International Brotherhood of Electrical Workers, Local 1739 v. N.S.E. 2000 Inc.
2996-99-R International Brotherhood of Electrical Workers, Local 1739, Applicant v. N.S.E. 2000 Inc., Responding Party.
3572-99-U The International Brotherhood of Electrical Workers, Local 1739 and Mr. Allen Bulmer, Applicants v. N.S.E. 2000 Inc., Responding Party.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: Elizabeth Mitchell, Gordon Nye and Allen Bulmer for the applicants; David Chondon and Claudio Racco for the responding party.
DECISION OF THE BOARD; September 29, 2000
1Board File No. 2996-99-R is an application for certification pursuant to the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, ch. 1, as amended (the "Act"). This application was originally processed following the Board's normal procedure. The result was that six ballots were counted. Not more than 50% of the persons in the bargaining unit cast ballots in favour of the applicant and accordingly, by decision dated February 21, 2000, the application was dismissed.
2Board File No. 3572-99-U is an application under section 96 of the Act filed on March 7, 2000. This application seeks two forms of relief. The first relates to relief respecting Mr. Allen Bulmer, who was terminated by the responding employer shortly after the ballots were counted in the certification application. The second element of this application is an allegation that the responding party committed a number of unfair labour practices up to the time of the vote and, on that basis, seeks relief under section 11 of the Act, including a second vote in Board File No. 2996-99-R. In addition, the applicant has filed a request for reconsideration of the February 21, 2000 decision dismissing the application for certification on grounds which are identical to those raised in the section 96 application. (In the ordinary course, this panel would not be seized of this application for reconsideration.)
3When this matter first came on for hearing the responding party made a preliminary motion. This decision deals only with that preliminary motion. As articulated by counsel for the responding party at the hearing, the motion is essentially a request that the Board dismiss the application for reconsideration, and that portion of the section 96 application seeking relief under section 11. The basis for this motion was that the application was not made in a timely fashion. The responding party stated clearly that it did not suggest that the union had delayed excessively in filing the application. Indeed it conceded that it did not. It conceded that the section 96 application, insofar as the relief sought with respect to Mr. Bulmer was concerned, was properly filed and could proceed. However, the responding party submitted that, to the extent that the applicant sought relief under section 11, that application was not filed within the period given by the Board in the certification process when such matters should have been raised.
4The time limits relied on by the responding party are not in the Board's Rules, but are contained in the Information Bulletin No. 6 and the notices which are sent out in every certification application. The applicant did not dispute that these time limits are well known and that there is good reason for enforcing the time limits routinely imposed by the Board in applications for certification.
5Information Bulletin No. 6 in section VII-1 states that "a party must identify all issues remaining in dispute in an application for certification within five days after the date of a vote being conducted and a report of vote provided to the parties." The Notice of Report of Board Officer, Form B-80 was issued to the parties on January 18, 2000. Paragraph 2 required the parties to make any representations concerning any matter relating to the application for certification which remains in dispute on or before January 25, 2000. Similarly, the Notice of Report of Returning Officer on the Counting of Ballots, Form B-80 requires the parties to do the same thing; the last day for making submissions in this case was February 16, 2000.
6In Baron Metal Industries Inc. [1999] OLRB Rep. May/June 363, the Board stated that the direction in Form B-80 was broad enough to encompass any events on which an applicant union might seek to rely in seeking relief under section 11. Accordingly, the submissions, now contained in the section 96 application ought to have been filed by January 25, 2000 or at the latest February 16, 2000.
7The applicant explains its conduct in the following manner: first, Allen Bulmer was terminated on the 14th of February, three days after the ballots were counted. It was in the process of investigating that discharge that it became aware of the facts giving rise to the complaint. More specifically it held a meeting with the employees in the bargaining unit on February 21, 2000. At that time many of the events complained of by employees were made known to the applicant. It then consulted counsel and the application was filed on March 7, 2000. The responding party did not dispute the assertion made by the applicant as to its actions. The responding party did however point out that a number of the facts complained of relate to events at which Mr. Nye, Business Representative of the applicant, was in attendance and to events relating to Mr. Bulmer himself. It was common ground that Mr. Bulmer was the primary contact for the union among employees in the bargaining unit.
8The time limits for submissions during the course of a certification application are necessarily circumscribed. The Act requires the Board to hold a representation vote within five days of the application date, if possible. The Act attempts to ensure that the disruption which an application for certification inevitably entails, is confined to a limited period of time, and that the application can be dealt with expeditiously and the results of the application known close to the application date.
