0835-01-R National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada), Applicant v. Sysco Foodservice of Ontario, Responding Party v. Canadian Labour Association of Canada, Intervenor.

BEFORE: Bram Herlich, Vice-Chair.

APPEARANCES: Rob Gibson, John Aman and Doug Hammond appeared on behalf of the applicant; Steve Bernardo and Linda Gordon appeared on behalf of the responding party; Peter Vanderkloet appeared on behalf of the intervenor.

DECISION OF THE BOARD; August 10, 2001

1. This is an application for certification in which a representation vote was held. The applicant seeks to displace the intervenor (the “incumbent”) as the bargaining agent for certain of the responding party’s (also referred to as the “employer”) employees.

2. At the commencement of the hearing the parties advised the Board that three issues remained in dispute:

(a) the employer’s claim that the application ought to be dismissed by virtue of deficiencies in the delivery of materials by the applicant;

(b) the incumbent trade union’s concerns regarding the number and location of polls in the representation vote; and

(c) the dispute between the parties regarding the appropriate bargaining unit.

3. I shall deal with these in turn.

Deficiencies in delivery

4. This application was filed with the Board on June 14, 2001.

5. Rule 67 of the Board’s Rule of Procedure provides as follows:

6. Before, or at the same time as, filing the application with the Board, the applicant must deliver to the responding party:

(a) completed copies of the application (but not including the material described in paragraphs (a), (b), and (c) of Rule 65);

(b) a blank copy of the form set by the Board for responding to the application (Form A‑2), including Schedules A and B (List of Employees);

(c) a completed copy of the Notice to Employer of Application for Certification (Form C‑1);

(d) a copy of Information Bulletin No. 1 -- Certification of Trade Unions;

(e) a copy of Information Bulletin No. 3 -- Vote Arrangements;

(f) a copy of Information Bulletin No. 4 -- Status Disputes in Certification Applications; and

(g) a copy of Part III of the Board's Rules of Procedure.

6. With one exception, it is common ground that all of the materials required to be delivered by Rule 67 were delivered to the responding party in a timely fashion.

7. Form C-1, however, was not included in the package of materials delivered to the responding party on June 14, 2001. In addition, also delivered to the employer was an improperly completed Form A-5 (confirmation of posting). This form is not one which is required to be delivered under the Board’s Rules (it is typically and, in this case, was provided to the employer by the Board). Nothing turns on the delivery of that form by the applicant. As indicated, it is not a form required to be delivered and it would have been plainly obvious (by virtue of the wrong parties having been named in it) that it had no application to the instant matter.

8. However, the employer asserts that the union’s failure to deliver Form C-1 in a timely fashion is fatal to its application.

9. Form C-1 is a “Notice to Employer of Application for Certification”. A blank Form C-1 reads as follows:

LABOUR RELATIONS ACT, 1995

NOTICE TO EMPLOYER OF

APPLICATION FOR CERTIFICATION

BEFORE THE ONTARIO LABOUR RELATIONS BOARD

Between:

Applicant,

‑ and ‑

Responding Party.

TO THE RESPONDING PARTY:

1. The applicant has initiated an application with the Ontario Labour Relations Board for certification as bargaining agent of your employees in a bargaining unit described in the Application for Certification enclosed with this notice.

2. This notice and other material are being sent to you because you are the Responding Party. An application for certification is a legal proceeding and may affect your legal rights and obligations. You may wish to seek legal advice immediately.

3. Enclosed with this notice are the following documents:

(a) a copy of the Application for Certification (Form A-1);

(b) a blank Response to Application for Certification (Form A-2), including Schedules A & B (List of Employees);

(c) a copy of Information Bulletin No. 1 ‑ Certification of Trade Unions;

(d) a copy of Information Bulletin No. 3- Vote Arrangements;

(e) a copy of Information Bulletin No. 4 ‑ Status Disputes in Certification Applications; and

(f) a copy of Part III of the Board's Rules of Procedure.

