1071-01-U Industrial Wood & Allied Workers of Canada Local 2693, Applicant v. Pineal Lake Lumber Company Limited and Ted Porter, Responding Parties.
1114-01-R I. W. A. Local 2693, Applicant v. Pineal Lake Lumber Company Limited, Responding Party.
BEFORE: Bram Herlich, Vice-Chair.
APPEARANCES Graham Williamson, Bert Poulin, Tina Lindsay and Mike Desbiens appeared on behalf of the applicant; Joe Tascona, Bob Mason and Ted Porter appeared on behalf of the responding parties.
DECISION OF THE BOARD; September 27, 2001
1The style of cause in Board File No. 1114-01-R is hereby amended to reflect the correct name of the responding party: “Pineal Lake Lumber Company Limited”.
2Board File 1071-01-U is a complaint filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding parties, Pineal Lake Lumber Company Limited (the “employer” or the “company”) and Ted Porter have violated various sections of the Act. It was filed on July 10, 2001. Board File 1114-01-R is an application for certification. It was filed on July 16, 2001.
3A representation vote was directed by decision dated July 19, 2001 and was held on July 23, 2001. The Board Officer’s Report of Vote was prepared on the day of the vote and discloses that 13 ballots were marked against the applicant and 7 were marked in its favour. There remain, however, 11 further ballots which have been segregated and not yet counted. The eligibility to vote of the individuals who marked those 11 ballots remains in dispute between the parties. There are four individuals challenged by the union who are asserted to be “managerial” within the meaning of section 1(3)(b) of the Act (one of whom is Ted Porter, a responding party in the section 96 application). The other seven individuals are persons the employer acknowledges were employees but who had been laid off prior to the application date – the union disputes the propriety of most of those layoffs. Indeed, five of those individuals (plus a sixth who did not cast a ballot) are the “grievors” on whose behalf the section 96 application has been filed. The section 96 application claims, inter alia, that the layoffs were unlawful and the union therefore asserts that the affected individuals should thus properly be considered to have been employees at the relevant time. Beyond the six grievors there two remaining individuals the union sought to have added to the list of employees. While there is no unfair labour practice element alleged to be associated with the layoff of these individuals, the union continues to assert that they had a sufficient connection with the workplace to permit them to cast ballots in the representation vote.
4Approximately one week subsequent to the taking of the representation vote, the union advised that it intended to seek relief pursuant to section 11 of the Act, alleging that the employer’s unfair labour practices were such that the representation vote was unlikely to have disclosed the true wishes of employees.
5These two matters were listed for hearing at the Board on August 27 and 28, 2001. The parties used the majority of that time in an, ultimately unsuccessful, effort to resolve all issues in dispute.
6When the hearing convened before me, the parties addressed a number of procedural and preliminary issues. I shall deal with these in turn.
Late filing of submissions
7The employer asserts that the union has, by virtue of its admitted non-compliance with the terms of the Board’s Information Bulletin No. 4 (Status Disputes in Certification Applications), effectively withdrawn or abandoned its challenge to the four individuals it had asserted were managerial. The union’s dereliction in that regard arises from the fact that submissions it was required to file on Friday August 17, 2001 were not filed until Monday August 20, 2001.
8A brief chronology of relevant events will assist to illuminate why the Board is satisfied that this is an appropriate circumstance in which to exercise the discretion the parties agree the Board possesses to relieve against this marginal and technical procedural shortcoming.
9As already indicated, the section 96 application was filed on July 10, 2001. Without reviewing the terms of that complaint in any detail, it is sufficient for our current purposes that (although it names Ted Porter as a distinct responding party) it clearly identifies Mr. Porter as the chief company representative in the union’s view (he is identified by the union as the “Company Operations Manager”). Thus, there can be little surprise at the union’s subsequent assertion that Mr. Porter is “managerial” within the meaning of section 1(3)(b) of the Act.
10The certification application was filed on July 16, 2001. On July 20, 2001 at the pre-vote meeting with the Board’s Officer, the applicant raised the challenge which the employer now claims has been effectively withdrawn or abandoned. The union asserted that four individuals (including Mr. Porter) were managerial and were therefore excluded from the bargaining unit and not entitled to vote. Three days later, on the day of the vote those challenges were renewed when the four individuals sought to cast ballots. Those ballots were therefore segregated and not counted.
