Reasons for decision
Canada Council of Teamsters,
applicant,
and
FedEx Ground Package System, Ltd.,
employer.
Board File: 27950-C
Neutral Citation: 2010 CIRB 522
June 7, 2010
The Canada Industrial Relations Board (the Board) was composed of Mr. Graham J. Clarke, Vice-Chairperson, and Messrs. John Bowman and Patrick J. Heinke, Members.
Counsel of Record
Mr. Stéphane Lacoste, for Canada Council of Teamsters; and
Mr. J. Timothy Lawson, for FedEx Ground Package System, Ltd.
Section 16.1 of the Canada Labour Code (Part I - Industrial Relations) (the Code) provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this application without an oral hearing.
These reasons for decision were written by Mr. Graham J. Clarke, Vice-Chairperson.
I–Nature of the Application
[1] On February 16, 2010, the Board received from the Canada Council of Teamsters (Teamsters) a certification application pursuant to section 32(1) of the Code.
[2] The Teamsters sought certification for a bargaining unit of administrative employees with FedEx Ground Package System, Ltd. (FXG).
[3] On March 17, 2010, the Teamsters requested leave of the Board to withdraw their initial certification application and concurrently filed a second, identical certification application, but with additional membership cards.
[4] FXG contested the Teamsters’ request to withdraw their first certification application.
[5] For the following reasons, the Board has decided not to grant leave for the Teamsters to withdraw their initial certification application.
II–Facts
[6] The Teamsters’ initial February 16, 2010 certification application sought to represent the following bargaining unit:
“All administrative department employees who work for FedEx Ground Package System Ltd. at 6600 Goreway Drive Unit D, in the city of Mississauga Ont. save and except supervisors, those above the rank of supervisors, quality assurance employees, contract employees, and package handlers.”
[sic]
[7] On March 3, 2010 the Board received FXG’s response to the certification application.
[8] FXG contested the proposed bargaining unit and argued that the bargaining unit should include Quality Assurance Clerks (QA clerks), who they allege are also administrative employees.
[9] FXG argued that excluding clearly administrative employees would unduly fragment the proposed bargaining unit.
[10] FXG also alleged that there were concerns with regard to the membership evidence, including allegations of intimidation and coercion. The Board’s Industrial Relations Officer has conducted a confidential investigation and the Board is satisfied that there were no irregularities with regard to the Teamsters’ membership evidence.
[11] On March 11, 2010, the Teamsters filed their reply and argued that the QA clerks were in fact package handlers and, as such, were appropriately excluded from the bargaining unit.
[12] On March 17, 2010, the Teamsters wrote the Board and requested leave to withdraw their first certification application. They further asked the Board to accept a second certification application which they appended to their letter. The Teamsters asked for their original membership evidence to be transferred to the new certification application. The Teamsters also included new membership evidence with the second application.
[13] The Teamsters’ grounds in its March 17, 2010 letter in favour of the withdrawal request were as follows:
This application is made necessary by the effect of the many Code violations committed by FedEx Ground Package System, Ltd. (hereinafter “FXG”) and other individuals acting on its behalf as already alleged in Board files [sic] 27851-C; our recruiting campaign was almost brought to a stall for the administrative employees of FXG working at the 6600 Goreway Drive, Mississauga location. Despite that, we have recently been able to sign some new members and their numbers, not mentioned here because of the confidentiality of that information, are sufficient to affect the treatment of the application for certification.
We believe that it is in the interest of justice and of the employees’ constitutional rights and freedoms to allow this application.
So you will find herewith the new application for certification accompanied by all necessary documents, including the new membership cards. We ask the Board to transfer to this file the membership evidence that was filed with the first application for certification.
[14] The Board has a companion unfair labour practice complaint filed by the Teamsters regarding their current organizing campaign (File no. 27851-C). The Board has scheduled a hearing for that matter. The Teamsters have asked, inter alia, for automatic certification as a remedy for the alleged unfair labour practice complaints, pursuant to section 99.1 of the Code.
