IN THE MATTER OF:

THE LABOUR RELATIONS CODE

- and -

CERTAIN EMPLOYEES OF BROWN & MARSHALL LIMITED

Applicant

 - and -

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 424

Respondent

- and -

BROWN & MARSHALL LIMITED

Respondent

 

 FILE NO.: RV-00780

BOARD MEMBERS

Mark Asbell - Chair
Kay Willekes - Member
Reg Basken - Member
Herb Holmes - Member

APPEARANCES

For the Applicant: Christopher Lane (Counsel), Carl Jackel

For the Respondent Company: No Appearance

For the Respondent Union: W.J. Johnson (Counsel), Gord Graham

REASONS FOR DECISION

I. The Application

[1]    On August 29, 2001 certain employees of Brown & Marshall Electric Limited ("Brown & Marshall") applied to revoke the bargaining rights of Local Union 424, International Brotherhood of Electrical Workers ("IBEW"). Because of a quirk of timing unknown to the applicants when they were filing their revocation application, the investigating Board Officer found the application untimely and recommended its dismissal. The unusual sequence of events created a unique fact situation impacting on a key statutory requirement: an application for revocation may only be made during a statutory open period. Unknown to the Applicants, they presented their revocation application at approximately the same time as the members of IBEW were ratifying their collective agreement affecting certified employers in the construction sector. As the entering of a new collective agreement imposes a statutory bar on such revocation applications, we must determine the exact time the union ratified its agreement. Further, this case also involves a re-examination of the Board’s practice on how it reviews and accepts revocation or certification applications supported by petition evidence.

II.   Background

[2]    This unusual sequence of events starts with the release of another decision involving IBEW and Brown & Marshall. In Brown & Marshall Electric Ltd. v. Local Union 424, International Brotherhood of Electrical Workers (August 28, 2001, Deborah Howes, Vice-Chair) (currently under reconsideration), Brown & Marshall applied to revoke the bargaining rights of IBEW. The Board rejected the employer’s application finding IBEW remained the bargaining agent for a unit of employees of Brown & Marshall described as "All General Construction Electricians." In doing so, the Board found Brown & Marshall was still an employer contractor engaged in the unionized construction sector. As the company still had employees working as electricians engaged in construction work, the company remained bound by the registration collective agreement entered into between the Registered Employers’ Organization - the Electrical Contractors Association ("ECA") - and IBEW. In coming to this conclusion the Board noted although the union took no steps outside of bargaining with the ECA to reiterate or reinforce its bargaining rights in the work force, Brown & Marshall could not successfully apply to revoke the union’s rights as it continued to operate in the construction sector and continued to employ electricians. Thus, Brown & Marshall could not satisfy the statutory pre-conditions for making an employer revocation application. As a result, and despite the present owners of Brown & Marshall and its predecessor shareholders believing the company was and had effectively been operating non-union for almost 25 years, the company remained bound by the original certification.

[3]    Immediately upon hearing of the above decision, Mr. Carl Jackel, spokesperson for the petitioners, attempted to and ultimately did file an application for revocation of IBEW’s bargaining rights. Through a quirk of timing and unbeknownst to everyone involved, at approximately the same time the employees of Brown & Marshall brought the revocation application, IBEW ratified its new registration collective agreement with ECA.

[4]    As occurred in the August 28^th Decision, the timing of this application requires a close examination of the timeliness component of the statutory provisions relating to revocations and the application of those provisions in this circumstance.

III. IBEW’s Relationship with Brown & Marshall Outlined in August 28^th Decision

[5]    The unique fact situation requires a short overview of the Board’s August 28^th Decision. That Decision discussed the historical relationship between IBEW and Brown & Marshall.

[6]    IBEW became the certified bargaining agent for a group of employees of Brown & Marshall on May 5, 1971. The parties apparently had a collective agreement, that Brown & Marshall applied.

[7]    In 1972, the ECA became the Registered Employers’ Organization representing employers doing electrical construction work. At that time, the ECA was authorized to bargain on behalf of Brown & Marshall.

[8]    Brown & Marshall applied the IBEW - ECA collective agreement until March or April, 1975 when Mr. James Marshall, the then shareholder of the company, sold his shares to Mr. Sandy Mihalchan, one of his employees. Mr. Mihalchan testified at the hearing for the August 28^th Decision (paragraph 7) that he believed he was purchasing a non-union company because "they had paid off everything with the Union and everything was finished with the Union". He operated it as a non-union business, still performing both construction and maintenance electrical work and still employing electricians who did both types of work.

