case” mentioned at paragraph 15 of this decision. There, as here, a Board panel had to engage in the balancing exercise described above, and had to determine whether a single Tim Horton’s store (one of several stores in Lindsay, Ontario) was appropriate for collective bargaining. And there, as here, the Board majority ultimately concluded that the employees of a single store did not comprise a unit of employees appropriate for collective bargaining. On the other hand, by way of contrast, in United Steelworkers of America and J.P. Murphy Inc. (File No. 4207-94-R, decision issued on June 20, 1995) yet another panel of the Board looked at yet another configuration of Tim Horton’s stores, and concluded in the circumstances of that case, that a single store was appropriate for collective bargaining.

33. What these various “Tim Horton’s” decisions illustrate, is that there is nothing exceptional about the balancing exercise in which each panel has engaged when determining the “appropriate” bargaining unit. In each case, the Board made some factual findings about the way in which the local businesses operated, then exercised an informed labour relations judgement, in the context of those facts, in light of the arguments advanced, and against a background of Board jurisprudence and policy considerations. And in response to different circumstances, different arguments pressed, or different positions taken, the Board reached different conclusions – even though each of the applications involved somewhat similar franchise operations.

34. Accordingly (and despite counsel’s characterization in the request for reconsideration), the particular decision under review here does not, does not purport to, and could not by itself, change “Board Policy” in respect of single store bargaining units in the retail sector. Indeed, it is quite misleading for the applicant to describe the decision in this way. What the decision does (and all that it does), is apply the principles enunciated in Hospital for Sick Children in a particular set of facts - reaching a decision that does not purport to be, and cannot be, “binding” on some other panel in some other circumstances. The decision simply does not have the significance that the request for reconsideration suggests that it has.

35. In any event, for the reasons outlined at some length, the majority found that store No. 502, standing alone, was not an appropriate bargaining unit; and because the union had no support anywhere else, the certification application was dismissed. Whatever the bargaining unit might ultimately turn out to be, it was not what the union had proposed; and in any other employee grouping, the union was bound to fail. The application was therefore dismissed.

IV - Who is the “legal employer” of the employees for collective bargaining purposes?

36. The union applied for certification on May 3, 1995, naming “Tim Hortons” and the street address as “the employer” of the employees in question. The union did not identify and particular corporate entity or owner. However, a reply to the union’s application for certification was filed on May 24, 1995. The reply stipulates that the proper name of the responding employer is “Lynn Management Ltd. c.o.b. as Tim Hortons”.

37. Much passed between the parties thereafter. However there does not appear to have been any request by the trade union to amend that name or substitute something else. Indeed, as late as November 26, 1996, in its decision accepting the union’s request to reopen the hearing, the Board unanimously recorded that the “correct name” of the responding party was “Lynn Management Ltd. c.o.b. as Tim Hortons”.

That was the entity that had carriage of the case, throughout, and was the entity that the union would therefore face across the bargaining table in the event that its certification application were successful.

38. There seems to be no request to change the name of “the employer” from “Lynn Management” to “some numbered” company said to be associated with stores such as No. 502 – even though there was considerable evidence led about those other stores, and at least some evidence about the “corporate shells” associated with each one.

39. In dealing with the appropriate bargaining unit question, the panel heard quite a bit of evidence about the way in which various stores were organized or interrelated – including the fact that, for operational purposes, a separate corporate entity was associated with each local store. Moreover, (so the dissenter says) various employment documents bear the name of the local corporate entity, rather than Lynn Management (which is the direct franchisee from “TDL” and clearly exercised decisive control over what went on in all of the stores). However, the Board did not find that the operating shell company associated with each store, was “the employer” for labour relations purposes; and, even the dissenting member was troubled by the quality of the evidence before her. At paragraph 12 she wrote:

The Board did not get sufficient and necessary evidence within the knowledge of the respondent, to allow it to make a determination about the labour relations impact of the existence of separate and legally distinct corporate entities involving each of the 11 stores, and in particular, the impact of these separate corporate entities on the 80:20 operations; and the overall role of the franchiser parent corporation TDLGroup.