4. Your Response to the application (including Schedules A and B) must be filed with the Board no later than two (2) days after the Application for Certification was delivered to you.

You may file your Response with the Board by facsimile transmission. The Board's facsimile number is (416) 326‑7531.

You must also ensure that a copy of your Response (including Schedules A and B) is delivered to the applicant and to any affected trade union identified by the applicant in paragraph 7 of the application before or at the same time that you file these documents with the Board. You may deliver these documents by facsimile transmission. You must also complete a Certificate of Delivery. (Do not deliver your Response to any affected union that was not identified by the applicant. The Board will serve any such union.)

5. Please note that periods of time referred to in this notice, in other Board forms and notices, and in the Board's Rules of Procedure do not include weekends, statutory holidays, or any other day that the Board is closed.

6. It is an offence punishable on summary conviction to fail to comply with a direction of the Board ‑‑ see section 104 of the Labour Relations Act.

7. If the Board determines that 40 percent or more of the individuals in the bargaining unit proposed in the application for certification appear to be members of the union, the Board will direct that a representation vote be taken among the individuals in a voting constituency determined by the Board.

Section 8(5) of the Labour Relations Act directs the Board to hold the representation vote within five (5) days after the day on which the application for certification is filed with the Board, unless the Board otherwise directs.

8. Any direction from the Board to conduct a representation vote and any determination by the Board regarding a voting constituency for such a vote will be contained in a Decision of the Board which will be sent to you. If the Board directs that a representation vote be held, a notice indicating the time and the place the vote will be held will be sent to you for posting in the workplace.

9. The Board's Rules of Procedure require the Applicant to deliver the enclosed application to you (and to any affected union named in the application) before filing it with the Board. Once the application is filed, the Board sends to the parties a confirmation of the filing and a Board file number. If you do not hear from the Board within two days after you receive the application, you may wish to contact the Board.

10. In the normal course, an Officer of the Labour Relations Board will be contacting you to discuss this application with you.

DATED ________________________________.

The Registrar

Ontario Labour Relations Board

NOTE: All communications should be addressed to:

The Registrar

Ontario Labour Relations Board

505 University Avenue

2nd Floor

Toronto, Ontario

M5G 2P1

Tel. (416) 326‑7500

IMPORTANT NOTES

YOU HAVE THE RIGHT TO COMMUNICATE WITH, AND RECEIVE AVAILABLE SERVICES FROM, THE BOARD IN EITHER ENGLISH OR FRENCH.

VOUS AVEZ LE DROIT DE COMMUNIQUER AVEC LA COMMISSION ET DE FAIRE APPEL À SES SERVICES EN ANGLAIS OU EN FRANÇAIS.

10. The only particularized and specific information which an applicant is required to add to this form is the names of the parties and the date.

11. On Friday June 15, 2001, the day after receiving the certification application package from the applicant, employer counsel wrote to the Board advising that a certification package including 37 pages of documentation had been sent to the employer by fax. Counsel noted, however, that Form C-1 was not among those documents and asserted that the application was therefore defective and ought to be dismissed without a vote.

12. On the next working day, Monday, June 18, union counsel forwarded a properly completed Form C-1 (and a corrected Form A-5) to the employer and to the incumbent. Union counsel urged the Board to direct the taking of a representation vote and urged the employer to file its response (which, in the normal course, was due on that day).

13. Some two hours after receiving the Form C-1 and prior to the expiry of the time limit for so doing, the employer filed its response in this matter. That filing was said to be without prejudice to the previous positions it had taken.

14. As already indicated, a representation vote was directed (on June 19, 2001) and held (on June 21, 2001).

15. The employer asserts that the application filed in this matter was fundamentally flawed as a critical portion of the documents required to be delivered was missing. It further asserts that, even in regard to the “curing” of that defect, an inherent prejudice results for the responding party when a document fundamental to the application is delivered to it only two hours prior to the filing of its response.