[9]    Shortly after purchasing the shares of Brown & Marshall, Mr. Mihalchan sent a notice to the union’s benefit and pension trust fund administrator that "we are a non-union shop now" and requesting that the union close its file on the company. Neither IBEW nor the trust fund administrator responded to this notice nor did the union contact Brown & Marshall.

[10]    In 1980, Mr. Mihalchan sold his shares to another individual who in turn sold his shares in 1998 to Mr. Boyd Carlson and Mr. Jeffrey Dux, the current owners. Throughout this time the company operated without interruption or any further contact with IBEW. In 1999, IBEW contacted the company. The company in turn brought its own revocation application which was the subject of the August 28^th Decision.

IV. ECA-IBEW Reach New Registration Collective Agreement

[11]    The petitioners testified they were surprised by the Board’s August 28^th ruling. Until hearing of the Board’s Decision, they believed they were non-union employees operating in a non-union shop. Each had been solely employed by Brown & Marshall for a minimum of one year before the issuance of the August 28^th Decision. Although IBEW had been in contact with their employer and they were aware of the proceedings leading up to the August 28^th Decision through their employer, they did not believe it impacted them but rather it was a fight between their employer and IBEW. IBEW did not contact any of the petitioners who testified while they were employees of Brown & Marshall prior to August 28^th.

[12]    As mentioned above, the timing and sequence of the events surrounding this application are unique and greatly complicate the issue. Determining the timeliness of the application requires examining two separate but parallel timelines.

[13]    The first timeline involves the ratification of the collective agreement between ECA and IBEW. The August 28^th Decision found Brown & Marshall bound by the registration collective agreement between ECA and IBEW. The collective agreement in force during the August 28^th Decision’s proceedings became effective May 1, 1999 and continued in full force and effect until April 30, 2001 with a continuance clause. Under section 50(3)(c), an application for revocation can be made "at any time in the 2 months immediately preceding the end of the term of the collective agreement." Thus, a timely application for revocation could be made any time after March 1, 2001 until such time as the parties entered into a new collective agreement. As soon as a new collective agreement is entered into, a statutory bar to revocation occurs and any subsequent application becomes untimely.

[14]    Sometime in the late winter of 2000 or spring of 2001, ECA and IBEW began negotiations for a new agreement. After fairly lengthy negotiations, the parties reached a Memorandum of Agreement subject to ratification by both parties. The parties agreed the new agreement was retroactive to May 10, 2001. The union ratification vote took place over the course of three days: August 25, 26 and 27. ECA held its ratification vote on August 28^th. Although we heard submissions the union counted the ballots some time on the morning of August 29^th, we heard no evidence surrounding the exact time the votes were counted and the results declared. We did, however, receive evidence IBEW notified ECA of its members’ ratification at exactly 1:20 p.m. on August 29, 2001. ECA then notified its members of the union’s ratification on August 30, 2001.

V.   Sequence of Events Surrounding Filing of Revocation Application

[15]    During the same time period the union conducted, counted and ultimately declared the results of its ratification vote, the employees of Brown & Marshall heard about the August 28^th Decision and Mr. Jackel took action to file the revocation application. This sequence of events occupies the second, but parallel, timeline we must examine.

[16]    The owners of Brown & Marshall became aware of the August 28^th Decision sometime subsequent to its release by the Board. The petitioners testified each received a call from the co-owner of the company, Mr. Jeff Dux around 9:30 a.m. on August 29^th. (All subsequent times relating to the petition occurred on August 29^th). Mr. Dux asked each to meet him at 10:30 a.m. at a central place on the University of Alberta campus where they were working on a couple of different projects. Once there, Mr. Dux that he informed them of the Board’s Decision and talked a little bit about how the Decision impacted the employees and the company. Although this meeting raises suspicion of improper employer involvement in the subsequent revocation application, we heard no evidence of any promise, threat or other inappropriate inducement from Mr. Dux intended to sway his employees. The meeting lasted 5 minutes and then all dispersed back to their original jobs with the exception of Mr. Jackel. Mr. Jackel approached Mr. Dux and requested personal time off which Mr. Dux granted. Mr. Jackel testified he did not discuss his intentions or reasons for the request with Mr. Dux. We infer, however, that Mr. Dux not only was not surprised by the request but also expected and hoped for it. Again, however, this inference alone or together with the meeting called by Mr. Dux does not render the subsequent actions of the employees involuntary. Neither, for that matter, did the union argue the point.