And at paragraph 19 the dissenting Board Member observed:

The Board was not in my opinion, provided with the evidence necessary to decide upon the question of the existence of separate corporations, (including the role of the parent corporation TDL) and the impact this could have on the determination of an appropriate bargaining unit.

40. In other words, even the dissenting member of the Board was unclear about: the effect, if any, that these separate corporate “shells” might have on the identity of “the employer” for collective bargaining purposes; the impact on the perimeter or extent of the bargaining unit; and whether this would be an appropriate case for a “related employer” declaration, if anyone had asked the Board to make one.

41. Under section 1(4) of the Act, the Board can declare two entities to be a “common employer”, so that, in the context of a certification application, a bargaining unit could conceivably encompass the employees working for both entities. In the instant case, the Board seems to have recognized that there might be a plausible case for a common employer declaration under 1(4) of the Act, if anyone had asked the Board to apply that section. But no one did. (See in particular the comments of the dissenter at paragraphs 25-26.)

42. In summary then, I think it must be taken that in the decision under review: the “employer” for collective bargaining purposes (i.e. the entity that should be at the bargaining table) was “Lynn Management Ltd.”; the bargaining unit sought by the trade union was a single-store unit; and the majority of the Board did not find that unit to be “appropriate for collective bargaining”. While that conclusion might have been different if the Board had concluded that the “real employer” of the employees at each store, was the numbered company associated with that store, (rather than the owner/franchisee, Lynn Management Ltd.), the majority of the Board did not make that finding. Neither did the dissenting member. And it is not at all clear that (until much later) anyone even asked the Board to do that – leaving aside whether the preeminent role of Lynn Management meant that it had effective control over the employment relationships at each store, so that it was therefore the “real “employer” for collective bargaining purposes in any event.

V - Why such a long delay?

43. As I have already noted, there was a 17-month delay between the initial closing of the case and its reopening in November 1996, followed by a further almost 36-month delay between the conclusion of the hearing and the issuance of the majority decision.

44. What happened?

45. There is perhaps no complete explanation for this long delay. Certainly not one known to the Board. And there is no doubt that a delay of that magnitude, without explanation, is prima facie unreasonable. However, undoubtedly one factor in the equation was the unexpected and involuntary departure from the Board of all three members on the hearing panel, which caused considerable institutional and personal dislocation, as well as litigation that was not finally resolved until much later (see the decisions of the Divisional Court and the Ontario Court of Appeal in Re Hewat et al and The Queen in Right of Ontario reported at (1997), 1997 CanLII 16246 (ON CTGD), 32 O.R. (3d) 622 (Div.Ct.), and (1998), 1998 CanLII 3393 (ON CA), 37 O.R. (3d) 161) (O.C.A.)). The majority decision in the instant case did not issue until after all of these problems were resolved.

46. The Board itself was not involved in this litigation. Nor was it clear what the Board, as an institution, might be lawfully entitled to do to expedite the decision of a seized panel, whose members had departed but had not finished up their outstanding work. The Statutory Powers Procedure Act and the Labour Relations Act do not speak clearly to this situation. Nor did the information available to the Board, put the case in any of the categories to which those statutes did speak. Even the reconsideration power presupposes that a decision has been made. And there is no obvious authority for the Board to intervene on its own motion and direct that an outstanding case before a seized panel be started all over again, because the Chair or another Board panel might think that the delay is excessive. It was, quite frankly, a novel situation for which there was no precedent, and no clear legal answer or solution.

47. So far as the Board was aware, the panel was not refusing or obviously unable to issue a decision. Neither the parties, nor the panel members, made that assertion. Nor did any of the parties seek the assistance of the Courts to force the panel, or the Board, to deal with the case in a more timely manner.

48. In the result, the panel did, eventually, issue a decision with quite extensive reasons – albeit a decision with which the union does not agree.

VI - The request for reconsideration

49. The request for reconsideration raises two broad themes:

1. That the Board’s decision was wrong, palpably unreasonable, and (as counsel puts it) “inconsistent with several decades of labour relations Board jurisprudence”; and

2. That the union was not only irrevocably prejudiced by the delay, but that such delay fuels an apprehension of bias, or amounts to a denial of natural justice.

