Ontario Labour Relations Board

[1980] OLRB Rep. February 164

1957-79-R United Steelworkers of America, Applicant, v. Behlen Wickes Company Limited, Respondent, v. Group of Employees, Objectors.

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.

APPEARANCES: Gerry Reeds for the applicant; Peter Gilchrist for the respondent; Vern Millward, Art Kuyvenhoven, Valent Pevec, John Cicero, Mark Spencer, Rick Shannon, Roy Mullin, Rob Palla, Bryan Watson, Steve L'Ortye and A. Glazebrook for the objectors.

DECISION OF THE BOARD; February 21, 1980

1. This is an application for certification.

2. At the outset of the hearing, a group of employees sought to intervene in the proceedings for the purpose of expressing their opposition to the applicant trade union. The Board had received no written statement of desire as contemplated by paragraph 4 of the Board's Form 5, "Notice to Employees of Application for Certification and of Hearing". Counsel for the respondent employer then advised the Board that the employer had, the day prior to the hearing, received from employees a written statement in opposition to the applicant. In view of what counsel termed the clear evidence of opposition to the applicant, counsel for the employer requested that the Board either extend the terminal date in this matter to permit filing of the employees' statement, or, in the alternative, to allow the employees to present at the hearing viva voce evidence to the same effect. Counsel explained that the respondent had received the Board's documentation giving notice of the application only on the morning of January 23rd and posted it that afternoon. The terminal date was set as January 28th. Particularly since the employees at this plant were not scheduled to work weekends, counsel argued that they were not given sufficient opportunity to respond to the union's application.

3. The Board ruled at the hearing that it would deny the respondent's request, for the reasons set out below.

4. The Board is given a discretion, pursuant to section 92(2)(j) of the Act, to determine the form in which and the time as of which evidence of objection by employees to certification of a trade union must appear. The Board's policy in that regard, insofar as here material, is contained in Rule 48 of the Board's Regulations and also in paragraphs 4, 5, 6 and 8 of Form 5 ("Notice to Employees"). That portion of the notice reads as follows:

"4. Any employee or group of employees affected by the application and desiring to make representations to the Board in opposition to this application must send to the Board a statement in writing of such desire, which shall,

(a) contain the return mailing address of the employee or representative of a group of employees;

(b) contain the name of the employer concerned; and

(c) be signed by the employee or each member of a group of employees.

5. That statement of desire must be,

(a) received by the Board not later than the terminal date shown in paragraph 3; or

(b) if it is mailed by registered mail addressed to the Board at its office, 400 University Avenue, Toronto 2, Ontario, mailed not later than the terminal date shown in paragraph 3.

6. Any statement of desire that does not comply with paragraphs 4 and 5 will not be accepted by the Board.

7. No oral evidence of membership in a trade union, or of objection by employees to certification of the applicant will be accepted by the Board except to identify and substantiate such written evidence."

It is clear that the evidence which was sought to be introduced does not meet the above requirements, not having been filed in writing on or before the terminal date of this application. Accordingly, no oral evidence in its place could be adduced before the Board.

7. The only issue, then, was whether the Board should exercise its discretion and extend the terminal date. In limited circumstances the Board has, in the past, done so. In C.I.P. Victoria Ltd., [1979] OLRB Rep. Nov. 1069, for example, the Board extended the terminal date where notice of the application for certification was not posted until 4:00 p.m. on October 16, with a terminal date set for October 18. By contrast, the Board in Macdonnell Memorial Hospital, [1979] OLRB Rep. Oct. 996 refused to extend the terminal date of September 28, when notice had been posted by 11:00 a.m. September 26. In the latter case, unlike the present one, no employees appeared at the hearing to raise the question of lack of opportunity. The Board went on to note, however, that it has consistently held in certification matters that three days' actual notice prior to the terminal date is sufficient.

8. In the present case, the employees had some five and one-half days to register their opposition. Little regard can be paid to the fact that two of the days fell on a non-scheduled weekend, since the Board does not in any event promote the employees' workplace as the best possible site for circulation of a statement in opposition to a trade union's bargaining rights. Further, in the C.I.P. Victoria case, the employees delivered their statement to the Board on the day immediately following the terminal date. Here the statement in opposition was being tendered to the Board for the first time at the hearing, some eight days after the terminal date.

9. In view of the above ruling, there was, of course, no purpose to be served by enquiring further as to the circumstances under which the statement in opposition came into the possession of the employer.

10. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on January 28, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act. Notwithstanding this, the respondent asks the Board to direct that a representation vote be held in this case on the grounds, firstly, of the alleged opposition by employees to the applicant, and secondly, of the large number of employees who have, since the filing of the application, been laid off or otherwise left the bargaining unit.

11. For the reasons stated earlier, however, the Board was not in a position to receive any evidence of alleged opposition by employees to the applicant, and has none before it now. On the second ground, the diminution of the bargaining unit following the filing of the application such as occurred here has never caused the Board to withhold certification from an applicant trade union.

12. Accordingly, a certificate will issue to the applicant.