16. It is necessary to assess this claim in the context of the specific facts before the Board.

17. Firstly, the claim that the Form C-1 is a document fundamental to the application, is, particularly in the context of the facts before me, overstated.

18. The Form C-1 functions as kind of a “covering letter” to the application form and other documents required to be delivered along with it. While it certainly does contain useful and important information, that information is (apart from the parties names and the date which the applicant is required to insert) generic in nature. (We note that, contrary to the responding party’s assertions, the Form C-1 is a form which can be accessed and downloaded from the Board’s web site). Further, virtually all of the information contained in that form is replicated in other materials (chiefly the Information Bulletins) that the applicant was required to and did deliver in a timely fashion.

19. Perhaps the only significant exception to that duplication is the exhortation at paragraph 2 of Form C-1 advising that:

“An application for certification is a legal proceeding and may affect your legal rights and obligations. You may wish to seek legal advice immediately”.

20. It appears that in the instant case and even without the benefit of receipt of that specific caution, the responding party was quickly able to and did retain experienced labour relations counsel.

21. Further, apart from the “inherent prejudice” asserted by the employer, it was not claimed that the responding party has suffered any actual prejudice as a result of the omission and subsequent late delivery of the Form C-1. There was never any request to extend the time limit for filing its response and the responding party never suggested that there was any concrete fashion in which the late delivery of the Form interfered with its ability to prepare and file a timely response.

22. The employer relies on a number of decisions of the Board to support its view that, whether or not any actual prejudice resulted, the application is fundamentally flawed and ought not be permitted to proceed.

23. In Associated Contracting Inc. [1998] OLRB Rep. Nov./Dec. 903 the Board dealt with the late delivery to the union of all of the required materials associated with a termination application in the construction industry. The Board considered both the relevant statutory provisions (section 63(3)) and provisions of the Interim Rules then in place. And while it concluded that it had the authority to relieve against the strict application of the Rules, it opted not to do so in that case. It observed, however, (at para. 21):

whether the Board extends the time will depend upon all the circumstances, including the reasons for the failure to deliver, the length of the delay in delivering, and prejudice to the other parties.

24. In Pharaoh Builders, [1999] O.L.R.D. No. 290,, the Board dismissed an application for certification in which the Form A-80 (the declaration verifying the membership evidence) had been filed without the required pertinent application, despite the subsequent filing of an amended form. The Board adverted to the historical importance of declarations verifying membership evidence to the integrity of the Board’s process and to the high standards and strict requirements the Board had (certainly and particularly in a card-based certification scheme) attached to the filing of such documents. It warned at paragraph 5 that:

…an applicant cannot act so carelessly so as to file an application deficient in important respects and expect the Board to piece together what is, in essence, an incomplete application.

25. A third case was pointed to: City of Kawartha Lakes-Transit, [2001] O.L.R.D. No. 678 in which the Board suggested that where an applicant does not deliver a copy of the application to the responding party before filing it with the Board, the application must be dismissed. It appears, however, that the Board, in that case, was commenting upon allegations in a decision which preceded the certification representation vote and that it made no specific findings of or decision resulting from the alleged deficiency in delivery. (Indeed, the Board’s records disclose that a subsequent decision dated March 26, 2001 granted certification to the applicant in that case without reference to any such issue). Thus, the decision is of little precedential value as it did not constitute any type of determination on the issue.

26. And while the first two cases cited may, at first blush, appear to provide some support for the employer’s position, they are readily distinguishable from the instant facts. In the Associated Contractors case, the Board was dealing with the complete failure to deliver any and all of the required documents associated with an application within the time required by the Rules and the Statute. In the Pharoh Builders case the Board was dealing with deficiencies in membership evidence, a legal area with its own specific jurisprudence and which the Board has or had historically monitored with particular vigour.