50. The first set of concerns goes to the merits of the panel’s decision. The second set of concerns goes to the process. I will look briefly at both.

VII - The Merits

51. Both the scheme of the Act and the labour relations context dictate that once a matter has been heard and decided, the decision should be “final and conclusive”. That is the thrust of section 114 (see also section 116), and is consistent with the labour relations objectives that the statute is designed to promote. Accordingly, while the Board has jurisdiction to reopen, reconsider, or rehear a matter, whenever the Board considers it “advisable”, it is a jurisdiction which has been (and should only be) exercised in clear or exceptional cases. Any other approach would undercut the finality of Board decisions – something which the statute prescribes and which has an independent labour relations value, quite apart from the merits of a particular decision. A “reconsideration” is not an “appeal”.

52. In the instant case, the union asserts that, on the bargaining unit question, the Board erred: the majority “got it wrong” and the dissenter “got it right”. However, such claim can always be made when a panel issues a “split decision”; and the fact that there is a dissent really has no bearing on the “correctness” or otherwise of the underlying decision – let alone whether it is “advisable” to reconsider that decision (which, as noted, is a different question). The fact that there may be some argument that a decision is “wrong”, does not mean that the case should be reconsidered and reheard. To repeat: reconsideration” is not an “appeal”.

53. Moreover, as any review of the Board’s bargaining unit decisions will illustrate (and as the cases mentioned above make clear): the result in any such case turns on a mixture of law, fact, and policy. That is why the Board described it as a “balancing exercise” in the earlier Tim Horton's case; and that is what the Board did in the instant case. Given the nature of the exercise, the decision in the instance is not manifestly wrong, or patently unreasonable, or inconsistent with fundamental labour relations principles, as counsel asserts. Nor does it involve any significant “policy” determination. It is a rather “run-of-the-mill” finding of “appropriateness” in a particular factual setting – as were the other Tim Horton’s cases.

54. The same may be said about “the identity of the employer issue” – which is fundamental to the “multi-employer argument” which the union now makes, but which even the minority member of the Board finds difficult on the evidence put before her. In fact, it appears that when focusing on the bargaining unit perimeter, the parties did not clearly crystallize this particular legal issue, or relate it to the other evidence and issues in the case. Or if they did, it was not done in a way that moved any of the Board panel members – and certainly not in the direction now proposed by the union.

55. Be that as it may, there is, in my view, nothing in the text of the decision that would warrant reopening this case for a rehearing on the issues which the union has raised. (I say “rehearing” because it is a little difficult to see how the union’s concerns could be addressed without a new hearing, duplicating the exercise in which the earlier panel has already engaged.) And for reasons that I will come to in a moment, it would make absolutely no “labour relations sense” to do that.

56. It is also worth noting that I would have reached the same conclusion on this branch of the union’s argument, (i.e. with respect to the “merits” of the decision) even if the decision had been issued in a timely way. The circumstances simply do not call for a rehearing. And if the Board would not have reconsidered this particular decision “on the merits” if it had been issued a few weeks after the completion of the hearings in 1996, I see no reason why the delay in issuing the decision should make any difference. To put the matter another way: if it would not have been “advisable” to reconsider the decision in 1996, the passage of time makes it no more “advisable” now.

57. However, the union also says that delay is significant for other reasons, to which I now turn.

VIII - Delay

58. The union says that the delay in issuing the decision creates a strong impetus for the panel to dismiss the application (and, presumably, construct a multi-page decision to justify that result). As I understand the argument: the union suggests that someone who has severed his/her relationship with the Board would be more inclined to want to be rid of any outstanding cases (as opposed, presumably, to completing outstanding cases as the law permits - and being paid on a per diem basis for the time spent doing so). In addition, the union suggests that for the panel to accept the union position and then go on with the case, would throw a spotlight on the length of the delay and consequent prejudice caused by the panel’s own inaction. Accordingly, the union says that the panel was inevitably “predisposed” to the result which would bring the case to an end and avoid such scrutiny of its own decision-making processes. For the panel to decide otherwise, the union argues, would both highlight its own tardiness, and continue its involvement in a matter, and with an institution, from which the panel members had long since distanced themselves. So the panel was moved to dismiss the case.

