Industrial Wood & Allied Workers of Canada (I.W.A. Canada) v. Cashway Building Centres Ltd.

0124-01-R Industrial Wood & Allied Workers of Canada (I.W.A. Canada), Applicant v. Cashway Building Centres Ltd., Responding Party.

0059-01-R Industrial Wood & Allied Workers of Canada (I.W.A. Canada), Applicant v. Rona Cashway Building Centres, Responding Party

BEFORE: Anthony Brown, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.

APPEARANCES: S.B.D. Wahl and M. Hunter for the applicant; Gregory McGinnis and Victor Doyle for the responding party.

DECISION OF THE BOARD; June 29, 2001

1. Board File 0124-01-R is an application for certification pursuant to the Labour Relations Act, 1995 (the "Act"). A representation vote was held on April 19, 2001, pursuant to the Board’s direction dated April 17, 2001. A hearing was held on May 14, 2001. On May 17, 2001, the Board issued a “bottom line” decision stating that the second application was not barred and directing that the ballots be counted. A decision in respect of the result of the vote will be issued separately.

2. The parties’ submissions at the hearing were in respect of Board File 0124-01-R and also followed from a request for reconsideration by the responding party in respect of Board File 0059-01-R, an earlier application for certification by the applicant (referred to herein as the “first” application).

Background

3. The applicant, I.W.A. Canada, (“the union”) previously applied for certification as the bargaining agent for employees of the responding party in a bargaining unit having a description substantially similar to the unit proposed in Board File No. 0124-01-R. The first application, in Board File No. 0059-01-R, was filed on April 6, 2001. The applicant sought leave to withdraw the first application on April 10, 2001, prior to a representation vote having been ordered.

4. On April 10, 2001, the Board granted leave to withdraw the first application in a decision we shall refer to as the “withdrawal decision”. Later that same day, the applicant filed the instant (“second”) application for certification.

5. The responding party immediately notified the Board by letter that it intended to seek reconsideration of the Board’s withdrawal decision on procedural and substantive grounds. The Board directed that the ballot box be sealed in the second application.

6. The responding party’s request for reconsideration was filed on April 24, 2001. By decision dated May 4, 2001, (in Board File No. 0059-01-R) the Board declined to reconsider its withdrawal decision, without prejudice to the right of the responding party to make submissions at the hearing of the union’s second application for certification. This decision arises out of that hearing.

Submissions

7. The central issue before the Board is whether the second application for certification ought to be considered by the Board. Briefly put, the arguments advanced by the responding party are, first, that the Board’s withdrawal decision was procedurally flawed and therefore a nullity, secondly that the withdrawal decision should have imposed “conditions” and a “bar”, and thirdly that the applicant improperly filed concurrent applications before the Board.

8. The responding party asserts that, before the Board made its withdrawal decision, the Board should have sought submissions from the responding party (and presumably the applicant) as to whether conditions should be imposed under subsection 7(8) or a bar should be imposed under subsection 7(9) of the Act. The responding party asserts that the Board’s alleged policy of routinely granting leave to withdraw certification applications without seeking submissions effectively fettered its discretion. The responding party submits that, although the Board is permitted to have policies, it must nevertheless exercise its discretion only after considering the merits of each individual case before it. It asserts that the Board violated the rules of natural justice by not inviting the responding party to make submissions after the Board received the applicant’s request for leave to withdraw. It submits that this procedural flaw means the withdrawal decision is null and void, rendering the second application untimely.

9. The responding party’s second argument is on substantive grounds. It submits that, pursuant to subsection 7(9), the Board should impose a three-month bar against a further application by the union in respect of the affected employees, thus prohibiting the second application. It also seeks an order making the withdrawal of the first application conditional upon the union paying the responding party its reasonable costs in responding to that application. It compares this request to an award of compensation under section 96 of the Act.

10. The responding party alleges that the first application was simply an information-gathering exercise designed to discover the composition of the employer’s workforce so that the union could gather more membership evidence and further its organizing drive. The responding party asserts that the facts give rise to a “rebuttable presumption” that the second application was an abuse of the Board’s processes.

11. The responding party also urges the Board to disallow the second application, under subsection 111(3) of the Act. It contends that there are concurrent applications before the Board because the union’s first application is still alive (the withdrawal being a nullity), and because the second application was made before the Board issued its withdrawal decision in the first application.

12. The applicant union submits that the withdrawal decision did not violate the rules of natural justice. Subsection 7(9) permits the Board to determine the “bar” issue at the time of a second application, if any. The union further submits that the Board does not award “costs” or other compensation for parties in an application for certification.

13. The union observes that the responding party’s list of employees (Schedule “A”) attached to the response to the first application did not assist its organizing drive. It filed its second application within one day after receiving Schedule “A” from the responding party, and, in any event, all membership evidence filed in respect of the second application had been signed on or before April 9, 2001, the day on which the applicant received Schedule “A”. Obtaining the list of employees was not the applicant’s motivation. Upon receiving the response to the first application, in which the responding party gave notice under section 8.1, the applicant decided to file a new application with the requisite membership evidence in order to avoid litigation.

