Operative Plasterers' and Cement Masons' International Association, Local 172 v. Clifford Masonry Limited, 1982 CanLII 1070

Operative Plasterers' and Cement Masons' International Association, Local 172 v. Clifford Masonry Limited

[1982] OLRB Rep. January 14

0441-81-R; 0580-81-R Operative Plasterers' and Cement Masons' international Association, Local 172, Applicant, v. Clifford Masonry Limited, Respondent, v. Labourers' International Union of North America, Local 506, Intervener; The Labourers' International Union of North America, Local 506, Applicant, v. Clifford Masonry and Building Restoration Ltd., Respondent.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members J. Wilson and H. Kobryn.

DECISION OF THE BOARD; January 19, 1982

1Labourers' International Union of North America, Local 506 ("Local 506") which was an intervener in Board File #0441-81-R and the applicant in Board File #0580-81-R, has asked the Board to reconsider its decisions in these two cases, both of which were applications for certification. These decisions issued November 4, 1981 and November 13, 1981, respectively. Local 506's application for reconsideration was made by letter dated November 24, 1981 and copies of it were sent by the Registrar to the other parties for comment. Formal responses have now been received from Clifford Masonry Limited ("the employer"), the respondent in each application, and from the solicitors for the Operative Plasterers' and Cement Masons' International Association, Local 172 ("Local 172"), which was the applicant in Board File #0441-81-R.

2The basis put forward by Local 506 for the request for reconsideration is summarized in the following statement contained in the November 24th letter from its solicitors: ...... It is our position that the Board has committed a jurisdictional error, erred in law or committed a denial of natural justice by its two decisions". The Board's authority to reconsider its decisions is contained in section 106(1) of the Labour Relations Act which is set out below and the exercise of that authority is in the Board's discretion.

106(1) 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.

3The substantial elements of Local 506's request for consideration are as set out in the November 24th letter in the following terms:

"The factual basis for this application is as follows:

1. On or about May 28th, the Operative Plasterers' filed an application for certification. In that application there was no mention that Labourers' Local 506 might be a bargaining agent of employees who were affected by the application;

2. On or about May 29th, 1981, Labourers; Local 506 filed an application for certification (see Board File 0459-81-R) which sought to represent the same employees in the application brought by the Operative Plasterers'. For reasons which were briefly touched upon at the hearing into the applications by this Board, that application for certification was withdraw [sic] by leave of the Board.

3. On or about June 5th, 1981, Clifford Masonry Limited, which had been incorrectly described as Clifford Masonry and Building Restoration Limited in its application for certification, filed a reply to the certification to the effect that the bargaining unit described by the Applicant was already covered by a Collective Agreement with Labourers' Local 506;

4. On or about June 11th, 1981 Labourers' Local 506 filed an intervention in the Operative Plasterers' application for certification and advised the Board that it intended to file under separate cover its own application for certification for the same employees sought to be represented by the Operative Plasterers';

5. On or about June 15th, 1981 Labourers' Local 506 filed an application for certification and submitted the appropriate Form 54 along with its signed applications for membership cards. At that time Labourers' Local 506 requested that its application be consolidated with the Operative Plasterers' application and also advised the Board that a Collective Agreement bar existed to the application brought by the Operative Plasterers'.

At the hearing before the Board on the Applicant's (Operative Plasterers') application, the Intervener took the position that the employees who were the subject matter of the applications be permitted to determine by vote which bargaining agent they wished to represent them. It was the position of Labourers' Local 506 that in light of the competing claims of two unions, neither application having been determined, this was the fairest determination to which the Board could come. It must be noted that Section 103(3) of the Labour Relations Act (formerly Section 92(3)) does not preclude this determination. In fact, the Board had the discretion to treat the subsequent application brought by Labourers' Local 506 as having been made on the date on which the original application by the Operative Plasterers' was made. It is only Board practice which generally postpones consideration of a subsequent application until the final decision has been made with respect to an earlier application for certification.