11On July 30, 2001 the union filed further correspondence with the Board. Again without reviewing the contents of that correspondence in any detail, the union advised of its intent to rely on section 11 of the Act in its certification application. In support of that it filed particulars (which essentially mirror and reproduce those filed in the section 96 application) of the employer’s alleged unlawful conduct. For our present purposes, it is important to note that the union also explicitly repeated that the issue of the status of the four individuals it asserted were managerial remained outstanding between the parties.
12A post-vote Regional Certification meeting was held on August 15, 2001 (apparently by telephone) in which there was no change in the union’s position in relation to the managerial challenges.
13Paragraph III c) of the relevant Board Information Bulletin provides:
Each party that asserts that an individual or individuals should not be on the list or in the bargaining unit must file with the Board and deliver to the other party written submissions providing the reasons for each of their challenges and a summary of the material facts upon which they intend to rely by 5:00 p.m. on the Friday following the Regional Certification Meeting. Each party that resists a challenge to the status of an individual must file with the Board and deliver to the other party its response to each of the challenges, summarizing the material facts upon which they intend to rely by 5:00 p.m. on the following Wednesday.
14Strict compliance with the terms of this provision would have required the union to have filed its submissions providing the reasons for its challenges and a summary of material facts relied upon by 5:00 p.m. on Friday August 17, 2001. It did not. It did, however, file submissions in relation to other matters which also included the following:
Upon receiving the submissions of the Employer in respect of those individuals whom it asserts should be included on the voters’ list [i.e. the managerial challenges] we will provide our response by no later than 5:00 p.m. on Wednesday, August 22, 2001 in accordance with the Board’s Information Bulletin No. 4.
15While there was some suggestion that this latter position was the result of some “misunderstanding” of procedural agreements between the parties, I am content, for the present purposes, to treat it as nothing more than incorrect interpretation by the union of its obligations under the Information Bulletin.
16Having received the applicant’s submissions, the employer wrote to the Board as follows:
The correspondence of the Applicant dated August 17, 2001, does not challenge the status of any individuals, which is required by the Board on such date pursuant to the Board's Information Bulletin No.4 on 'Status Disputes in Certification Applications’ (Non-Construction)-
I note that in the correspondence of the Applicant dated July 30, 2001, filed with the Board, the Applicant had challenged Don Foster, Walter Dupuis, Lilliane Porter and Ted Porter as persons to be excluded for exercising managerial functions in accordance with Section l(3)(b) of the Act.
The Applicant is required to file with the Board and deliver to the Respondent written submissions providing reasons for each of their challenges (individuals that should not be on the list or in the bargaining unit) and a summary of the material facts upon which they intend to rely by 5:00 p.m. on the Friday following the Regional Certification Meeting, that being Friday, August 17, 2001. The Applicant has not made any challenges to the Voter's List. Accordingly, the Respondent requests the Board not permit the Applicant to challenge voter eligibility or bargaining until status of these four individuals, Don Foster, Walter Dupuis, Lilliane Porter and Ted Porter.
17It is essentially that position which the employer maintained at the hearing in this matter, asserting that the union ought to be taken as having effectively withdrawn or abandoned its challenges.
18On the same day that the company articulated this position (i.e. on the Monday following the Friday upon which submissions ought to have been filed), the union filed its submissions repeating its challenges, setting out the reasons for those challenges and outlining the material facts upon which it intends to rely. By way of explanation for its delay the union offered the following:
…it is our understanding that it was agreed that Mr. Tascona would file his submissions with respect to exclusions from the bargaining unit and list of eligible employees on Friday August 17, 2001 and that our response was required by Wednesday August 22, 2001.
19I have taken some pains to outline perhaps more of the salient facts than are strictly required to dispose of the issue before me. I have done so primarily for two reasons. First, the chronology demonstrates that there cannot be the slightest suggestion of surprise or resulting prejudice associated with applicant’s late filing (indeed, none was seriously claimed). It was clear at the commencement of and throughout these proceedings that the union has challenged the managerial status of the four individuals concerned. To the extent that the union filing its submissions on Monday rather than the previous Friday could even possibly generate any doubt on the point, it is unlikely that the employer or its counsel could seriously have been afflicted by any such misapprehension. In other words what is being pointed to is not conduct which has had an unfair prejudicial impact on any party, but rather a mere and marginal departure from strict compliance with the requirements of the Information Bulletin.