[17]    Although Mr. Jackel was vague or confused when testifying as to how he was aware of the revocation procedure under the Code, he was clear that he immediately left the work-site and drove to the Merit Shop Contractors where he met with a representative of that organization. There he received a package of information that contained, among other documents, a petition form titled "Petition for Decertification". This form varies from the Board’s form and is deficient under Board practice because it does not provide a space for the name of the employer on the header. It does provide for the insertion of the name of the union. The body of the petition provides for the petitioners to insert their name, address, and phone number, signature, witness’s signature and date. The header on the petition reads:

WE WISH TO APPLY FOR THE REVOCATION/TERMINATION OF BARGAINING RIGHTS HELD BY (INSERT UNION) ____________.

WE UNDERSTAND THAT IF THE APPLICATION SUCCEEDS: THE UNION WILL NO LONGER BE THE EXCLUSIVE BARGAINING AGENT, THE UNION WILL NO LONGER REPRESENT US IN COLLECTIVE BARGAINING AND ANY COLLECTIVE AGREEMENT THAT IS IN EFFECT WILL BE CANCELLED.

[18]    Mr. Jackel left the Merit Shop Contractors office and attended at the Board’s offices to confirm the requirements and timing related to obtaining signatures for the application. This first attendance occurred at 12:30 p.m. The Board Officer assisted Mr. Jackel in completing the application form and advised him on Board practice and Code requirements relating to petition evidence. In a supplemental Board Officer’s Report, the Officer states that among other requirements, he told Mr. Jackel to ensure the name of the employer and the union appeared on the petition. Mr. Jackel denies this discussion occurred. Again, however, due to the vagueness or confusion of Mr. Jackel on other points, where his evidence conflicts with others and where relevant and appropriate, we accept the evidence contrary to that provided by Mr. Jackel. In coming to this conclusion we are not inferring that Mr. Jackel acted inappropriately, was dishonest or was attempting to hide things. Rather, he has been thrust into an unfamiliar and uncomfortable position: one in which he was clearly uncertain of the legal requirements, felt pressured by the timing and was aggravated and annoyed by "the bureaucracy". Thus, he was not clear on specific details and contradicted himself several times as it related to specific events and the timing surrounding these events. In this situation, we find the contradiction does not impact our determination.

[19]    Mr. Jackel left the Board offices and immediately went across the river to the University of Alberta campus where he met with his fellow employees in HUB Mall on their lunch break. He showed them the petition and explained that if they wanted to "get rid of the union" they could sign the petition. If not, "don’t sign". In addition to his own signature, two of the three other employees signed the petition. Mr. Jackel and the other petitioners testified they believed the name of the union appeared on the petition although they were not certain. They all testified they knew the union was "the electrical workers union" as that union was the only building trade union representing electricians. Although Mr. Jackel was uncertain of the exact name, both other petitioners knew the union was the IBEW.

[20]    Immediately after obtaining the signatures, Mr. Jackel returned to the Labour Relations Board Offices, arriving at approximately 1:00 p.m., and met with another Board Officer. Mr. Jackel presented both the application for revocation and the supporting petition to the Board Officer. The parties agreed in an Agreed Statement of Evidence that Mr. Jackel presented the same application form at that time as the one presently before the Board. This application form fully sets out Mr. Jackel’s name and address together with similar information for both the company and union. It also sets out the bargaining unit the employees are seeking revocation from and the level of support for the application. With respect to the latter, although the application form sets out the petition has the support of 2 of the 4 employees in the unit, subsequent evidence revealed that the petition presented by Mr. Jackel at this time actually indicated the support of 3 of the 4 employees.

[21]    As indicated above, the petition in support of the application was not a Board-generated form but rather one originating from the Merit Shop Contractors. According to the Board Officer’s Report, in reviewing the documentation, she noticed that while there were signatures on the petition, the header of the petition form had not been filled out. In this respect, the form contained no space or indication for the employer’s name and the union’s name did not appear on the blank provided. The Board Officer states she advised Mr. Jackel the Board could not accept an incomplete application and the employer and union names were imperative to an application for revocation. She stated this was because the Board had to be satisfied the employees who signed the petition form knew what they were signing. In so doing, the Board Officer accurately reiterated the existing Board practice in this area based on case law and Informational Bulletins.

