United Brotherhood of Carpenters and Joiners of America Local 1316 v. Can-Am Acoustics Limited
[1982] OLRB Rep. September 1266
0111-82-R United Brotherhood of Carpenters and Joiners of America Local 1316, Applicant v. Can-Am Acoustics Limited, Respondent, v. Group of Employees, Objectors
BEFORE: D. E. Franks, Vice-Chairman and Board Members R. J. Swenor and H. Kobryn.
APPEARANCES: David McKee, James Caron and Rick Harkness for the applicant; Anthony Little for the respondent; Geoffrey M. Smith for the group of employees.
DECISION OF THE BOARD; September 20, 1982
- By a previous decision of the Board dated June 28, 1982, the Board certified the applicant trade union as bargaining agent for certain of the employees of the respondent company subject to the conditions set out in paragraph 5 of its decision. That paragraph reads as follows:
"5. There was also filed in this application a statement of desire to make representations by three employees. It appears that, although the Board acknowledged receipt of the statement of desire, the objecting employees were not given notice of the hearing in this matter. At the hearing in this matter, counsel for the respondent raised this issue with the Board suggesting that unless the objecting employees were given an opportunity to make their representations, there would be a denial of Natural Justice. We note, however, that the names of the three objecting employees do not correspond to any of the names on the written evidence of membership filed by the trade union in this matter. It would thus appear that even had the employees been given notice of the hearing and been able to attend, the Board would not have conducted its usual inquiry into the origination, preparation and circulation of the documents filed since the documents could not possibly change the representative status of the applicant trade union. Nevertheless, these employees ought to have been notified of the hearing so that they could attend and make their representations to the Board. In view of the foregoing, we propose to issue a decision in this matter at the present time. However, copies of the present decision will be sent to the objecting employees and the objecting employees will be given ten days in which to make whatever representations they might wish to make to the Board in writing. As noted above, the representations will not affect the representative status of the applicant trade union. If the objecting employees make these representations we will consider them in a subsequent decision of the Board. However, if they fail to make any representations within the allotted time the Registrar will issue the Board's certificate in the present case."
Subsequent to the release of the Board's decision, a letter was received from counsel for the group of objecting employees. As a consequence of that decision the Board directed the Registrar not to issue the certificates and set the matter on for hearing to allow counsel for the objecting employees to make his representation.
- The letter from counsel for the group of employees dated July 7, 1982 reads as follows:
"We have been retained as solicitors by Kenneth Gibson, Michael Gibson and Brian Arnsby, the objecting employees with respect to this Application. Our clients have provided us with a copy of the decision rendered by the Board in this matter, dated June 28th, 1982.
We have been informed by our clients and note from paragraph 5 of the Board's decision that these objecting employees were given no notice whatsoever with respect to the hearing held before the Board with respect to this Application for Certification. It was the intention of the employees when they filed their Statement of Desire to participate in the Application process and be present and make submissions at any hearing in this matter. The failure to give notice to such employees with respect to the hearing obviously effectively denied them any such opportunity.
It is the opinion of the writer that the failure to give notice to these employees constitutes an obvious denial of natural justice. Once the Board decided to hold a hearing respecting this Application, we believe that at the very minimum, they were required to give notice of such hearing to all parties and allow them to be present and participate at such a hearing.
And we would suggest that allowing (or requiring) one party to submit written submissions on an Application is unfair to all parties involved. The party so allowed is denied the opportunity to be present and personally make submissions and arguments to convince the Board of its position. The other parties, however, also lose the opportunity to test the veracity of the written submissions by cross examination or other means. The Board is left with the unhappy prospect of comparing uncontradicted written submissions obtained at a subsequent date to the viva voce evidence tendered at the hearing. We would further suggest that, especially in these economically uncertain times, that justice not only be done, but that it also be seen clearly to be done. Our clients are very anxious to participate in the democratic process adhered by the Board and have great difficulty understanding that they can be denied the right to appear and be heard.
We request on behalf of the objectors that the decision to certify be set aside and that the Application be re-initiated in order to provide the proper opportunity to the objectors to appear before the Board to present their case. We further submit that as we are informed by our clients that the make up of the employees continues to change, and as there will be some delay before a new hearing can be held, that a new date be set with respect to ascertaining membership of the Union under the Labour Relations Act.
We would advise that should a new and original hearing be denied, an Application for Judicial review will be brought on behalf of these objecting employees. We would submit that, as our clients are of modest means, and as the Board's decision itself seems to acknowledge in paragraph 5 a denial of natural justice, a new hearing by the Board would be the most advantageous way to proceed with this matter.
We ask you to give the matters raised in this correspondence your serious consideration and look forward to hearing from you."
Copies of that letter were sent to the other parties and replies were received from the applicant and the respondent and a further letter was received from counsel for the objecting employees. The position taken by counsel for the objecting employees is reiterated and expanded in his reply to the position taken by the applicant in a letter dated July 30, 1982 that reads as follows:
"We acknowledge, with thanks, receipt of a copy of correspondence from Mr. David McKee, the counsel for the applicant in the above-noted application. We wish to respond briefly as follows.