In light of the fact that there was no reference in the application for certification by the Operative Plasterers' to any other bargaining agent which might be affected, it is difficult to ascertain how Labourers' Local 506 could be expected to file its application no later than the terminal date in the application for certification brought by the Operative Plasterers'. In any event, the application for certification brought by Labourers' 506 coupled with its intervention in the Operative Plasterers' application was clearly brought before the time that the Operative Plasterers' application was heard by the Board. Thus, the Operative Plasterers' application could not be said to have been prejudiced by the subsequent application for certification by Labourers' Local 506.

Rule 57(2) of the Board's Rules provides for the enlarging of time presumably where the Board feels that such enlargement is advisable or necessary in the interest of justice. In this case, the employees who signed cards favouring Labourers' Local 506 as the bargaining agent they wished to have represent them are prejudicially affected by the Board's reliance on its traditional practice. It is respectfully submitted that the interests of the Board demand that employees be permitted a right of free expression as to which bargaining agent they prefer.

Further, the failure to order a vote in the circumstances of this case is analogous to a failure by the Board to hear objections made by objectors to an application for certification. In this respect, therefore, the Board's decisions could be said to have been made without jurisdiction. When the choice is between two competing unions, it seems more appropriate that the employees themselves be given the opportunity to be heard. To do otherwise, if it could not be said to be a jurisdictional error, might be considered a denial of natural justice. See, respectively, Re Fisher et al and Hotels, Clubs, Restaurants, Tavern Employees Union Local 261 et al, (1980) 1980 CanLII 1882 (ON HCJ), 28 O.R. (2d) 462 and Re Baltmore [sic] Aircoil Inter-American Corporation and the Ontario Labour Relations Board and the United Steel Workers of America, (unreported) S.C.O. July 7th, 1981 (Divisional Court).

These cases made it abundantly clear that the Court has directed the Board to be vigilant about protecting the rights of employees who, in the circumstances of those cases, wished to object to an application for certification even though their petition was not received by the Board in the appropriate form before the terminal date of the application for certification in question. The Board has interpreted the Re Fisher decision to say that if an employee who signed an application for membership in a union wishes to revoke that commitment up to the date of the hearing, the Board is obliged to hear that evidence and to consider it. To do otherwise is a denial of natural justice.

In this case, the employees in the proposed bargaining unit who signed membership cards in favour of the Operative Plasterers' must also have signed membership cards with Labourers' Local 506 and paid the appropriate fee to join Labourers' Local 506. These actions must demonstrate the employees' seriousness of purpose. This membership evidence with respect to the Labourers' application for certification was submitted before the hearing date of the application for certification filed by the Operative Plasterers'. Clearly the employees in question had demonstrated that they were equivical [sic] about having the Operative Plasterers' as their exclusive bargaining agent. However, by its recent decisions, the Board did not even consider the membership evidence of the employees in the proposed bargaining unit as it related to the desire of these employees to have Labourers' Local 506 as their bargaining agent.

Respectfully, as Mr. Justice Reid has said in the Re Fisher decision (at page 468) the opportunity of parties to be heard "overrides the Board's power to determine its own practice and procedure." By routinely following its traditional practice to postpone the hearing of a subsequent application for certification, the Board has clearly denied certain employees their right to be heard as to which bargaining agent ought to represent them. It is for these reasons which compels Labourers' Local 506 to ask this Board to reconsider its earlier decisions, revoke the certificate granted to the Operative Plasterers' and place the issue before the employees concerned for a vote."

4The employer agrees with the arguments advanced by Local 506.

5The request for reconsideration elicited the following response from counsel for Local 172.

"It appears to us that Local 506 has based its Request for Review and Reconsideration upon the grounds that there was a denial of natural justice in the failure of the Board to exercise its discretion to treat both of the above Applications as having been made upon the same date, and in consequence to order a vote.

This issue was placed before the Board by Local 506 at the Hearing, and all parties were afforded full opportunity to make representations on that issue, and all other issues involved, and with respect to that issue, the Board's decision is contained in Paragraph 23.

In substance, the argument contained in the letter from Mr. Grant of November 24th, 1981, was that which was made before the Board at the Hearing.

