Ontario Labour Relations Board

[1980] OLRB Rep. August 1204

1473-78-R International Union of Operating Engineers, Local 793, Applicant, v. H. Kerr Construction Limited, Respondent.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. D. Bell and M. J. Fenwick.

DECISION OF THE BOARD; August 22, 1980

1. The Board, in a decision issued December 8, 1978, certified the applicant as bargaining agent for the following unit of employees of the respondent:

All employees of the respondent in the County of Ontario (except the Townships of Pickering, Rama, Mara and Thorah) and the County of Durham (except the Township of Hope) engaged in the operating of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman.

This decision, on consent of the parties, was made by the Board without a hearing being held pursuant to section 9 1(13) of The Labour Relations Act which gives the Board the discretion to determine the merits of an application for certification in the construction industry without the need to hold a hearing.

2. The respondent, by letter from its counsel dated July 8, 1980, is requesting that the Board reconsider its decision herein and revoke or amend the Certificate issued to the applicant.".

3. The reason for this request is stated in the following terms in the letter:

"The request is made on the basis that the work performed by the employees of the respondent at the time the application was made was not work in the construction industry. The Application for Certification therefore was not properly within the meaning of Section 108 of The Labour Relations Act. The work done by the five employees set out on Schedule "A" to the Application was that of stripping a gravel pit and is not work which falls within the meaning of 'construction industry' in Section l(l)(f) of the Act.".

The respondent gives the following reasons for not raising at the time the application was made, an objection that the work being performed was not work coming within the construction industry:

"The reason no objection was raised at the time the Application was filed was because it made no substantial difference to the employer at the time whether he was bound to negotiate pursuant to a construction industry certificate or an industrial certificate. In fact, it was very common practice for employers who were engaged primarily in the construction industry to make no objection to Applications for Certification made pursuant to the construction industry sections of the Act even though the work being performed was outside the construction industry. There were a number of reasons for this practice:

1. As stated earlier, it made no difference to the employer whether he was bound to negotiate pursuant to a construction Certificate or an industrial Certificate since often construction rates and conditions applied to the work being performed even though that work was not in the construction industry.

2. If a Union had the required representation from among the employees, it would be certified one way or the other in any

event.

3. The process of certification pursuant to the construction industry sections of the Act did not require a hearing before the Board and was therefore in many cases more expedient and less expensive.".

4. The Board's authority to reconsider its decisions comes from section 95(1) of the Act, the same section gives the Board the authority to determine all questions of fact or law which arise in matters before it and which reads:

"The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling."

The Board would be acting pursuant to its discretion therein were it to grant the request that it reconsider the decision which it issued December 8, 1978 or to grant the respondent's request of a hearing in order for it ..... to lead evidence and make representations regarding this request".

5. Since the Board's decision was issued without a hearing pursuant to section 91(13) of the Act, the Board finds it useful to set out that section hereunder together with sections l(l)(f), l(l)(n) and, from the Construction Industry provisions of the Act, sections 106(b), (c) and (1) which are relevant to this matter:

"92(13) The Board may, subject to the approval of the Lieutenant Governor in Council, make rules to expedite proceedings before the Board to which sections 106 to 124 apply, and such rules may provide that, for the purposes of determining the merits of an application for certification to which sections 106 to 108 apply, the Board shall make or cause to be made such examination of records and such other inquiries as it considers necessary, but the Board need not hold a hearing on such an application.

1(1) (1) 'construction industry' means the businesses that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof;

(n) 'trade union' means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

106. In this section and in sections 107 to 124,

(b) 'employee' includes an employee engaged in whole or in part in off-site work but who is commonly associated in his work or

bargaining with on-site employees;

(c) 'employer' means a person who operates a business in the construction industry, and for purposes of an application for accreditation means an employer for whose employees a trade union or council of trade unions affected by the application has bargaining rights in a particular geographic area and sector or areas or sectors or parts thereof;

(f) 'trade union' means a trade union that according to established trade union practice pertains to the construction industry."