20The chronology of events also refutes one of the employer’s major and oft- repeated assertions that the union, by its dereliction, has thereby failed to challenge the status of the individuals in question. This is patently not the case. While the union may have filed certain required submissions which relate to the reasons for its challenges and the material facts upon which it relies one day later than required by the Information Bulletin, its challenge to the status of the individuals in question has been open and notorious throughout.
21Thus, it is the facts of this case which readily distinguish it from the cases pointed to by the company. For example, in JLY Electric Ltd., [2000] O.L.R.B. Rep. May/June 499, the Board did not permit challenges to voter eligibility to be raised (in relation to individuals whose ballots had been cast and counted) for the first time after the results of the representation vote were known. Similarly, in Associated Contracting Inc., [1998] O.L.R.B. Rep. Nov./Dec. 903, the deficiency related to the very delivery of all of the initiating application materials, a matter governed not merely by the Rules but also by the Act. In fairness to the employer, it was not asserted that any of the cases upon which it relied were factually comparable to the instant one. Rather they were presented in an effort to illuminate the Board’s approach to the exercise of its discretion under Rule 44 (and I note, again, the parties’ agreement that the union’s non-compliance was a “breach” the Board has discretion to relieve against under that Rule).
22In that regard we repeat and adopt the observations of the Board in the Associated case where (at para. 21) it observed:
…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.
23However, for a case whose facts more closely resemble the present one (at least in terms of the gravity of the dereliction), Sysco Foodservice of Ontario, unreported, August 10, 2001 merits consideration. In that case, the applicant had failed to include one of the various documents (Form C-1) in the package of materials it delivered to the responding party as part of the application for certification. This defect was cured the following day. In concluding that it was an appropriate case to exercise its discretion to relieve against the strict application of the Rules, the Board considered the above quoted portion of the Associated case and went on to distinguish the facts before it from the cases cited to it:
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.
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).
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.
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).
24I am satisfied that a similar conclusion is warranted in the instant case. The dereliction in question was conceded to be relatively trivial. There can be no suggestion of any surprise or prejudice resulting. It was corrected at the earliest opportunity and before any fresh step had been or had to have been taken.
25Thus, to the extent it is necessary to do so, the Board hereby exercises its discretion pursuant to Rule 44 to relieve against non-compliance with the Board’s Rules and to accept the untimely filing of the union’s submissions required by the above cited paragraph of Information Bulletin No. 4. The Board is not persuaded that the union has or ought to be treated as having withdrawn or abandoned its challenge to the four individuals it has asserted are managerial.
Conduct of the proceedings
26The parties were unable to agree as to the conduct of the two separate matters before the Board. The applicant urged, particularly in view of the fact that the central allegations in the Section 96 application form the basis of its reliance on section 11 in the certification application, that the two matters be consolidated or, at least, heard together.
27Employer counsel urged us to recall that the parties in these two matters are not identical. The section 96 application names not only the employer but also Mr. Porter as responding parties (we note that employer counsel advised that he is also representing Mr. Porter – whom the company asserts is a bargaining unit employee and the union asserts is managerial). The employer urges that we proceed first with the certification application (in which Mr. Porter is not a named responding party) and, in particular, that we deal first with the outstanding employee status issues.
28While the Board is often attracted to procedural approaches that may serve to economize litigation, it is difficult to conceive of a case more suited to common litigation than one involving a section 96 application whose allegations form the basis of a claim under section 11 in a certification application.
29And while the lack of complete identity of parties in the two applications might, theoretically, pose certain difficulties, the fact that all responding parties are represented by the same counsel will, no doubt, serve to minimize any such difficulties.
30Thus, I am satisfied that it is appropriate for these two matters to be heard together.
31Having so determined, however, that is not to say that the Board will be unresponsive to any procedural economies proposed by the parties jointly. There would appear to be a number of issues in these proceedings which might (though not necessarily) be practically determinative of much of the litigation. Thus, for example, should the parties wish to agree to tailor the conduct of these proceedings in a fashion to secure timely rulings on potentially determinative issues, the Board would make an effort to accommodate any such agreement. However, in the absence of any such arrangement, these two matters will be heard together and the parties will call all of their evidence with respect to all of the issues.
