Printing Specialties & Paper Products Union Local 701 v. Atlantic Packaging Products Ltd., 1980 CanLII 761

[1980] OLRB Rep. January 4

0769-79-R Printing Specialties & Paper Products Union Local 701, London, Ontario, Applicant, v. Atlantic Packaging Products Ltd., Respondent, v. Canadian Paperworkers Union, Intervener.

BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members 0. Hodges and F.W. Murray.

APPEARANCES: C. M. Mitchell and J. Eliot for the applicant; S. C. Bernardo and John Cherry for the respondent; Douglas J. Wray and G. Bucella for the intervener; D. Ublansky for the Canadian Chemical Workers.

DECISION OF THE BOARD; January 8, 1980.

1. In a decision dated August 24, 1979 the Board certified the applicant trade union as bargaining agent for all employees of the respondent located at Ingersoll, Ontario save and except foremen, persons above the rank of foreman, office staff and sales staff. The employer, although served with proper notice, did not appear at the certification hearing. The documents filed by the respondent with its reply showed two employees working within the bargaining unit; as of July 25, 1979; the date of application. The union submitted membership evidence on behalf of both employees falling within the unit and accordingly, the Board certified the applicant without a vote by the above referred to decision of August 24, 1979.

2. On October 10, 1979 the Canadian Paperworkers Union filed an application for certification in respect of essentially the same group of employees for which the Printing Specialties and Paper Products Union, Local 701 (the applicant in this matter) had been certified on August 24, 1979. The Printing Specialties and Paper Products Union intervened in that application and argued at the hearing that the certificate issued to it on August 24th served to bar the Canadian Paperworkers Union's application. -The Canadian Paperworkers Union argued in reply that the August 24th certificate was issued at a time when there was not a representative number of employees in the bargaining unit; that is during a period of build-up. The Canadian Paperworkers Union, therefore, sought to have the Board:

"Reconsider its earlier decision issuing a certificate to the Printing Specialties and Paper Products Union, Local 701, pursuant to Section 95(1) of The Labour Relations Act, and either revoke the earlier Certificate, or in the alternative, order a representation vote."

The panel of the Board seized with the application for certification filed by the Canadian Paperworkers Union (a different panel than that which certified the Printing Specialties Union in August) dealt with the Canadian Paperworkers Union's request for reconsideration of the Board's decision certifying the Printing Specialties Union in a decision dated November 9, 1979 as follows:

"Since the certificate issued by the Board to the intervener on August 24th, 1979 poses a bar to this application and, since the applicant's request that the Board's decision be reconsidered is a matter which should be determined by the panel that issued the decision, the Board decided to adjourn these proceedings in respect of all matters therein so that the applicant's request for reconsideration could be determined by the other panel. This panel of the Board makes no recommendation as to the consolidation of any of the matters referred to in the representations of the parties."

3. The panel of the Board which certified the Printing Specialties Union on August 24, 1979 convened a hearing on December 11, 1979 for the purpose of entertaining the request of the Canadian Paperworkers Union that the Board reconsider its earlier decision pursuant to Section 95(1) of the Act. The Canadian Chemical Workers Union also appeared at the December 11th hearing for the purpose of intervening in the proceedings. Counsel for the Canadian Chemical Workers Union advised that he sought to intervene for the purpose of dealing with the "build-up". The Printing Specialties Union and the respondent company challenged the status of both the Canadian Paperworkers Union and the Canadian Chemical Workers Union to intervene following the issuance of a certificate for the purpose of asking the Board to reconsider the granting of the certificate.

4. The Canadian Paperworkers Union submitted membership cards signed by 9 of the 15 employees in the bargaining unit in support of its application for certification and asks to be given status to intervene in these proceedings on the basis that it represents a majority of the employees affected by the Board's earlier decision to certify the Printing Specialties Union. The Canadian Chemical Workers Union submitted membership cards signed by three employees in the bargaining unit and on the basis of these asked for status to intervene.

5. The parties asked the Board to rule upon the status of the Canadian Paperworkers Union and the Canadian Chemical Workers Union to intervene in these proceedings before considering the merits of the request for reconsideration.

6. Counsel for the applicant trade union relies on Formrite Forming Ltd. [1971] OLRB Rep. Feb. 49, Delcon Electric Limited, [1976] OLRB Rep. July 362 and Durable Drywall [1973] OLRB Rep. March 145 in support of his argument that regardless of the membership cards submitted by the trade unions seeking to intervene the proceedings had been completed and cannot now be reopened. Counsel for the applicant trade union argues that it would not make good industrial relations sense to reopen the proceedings and thereby destablize the situation and undermine his client's reliance upon the earlier certificate. Although counsel for the applicant also touched on the merits of the request for reconsideration, the Board has not been asked to deal with the merits at this stage and in our view the grounds upon which a party seeks to intervene cannot affect that party's status to intervene. (See Nw Industries Limited [1976] OLRB Rep. April 88.) Counsel for the respondent employer supported the arguments advanced by counsel for the applicant union and asked the Board to deny status to both of the unions which seek to intervene.