Both parties (Local 506 and Local 172) adduced evidence before the Board and made representations to the Board, but no petition or desire to make representations was filed with the Board by any Employees in the Bargaining Unit, either prior to or subsequent to the terminal date. No employee in the Bargaining Unit attended at the Hearing, or requested to be heard. None of those employees were made parties at the Hearing. Despite this, it is suggested by Local 506 that there was a denial of natural justice in like manner to that found by the Courts in re: Fisher et al.

The case of re: Fisher is clear authority for the proposition that refusal of the Board to hear a party constitutes a denial of natural justice, and that the obligation to hear that party is paramount. However to equate that obligation with an obligation to treat an Application for Certification received subsequent to the terminal date of a prior Application as having been received on the date of that prior Application, is not justified. This is particularly so in the light of the specific discretion afforded to the Board by Section 103(3). In the light to [sic] Section 102(13) if a "party" to the proceedings were denied a hearing, in certain circumstances that would be a denial of natural justice. However Local 506 was afforded a full hearing in the proceedings which were then before the Board, and no party was denied a hearing.

If the subsequent Application of Local 506 with appropriate Membership Evidence had been filed prior to the terminal date of Local 172's Application apart from the practice of the Board to treat that Application as having been made on the date of the original Application, such an Application could be treated as a Statement of Desire as envisaged by Form 5 (Notice to Employees). Such, however, was not the case.

With reference to the suggestion that Local 506 was not given notice of Local 172's Application, it was accepted by the Board that at the time of that Application, on May 28th, 1981, Local 172 was not aware that Local 506 claimed to represent the Employees in the Bargaining Unit. No notice of Local 172's Application was given to Local 506, however Local 506 did file an Application for Certification on May 29th, which Application was subsequently withdrawn. In that Application no reference was made to Local 172. Notwithstanding the failure of Local 506 to receive notice of the Application of Local 172, well prior to the terminal date of Local 172's Application those employees purported to be represented by Local 506 were made aware of Local 172's Application as a result of the Board's notices, and no doubt Local 506 was aware of that Application. Local 506 took no action because, we suggest, it was content to rely upon its own Application of May 29th, (subsequently withdrawn), as securing to it the right to a vote. It was only when it determined that its Application of May, 29th was defective, that Local 506 sought to correct this by Intervening in Local 172's Application, withdrawing its May 29th Application, and filing a new Application. Local 506 did not seek to extend the terminal date of Local 172's Application for we suggest, in the circumstances outlined above, no such extension would have been granted.

The Board's decision to postpone and eventually dismiss the Application of Local 506 in Board File No. 0580-81-R, was properly made in the exercise of its discretion under Section 103(3), and in no sense denied any party a fair Hearing as required by Section 102(13), and the request for reconsideration should be denied."

6The Board also received the following comments from counsel for Local 506 made in the nature of a reply to the submissions of counsel for Local 172.

"It is our view that in light of the fact that Local 506 made a contemporaneous application with that of Local 172 of the Operative Plasterers albeit that the Local 506 application was withdrawn, no premium should be given to the 'first' application in time. To do otherwise by the Board essentially permits employees wishes to be defeated by technicalities.

Clearly the Board was aware that on these two separate occasions, employees who have now been placed in the bargaining unit proposed by the Operative Plasterers' signed membership cards indicating a desire to be represented by Labourers' Local 506. Indeed the application for certification brought by Local 506 was as an alternative only to the assertion that Local 506 already had bargaining rights for these very employees.

In these circumstances, while the Board may be entitled to find that any bargaining rights which Local 506 had held previously had been abandoned, the refusal of the Board to permit the employees to choose which baingaining [sic] agent they wish to have represent them must be said to be a decision whereby Board practice has superseded substance which, in our view, cannot be the intent of the provisions of the Labour Relations Act."