27. Indeed, the distinction in these cases from the one at issue here suggest a further factor to be added to the list of circumstances the Board will consider in determining whether or not to relieve from the strict requirements of the Rules. While it may overlap with the issue of prejudice, the Board must also consider the very nature and character of the deficiency in question. Obviously where there is as extremely minor transgression (something which in other contexts might be described as a mere technical irregularity or defect of form), the Board will be more readily inclined to exercise its discretion than where the deficiency goes to the very heart of the Board’s process (or that aspect of the Board’s process to which the deficiency relates).

28. In the instant case, the deficiency is of an extremely marginal nature. I do not see it as going to the very heart of either the Board’s process or the purpose of the Rule infringed. There was clearly substantial compliance with the Board’s Rules. To the extent there was non-compliance, it was remedied before the affected party was required to take the next step in the process. No actual prejudice was claimed or demonstrated as resulting from the deficiencies.

29. In all of these circumstances, the Board has no hesitation, to the extent that it is necessary to do so, to exercise its discretion pursuant to Rule 44 to relieve against the strict application of the Rules and , in particular, the application of Rule 67(c).

30. Accordingly, there is no impediment to further considering the application.

The number and locations of pools in the representation vote

31. The second issue addressed at the hearing was raised by the incumbent. It relates to the number and locations of polls in the representation vote.

32. The incumbent explained that approximately 75% of the bargaining unit employees work in or out of the employer’s Peterborough location. The remaining 25%, however, work out of a dozen or so other locations throughout the province. The applicant had requested three separate poll locations; the employer had suggested nine locations (in addition to Peterborough); the incumbent had proposed a poll in each of the dozen or so relevant locations. The Board held polls in five different locations.

33. The incumbent asserted that generated difficulties for some employees who (although perhaps travelling as part of their normal duties) might have to spend up to two hours for a one way trip to the polls.

34. It was suggested that the voter turnout supported that view. For while there was a 75% turnout overall, 85% of the Peterborough employees voted while only 66% of employees from other locations exercised their franchise.

35. However, in view of the results of the vote, the incumbent did not suggest that a new vote ought to be directed. (The margin of the applicant’s majority in the representation vote was significant enough that the majority would be maintained even if every employee that did not vote were treated as having voted in favour of the incumbent). It restricted its submissions to a request that, in the event a subsequent vote were directed by the Board, that some consideration be granted to increasing the number of polls.

36. If and when a representation vote is directed by the Board involving this unit, the affected parties will, of course, be afforded with every opportunity to make submissions regarding the number and location of polls.

37. Only the two issues already canvassed were the subject of the hearing held in this matter. However, a further hearing day of August 20, 2001 was set to deal with the bargaining unit issue.

Appropriate bargaining unit

38. However, subsequent to the completion of the hearing, the applicant wrote to the Board indicating that it is prepared to withdraw its position on the bargaining unit issue and to accept the bargaining unit description as set out in the incumbent union’s collective agreement with the responding party.

39. As the responding parties have each asserted from the outset that the applicant must take the existing bargaining unit, we take the applicant’s concession in that regard to signal the agreement of the parties.

40. Accordingly, having regard to the agreement of the parties the Board finds that,

all employees of Sysco Foodservice of Ontario at its premises at 65 Elmdale Road in the Township of North Monaghan, Ontario, and drivers who do not work at the above-listed location but work from their residences, save and except office staff, sales staff, supervisors, persons above the rank of supervisor, meat inspector, students employed during the summer vacation and as outlined in the certificate of the Ontario Labour Relations Board dated November 16, 1981 as amended by negotiations,

constitute a unit of employees of the responding party appropriate for collective bargaining.

41. On the taking of the representation vote directed by the Board, more than fifty percent of the ballots cast by employees in the bargaining unit were cast in favour of the applicant.

42. A certificate will issue to the applicant.

43. The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.

44. The hearing scheduled for August 20, 2001 in this matter is hereby cancelled.

45. The responding party is directed to post copies of this decision immediately in location(s) where it is likely to come to the attention of all employees. These copies must remain posted for a 30 day period.

“Bram Herlich”

for the Board