7. Counsel for the Canadian Paperworkers Union argues that the Canadian Paperworkers Union has established that it represents a majority of the employees affected by the Board's earlier decision; employees who have been deprived of an opportunity to select a bargaining agent of their choice because of the issuance of the certificate to the Printing Specialties Union. Counsel for the Canadian Paperworkers Union maintains that under section 95(1) the Board is empowered to reconsider a prior decision at any time and in the circumstances of this case should not refuse to grant status because of the passage of a few months when there has been no detrimental reliance upon the Board's certificate by the applicant trade union as evidenced by a collective agreement. Counsel for the Canadian Paperworkers Union relies on the Neo Industries case, supra and Neo Industries [1976] OLRB Rep. April 137 in support of his position that a trade union which represents at least one employee in the bargaining unit is entitled to intervene and be heard. Finally, counsel for the Canadian Paperworkers Union relies on Genaire Ltd. and International Association of Machinists, 1958 CanLII 130 (ON HCJ), 14 D.L.R. (2d) 201, Ontario High Court as upheld by the Court of Appeal, 1958 CanLII 352 (ON CA), 18 D.L.R. (2d) 588 as support for the proposition that it has status to seek reconsideration of the Board's earlier decision to certify the Printing Specialties Union. Counsel for the Canadian Chemical Workers Union adopted the arguments advanced by counsel for the Paperworkers Union.

8. In the Formrite Forming Ltd. case, supra, a trade union sought to have a Board decision to certify another trade union reconsidered on the grounds of alleged employer support and alleged deficiencies in the Form 54 filed in support of the earlier application. The request was made some 8 months following the issuance of the certificate. The trade union which sought to intervene filed a membership card signed by a person who was in the employ of the respondent as of the date of the request for reconsideration but who had not been so employed as of the date of the filing of the original application nor at the time of the granting of the certificate. The Board refused to entertain the request for reconsideration in the Formrite case on the grounds that:

"In our opinion, the proceeding in which the applicant applied for certification was completed upon the granting of the certificate to the applicant on May 27, 1970. There is therefore no proceeding in circumstances to which the Council may be added as a party. The Council was at all times and remains a stranger to the said proceeding."

In Delcon Electric Limited, supra, the Board cited the Formrite case, supra, with approval in refusing to entertain a request for reconsideration made under similar circumstances to those prevailing in the Formrite case.

9. In so far as these decisions may be read as standing for the proposition that once a certificate is issued the proceedings are at a close and cannot be reconsidered we are in disagreement. The Board is given a broad discretion under section 95(1) of the Act to reconsider any decision at any time. The courts dealt with the scope of the Board's authority in this regard in Genaire, supra, and commented as follows:

"In my view, unless the legislature had somewhere limited the powers of anyone affected by a decision of the Board to make application to have its decision revoked the Board is bound to hear the application to determine whether the decision ought to be revoked or not....

I think that the broad powers given under s. 68 [now s. 95] are intended to cover situations that are not specifically dealt with where in the opinion of the Board the parties should have relief."

We are of the view that so long as a party seeking to intervene, either in the first instance or for the purpose of reconsideration, demonstrates the necessary degree of interest the Board should grant status and decide the matter on the merits. This is not to say, and indeed the contrary is true, that the Board should not be strongly influenced by the practical need for finality in reconsidering any of its decisions.

10. The degree of interest necessary to attain party status in a certification matter has been reviewed in the recent ESB Canada Limited case, Board File 0701-79-R, December 14, 1979 wherein at para. 9 the Board stated.

"The Board has consistently denied a union standing to intervene in certification proceedings or the reconsideration thereof in the absence of demonstrating that it is the bargaining agent for the employees in the bargaining unit or that it represents one or more persons in the bargaining unit in question. In Napev Construction Limited, [1976] OLRB Rep. March 109, the Board at 111 summarized its approach to a union's standing to intervene in certification proceedings:

'Where attempts have been made to intervene in certification proceedings, the Board has consistently held that, in order to safeguard the rights of parties originating proceedings, and with a view to eliminating delay by parties claiming an interest a would-be intervener must meet certain requirements. These requirements are deemed necessary in the field of industrial relations where time is indeed of the essence in order to avoid delay, multiplicity of proceedings and frustration of the purposes of the Act by parties who have no real representative status with respect to the employer and the employees involved. The Board has always required that an Intervener must be either an employee in the bargaining unit to which the proceedings relate or a union holding representational authorization from one or more persons in the bargaining unit. In the absence of these requirements, intervention has been denied.'"

(See also Neo Industries Limited [1976] OLRB Rep. April 88)

11. In this case both of the trade unions which seek to intervene for purposes of seeking reconsideration of the Board's August 24th decision to certify have met the necessary requirements for party status. Both unions represent at least one employee in the bargaining unit who has been directly affected by the Board's earlier decision to certify the Printing Specialties Union the result we are prepared to accord intervener status to both the Canadian Paperworkers Union and the Canadian Chemical Workers Union and to entertain their submissions in respect of whether or not we should reconsider our decision of August 24, 1979 to certify the Printing Specialties union.

12. It should be noted that even if this panel had not accorded intervener status to the Canadian Paperworkers Union for purposes of seeking reconsideration of the Board's August 24th decision the effect of that decision, in so far as it is alleged to constitute a bar to the application for certification filed by the Canadian Paperworkers Union, would nevertheless have had to have been dealt with by the panel seized with that matter. (See Neo Industries [1976] OLRB Rep. April 137). The long-standing practice of this Board is however, to allow the panel making the original decision to remain seized for purposes of reconsideration.

13. This matter is hereby referred to the Registrar and is to be put on for a hearing on the merits of the request for reconsideration.