7The Board in its November 5th decision with respect to Board File #0441-81-R, found that Local 506 did not have bargaining rights pursuant to the current labourers provincial agreement for any of the employees coming within the bargaining unit sought by Local 172 and that the provincial agreement, therefore, was not a bar to Local 172's application for certification. The Board then considered, in paragraph 23 of the decision, the request of Local 506 to exercise the Board's discretion pursuant to section 102(3) of the Act so as to treat Local 506's application as though it had been made on the same date as that of Local 172. The Board declined to do so. Had it acceded to the request, and if Local 506 had the requisite membership support, a representation vote would have been directed in order to determine whether the employees wished either of the two applicants to represent them. Having declined the request, the Board ultimately certified Local 172. That certificate became a bar to the application for Local 506 in Board File #5080-81-R and the Board terminated those proceedings. Local 506 now seeks to have the Board reconsider both of those decisions, revoke the certificate and exercise its discretion under section 103(3) in the manner which Local 506 had originally requested so that the employees could determine by means of a representation vote whether they wished either Local 172 or Local 506 to represent them in their relationships with the employer.

8The Board is cautious in the exercise of its discretion under section 106(1) to reconsider and vary or revoke any decision so as not to undermine the finality of its decisions. The Board's usual grounds for reconsidering its decisions are set out in the following terms 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."

As the Board observed, however, in John Entwhistle Construction Ltd., [1979] OLRB Rep. Nov. 1096,

"... These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decision, but also to allow parties who may be affected by the Board's decisions some degree of certainty of what to expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly."

The Board in that case was faced, inter alia, with the challenge that there was no statutory foundation for the Board's policy of abandonment of bargaining rights on which the Board had relied to terminate the bargaining rights of the trade union applicant. The Board went on to state

"..... Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise significant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision."

(emphasis added)

The request in the case at hand raises a question of the manner in which the Board has followed its customary practice with respect to its discretion under section 103(3). Counsel for Local 506 contends that "By routinely following its traditional practice to postpone the hearing of a subsequent application for certification, the Board has clearly denied certain employees their right to be heard as to which bargaining agent ought to represent them.". Local 506 does not claim there is no statutory authority for the Board's "traditional practice" and in the Board's view does not raise as important an issue as was raised in John Entwhistle, supra. But this claim is coupled with the claim that the Board has acted in a manner contrary to the instructions of the court in Re Fisher et al and Hotels, Clubs, Restaurants and Tavern Employees Local 261 et al, (1980) 1980 CanLII 1882 (ON HCJ), 28 OR. (2d) 462 and Re Baltimore Aircoil Inter American Corporation and the Ontario Labour Relations Board and the United Steel Workers of America, 81 CLLC ¶ 14,130 (Div. Ct.). Together these constitute sufficient reason for the Board to review its decision to determine whether it should vary or revoke them.

9The factual basis set out in the request for reconsideration is generally accurate, except in one minor respect in item #5. but is incomplete. The additional facts and the correction are set out below by reference to the same item numbering as followed in the request.

1. The Board's record in Board File #0441-81-R, the application for certification of Local 172, shows that the terminal date set for the application was June 8th, 1981 and that the Board's notice of the application to the employees was posted by the employer on June 2nd, 1981.

2. The Board's record in Board File #0459-81-R, the first application for certification filed by Local 506, indicates that the terminal date for it was June 9, 1981; the Board's notice of the application to the employees was posted by the employer on June 5th; the application named as the respondent Clifford Masonry and Building Restoration Limited; the application contained no mention of Local 172 as a trade union known to Local 506 as claiming to represent any of the employees who may be affected by the application, to paraphrase paragraph 9 of the application form; Local 506 advised the Board by telex dated June 10, 1981 that it intended to withdraw the application; on June 12, 1981 the Board issued a decision dated June 11, 1981 consenting to the withdrawal. The Board's record of the hearing into Board File #0441-81-R reveals that the reason why Local 506 withdrew this application was its failure to file by the terminal date, as required by the Board's Rules of Procedure, its membership evidence and the statutory declaration concerning membership documents.

3. The intervention in Board File #0441-81-R filed by Local 506 also served notice on the Board that it would be asking the Board to consolidate its forthcoming application with that of Local 172 (see paragraph 7, clause (a) of the Board's decision). The intervention did not raise the collective agreement bar.