[22]    The Board Officer then provided Mr. Jackel with a Board petition form and advised him to fill out the header of the petition form, including the name of the employer and the name of the union. She also told him the name of his union as he did not appear to know it. She then advised Mr. Jackel, in similar fashion to the advice offered Mr. Jackel by the first Board Officer, that signatures on the petition could not be obtained on company time or property. Mr. Jackel left the Board at approximately 1:30 p.m.

[23]    After leaving the Board, Mr. Jackel waited for coffee time and then met with his fellow employees on the University of Alberta campus at about 2:30 p.m. He showed them the new petition, this one completed with the name of the company and "IBW" for the union. All expressed annoyance over the Board’s refusal to accept the application and petition when it appeared "clear as a bell" to them. As they only needed two signatures to comply with the statutory support requirement set out in section 50, Mr. Jackel obtained one other employee’s signature in addition to his own before returning to the Board’s office.

[24]    Mr. Jackel returned to the Board at approximately 2:40 p.m. meeting with the second Board Officer. The Board Officer again reviewed the application and noted the abbreviation denoting the union was missing a letter. Notwithstanding this slight error, the Board Officer felt it was likely those signing the petition understood it to signify the abbreviation for the International Brotherhood of Electrical Workers. The Officer accepted the application as complete and it was date and time stamped August 29, 2001 2:45 p.m.

VI.  Timing of Ratification

[25]    In most situations, it is simply enough to know ratification of a collective agreement occurred on "X" date. Rarely in the Board’s experience has the exact time of ratification been a factor of any significance.

[26]    Such is not the case here. As mentioned above, section 50(3)(c) stipulates that an application for revocation of bargaining rights may be made "at any time in the two months immediately preceding the end of the term of the collective agreement." As discussed in numerous cases, ratification of a new collective agreement, where required by union constitution, closes the statutory open period within which that bargaining agency might be challenged. (See, for example: CHCG v. CUPE 1158 and Capital Care Group Inc., [1998] Alta.L.R.B.R. 316; Carpenters 2103 v. Intercon Acoustics Calgary Ltd., [1988] Alta.L.R.B.R. 351. See also CLAC Locals 63 & 65 v. Midwest General Contractors, [2000] Alta.L.R.B.R. 86).

[27]    A retroactive collective agreement, as in this case, does not retroactively bar or limit the open period in the Code. (See: Intercon Acoustics). In other words, a retroactive collective agreement (such as this one going back to May 10^th) does not bar an application for revocation made in the interim period between the date of ratification and the retroactive date of the collective agreement’s application. As a consequence, given the two interconnected timelines in our factual situation, the exact time of ratification becomes very important. If ratification occurred before the revocation application was first presented to the Board, then the application is untimely under section 50(3)(c) and the application is dismissed. If ratification occurred after the application for revocation was accepted by the Board, the application is timely and the matter proceeds to a vote. If ratification occurred sometime between the time Mr. Jackel first presented the application and petition and the time it was ultimately accepted as complete, the application may or may not be timely depending on the Board’s determination of whether the presentation of the application together with the first petition was or should have been a proper application. In the event the Board finds the application would have been timely but for the rejection of the application and first petition, we must then examine the Board’s practices in the area and whether there is room for discretion in some situations.

[28]    In Alberta, there is neither a statutory requirement for ratification of a collective agreement nor a defined ratification process. As such, a certified bargaining agent is not required to have a collective agreement ratified by the affected employees unless it is constitutionally bound to do so or it has otherwise voluntarily committed itself to obtain ratification as a precondition to the agreement taking effect. (See: Midwest, supra). Where such a commitment is made, each party establishes its own ratification procedure that governs how and when ratification occurs. Parties may agree between themselves in their bargaining protocols about the time at which ratification occurs.

[29]    In this case, the parties entered no evidence relating to the ratification process adopted by the IBEW. The union did, however, previously file with the Board a copy of its Bargaining Committee Rules. Article 4 of those Rules establishes not only that the collective agreement must be ratified before becoming effective but also who is eligible to vote. The Rules do not, however, establish when a collective agreement is considered "ratified". It provides:

4.0 RATIFICATION

4.1    When the Committee concludes a Memorandum of Settlement it shall be referred to ratification to those members of the Local Unions eligible to vote.