9There is, of course, more to an application for certification than simply the process of marking and casting ballots. There may be in any one application issues relating to whether or not certain persons are in the bargaining unit and therefore entitled to vote, whether certain persons are employees at all, issues with respect to bargaining unit description, a question of the rights of another trade union, and allegations with respect to a party's conduct prior to the vote or at the vote, to name only a few. The Board's post-vote process is intended to enable the parties to clarify their positions on matters of fact and legal relevance, and to attempt to settle some of those issues, and to identify the issues that must be litigated.
10It is important to ensure that a simple and expeditious process, based on freely expressed employees' wishes revealed any secret ballot, does not become bogged down in a protracted and meandering legal process. The Board's Rules therefore require parties to focus their attention on the real issues in a case at the earliest opportunity and to stick closely to their agenda to the end of the case. Thus, the Board has refused to permit parties to resile from agreements about lists of employees, to add new issues which could have been raised previously, or to lead evidence to contradict agreements of fact executed at the time of the vote or at a regional certification meeting: JLY Electric Inc., [2000] OLRB Rep. May 499, Martha's Garden Inc., [1997] OLRB Rep. Sept./Oct. 891, Mason Homes Inc., [2000] OLRB Rep. May/June 513, and Komtec Inc., (unreported, June 29, 2000, Board File No. 0622-00-R). Ensuring that these rules of litigation are firmly maintained is an important and necessary part of the certification process.
11As the Board said in Mason Homes, supra at paragraph 13:
The Board's policy exists for a variety of reasons. Firstly, it is desirable to have certification applications determined as quickly as possible. Upon the filing of a certification application, the employer is placed under a statutory freeze (see section 86(2)). It is unable to freely make alterations to the employees' working conditions absent the trade union's prior approval. Further, a pending certification application creates a degree of unrest and disruption in the workplace. The sooner the parties and employees know the outcome of the matter, the sooner the workplace atmosphere can be returned to normal. Obviously, if parties are permitted to continue to change their positions at any time up to the final issuance of a Board decision, the matter could be seriously delayed. Secondly, if parties were permitted to change their positions, gerrymandering (a change from a party's original position, adopted in the absence of any knowledge as to the relative strength of the other party, to a different position, based on an appreciation of the parties' relative strengths and the advantage taking such a position would give) would result. It is believed that a party's original position, uninfluenced by information as to the union's actual level of support, is likely to be the more accurate of the two positions. Thirdly, in the words of the Board in Santa Maria Foods, [1981] OLRB Rep. Nov. 1618 at paragraph 8, "absent a general rule that prohibits a party from changing its position after the union's level of support is revealed it would be possible for certification hearings to turn into endless meanderings without map or compass, each turn in the journey being dictated by changing perceptions of the parties as to what best serves their own interests."
12A decision not referred to by counsel in argument but which deals with facts close to the facts of this case is a decision of the Board which was the subject of an application for judicial review: Retail Wholesale Canada v. Sirch Holdings Inc. (2000) 59 CLRBR (2d) 41 (Div. Ct.). That case was a termination application. The Board refused to permit the trade union responding party to lead evidence of the managerial status of the originator of the application. The allegations were made outside the time limits set by the Board in that application and were inadequately particularized. The Divisional Court denied an application for judicial review by the trade union and said at paragraph 11:
In our view, the decision of the Board not to hear evidence from the union [Retail Wholesale Canada, Canadian Service Sector Division of the United Steelworkers of America, Local 448] because of Crivea had not been sufficiently particularized and did not amount to a denial of natural justice. The union could have and should have been alert to any misconduct by management during the weeks leading up to the decertification vote on September 26, 1997. The union apparently became concerned only on October 5, 1997. Even then, it had two days to obtain particulars of any misconduct, but failed to give any such particulars on October 7, 1997, when it said only in its letter to the Board that it intended to file a complaint that the intervener had violated the Ontario Labour Relations Act, 1995 with respect to its conduct prior to the vote and would seek relief under s. 63(16).
Ultimately the Court's decision rests more strongly on the inadequate particulars and the union's lack of due diligence in pleading particulars than the strict application of time limits. However, the Court did find that the Board's use of such time limits was appropriate.