6. The Board's Rules of Procedure contain in sections 66 through 75 provisions pertaining to applications for certifications in the construction industry and the Rules also provide special forms to be used for these applications so as to provide the information which enables the Board to dispose of applications without the need to hold a hearing particularly when, as was the case herein, the parties consent to such disposition.

7. The application and reply filed in the instant case were on the forms prescribed by the Regulations for the construction industry and contained information which allowed the Board to make findings of fact and law essential to disposing of the application without a hearing, namely the following. It is a matter of Board record that the applicant is a trade union within the meanings of sections l(l)(n) and 106(f) of the Act. The application and reply establish that:

(a) the respondent operates a business in the construction industry as a road builder,

(b) the employees affected by the application were operating heavy construction equipment which is in the nature of the work performed by persons in the construction industry customarily represented by the applicant and is consistent with the work described in the bargaining unit usually granted by the Board to the applicant; and

(c) the work in which the employees who were operating the heavy construction equipment were engaged was the stripping of a gravel pit on the 3rd Concession Road, north of Goodwood in Uxbridge, Township, County of Durham.

This information enabled the Board to make the finding that the application was an application for certification within the meaning of section 108 of the Act and, as required by that section, ". . . determine the unit of employees that is appropriate for collective bargaining by reference to a geographic area.. ." and not confine the unit to a particular project. The result is evident in the unit which the Board found to be appropriate for collective bargaining. Furthermore, that unit is described without reference to any of the sectors of the construction industry as set forth in section 106(e) of the Act, of which the industrial, commercial and institutional sector is one. As a result, the applicant was certified as the exclusive collective bargaining agent for the employees of the respondent in that unit; within the geographic area described and for all sectors of the construction industry. By describing the unit that way, the Board was proceeding according to its customary and consistent practice. (See Lyle West Electric Limited, [1978] OLRB Rep. Nov. 999.)

8. At that same time, pursuant to the province-wide bargaining provisions of the Act which apply only to the industrial, commercial and institutional sector, the applicant's bargaining rights in respect of ..... conducting bargaining and,..., concluding a provincial agreement." (section 130) were vested in an employee bargaining agency designated by the Minister (section 127(1)). In a similar manner and for the same collective bargaining purposes, the respondent's bargaining rights were vested (section 131(a)) in the employer bargaining agency designated by the Minister (section 127(1)). Pursuant to sections 132(4) and 134(2) as they existed prior to their amendment on May 1, 1980, the applicant and respondent became bound by the relevant provincial agreement, if any, in effect at the time of certification or subsequently between the designated employee bargaining agency and the designated employer bargaining agency, but only to the extent of the bargaining rights established by the Board's certificate. The bargaining rights in respect of all sectors other than the industrial, commercial and institutional sector created by the Board's certificate remained vested in the a~5plicant and entitled the applicant to bargain for a collective agreement relating to the other sectors, or any of them. The Board has no evidence before it as to whether any agreement was concluded between the parties.

9. Effective May 1, 1980, section 125(2) of the Act, a new section, came into force. The effect of this change on the respondent was to deem that it now recognized all of the other affiliated bargaining agents (in their respective geographic jurisdictions) of the designated bargaining agency which represents the applicant and in respect of the industrial, commercial and institutional sector. Effective also May 1, 1980, section 134(2) was amended so that the respondent is bound in respect of all affiliated bargaining agents for their respective geographic jurisdictions to the provincial agreement, if any, in effect on that date and subsequently between the employee bargaining agency and the employer bargaining agency. It is these changes in the Act which have prompted the respondent to make its request at this time.

10. The Board has been very cautious, as a general approach, in exercising its discretion under section 95(1) to reconsider its decisions. The Board's decision in Imperial Tobacco Products (Ontario) Limited, [1974] OLRB Rep. Sept. 609 refers to that discretion as a "unique jurisdiction" and in paragraph 3 of that decision at page 609 the Board succinctly states its reasons for caution:

"However, this jurisdiction is very carefully and cautiously exercised by the Board in that free recourse to the Board after the initial disposition of a matter would substantially undermine those values of speed and economy associated with the administrative practice of the Board. In other words, except for exceptional circumstances, litigation between the parties ought not to be prolonged.".