4.2    Those persons eligible to vote in a ratification vote shall consist of all affected Union Members in good standing in each of the respective Local Unions at the time of the vote.

4.3    A Collective Agreement will be binding upon the Local Unions only if it has been ratified by a majority of those person voting who are eligible to vote pursuant to Article 4.2.

4.4    The voting procedure shall be set by the Committee from time to time provided that such procedures are not inconsistent with these Rules and Procedures. "Voting procedures" shall include timing of votes, location of polling stations, mail-in ballots, and wording of ballots.

[30]    In the absence of specific terminology relating to the exact time of ratification, we must look at what is logical and makes the most sense from a contractual and labour relations perspective.

[31]    Counsel for the petitioners argued ratification occurs only when all parties affected by the collective agreement have received notification from their bargaining agent of the results of the vote. In this case that would be August 30^th when ECA faxed out notification to all its members of the results. In our opinion, this argument is fraught with difficulty. If ratification does not occur until notification of all parties affected, situations could arise where some companies receive and acknowledge notification while others do not. This could result in a great deal of uncertainty over the application of collective agreements including instances where one or more parties fail to receive notification for any number of reasons. Which agreement applies when? Further, such a requirement would obligate parties to prove that they either did or did not receive notification of ratification at a specific time. Some companies could believe they were bound by the new agreement immediately upon notification thereby operating under different rules than others depending when they actually received notification. This lack of certainty and clarity make this the least sensible alternative for the exact time of ratification.

[32]    Similarly, we reject Counsel for the union’s argument that ratification occurs upon the closure of the ballot boxes. This scenario also raises much uncertainty. The ballots may not be counted for days if at all. Disputed ballots or voting procedures may delay the count as may transportation issues where ballot boxes travel from areas widely dispersed for counting purposes. Further, as happened with IBEW in its original vote this past round, the membership may reject the memorandum of settlement. Considering the agreement ratified upon closure of the ballot box results in a significant amount of uncertainty that remains unresolved until the ballots are counted. Additionally, waiting for vote results and then backdating the result may result in further discrepancies causing more potential for uncertainty.

[33]    In our opinion, the avenue with the greatest certainty is one where ratification actually occurs on the counting of the ballots and the declaration of the successful vote in favour of the agreement. It is only at that time when the respective bargaining representatives are made aware of the results and they can act upon the new agreement or the specified date as to when it commences. This time provides the greatest certainty and makes the most sense.

[34]    When did this happen in our case? Unfortunately, we had no evidence of the time of the actual vote count and declaration. All we heard, uncontradicted by Counsel for the petitioners, was a submission from Counsel for the union that the vote count occurred "sometime during the morning" of August 29^th. This however is not evidence. Even if it was, it is not an exact description but one referencing a general time frame. "Morning" may or may not be over at noon on any given day. Without more, the mere mention of "morning" as a time frame in submissions does not make it so. Thus, we have to look for the first time certain. In this case, according to the Agreed Statement of Facts, the first time certain of the vote results and declaration is when the union president notified ECA of the successful ratification at 1:20 p.m. on August 29^th. As such, ECA and IBEW entered into a new collective agreement at precisely 1:20 p.m. on August 29, 2001 and it is at that time the statutory bar blocks any revocation application.

[35]    The result is the application and petition for revocation submitted and stamped by the Labour Relations Board at 2:45 p.m. is untimely. As that application is untimely it is therefore statute barred.

[36]    However, but for the rejection of the application and original petition by the Board Officer at 1:00 p.m., the original application as presented would have been timely. Further, as the petition also had evidence of greater than 40% support of the employees in the bargaining unit, the statutory preconditions to put this matter to a vote would have been met. Thus, we must examine the Board’s practice in reviewing revocation applications, why we reject incomplete applications, and whether this one should have been accepted at 1:00 p.m.