13On the other hand, these time limits are not inflexible nor are they to be applied mechanically. The Board has permitted both parties to change their positions on the appropriate bargaining unit description when to do so does not lengthen or prolong a case, and where it is simply a question of arguing the legal effect of facts which are already before the Board: Morrow Transport Inc. [1999] OLRB Rep. May/June 434.
14Is the applicant untimely in this case? Events complained of in support of the section 11 relief, of necessity, all relate to events occurring before the vote was taken and hence well before the end of the various deadlines for submissions. However, the Board does find that this is a case in which the Board ought to permit the trade union to raise these issues at this time.
15First, it appears on the basis of counsel's submissions that the applicant has acted with due diligence. It states that in fact it did not obtain its information from employees until the February 21, 2000 meeting. With respect to Mr. Bulmer, the applicant asserts that he did advise the union of one event on December 2, 1999 but he did not advise them of the other events to which he was a party until the February 21, 2000 meeting. His communication with the union prior to the vote related to the kinds of issues and assurances which the employees of the responding party were interested in hearing about from the union. The events to which Mr. Nye was a party, are not in and of themselves unfair labour practices so much as they are confirmatory of the employer's motives and beliefs. Thus the union was not in possession of the information which forms the basis of the application until February 21, 2000.
16In hindsight, the applicant might have been better advised to follow up more closely the possibility that there might have been improper action by the employer. On the other hand, no employee suggested that there had been any, other than the December 2 incident. The Board is unwilling to suggest that a trade union is obliged to go searching for opportunities for litigation when no reason to do so is apparent. The submissions do not suggest that the union was being willfully blind or careless with respect to such issues. It promptly and diligently investigated the circumstances of Mr. Bulmer's discharge and it was in part in the course of that investigation that the information on which it now relies came to light. While it might have filed its complaint a few days earlier than it did, it still made its application within the 20 day period for the making of an application for reconsideration.
17Second, at least part of the factual basis of this motion cannot be determined in a preliminary way. The union asserts that employees were too intimidated to come forward until the February 21 meeting. That assertion is one that can only be determined after the evidence of those employees is heard, evidence which is essentially all of the evidence to be heard in the section 96 application. The Board could reserve on this motion, but since the outcome of the determination of that issue is likely to be the same as the outcome of the determination of the merits of the case, there is no purpose in doing so.
18To refuse to inquire into whether information was not forthcoming to the union because the employees were intimidated would be inappropriate in this case. The Board must retain the ability to apply time limits in a flexible manner so that those time limits do not potentially reward an employer for substantive violations of the Act. If in fact the responding party did intimidate employees to the extent that they did not come forward to the applicant during the relevant time period, the results of that violation of the Act should not be the basis of the refusal of relief at the request of the union. This is particularly so in a case such as this one, where the application was brought soon after the application for certification was determined, and in a properly particularized manner. The allegation that this employer committed any improper or unlawful act, of course, remains to be proven in the course of this application.
19To permit the applicant to raise these matters after the two deadlines for submissions, will lengthen the certification process. However, it will not do so by reopening an issue in the proceeding, or adding a new issue with respect to the conduct of the vote, nor would it challenge an agreement previously reached by the parties. Indeed, any section 11 relief is irrelevant until the results of the vote were known on February 11, 2000. This complaint essentially adds to and carries on from an already completed process seeking different and additional relief. To this extent, while it does lengthen the time needed to complete this application, it does not represent the kinds of concerns articulated by the Board in Mason Homes, supra.
20Finally, there is no prejudice to the responding party in the sense of being unable to respond to the allegations due to the passage of time. The responding party candidly and properly stated from the outset that it did not rely on a mere passage of time as the basis of its objection. In addition, the termination of Mr. Bulmer occurred after the last five-day period had commenced to run. Its relevance to events which occurred before the vote, which are the basis of the union's request for relief under section 11, is necessarily limited. However it would be overly artificial to say that the union is required to file particulars of a section 96 application with respect to events that occur during the five-day period. That period enables a party to summarize what issues exist in a case, rather than to particularize new issues which have arisen.
21The Board finds that the applicant is seeking to raise matters which could and should have been raised on or before January 25, 2000. However, the Board is prepared to relieve against that time limit for the reasons given above.
22Therefore, the responding party's preliminary motion is dismissed. This matter will continue on October 19 and 20, 2000. This panel is not seized of these files.
"David A. McKee"
for the Board