The general grounds on which the Board will reconsider a decision are set forth in the following terms in the Board's decision in Canadian Union of General Employees, [1975] OLRB Rep. April 320:

"Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously. (International Nickel Co. of Canada Ltd., [1963] OLRB Rep. 234, 64 CLLC ¶ 15,493 (Ont. H.C.); Detroit River Construction case (1962), 62 CLLC ¶ 16,260). Both legs of this principle depend upon the applicant having been diligent and therefore having had no opportunity to draw the Board's attention to the object of its concern." [emphasis added]

In respect of the second leg of the principle, the Board, in Imperial Tobacco, supra, commented as follows in treating with the request of a respondent for the opportunity to make additional legal argument:

one of the respondents wishes to make additional legal argument although it had every opportunity to make submissions to the Board at the original hearing. For this reason alone the Board should be exceptionally cautious in even beginning to entertain reargument. But having said this, it should not be said that the Board will never listen to additional legal argument particularly when its original decision is clearly wrong in law or inadvertently contrary to earlier Board practice.

II. While both of these decisions were dealing with circumstances in which the Board had held a hearing, they are indistinguishable from the instant case because the Board's procedures afforded the respondent full opportunity to make written submissions to the Board or request a hearing. Paragraph 14 of Form 55, "Reply to Application for Certification, Construction Industry" provided the respondent with the following choices:

14. (1) The respondent consents to the application being disposed of by the Board without a hearing by the Board:

OR

(2) The respondent consents to the application being disposed of by the Board without a hearing by the Board and makes the following representations thereon (use additional pages if necessary):

OR

(3) The respondent requests a hearing of the application by the Board and undertakes to attend a hearing of the Board for this purpose. The respondent states in support of this request as follows (use additional pages if necessary):

As stated earlier in the decision, the respondent consented to the Board disposing of the application without a hearing. It did this by striking out 14(2) and 14(3). Had the respondent requested a hearing, section 73 of the Rules of Procedure require that it be supported by"..., a concise statement of,

(a) the material facts upon which he proposes to rely at the hearing;

(b) the relief to which he claims to be entitled by reason of such facts; and

(c) the submissions he proposes to make in support of his claim for relief.".

Thus the respondent rejected both alternatives available by which, in the words of the Canadian Union decision, supra, it could ". . . draw the Board's attention to the object of its concern." From the very reasons to which counsel attributes the alleged practice of construction employers not objecting to applications for certification being processed in accordance with the rules for the construction industry when the work involved is alleged not be work in the construction industry, it may be inferred quite readily that there was nothing of concern that the respondent wanted to put before the Board. Now that the Act has been amended by the addition of section 125(2) the respondent has found an object of concern, that being the statutory extension of bargaining rights beyond the applicant to all affiliated bargaining agents of the employee bargaining agency within their respective jurisdictions.

12. The respondent is not seeking to bring before the Board new evidence or to make representations or objections in keeping with the principles set out in Canadian Union, supra, rather it is seeking an opportunity to put before the Board evidence which it could have presented at the time of the application and chose not to do so. Now it has come in July 1980, as a result of legislation which passed December 19, 1979 to have effect from May 1, 1980 (The Labour Relations Amendment Act. 1979 (No. 2), S.O. 1979, c. 113) and would have the Board reconsider a decision which granted bargaining rights to the applicant December 8, 1978 and risk disturbing the collective bargaining relationships flowing from that grant of rights. While the Board made the decision without a hearing, it was made pursuant to section 9 1(13), the Board was able to make the necessary findings of fact for the decision from the information contained in the application and reply thereto and the resulting decision is not ". . . clearly wrong in law or inadvertently contrary to earlier Board practice.

13. For all of those reasons and having regard for the need for certainty and finality in the Board's decisions, the Board will not schedule the hearing requested by the respondent and does not deem it advisable to reconsider, amend, vary or revoke its decision which issued December 1978.