14. In respect of the responding party’s “concurrent application” argument, the union submits, first, that the withdrawal decision is not a nullity, and secondly, that the second application for certification was in fact filed with the Board only after the withdrawal decision was faxed to the parties by the Registrar, although it was delivered to the responding party prior to that time. The union asserts that the two applications were therefore not concurrent, and in any event, the Board has never used subsection 111(3) in the manner suggested by the responding party. The applicant states that the provision is used to deal with competing applications by different unions.

Decision

15. The Board’s decision of April 10, 2001, granting leave to withdraw the first application did not expressly address whether “conditions” or a “bar” should be imposed. Do the rules of natural justice require, in the circumstances of this case, that the Board should have provided the responding party with an opportunity to make submissions as to the imposition of “conditions” or a “bar” before granting leave to withdraw?

16. Subsection 7(9) of the Act states:

17. (9) Subject to subsection (9.1) if the trade union withdraws the application before a representation vote is taken, the Board may refuse to consider another application for certification by the trade union as the bargaining agent of the employees in the proposed bargaining unit until one year or such shorter period as the Board considers appropriate has elapsed after the application is withdrawn.

18. Subsection 7(9) permits the Board to determine the “bar” issue either when an application for certification is withdrawn or when “another” application for certification is made by the same union in respect of the employees in the proposed bargaining unit. The responding party is therefore not precluded by the Board’s withdrawal decision from arguing in favour of a bar where, as here, there is a second application.

19. Subsection 7(8) states:

20. (8) An application for certification may be withdrawn by the applicant upon such conditions as the Board may determine.

21. The responding party asserts that the rules of natural justice provide it with a right to be heard prior to a withdrawal decision even where that decision did not impose conditions. In our view, neither subsection 7(8) nor the rules of natural justice require the Board to delay a decision upon a request for leave to withdraw in order to see if another party will seek conditions on that withdrawal. However, even if there were a right to be heard, the Board’s decision did not preclude the responding party from seeking costs ex post facto. And, furthermore, it was open to the responding party to request reconsideration of the withdrawal decision (which it did). In our view, the responding party was not deprived of a right to be heard and the withdrawal decision is not a nullity on procedural grounds.

22. We turn now to the responding party’s substantive arguments, namely that the Board should require the payment of “reasonable costs” and impose a “bar” against the second application. In respect of the imposition of a bar, the union explained the circumstances under which it sought leave to withdraw its first application and then immediately filed a second application. The Board is satisfied that the union’s actions do not constitute an abuse of the Board’s processes such that would lead us to impose a bar against the second application. The request for a bar is denied.

23. The request for costs is in the nature of a reconsideration of the withdrawal decision. In Bellai Brothers Ltd., [1994] OLRB Rep. Jan. 2, the Board found, after a lengthy and thorough analysis, that it had no jurisdiction to awards costs in the absence of express statutory authority. The responding party has not convinced us that we should deviate from that decision. We do not have jurisdiction to award costs in the instant matter. Moreover, we reject the responding party’s argument that there is a parallel between the form of costs or “compensation” sought by the responding party under subsection 7(8) and the compensation awarded as a remedial measure under section 96 to victims of unfair labour practices. We find the responding party’s request for costs somewhat ironic when the applicant may have actually saved the responding party some litigation expense by deciding not to press ahead with the first application.

24. Section 111(3) states as follows:

25. (3) Despite sections 7 and 63, where an application has been made for certification of a trade union as bargaining agent for employees in a bargaining unit or for a declaration that the trade union no longer represents the employees in a bargaining unit and a final decision of the application has not been issued by the Board at the time a subsequent application for the certification or for the declaration is made with respect to any of the employees affected by the original application, the Board may,

(a) treat the subsequent application as having been made on the date of the making of the original application;

(b) postpone consideration of the subsequent application until a final decision has been issued on the original application and thereafter consider the subsequent application but subject to any final decision issued by the Board on the original application; or

(c) refuse to entertain the subsequent application.

23. As counsel for the applicant points out, this section is usually used to address circumstances in which concurrent applications are filed by different unions. Assuming, however, that the section could apply to the instant matter, where only one union in involved, and assuming further that there were in fact concurrent applications on April 10, 2001, clauses 111(3)(a) and (b) do not require the Board to refuse to entertain the subsequent application. Clause 111(3)(b) enables the Board to make a final decision on the first application (for e.g. by granting leave to withdraw) and then to process the subsequent application.

24. For the foregoing reasons, and having regard to the particular facts, we are satisfied that the withdrawal decision of April 10, 2001 did not violate the responding party’s right to procedural fairness, including the right to be heard. We decline to impose a bar under subsection 7(9) or any conditions under subsection 7(8). Accordingly, there is no impediment to proceeding with the second application.

“Anthony Brown”

for the Board