VII. Board Practice on Presentation of Revocation/Certification Applications

[37]    In rejecting the initial application and petition, the Board Officer accurately reiterated the Board’s practice in this area. Information Bulletin #13 under the heading "Form of the Application: Employee Applications" sets out the Board’s requirements with respect to the completion of information on petition headers. It reads in part:

The Board will only accept petition evidence if satisfied that the petition represents a free and voluntary expression of employees’ wishes. When circulating a petition to gather signatures, ensure that:

• The statement of intent at the top of each petition form is completed before any person signs,
• Each person is given the opportunity to read the statement of intent at the top of the petition in order to understand what the individual is supporting by signing.

[38]    The Board adopted this practice as a result of a series of cases including: Allied Communication Limited v. IBEW, Local 348, [1985] 1 W.W.R. 714 (Alta. Q.B.); Hull’s Foods Ltd. v. UFCW, Local 401, (#2), [1990] Alta.L.R.B.R. 628; and Lansdowne Food Ltd. v. UFCW, Local 401, [1992] Alta. L.R.B.R. 413.

[39]    In Lansdowne, the Board looked at whether the petition was a free and voluntary expression of employee wishes. At page 426, the Board addressed the requirements of a revocation petition.

The Labour Relations Code requires that employee applicants for revocation file evidence of employee support "in a form satisfactory to the Board". They do this using a petition. What test does the Board use to determine if the petition is a valid indication of that support? A revocation petition must be a genuine and voluntary expression of the wishes of the employee, free from the influence of management. While the Board assesses each case on its own merits, the issues involved can be broken down as follows:

The petition must be authentic. The signatures on a petition must be genuine. …

The petition must be understandable. The heading on the petition must say clearly what it is for. It should be simple and straight forward. It should be free of confusing editorial comment. The heading must be on the petition before anyone signs it, and remain there, unaltered, from then on.

The petition must be fairly presented to employees. Persons circulating petitions must make it clear to the employees they solicit that their purpose is to ask the Board to revoke the Union’s bargaining rights. Substantial evidence that employees were told the petition, despite its heading, was for some other purpose, will destroy the petition’s credibility.

The petition must be freely signed. Evidence of intimidation, undue influence, threats or coercion by those involved in the origination or circulation of the petition will cause the Board to reject the petition. This is so whether such conduct is a result of the petition organizer’s own actions or as a result of management influence.

The petition must be free of actual employer interference. In addition, the petition must be signed in circumstances perceived to be free of employer interference. While these two criteria overlap they involve looking at the evidence from two distinct vantage points.

[40]    The Court of Queen’s Bench decision in Allied Communications v. IBEW Local 348 changed the Board’s approach in handling petition evidence. Although that decision involved a certification application, the rationale equally impacts how the Board processes and handles evidence submitted in support of both certification and revocation applications.

[41]    The court examined the then certification provisions and specifically the evidence submitted in support of the application as outlined in section 34(2) of the Labour Relations Act (now section 31of the Labour Relations Code).

[42]    The Court overturned the Board’s decision and found that the Board does not have jurisdiction to act on a certification application until it has received some evidence of compliance with what was then section 34(2). A similar analysis would presumably apply to the revocation provisions. Then section 34(2) read in part:

34(2) an application [to be certified] under subsection (1) shall be supported …

(b) by evidence that a majority of the employees in the unit have indicated in writing their selection of the trade union to be their bargaining agent on their behalf.

[43]    In arriving at this conclusion, at pages 723 and 724 the Court states:

… it would not only be inappropriate for the board to embark on a hearing without having received the prerequisite evidence, the statute requires that the board have evidence of s. 34(2) prerequisites before it assigns a board officer to prepare a report.

In coming to the conclusion that s.34(2) exists as a prerequisite, I have considered that:

(a)    … The legislature treated the application for certification differently from the other types of application under the Act. The subsection does not specify that the evidence shall accompany the application. Nevertheless, the wording of s. 37 establishes that the board has no jurisdiction to do anything until the application is received. This imperative requires that the evidence supporting the application accompany it.

(b)    ...

(c)    Section 34(1) … itself requires that an application contain a claim of selection by a majority of employees in a unit. … evidence must be something different than a claim. All the union presented to the board in this case was a claim that it had been selected by a majority of the applicant’s employees.

[44]    In light of the Allied Communication and Lansdowne decisions, the Board adopted the policy that the petition or statement filed in support of the application must represent a reliable expression of employee wishes. Under this policy, the Board rejects incomplete applications.