[15] On March 18, 2010, FXG wrote the Board contesting the Teamsters’ request for leave to withdraw their first certification application. FXG asked the Board to determine the certification application originally filed by the Teamsters and to dismiss it if the Teamsters failed to establish sufficient support.
[16] FXG referred to section 38 of the Canada Industrial Relations Board Regulations, 2001, SOR/2001-520 (Regulations) which imposes a six-month bar if the Board dismisses a certification application.
[17] FXG alleged that any new membership evidence might have been impacted by some of the Teamsters’ announcements with regard to their organizing campaign. FXG had filed an unfair labour practice complaint about those alleged actions (Board file no. 27995-C).
[18] By letter dated March 22, 2010, the Board requested that the parties provide written legal submissions with regard to the Teamsters’ withdrawal request. The Board established a timetable for the parties.
[19] On April 6, 2010, the Teamsters wrote to advise the Board that “we maintain our position concerning the above captioned matter and the Board has all the information needed to render a decision”.
[20] In FXG’s submissions dated April 16, 2010, it argued, inter alia, that the Board should not allow the Teamsters to use its first certification application as a starting point for a continuing organizing drive, while avoiding the application of the six-month bar imposed by section 38 of the Regulations.
[21] Consistent with the position expressed in their April 6, 2010 letter to the Board, the Teamsters did not file any Reply to FXG’s submissions.
III–Analysis and Decision
[22] The Board has a long-established policy that a party may not unilaterally withdraw an application or complaint without the Board’s permission. The Board may for valid reasons refuse to allow a party to withdraw a certification application: Genesee & Wyoming Inc., cob as Huron Central Railway HCRY, 2007 CIRB 388; and Technair Aviation Ltée (1990), 81 di 146; and 14 CLRBR (2d) 68 (CLRB no. 812).
[23] Trade unions attempting to organize a workforce are not always privy to information which would allow them to file a complete certification application. This lack of knowledge will generally not prejudice them if they request to withdraw an initial certification application. The British Columbia Labour Board (BCLRB) described the situation as follows in Universal Supply Co. (Surrey) Ltd. L140/81 August 6, 1981:
After a trade union has submitted an application for certification, it will often discover that the proposed bargaining unit is much larger than it had understood or, because of certain features of the employer’s operations of which it was not previously cognizant, the proposed bargaining unit is not appropriate for the collective bargaining purposes. The frequency of such situations is the inevitable product of the reality that details of an employer’s organizational structure are not always available to a trade union.
[24] Labour boards require appropriate labour relations reasons before they grant leave to withdraw a certification application. The BCLRB described the situation in Britco Structures Limited (1984), 4 CLRBR (NS) 5 at page 8:
In our view, an applicant trade union must present valid labour relations reasons for seeking a withdrawal - reasons such as those articulated by the Board in Universal Supply Co., supra. Here the locals have advanced no reason for the application for withdrawal and none, such as an ignorance of the size of the employer’s operation, is evident from the file...
[25] Section 38 of the Regulations establishes a six-month bar if the Board dismisses a certification application:
38. A trade union or council of trade unions shall not file a new application for certification in respect of the same or substantially the same bargaining unit until six months have elapsed from the date on which its previous application was rejected.
[26] Section 46 of the Regulations allows the Board to abridge the length of the six-month bar for a subsequent certification application:
46. The Board may vary or exempt a person from complying with any rule of procedure under these Regulations — including any time limits imposed under them or any requirement relating to the expedited process — where the variation or exemption is necessary to ensure the proper administration of the Code.
