1134-01-R Universal Workers Union, Labourers’ International Union of North America Local 183, Applicant v. Summit View Homes Ltd. and/or 740174 Ontario Limited, Responding Party.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; September 20, 2001
This is an application for certification brought pursuant to the construction industry provisions of the Labour Relations Act, 1995, S. O. 1995 ch.1 (the "Act"). Following the Regional Certification Meeting, the parties made their submissions about the issues that remain in dispute in this application. Aside from the issue with respect to the name of the responding party, which is dealt with at the end of this decision, there is only one issue outstanding.
This issue relates to two individuals, Tony Caravaggio and John Jones. The responding party Summit View Homes Ltd. or 740174 Ontario Limited (the “Employer”) asserts that the Board should inquire into its allegation that these two individuals were at work in the bargaining unit on the day of application. The applicant (the “Union”) argues that the Board should not embark on this inquiry as the Employer did not raise the issue in a timely fashion. To understand the nature of this dispute, it is necessary to put it in the context of the process mandated by the Act and the Board’s rules in an application for certification.
In the normal certification application the Board creates a voters’ list from the information contained in the application and the response. The list is constructed in a very short time period. The Act requires the Board to hold a vote, if possible, on the fifth day (excluding Saturdays, Sundays and holidays) after the application is received. During that five day period, an officer of the Board compiles, among other things, a voters’ list. The information is obtained from the list submitted by the union with the application (which may be only partial) and from list of names attached as Schedule A to the response (which should be complete). The employer serves the response on the union before it is filed with the Board. The officer will contact the union to determine if there are challenges or additions to the list. On the day of the vote all parties should know who is expected to vote and what the issues, if any, are about the entitlement to vote of any of those voters.
To safeguard the interests of employees in the bargaining unit, a Notice of Vote and Meeting is created by the Board and delivered to the Employer to post where all persons affected by the application are likely to see it. This Notice includes information about the process and the date, time, and place of the representation vote. If a person who has not previously been identified by any of the parties appears at the polling station in response to the Notice seeking to cast a ballot, that person will be permitted to cast a ballot. All ballots cast by voters whose entitlement to vote is challenged at the time of the vote, are segregated and the parties may argue later whether they were in fact entitled to cast a ballot.
This process is designed to ensure that the vote is conducted in accordance with the time period prescribed by the Act. It ensures a fair vote by requiring an orderly and rational exchange of information about who may or may not be entitled to vote. It ensures a process which, as far as possible, will permit all persons who are potentially entitled to cast a ballot to feel that they are not excluded from the process when it is taking place. It allows the Board to conduct an expeditious vote, and while permitting all parties to preserve their right to argue later any questions of fact or law relevant to the issue of the entitlement of any individual to cast ballot.
However, the process does require that those who wish to raise issues and litigate them in this application do so in a manner which does not undermine the process designed to ensure a speedy and fair vote. Fairness is a concept that applies to all parties: the employees, the employer, and the union. It requires that each party do what is required of them in the process to ensure its fairness. The burden will be different on different parties. Employees need simply appear and ask to cast a ballot. The employer is required to set forth its own position, and to provide information about persons in the bargaining unit, information that should be within its knowledge from the manner in which it operates its business.
The employer may well find that it is surprised by the application. It may feel that the union has had the leisure to pick its time and proceed in a time frame which allows it to act in an orderly fashion. The employer has two days to respond, and those two days may be a time when other pressures on the employer’s time are also acute. This may to some extent be true, although the difficulty of responding should not be exaggerated. An application for certification by a union is not an insignificant event for an employer. Much as no one is enthusiastic about being a responding party in any form of legal process, such process must be attended to promptly. The two-day period is adequate to compile the information required and submit a response. The two-day time period may result in an inconvenient rearranging of the tasks to be accomplished in two days, but this inconvenience is less significant than the competing interests which the Board’s process reconciles in conducting a representation vote.
However, in case any employer unfamiliar with the Board’s process might be lulled into a sense of complacency, the Board requires the union to serve on the employer a Notice to Employer of Application for Certification Construction Industry (Form C-32) which advises the employer as follows:
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.
4Your Response to the application, including Schedule A (List of Employees), 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 Schedule A (List of Employees), is delivered to the applicant and to any other affected party identified in paragraph 11 of the Application for Certification, Construction Industry or by you in paragraph 9 of your Response to Application for Certification, Construction Industry, before you file these documents with the Board. You must also complete a Certificate of Delivery.
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.
It is true that in ensuring the employer has all possible information and relevant forms, the union will serve a lot of paper on the employer. These documents do, in fact, contain all the information any party needs to respond to an application. It may well be difficult for a person unfamiliar with the process to digest all of this information in the short time available. If any party is served with documents indicating a legal process has been commenced, and a warning of the above sort is contained in it, that party is best advised to seek the assistance of experienced advisors immediately.
