Reasons for decision
Teamsters Canada Rail Conference, Maintenance of Way Employees Division,
applicant,
and
Genesee & Wyoming Inc., cob as Huron Central Railway HCRY,
employer.
CITED: Genesee & Wyoming Inc., cob as Huron Central Railway HCRY
Board File: 26192-C
Decision no. 388
July 10, 2007
Application for certification filed pursuant to section 24 of the Canada Labour Code, Part I.
Application for certification—Accuracy of membership evidence—Practice and procedure—The union filed an application for certification along with a signed certificate of accuracy used in the certification process—The Board’s investigation showed that some of the membership cards had not been signed by those named on the card—The union indicated that it wished to withdraw three of the cards it had originally filed with its application—The Board’s investigating officer requested an explanation from the union regarding the three cards it asked the Board to withdraw—The union did not respond—The certification process in the Code extends certain important privileges to applicants— These privileges impose an obligation on every applicant, and on the Board, to ensure the accuracy of the membership evidence submitted—The Board is of the view that the filing of irregular membership evidence by the applicant requires that this application for certification be dismissed.
The Board was composed of Mr. Graham Clarke, Vice-Chairperson, and Messrs. André Lecavalier and Norman Rivard, Members.
These reasons for decision were written by Mr. Graham Clarke, Vice-Chairperson.
I–Introduction
[1] These reasons deal with a certification application filed with the Board on March 16, 2007. The Board has decided to dismiss the certification application because of significant concerns about the accuracy of the applicant’s membership evidence.
[2] These reasons will explain how the Board reached this conclusion.
II–Facts
[3] The Teamsters Canada Rail Conference, Maintenance of Way Employees Division (the applicant) filed an application for certification with the Board to represent approximately 20 employees working for Genesee & Wyoming Inc., cob as Huron Central Railway (the employer). The applicant filed with the Board the Certificate of Accuracy used in the certification process, which confirmed, inter alia, that the membership application forms “were in fact signed by the employees indicated on the dates shown thereon and that their applications were accepted on behalf of the union.”
[4] The signed Certificate of Accuracy further confirmed “that the amounts shown as having been paid as union dues and/or initiation fees were actually paid by the employees concerned on their own behalf and on the dates indicated.”
[5] The applicant also acknowledged, by signing the Certificate of Accuracy, “that the investigating officer has the authority to investigate and verify all documents and statements made by the parties to this application.”
[6] During the course of the Board’s investigation, the investigating officer had concerns whether certain employees, whose names appeared on the submitted membership cards, had in fact signed those cards and paid the requisite $5 fee.
[7] By letter dated April 18, 2007, the applicant, through legal counsel, indicated it wished to withdraw three of the cards it had originally filed with its certification application.
[8] By letter dated May 2, 2007, the investigating officer asked the applicant, after leaving several messages, to provide contact information for the applicant’s card collectors including their first and last name, address and home telephone numbers.
[9] The Applicant did not respond to the investigating officer’s request.
[10] The investigating officer sent a further letter to the applicant, dated May 18, 2007, requesting both a reply to the May 2, 2007 letter concerning the contact information for the card collectors as well as an explanation regarding the three membership cards that the applicant had asked the Board to withdraw.
[11] The investigating officer advised the applicant that his confidential investigation suggested that the signatures on the cards did not match those obtained by the officer. The individuals also appeared not to have paid the required $5 fee.
[12] The applicant did not respond to the second request for information from the investigating officer.
III–Analysis and Decision
[13] While some provincial jurisdictions have moved towards the holding of mandatory votes for every certification application, the Code continues to favour a card-based certification process. In the most recent review of the Code in the mid-1990’s, the Sims Task Force recommended in Seeking a Balance: Canada Labour Code, Part I, Review (Ottawa: Human Resources Development Canada, 1995), that the card-based certification process remain unchanged. The 1999 changes to the Code did not include mandatory representation votes in the certification process.
[14] The certification process in the Code extends certain important privileges to applicants. Not only will the Board usually determine majority support for the bargaining agent as of the date of filing of the application for certification, but it is exceptional for the Board to order a representation vote if an applicant has filed a majority of signed membership cards in its favour.
[15] These privileges impose an obligation on every applicant, and on the Board, to ensure the accuracy of the membership evidence submitted.
[16] The Board, through its labour relations officers, conducts a confidential examination to ensure that an applicant’s membership evidence is accurate and clearly reflects the wishes of the members of the proposed bargaining unit. The Board can only grant the significant benefits offered by the Code to those who satisfy the clear legislative requirements.