[45]    It is questionable whether Allied Communications would be decided the same way today. First, the courts’ approach to when questions become "jurisdictional questions" has changed dramatically over the years since the decision was issued. (See: Pushpanathan v. Canada (Minister of Citizenship and Immigration), (1998), 160 D.L.R. (4^th) 193 (S.C.C.)).

[46]    But more importantly, the legislation has been amended since that decision was issued. Section 31 [what was formerly section 34(2)] now says that an application for certification shall be supported by evidence "in a form satisfactory to the Board".

[47]    Nonetheless, we believe that the thrust of Allied Communications is equally important today as it was when it was decided. There is a very good reason why the Board should not accept applications, whether for certification or revocation, where there is not some evidence to support it. In fact, the Board’s policy goes further than this. It provides that the Board will not accept incomplete applications. The existing policy is designed to avoid:

• lengthening the time it takes to process applications because of increased litigation to supplement applications;
• placing the Board’s Officers in an evidence gathering and partisan role, rather than an impartial investigatory one;
• pressuring petitioners into testifying, thereby disclosing their position on union support, contrary to the intention of the Code; and
• unfair labour practices that might take place because of more litigation and more specifically because of the disclosure of union support.

[48]    In the present case, the evidence in our view meets the threshold test required in Allied Communications that there be "some evidence" of the requirements of the section. There was evidence that three individuals signed a petition for revocation. This is some evidence. But it is deficient in terms of the kind of evidence the Board will normally require before accepting an application for processing. The only evidence the Board had here was a list of names. The intent to revoke someone’s bargaining rights is clear; it is just not clear whose bargaining rights are to be revoked and in respect of which group of employees. The Board’s policy is to reject such applications.

[49]    Should we depart from our general policy for the purposes of this application? We find that this is an appropriate case to do so for these reasons. This case involved a unique set of facts. The applicants did not know they were represented or that their employer was certified by the union until 10:30 a.m. on August 29^th. They also did not know the union was engaged in collective bargaining or that their employer could or would be impacted by negotiations ongoing in the industry. They could not therefore have acted more promptly than they did. They acted immediately upon finding out they were within a bargaining unit. Although the petitioners used a deficient form in that it failed to provide a space for inserting their employer’s name and the header on the petition failed to disclose what union they were seeking to decertify, all petitioners testified they knew exactly who their certified bargaining agent and employer were and the purposes of the application. In short, this was a rushed application, not due to the fault of any of the applicants. And, any deficiencies were rectified without delay.

[50]    All these facts prompt us to accept the application and first petition as timely. We consider that the petitioners applied for revocation at 1:00 p.m. on August 29^th. This was about 20 minutes before the time of ratification, or at least the only time apparent in the evidence at which we may safely conclude that the union had completed the ratification vote. To find otherwise in these circumstances would, in our view, constitute a fettering of the discretion that the Board maintains under section 49(2) to accept evidence in a "form satisfactory to the Board". A rigid application of the Board’s policy in this case would work a serious unfairness on the Applicants in circumstances where a deviation from the policy does not seriously undermine the policy considerations behind the rule.

[51]    On the basis of the evidence presented at the hearing, we are satisfied that three of the four employees in the unit supported the application, thus satisfying the 40% minimum statutory requirement. We, therefore, order that this matter proceed to a vote.

[52]    Having found that this matter should proceed to a vote, and as an aside, we do wish to comment in reaching this decision that we are focusing on the serious unfairness on the Applicants as opposed to the impact or effect on either the company or the union. Neither of the latter organizations should be cheering or crying foul over this decision as neither group, in the overall situation, stands untainted. Although the union chose not to advance its allegation of inappropriate company involvement in this application, the evidence such as it is in this regard points to a suspicion that the company not only supported the petitioners’ actions but inappropriately encouraged and facilitated it. Had the union been able to present supporting evidence in this regard it may have been difficult to rule otherwise. On the other hand the union, or for that matter any other entity sitting on their rights without exercising them for 25 years, could not or should not expect employees, employers or other third parties not to take exception to the fact that they are now trying to act on those rights.

[53]    One final note. This decision should not be taken as an indication that the Board is departing from its general policy surrounding the form of evidence required when filing certification or revocation applications. The facts in this case are unlikely to arise in other cases.

ISSUED and DATED at the City of Edmonton in the province of Alberta this 26th day of November 2001 by the Labour Relations Board and signed by its Chair.

Mark Asbell, Chair