Firstly, we wish to reiterate our original submission that the failure to provide the objecting employees with notice of the hearing held in this matter constitutes an obvious and substantial denial of Natural Justice. We would submit that the authorities are clear insofar as they provide that a minimum standard of the Audi Alteram Partem Rule is that all parties to a proceeding are to be provided with notice so as to allow them to be present at any hearing being conducted.
It is the submission of the writer that there are certain elements of this Rule which cannot be disputed. One is that all parties are to be given the opportunity to correct or contradict evidence or submissions prejudicial to their views. A second one is that each party must be provided with knowledge of the arguments and evidence presented in order to allow them to participate in a meaningful fashion in the decision making process.
We believe it obvious that the objecting employees in this application were denied these basic rights and opportunities.
The solicitor for the applicant suggests that the objecting employees be denied the opportunity to make oral submissions. This, in our submission is to suggest that the objecting employees be denied Natural Justice. To allow one party a full and complete oral hearing while restricting another to written submissions presented at the hearing is, we submit, simply unjust.
The applicant suggests that oral submissions are unnecessary as the Board has indicated that it has already made up its mind. With the greatest of respect, we submit that the Board was in error in making such a decision. It could not be anticipated by any of the participants what the content of the evidence or submissions of the objecting employees would be (or would have been). Certainly these employees intended to play a meaningful role and attempt to persuade the Board that certification should not be allowed to take place. It is therefore submitted that the Board cannot reasonably say that their absence was insignificant and that subsequently allowed written submissions would not have any bearing (as indicated in its written decision).
We agree that these matters should be dealt with as expeditiously as possible and it is for this reason that we suggest that the Board reinitiate the within application at the earliest opportunity. To do less, however, would in our submission validate a result and a proceeding which has been unfair to the objecting employees and one which is contrary to the established standards of Administrative Law.
We look forward to your reply."
The matter came on for a hearing on Thursday, September 2, 1982. At the hearing in the matter, counsel for the group of employees reiterated his position that the Board's decision of June 28th constituted a denial of Natural Justice. However, he had no further representations beyond this and those set out in his letter which he wished to make to the Board. He did not seek to adduce any evidence or make any representations which he could have made had his clients received proper notice of the first hearing or had they been present at the previous hearing of the Board. Further, he had no representations or evidence to call on the very specific questions as to whether a new terminal date should be set or an application date, other than the one already on file should be used, although presumably his request in the first letter is indeed a request to set a new terminal date. However, he had no further submissions on these issues.
The Board pointed out to counsel for the employees that evidence of membership and evidence of opposition to certification such as the petition filed by his clients are confidential for the use of the Board by virtue of section 111 of the Act. Further, it was pointed out by the Board, that in its decision of June 28th, the Board had for purposes of that decision accepted the petition as filed as a voluntary statement of the persons who signed it, but noted that the names on the petition did not at all cast doubt upon the amount and degree of membership support enjoyed by the applicant trade union. Counsel for the employees had no representations to make nor did he wish to call any evidence in relation to these matters.
Having heard the representations of counsel for the group of employees, the Board hereby affirms the findings set out in its decision dated June 28, 1982 in this matter and directs the Registrar to issue the certificates described in that decision as of September 2, 1982. We have not been given, nor do we see any reason in the circumstances of the present case for using either a different application date, which sets the list of employees in the bargaining unit, or for changing the terminal date which sets the date by which the representative position of the applicant trade union and those objecting to the application is determined.
Contrary to the submission of counsel for the group of objecting employees, there is no reason to commence these proceedings over again. The Board by scheduling a second hearing has given the objecting employees and their counsel every opportunity to make representations and to call evidence to issues raised by the union's application for certification. Counsel chose not to call evidence when asked by the Board if he wanted to do so. The sum and substance of the representations by counsel for the objecting employees is that the Board somehow denied them Natural Justice in proceeding at the previous hearing. At that hearing, as noted in paragraph 5 of its decision of June 28th, the Board treated the petition by giving it the maximum possible weight. That is, even if the petitioners were there and demonstrated that there had been no management influence as to the origination, preparation, and circulation of that petition, the petition would not have reduced the representative status of the applicant trade union. With respect to the issues of voluntariness of the petition and degree of membership support enjoyed by the Union, they were not prejudiced by not having been given notice of and actually attending at the hearing. In any event, even if the employees were prejudiced by the failure of the Board to give the notice, any such prejudice was cured by conducting the second hearing and permitting counsel for the employees to present evidence and make submissions on the issues in the applications. Counsel for the employees did not suggest any way in which this application would have been disposed of differently had his clients been present at the first hearing notwithstanding several invitations from to Board to him to do so.
For the foregoing reasons, the Registrar as noted above is directed to issue the certificates directed in the Board's decision of June 28, 1982. These certificates are to be dated September 2, 1982.