4. The Board's records in Board Files #0441-81-OR and 0540-81-R also reveal that Local 506 did not raise the collective agreement bar to the application of Local 172 at the time Local 506 filed its second application for certification. The first reference by Local 506 to a collective agreement bar was contained in a letter from its counsel to the Registrar dated June 18, 1981. Counsel acknowledges in that letter receipt of a letter from the Registrar dated June 16, 1981 in which the Registrar had advised that Local 506's second application for certification would not be processed until the Board had disposed of Local 172's application. By that same letter, counsel put the Board on notice that it would be seeking to have the Board consider its application as though it had been made on the date of Local 172's application and that, since the Board had not made a final decision on that application, if it certified Local 172, the Board might do a grave injustice to the wishes of the employer's employees.

10Counsel for Local 506 is correct, of course, in asserting that section 57(2) of the Board's Rules of Procedure provide the Board with the discretion to enlarge the time limits for the filing of documents or for the doing of any acts prescribed by the Rules. The Board is exercising this discretion, for example, when it extends the terminal date in an application for certification because an employer's failure to post the Board's notice to employees has deprived employees of proper notice and thus of the opportunity to intervene in the application. In the case at hand, no request was made by any employee or by Local 506 to extend the terminal date in Local 172's application. As the response from counsel for Local 172 notes, Local 506 did not request at the hearing that the Board extend the terminal date. Nor did Local 506 request an extension of that date when it supported the request for a hearing made in its intervention on the ground that it would be filing a separate application for certification and asking that it be consolidated with that of Local 172. Nonetheless, the question of extending the terminal date of Local 172's application, in spite of there having been no request, was an implicit factor in the Board's consideration and refusal of Local 506's request to treat its application, pursuant to section 103(3) of the Act, as having been made on the same date as that of Local 172. The terminal date of an application for certification is the time determined by the Board under section 103(2)6) of the Act for the presentation of evidence of membership in a trade union or of objection of employees to certification of a trade union. In this respect see also section 48(1) of the Board's Rules of Procedure which states, in part, that "Evidence of membership in a trade union or of objection to certification of a trade union ... shall not be accepted by the Board on an application for certification unless the evidence.., is filed not later than the terminal date for the application." (emphasis added). Thus if a trade union fails to file its evidence of membership support by that date, it fails to establish that, as of the date, it had the requisite membership support to be entitled to either certification or a representation vote and the application would be dismissed. By treating Local 506's application as though it had been made on May 28th, 1981, the date when Local 172 filed its application, the terminal date which had been set for that application, June 8th, 1981, would apply as well to Local 506. Therefore, in order to accede to Local 506's request, it would have been necessary for the Board to extend the terminal date which had been set for Local 172's application to a date late enough to accommodate the June 15, 1981 filing date of Local 506's application and in accordance with section 65 of the construction industry part of the Rules of Procedure. In a like manner, new notices to the parties and the employees affected by the application would have to be served in accordance with section 67(2) of the Rules, thus contributing to delay in processing the first application. Where an application for certification has been made by one trade union and another seeks to be certified for employees who may be affected by the application, section 72(1) of the Rules attempts to avoid these complications by providing that:

72.-(1) A trade union or council of trade unions desiring certification as bargaining agent of employees who may be affected by the application shall file an intervener's application for certification in quadruplicate in Form 58 not later than the terminal date for the application and the intervener's application shall be accompanied by a declaration concerning membership documents in Form 54.

(2) Section 65 does not apply to an intervener's application.

(3) Where the Board so directs, the registrar shall serve the employer with notices of the intervener's application for posting.