59. That, as I understand it, is the union’s argument: a hypothetical construction of the panel’s presumed “motive” for deciding the way it did. But, with respect, that suggestion is pure speculation, for which there is no evidence whatsoever. On the contrary. It is evident that the panel majority carefully reviewed the testimony and wrote a rather long decision explaining its conclusions; and while the union may disagree with the emphasis or the result, it betrays no disposition whatsoever to dismiss the case. Indeed, whatever else may be said about the impact of delay, the panel’s actual conduct suggests precisely the opposite conclusion.

60. Had the majority been inclined to “wash its hands of the case” and take the “easy way out”, it could have accomplished that objective much more simply and quickly than by writing the kind of decision that it did. In fact, had there been any predisposition to “get rid of the matter” in some perfunctory way, the panel would not have reopened the case - as it did in late 1996 - to hear more evidence from the union. And, of course, the union’s position presupposes that the panel could not have simply dealt with the bargaining unit question, then leave the rest of the case to be addressed by someone else.

61. This might not have been the most economical way of proceeding from the parties’ point of view. But there is no obvious legal impediment to having severable issues dealt with by different adjudicative panels. Nor is it uncommon for a panel to decide some questions and not others – leaving the way open for further litigation, before a different panel, if it becomes necessary. And while it is quite unusual for cases to drag out before the Board for years, sometimes there are cases that do take that route – as also sometimes happens in the Courts.

62. So the institutional underpinning of the union’s argument is flawed as well. It too is based upon a hypothetical.

63. In summary, while a panel would no doubt be conscious of the impact of delay on the alternative outcomes, there is nothing whatsoever to suggest that the panel was influenced by that factor in reaching the decision that it did. The union’s assertion of “motive” is pure conjecture.

64. Apprehension of bias is a serious legal issue, about which there has been much written in recent years. But it seems to me that such allegation must be based on more than speculation and supposition.

65. But, let me be clear. I do not suggest that a delay of this magnitude is justifiable. It is not. I agree with the union’s submission that, whatever the reason for it, such delay is prima facie unreasonable and undoubtedly works to the prejudice of all of the parties in this case. While this matter was pending before the Board, there was a cloud of uncertainty over the parties’ relationships. The employer was circumscribed in how it could deal with its employees (see for example, section 81 of the Act). The union could not easily disengage. And the employees themselves were left in limbo.

66. There is no doubt, therefore, that a delay of this magnitude is inconsistent with the scheme of the Act and prejudicial to all of the parties in the case. It may even be arguable that it amounts to a “denial of natural justice” – an elastic phrase, borrowed from the common law, but without precise legal parameters in this setting. However, that is not the same thing as saying that the panel was somehow “biased” or predisposed to a particular result. There is no evidence of that. Nor, it seems to me, does it necessarily mean that the Board should apply section 114, and start the case all over again, with a new panel.

67. For unfortunately, the magnitude of the delay does figure into the question of whether the decision should now be reconsidered or reheard at this stage – which is to say, more than five years after the filing of the original certification application.

68. Even assuming (without finding) that the union is right in its “natural justice analysis”, it is by no means obvious that reconsideration is the appropriate or “advisable” vehicle to “correct” the problem – or, indeed, whether the situation is even “correctable” at this point.

IX – Discretion – some labour relations policy considerations

69. As I have already observed: the power to reconsider is an extraordinary one, which should be used sparingly and realistically – not only to rectify significant error, in very clear cases, but also with an eye to the labour relations realities of the situation. And in my view, despite the lengthy delay, (indeed, because of it) it would make no “labour relations sense” to start this case all over again – as I think the Board would have to do, given the way that the events have unfolded, the nature of the alleged errors, and the arguments which the union now wishes to make (or refine).