[27] The Board’s predecessor, the Canada Labour Relations Board, described its practice with regard to the six-month bar in the Regulations in Greyhound Lines of Canada Ltd. (1990), 80 di 147; and 90 CLLC 16,029 (CLRB no. 794) at 150 (Greyhound):
Many reasons warrant a policy with respect to withdrawals. In the case of certifications, since the dismissal of an application is sanctioned by a time bar preventing the filing of a new one for a period of six months, a union exposed to losing a loosely-organized campaign could be tempted to by-pass the time-bar regulation by resorting to a unilateral withdrawal. This way, its first attempt at certification would escape formal dismissal, i.e. escape being “refused” pursuant to section 31 [now section 38] of the Regulations.
In order for the time-bar provision to work properly, a unilateral withdrawal must not be allowed without at least the other side being afforded an opportunity to argue for a formal dismissal. The practical purpose of that provision is to avoid repetitive attacks on an incumbent bargaining agent. Also, in the case of a first organization, it is aimed at preventing that the climate in a union-free business be repetitively threatened by ill-fated union drives. But section 31 of the Regulations is not aimed at preventing a genuine, serious organization to succeed even shortly after a first defeat.
[28] The Board has granted trade unions leave to withdraw in situations where the bargaining agent misjudged the size or proper scope of the bargaining unit. In Greyhound, supra, the raiding union justified its withdrawal request by the fact it had been misled about the status of certain persons. It advised the Board it wanted to solicit support within this group which had not been included in its initial application. The Board granted the withdrawal.
[29] In this case, the Teamsters’ two certification applications seek to represent the identical bargaining unit. The Teamsters have asked the Board to transfer the membership evidence from the first application and add it to the membership evidence included in its second certification application.
[30] The Board has decided not to grant leave to withdraw in the specific circumstances of this case.
[31] Section 28(c) of the Code establishes the importance of the application date for any certification application:
28. Where the Board
(a) has received from a trade union an application for certification as the bargaining agent for a unit,
(b) has determined the unit that constitutes a unit appropriate for collective bargaining, and
(c) is satisfied that, as of the date of the filing of the application or of such other date as the Board considers appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent,
the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the bargaining unit.
(emphasis added)
[32] The Board has placed great emphasis on the date of a certification application. The Code was amended in order to adopt explicitly the Board’s policy of using the application date when evaluating a trade union’s membership support. If a trade union has over 50% support as of the application date, the Board must certify it. If membership support exceeds 35% but is less than 50%, then the Board must order a representation vote (section 29(2)).
[33] One of the corollaries arising from the Board’s policy about the importance of the application date is that the Board will generally not accept evidence, whether by petition or otherwise, from employees who attempt to withdraw their support for the applicant trade union. Such evidence must be received prior to the application date.
[34] In order to avoid a multitude of labour relations problems which could arise following the public filing of a certification application, the Board relies heavily on the application date when it analyzes membership support.
[35] In the Board’s view, fairness dictates that membership evidence neither be subtracted from, nor added to, after the application date. The Board can occasionally choose another date to examine membership evidence. No arguments were presented in this case suggesting the Board should use another date to evaluate support.
[36] In this case, before examining the Teamsters’ support, the Board must decide whether to allow a withdrawal. The Board will grant leave to withdraw a certification application where labour relations reasons justify the request. The Board was not persuaded initially by the Teamsters that allegations with regard to pending unfair labour practice complaints were sufficient to justify a withdrawal.
[37] The Board could prejudice the fairness of other pending matters were it to accept allegations of unfair labour practices as sufficient justification for granting leave to withdraw a certification application. The Board will hold an oral hearing into those allegations. Those findings will be relevant to the Teamsters’ request for the remedy of automatic certification under section 99.1 of the Code.
[38] Given this situation, the Board asked the parties for further legal submissions about the withdrawal issue. There were no subsequent labour relations reasons advanced in support of the Board granting a withdrawal.
[39] As a result, the Board cannot grant a withdrawal.
[40] The Board has examined the Teamsters’ original February 16, 2010 certification application. The membership support submitted did not entitle the Teamsters to a vote under section 29(2) of the Code. The Board accordingly dismisses that application.
[41] This is a unanimous decision of the Board.