(emphasis added)

11The comments of Local 506's counsel in the first quoted paragraph in paragraph 6 above suggest that the Board is giving "premium", his word, to the application of Local 172 because its application was first. Further, by doing so, the Board is permitting..... employee's wishes to be defeated by technicalities.". That statement ignores the plain fact that Local 506 failed in both applications to file its membership evidence by the applicable terminal date (see paragraph 10 above). The Board has said many times that the late filing of membership evidence is not a mere technicality, rather it is a matter of substance. For example, the Board's decision in Addressograph-Multigraph of Canada Limited, [1968] OLRB Rep. Mar. 1183, at paragraph 15 comments as follows:

the late filing of the membership evidence is not a mere defect in form or technical irregularity but is a matter of substance. The terminal date is also the membership date for determining the union's membership position and the Board has consistently required strict compliance with the requirements of section 48 of the Rules since the whole application turns on the terminal date and what flows from it.".

12Except for its argument that employees who signed membership cards with Local 172 must also have signed cards with Local 506 and should have been treated by the Board in a manner analogous to employees who object to certification of a trade union, an argument dealt with later in the decision, the only argument advanced in the hearing by Local 506 in support of its request to consolidate the two applications was to the effect that it could not reasonably have been expected to file its application before the terminal date of Local 172's earlier application because Local 172 failed to name it as a bargaining agent. This argument is repeated in the request for reconsideration in the second paragraph following item 5 of the "factual basis" for the request quoted above at paragraph 3. This argument was considered by the Board and in its view lacked any merit. There was no evidence before the Board that Local 172 knew or should have known that Local 506 was or claimed to be bargaining agent for the employees whom Local 172 was seeking to represent. That likelihood first arose when the employer filed its reply and raised the labourers provincial agreement as a bar. Even Local 506 did not raise this bar until three days after it had filed its own application and a week after filing its intervention in Local 172's application. The fact that the two unions appear to have been conducting overlapping campaigns and both unions should have been aware, if they were at all diligent, of the other's presence does not impose any obligation on either union to reveal a potential interest of its opponent. Even were there an obligation, Local 506's conduct was no better than that of Local 172 in this respect since, when it filed its first application the day after Local 172's application was filed, it failed to reveal Local 172's potential interest. Finally, in spite of the fact that Local 506 was not a party entitled to specific notice of the application, it should have been aware of the application and, if it was not, it was through its own lack of diligence. Local 506 had conducted its own campaign amongst the employees. The Board's notice to the employees of Local 172's application was posted on the job sites on June 2nd, 1981. The notice to employees of Local 506's first application was posted June 5th, 1981. If, as Local 506 claimed, it had support amongst the employees it had the ready opportunity to know of the application and, if it did not know, that would be by its own failure.

13These facts were before the Board or were a matter of Board record at the time the Board reserved its decision in the hearing on the request of Local 506 to join its application with that of Local 172. Alone they provide sufficient grounds for the Board to find, as it did in paragraph 23 of its decision, that there was no reason to depart from its customary practice of postponing consideration of a subsequent application, when it has been made later than the terminal date set for an earlier application, until the Board has disposed of the earlier one. When the Board made that decision it had the additional facts which were revealed by the evidence related to the collective agreement bar. Those facts showed that neither the employer nor Local 506 had conducted themselves as though Local 506 was bargaining agent of the employees affected by the application. In such circumstances it can hardly be held against Local 172 that it did not identify in its application Local 506 as claiming to be bargaining agent of employees affected by the application. These facts also showed that, at all material times, two employees on the principal job site affected by the application were long-standing employees and members of Local 506. Therefore, Local 506 had a presence on the job additional to the new employees whose support it was claiming and through which it had the opportunity to know of Local 172's activities and its ultimate application. In all of these circumstances the Board found no reason to except Local 506 from the Board's customary practice when exercising its discretion under section 103(2) of the Act.

14For an example of some of the matters which concern the Board when it is considering whether to extend the terminal date in conjunction with a subsequent application filed after the terminal date of an earlier one, see the Board's decision in Addressograph-Multigraph, supra, paragraphs 15 through 21.

15The Board turns now to the argument that the Board's failure to order a representation vote, for the purpose of allowing the employees to decide which union they wished to represent them, was analagous to a failure by the Board to hear objections made by objectors to an application for certification and thus could be said to have been made without jurisdiction, or if not a jurisdictional error, a denial of natural justice.