Order of proceedings
32The parties were also unable to agree on the order of proceeding. In the context of a unified hearing dealing with all issues in dispute (i.e. the type of hearing resulting from the previous portion of this decision), the union and the employer each asserted that the other ought to proceed first.
33There are a variety of issues attracting a variety of evidentiary and legal onuses in these matters. With respect to the section 96 complaint, the evidentiary and legal onus both appear to fall on the responding parties (at least in respect of the grievors alleged to have been unlawfully laid off). Generally speaking, it is the applicant trade union, however, that bears the ultimate onus in establishing the propriety of relief under section 11 in a certification application. But of course a successful section 11 application depends upon establishing unlawful employer conduct. In this case that conduct is also the subject of the section 96 application which attracts (at least in substantial part) the reverse onus.
34The evidentiary onus (as distinct from the ultimate legal burden) in relation to the issues of voter eligibility/ employee status is perhaps less clear. I note, however, that Information Bulletin #4 provides as follows:
The party that asserts that an individual should be on the list or in the bargaining unit has the responsibility for ensuring that individual's attendance at the hearing or consultation, unless the Board orders otherwise.
The party that has the responsibility for ensuring an individual's attendance at the hearing or consultation will be responsible for calling that individual as a witness. There may be circumstances in which a party calling a witness is allowed to cross-examine that individual. The Board may itself question a witness.
35This would seem to suggest that the employer will have the responsibility to call those individuals who are subject to the “managerial challenge” while the union may be required to call the individuals it seeks to add to the voters’ list or bargaining unit. Of course, that does not necessarily answer the question of who proceeds first to call those witnesses. And, indeed, it may be that the question of the status of the second group (or at least the six “grievors” within that group) might well be determined in the context of the section 96 complaint and, in particular, that portion of it in which the reverse onus falls on the responding parties.
36In all of the circumstances, the Board prefers that the employer call its evidence first on all issues. Any difficulties with respect to the propriety of reply evidence can be dealt with during the course of the hearing. We come to this conclusion because we see it as consistent with the approach the Board has taken in more recent cases (e.g. in cases such as Domtar Packaging, [1982] O.L.R.B. Rep. July 993 and Canadian Pizza Co. Ltd., [1983] O.L.R.B. Rep. June 872 as contrasted perhaps with Craftline Industries Limited, [1977] O.L.R.B. Rep. April 246).
37Essentially, and to the extent that we must, by definition, perform the characterization in advance of hearing the evidence to determine the order in which that evidence will be heard, it appears that two central issues in these matters pertain to the alleged unlawful layoffs (a question which may well determine the voter eligibility of at least the grievors) and the managerial status of certain individuals. Both from the perspective of legal evidentiary onuses (and despite whatever else we have already observed in this decision, it is unnecessary to make any final rulings with respect to ultimate legal onus in relation to any or all of the various issues) and what simply seems to be the most sensible way of proceeding in the circumstances, we are satisfied that the employer ought to proceed first.
Footnotes regarding particulars and production
38The employer contended that the union’s particulars were deficient in certain respects. It made some specific requests with which counsel for the union undertook to comply. The parties should insure that any additional particulars are provided well in advance (i.e. not later than two weeks prior) of the next scheduled hearing date.
39The employer also noted that the union had not filed the documents upon which it intended to rely. The union indicated that the documents upon which it intended to rely were all within the group of documents it had sought and received production of from the employer. Should there be any further documents upon which any party intends to rely, they are directed to file and deliver those within the same time frame articulated in the previous paragraph.
Summary
40Despite the one day delay in filing submissions required under the terms of the Information Bulletin, the union will be permitted to maintain its “managerial” challenges. These matters will be heard together. The employer will proceed first to call its evidence in relation to all issues.
41The hearing in this matter will continue on November 5, 6, 19, 26, 2001 and on December 5 and 6, 2001. The hearing will commence at 9:30 a.m. on each of those days and will be held in the “Boardroom” at Cedar Meadows Resort, 1000 Rue Norman Street, Timmins, Ontario.
42I am seized.
“Bram Herlich”
for the Board