70. Not to put too fine a point upon it: that particular remedy would merely compound the problem.

71. I do not know whether the union’s bid for certification would ultimately have been successful, if the Board, in 1995 or 1996, had accepted the union’s proposed “single store bargaining unit”, then gone on to address whatever else had to be determined in the case, (and decided those issues, too, in the union’s favor). What is clear is that the delay in issuing the decision has, in itself, made it virtually impossible to recreate the labour relations setting that then obtained - even if, as the union claims, that single location were an “appropriate” “stand alone” bargaining unit. For as Laskin, J.A. said in Hotel and Restaurant Employees and OLRB v. Nick Masney Hotels Ltd. (1970), 70 CLLC para. 14,020:

The Ontario Labour Relations Board deals in certification matters with fluid situations which cannot be judged by the more leisurely standards that operate in the prosecution of a claim for damages for a tort or 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 the employer since the certification is merely the first step in an often laborious collective bargaining process.

And as Estey, J. A. observed a few years later, in Journal Publishing Company of Ottawa Limited et al. v. Ontario Newspaper Guild, Local 205, OLRB et al. (March 31, 1977, unreported):

In the law which has grown up around labour relations in this province, and indeed elsewhere where the common law is pursued, the overriding principle, invariably applied, is that labour relations delayed are labour relations defeated and denied.

72. These passages, unfortunately, aptly sum up the situation in this case. The legal and labour relations setting, as they were in 1995, simply cannot now be recreated. Nor would it advance the purposes of the Act by attempting to do so.

73. It must be remembered that central to the certification process is the wishes of employees - some number of whom, more than five years ago, indicated a desire to be represented by the applicant trade union. The wishes of those employees, as a group, have never been directly polled. Nor (it appears) was it ever finally ascertained that a majority of them then supported the union’s certification. It is not even clear how many (if any) of those employees still work at store No. 502, let alone whether any of the original union supporters continue to support its certification (recall that within a few days, at least some of those supporters purportedly had a change of heart). However, in all likelihood, the work force looks very different today than it did back in 1995. And the statute is quite different too.

74. Yet if the request for reconsideration were granted, the Board would have to reprocess this application – presumably applying the law as it was in 1995, to the “old” employee lists and the “old” membership cards. Furthermore, even if a different panel were to rehear the case and embrace the union’s position with respect to the identity of the employer or the bargaining unit perimeter, the Board might then be obliged to litigate other allegations and facts raised years ago. Or perhaps certify a trade union as the current employees’ bargaining agent, based upon documentary expressions of employee interest collected back in 1995. Then the parties would have to begin the laborious process of collective bargaining – under the law as it currently is.

75. There is a palpable artificiality about such exercise, which simply does not accord with collective bargaining realities or the underlying purposes of the Act.

76. Conversely, as the law now stands: if the union can show an appearance of support among a mere 40% of the current employees, in a bargaining unit that “could be appropriate” for collective bargaining, the union can obtain a quick representation vote in the single-store unit that it claims to be appropriate (see sections 7-11 of the current Act – that is, as amended by Bill 7 in 1995, and Bill 31 in 1998). In other words, whatever the employees may have wanted in 1995, if the employees want a union now, there is a simple and direct way for them to proceed, which does not involve reviving and re-litigating a matter that started more than five years ago, in a different environment, and under a different regulatory regime. Moreover, it is an alternative that reflects the majoritarian principles upon which the certification process is based, and is also more likely to facilitate a workable collective bargaining relationship into the future.

77. I agree that the union has been prejudiced by the way that events have unfolded. So have the employer and the employees. The delay is extraordinary and undoubtedly detrimental to the interests of the parties. It is an outcome which the Board deeply regrets. But it does not answer that concern to revive the case and relitigate it on the basis of the law and the facts as they were some five years ago. Nor does it make practical sense to proceed with the issues as yet unheard, relying upon what witnesses may now be able to recall of what happened or the way things were in 1995. To the extent that there is prejudice – as there undoubtedly is – it is not remedied (indeed, is probably compounded) by the course of action that the union proposes.

X - Conclusion

78. This is an unusual case from many perspectives; moreover, the union is understandably and justifiably irritated by the course that it followed. And to be frank: the Board is also troubled by the way that events have unfolded. However, in all the circumstances, and for the reasons outlined above, I am not persuaded that it is now “advisable” to reconsider the majority decision.

79. The request for reconsideration is therefore dismissed.

“R. O. MacDowell”

for the Board