[17] Membership evidence is not only confidential but it is also extremely sensitive. The investigating officer will produce a confidential report for the Board’s eyes only concerning the accuracy of that evidence. The courts have consistently protected this public interest function of the Board and the need to keep it confidential from the parties (see Maritime-Ontario Freight Lines Ltd. v. Teamsters Local Union 938 (2001), 278 N.R. 142 (F.C.A., no. A-574-00)).
[18] In this case, the investigating officer’s investigation showed that some of the membership cards had not been signed by those named on the card. The Board is satisfied that this conclusion is accurate.
[19] The investigating officer requested information, on two separate occasions, from the applicant. The failure by the applicant to respond to the officer’s written requests for information further confirms the Board’s conclusion that the applicant has filed irregular and inaccurate membership evidence in its quest to be certified.
[20] Unfortunately, this is not the first occasion where the Board has had to deal with an attempt to circumvent the Code’s clear requirements. In Technair Aviation Ltée (1990), 81 di 146; and 14 CLRBR (2d) 68 (CLRB no. 812), the Canada Labour Relations Board, this Board’s predecessor, faced a similar situation.
[21] In Technair Aviation Ltée, supra, the investigating officer had informed the parties about certain irregularities uncovered during the confidential investigation into the membership evidence. The applicant union was provided with an opportunity to comment on the alleged irregularities.
[22] Rather than providing an explanation for the irregularities, the applicant union wrote to the Board and asked to withdraw its application.
[23] The Board provided the applicant union with a second opportunity to provide comments, failing which the Board would decide the certification application.
[24] The applicant union wrote again and expressed surprise it could not withdraw its application. In the alternative, it suggested that a representation vote be held. The Board dismissed the application for certification. The Board is not obliged to allow an applicant to withdraw an application for certification unless the Board consents. Similarly, a representation vote does not remedy irregularities in an applicant’s membership evidence.
[25] In Technair Aviation Ltée, supra, the Board had uncovered falsified employee signatures on certain membership cards. The Board refused to disregard the invalid membership evidence and subtract them from the total number of membership cards submitted in favour of certification. Rather, the Board found that fundamental irregularities had been committed and that there was no alternative but to dismiss the union’s application.
[26] In Technair Aviation Ltée, supra, the Board concluded:
The Board considers it essential that the provisions of the Code and Regulations be applied fully and constantly. It has always interpreted and applied the Code strictly, and rightly so, in order to ensure the free exercise of the right of association. One means to this end has been to maintain the confidentiality of union allegiance, the effect of which is to exclude the employer from part of the investigation that attends an application for certification (see Réseau de Télévision Quatre Saisons Inc. (1990), 79 di 195; and 90 CLLC 16,047 (CLRB no. 779)). There is ample justification for this practice and it must continue. At the same time, however, the Board must take steps to ensure that the right of association is in fact freely exercised in accordance with the Code. In situations like those revealed in the present case, this right of association is not exercised freely. Moreover, the applicant did not provide, in support of its request for withdrawal, one valid reason that would promote the development of sound labour relations.
(pages 157–158; and 79)
[27] In this case, the Board is of the same view that the filing of irregular membership evidence by the applicant requires that this application for certification be dismissed. Under section 38 of the Canada Industrial Relations Board Regulations, 2001, such a dismissal will impose a six month statutory bar before the applicant can file another application for certification.
[28] The Canada Labour Relations Board in K.D. Marine Transport Ltd. (1982), 51 di 130; and 83 CLLC 16,009 (CLRB no. 400) has previously indicated that consequences will be swift and severe in cases of this nature:
The Board is fully cognizant of the importance of proof of union membership and the great weight and reliance placed upon the authenticity of such documentary evidence of employee wishes. Any fraud or tampering with membership cards or records such as signatures, backdated or updated cards, or falsehood in the method of payment of the required initiation fee, will result in swift and severe consequences.
(pages 144; and 16,076)
[29] It could be argued that the fact of simply rejecting a certification application and having the six month certification bar apply does not seem to be a “severe consequence,” since an applicant in good faith could have its application for certification rejected and would face the exact same bar.
[30] However, were an applicant trade union to continue to engage in the type of inappropriate conduct found in this case, the Board could decide, inter alia, to order representation votes for its future application for certification or review the accuracy of its past certifications under the Board’s general review power. Fortunately, such steps have not been required in the past.
[31] For all the above reasons, the application for certification is dismissed. This is a unanimous decision of the Board.