16Counsel for Local 506 relies, in support of this argument, on two Divisional Court decisions: Re Fisher et al and Hotels, Clubs, Restaurants, Tavern Employees Union Local 261 et al, (1980) 1980 CanLII 1882 (ON HCJ), 28 O.R. (2d) 462 and Re Baltimore Aircoil InterAmerican Corporation and the Ontario Labour Relations Board and the United Steel Workers of America, (unreported) S.C.O. July 7th, 1981 (Divisional Court). Counsel contends that that "These cases make it abundantly clear that the Court has directed the Board to be vigilant about protecting the rights of employees who, in the circumstances of those cases, wished to object to an application for certification even though their petition was not received by the Board in the appropriate form before the terminal date of the application for certification in question.". Neither of these cases stand for the proposition that the Board must entertain objections from employees that are made after the terminal date of an application for certification. In each case the Board was dealing with a timely statement of objection to the application. In each case the objectors were present at the hearing and, for different reasons in each case, the Board refused to hear from them even though they had filed timely objections. There is nothing in the judgment in either case which suggests that the Board must consider statements of objections which are not filed in accordance with the time limits set by section 48(1) of the Rules of Procedure. Neither case involves a failure to meet that time limit.

17In the instant case, as the response from counsel for Local 172 to the request for consideration points, out, no employee had filed any statement in opposition to the application or any statement of desire to make representations at the hearing, nor did any employee attend the hearing seeking to be made a party to it. Clearly, then, there was no refusal to hear any employee. Local 506 was at the hearing and claimed to represent employees who had signed cards with it. Counsel for Local 506 was afforded a full hearing on its request to treat its application as having been made on the same date as Local 172's, including counsel's contention that the membership evidence filed in support of the Local 506 application was analagous to objections by those employees to being represented by Local 172. So there was no refusal to hear these representations by Local 506 made on behalf of employees who signed cards with it and therefore no denial of natural justice. Moreover, while it is not explicitly referred to in paragraph 23 of the Board's decision, this argument was considered and rejected by the Board when it concluded that there were no grounds for it not to follow its customary practice in exercising its discretion under section 103(3) of the Act. Even if the Board were to agree with counsel's analogy, clause (b) of section 48(1) of the Rules of Procedure would preclude the Board from entertaining the Local 506 membership evidence as opposition to Local 172's application. This would apply to its first application as well because it had filed no membership evidence by the terminal date.

18As the Board noted in paragraph 8 above, counsel for Local 506 also contends that ..... By routinely following its traditional practice to postpone the hearing of a subsequent application for certification, the Board has clearly denied certain employees their right to be heard as to which bargaining agent ought to represent them.". The Board disagrees with this contention on two grounds. First, the Board has not, as counsel contends, routinely followed its traditional practice. The Board's decision and its record of the proceedings show that it has acted in this case only after due consideration of all of the representations of the parties and then in accordance with its well known policy. Second, the Board has not denied any employees the right to be heard and in fact heard the representations of Local 506 which purports to have acted for certain employees. If counsel means that, by not joining the two applications so that a representation vote would have been directed if the requisite membership support was present, the Board has denied these employees ..... their right to be heard [by means of a representation vote] as to which bargaining agent ought to represent them." (emphasis added), this would be as a consequence of the operation of section 48(1) of the Rules of Procedure and not by a jurisdiction error of the Board.

19In conclusion, the Board's decision of November 5th, 1981 and its record of the hearing into this application for certification reveal that all parties had the opportunity to make and have considered by the Board their full representations on all issues and their representations were duly considered by the Board. Nor has the Board refused to hear employees who were present at the hearing (there were none) and who had duly filed an objection to an application, or refused to consider a duly filed objection. Therefore the Board is firmly of the view that it has not committed a jurisdictional error and has not acted contrary to the instructions of the courts. Thus there are no exceptional grounds which would cause the Board to exercise its discretion under section 106(1) of the Act to amend, vary or revoke its decisions in this matter. Accordingly, absent as well the usual grounds for exercising that discretion, the Board does not deem it advisable to amend, vary or revoke its decision.