Once the union receives the employer’s response it must prepare for the vote. First, it must assess whether or not the application is well founded. It must assess its position with respect to the bargaining unit description (not usually an issue in the construction industry), the geographic scope of the application, and the number of employees in issue. This task is somewhat more difficult than that of the employer in that the union may be required quickly to discover information not previously known to it and of which it can have no direct knowledge. The consequences of deciding to proceed are set out more fully below.
The Board’s rules provide consequences for a failure to file a response in the proper form and in a timely fashion. Rules 41 and 42 provide:
If a party receiving notice of an application does not file a response in the way required by these Rules, he or she may be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing or consultation, if one is scheduled, and decide the case upon the material before it without further notice.
No person will be allowed to present evidence or make any representations at any hearing or consultation about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable.
The question in this case, then, is whether the Board should relieve against the rules, accept the late filing of the response, and inquire into the issue raised by the Employer about Messrs Caravaggio and Jones.
In this case the following sequence of events occurred. The application was filed with the Board on July 16, 2001. On that day at 4:21 p.m., the Union delivered to the Employer the application and all of the other documents required by rule 133, including the Notice to Employer (C-32), by facsimile copier. In this case, the Employer acknowledges receipt of the application and supporting documents.
The Employer did not file a response in the time required. On July 19, 2001, the Board issued a decision noting that the Employer had not filed a response (an event not unheard of in the construction industry) and ordered a representation vote to be held on Monday, July 23, 2001.
The Employer did file its response on July 20, 2001. The Employer offered no reason for this late filing, nor does it assert that there are any reasons which led to the delay which should cause the Board to exercise its discretion to permit a late filing by the Employer. The response was faxed to the Board at 1:13 p.m. on Friday, July 20, 2001. It contains a certificate of delivery asserting that the Union was served with a copy by facsimile copier at 1:07 p.m. Although the Union says that it did not receive the response until 2:53 p.m., I accept the Employer’s time as accurate.
The Union therefore had the Employer’s list of employees in the bargaining unit at that time. The Declaration concerning membership evidence asserts that there are 10 persons in the bargaining unit. Presumably the names of the employees other than the two disputed individuals were no surprise to the Union. Those of Messrs Caravaggio and Jones, apparently, were.
The Union argues that the Board ought to refuse to relieve against the rule with respect to when the Employer’s response was to be filed, and specifically should not permit the Employer to attempt to establish at a hearing that the two individuals were employed in the bargaining unit on the date of application. The Employer argues that the Board should extend the time for filing the response, and conduct a hearing into its assertion that the bargaining unit actually contained 12 rather than 10 people.
The two employees have not made any representations to the Board about their right to vote. This is therefore a dispute only between the Union and the Employer about the rights of these two parties.
The Union asserts that the Board ought not to accede to the Employer’s request as it is prejudiced in a way that cannot be remedied. It argues, correctly, that the Board has long acknowledged that a union is unlikely to have perfect knowledge of who may be at work in a bargaining unit on any one day. This is particularly so in the construction industry where the location of work may change frequently, and there may be no interchange of employees among work sites. In contrast, the employer generally will have a complete knowledge of its own work force. If a response is filed in a timely fashion the union will have a very brief period in which to investigate whether the assertions contained in the employer’s response are correct. Again, the time may be briefer than a union typically might like, but the need for expedition requires that the period be a short one. Further, it is not the Board’s function to assist a union organizer, for whom the gathering of this crucial information is simply part of the job.
Aside from a desire to proceed where the chances of success are high, a union is faced with a need to take an irrevocable step in proceeding to the vote. If the union does not receive the support of more than 50% of the ballots cast, the application will be dismissed. Further, the consequences are set out in section 10(3) which provides:
(3) If the Board dismisses an application for certification under this section, the Board shall not consider another application for certification by any trade union as the bargaining agent of any employee that was in the bargaining unit proposed in the original application until one year after the original application is dismissed.
That is, once the vote is held, the applicant union (or indeed any union) may not attempt to regroup and organize a greater number of employees in the bargaining unit and make a subsequent attempt to apply for certification for a period of one year. It is self-evident that, even in the unlikely event that the composition of the bargaining unit did not change over that time, the Union’s membership campaign could not be sustained over that period of time.
The Board in an unreported decision (Iori Plaster & Drywall Contractors Ltd., Board File No. 1719-96-R, Feb. 21, 1997, OLRD No. 4411) set out the prejudice to the Union this way:
… The Act requires a vote be held within 5 working days after the day on which the application is filed with the Board. If the union is unsuccessful a mandatory twelve months bar is applied to any subsequent application for certification. Had the applicant been aware of the employer’s list in a timely fashion it could have made an informed decision on whether to withdraw to avoid the possibility of a twelve months bar or attempt to organize some of the other employees. The list was provided too late in the day prior to the vote for the applicant to make any choices. The reasons in these circumstances for not complying with the Board’s Rules are not acceptable in light of the applicant’s prejudice of having a twelve months bar imposed should it lose the vote. Being too busy to retain counsel is not a reason to allow the employer to extend the time limit for filing its response.
The Board does not mean to overstate this prejudice. A union is not entitled to make repeated applications for certification as a form of “fishing expedition” to extract information from the employer to assist it in its organizing campaign. If a union does engage in such behaviour the Board has the jurisdiction to impose a bar even when the application is withdrawn before a vote is held (sections 7(9) and 111(2)(k)). However the Board has no authority to relieve against section 10(3). Its application is automatic.
In this case the Union has not engaged in a series of applications. This is its first attempt at being certified, at least in recent times. It does not appear to have been careless or dilatory in its campaign: even if the Employer is correct, it was not far off in its assessment of the size of the bargaining unit. It may have been entirely accurate. Accordingly there is a real prejudice to the Union in this case which cannot be overcome.
The Employer asserts that this prejudice is not as great as the Union asserts. It points out that the Union’s position is not that it was unaware of the two individuals, but that they were not at work on the application date, or alternatively were not performing work in the bargaining unit. The Employer points out that on its alleged facts, it was unlikely that the Union would have been able to ascertain from its own supporters where the two individuals were that day or what they were doing. In the alternative, the Union had the weekend and part of Friday afternoon to conduct an investigation and that that was sufficient time to have concluded one, and to have withdrawn its application if it chose to do so.
The Board acknowledges that there is some logic in what the Employer argues. The Board notes that the site where the two employees were alleged to have spent all or virtually all of their day working for the Employer was not listed in paragraph 3 of the response. Hence it is very likely that if the response had been received in time the Union would have been misled as to the proper information to be seeking. However, the Employer asks the Board, in part, to speculate on what the Union would have accomplished, or failed to uncover, even if it had been afforded the time it should have had to investigate these two individuals. It is not a proper exercise of the Board’s discretion to speculate on what the Union actually would have been able or unable to accomplish if the response had been filed, accurately and in a timely fashion. And certainly, it hardly lies in the mouth of the party who failed to comply with the rules to ask the Board to engage in such speculation. The question is whether the Union, on the facts of this particular case, had the opportunity to investigate and assess its reaction to the Employer’s response before the representation vote was held.
In this case, on the facts as alleged by the Employer, the Board finds that there was not adequate opportunity for the Union to investigate and respond to the issues raised in the Employer’s response before the vote. Part of a single working day (when the Union may have ceased to expect a response to be filed) and a weekend, (even if one assumes Saturday is a working day) is not sufficient time. This is particularly so when the information contained in the response is incomplete.
Accordingly, the Board declines to relieve against the rule with respect to the filing of a response. Since the Employer did not raise the issue relating to the two individuals in a timely fashion, the Board will not entertain evidence or argument from the Employer that these two individuals were performing work in the bargaining unit on the date of application. Accordingly, their ballots will not be counted.
The Employer made two other arguments, neither of which causes the Board to come to a different conclusion.
First, the Employer raises a number of issues about the “right of Caravaggio and Jones to have their ballots counted”. Those two individuals have not chosen to make representations to the Board. They were invited to do so in the Notices to Employees posted by the Employer at the appropriate job sites, and have not done so. The Employer may not rely on the rights of employees to assert a claim in its own interest: Re Canada Labour Relations Board and Transpire Limited and Canadian Association of Industrial Machinists and Allied Workers, Local #3 1976 CanLII 170 (SCC), [1977] 1 SCR 722 at 744-5.
Second, the Employer asserts that the Union waived its right to object to the timeliness of the response. The Board finds it has not done so. It challenged the right of these two individuals to vote at the time of the vote. Their ballots were segregated. The purpose of requiring parties to make detailed submissions following the regional certification meeting is to enable them to fully articulate the factual and legal issues they wish to raise. Although the parties should try to do so, not every detail of every issue needs to be articulated in front of the Vote Officer. There is nothing in the Employer’s assertions that could constitute a waiver of the issue by the Union, or a representation on the strength of which the Employer took or failed to take some further step.
Accordingly, there is no need to hold a hearing in this matter. The Board will not entertain the submissions and evidence of the Employer about Messrs Caravaggio and Jones, and there are no other issues to be litigated. The Board directs the Manager of Field Services to arrange to count all of the ballots cast in the vote other than the two segregated ballots of Messrs Caravaggio and Jones.
If the Union receives more than 50% of the Votes cast, the Board directs the parties to make whatever submissions they choose about the proper name of the Employer. Although it was at one point agreed upon by the parties, it is unlikely the Board will grant a certificate describing an employer as “X and/or Y”.
I am not seized of this application.
“David A. McKee ”
for the Board