[1982] OLRB Rep. June 914
0962-81-R; 1033-81-R Labourers' International Union of North America, Local 183, Applicant, v. Monte Carlo Carpentry, Respondent United Brotherhood of Carpenters and Joiners of America, Local 1190, Applicant, v. Monte Carlo Carpentry, Respondent, v. Labourers' International Union of North America, Local 183, Intervener
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members E. J. Brady and M. J. Fenwick
APPEARANCES: Jeffrey Sack, Naomi Duguid and Chester De Toni for Labourers' International Union of North America, Local 183; no one appearing for the respondent; Douglas Wray, Jim Tobin and Frank D'Abbondanza for United Brotherhood of Carpenters and Joiners of America, Local 1190.
DECISION OF THE BOARD; June 29, 1982
- The Board issued a decision August 12th, 1981 certifying, without a hearing, Labourers' International Union of North America, Local 183 ("Local 183") with respect to a bargaining unit described as follows:
All carpenters, carpenters' apprentices and construction labourers in the employ of the respondent in Metropolitan Toronto, the Regional Municipality of York and the County of Peel, the Township of Esquesing and the Towns of Oakville and Milton in the County of Halton and the Township of Pickering in the County of Ontario, excluding the Industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non‑working foreman.
The application had been made on July 27, 1981 and the terminal date set for the application was August 7th, 1981.
The United Brotherhood of Carpenters and Joiners of America, Local 1190 ("Local 1190") also filed an application for certification on August 5th, 1981 for a bargaining unit comprised of carpenters and carpenters' apprentices. As the date of that application indicates, it was made two days prior to the terminal date of August 7th in the Local 183 application and one week prior to the date when the Board issued its certificate to Local 183. Local 1190's application for certification was not processed at that time as a result of an administrative error of the Board. On April 7th, 1982, counsel for Local 1190 wrote to the Board and requested that its application be processed and in so doing, requested the Board to exercise its discretion under section 106(1) of the Labour Relations Act to reconsider the decision made August 12, 1981 to certify Local 183 and to revoke that certificate.
The Board respondent to that request by sending notice of the application in the customary form to the respondent and to Local 183 and sent copies of the Board's customary notice to each employee identified by Local 1190 as being at work for the respondent on the date of its application. Local 183 intervened in this application on several grounds, one of which was that its certification dated August 12th was a complete bar to the application. The Board listed the application for hearing on June 4th for purposes of:
hearing the evidence and the representations of the parties with respect to all matters arising out of and incidental to the application, including the matters raised in the Intervention filed by Labourers International Union of North America, Local 183.
Counsel for Local 1190 took the position at the hearing that Local 183 had been certified fortuitously as a result of the Board's failure to process Local 1190's application for certification. He contends that Local 1190 did not become aware of the possibility that Local 183 had been certified until mid-March 1982. Local 1190 then instructed counsel to inquire into its application and, as a result of that enquiry, the April 7th letter was addressed to the Board. Counsel contends further that Local 1190 should not suffer as a result of the Board's error and that the Board should treat its application in the same manner as it would have been treated in the first instance, but for the Board's mistake. Counsel correctly asserted that the Board's normal procedure would have been to exercise its discretion pursuant to section 103(3)(a) of the Act and treat Local 1190's application as though it had been made on July 27th, 1981 ,the same date as Local 183's application and if both applicants demonstrated the requisite membership support, a representation vote would have been held allowing the employees the choice of being represented by one or other of the applicants, or by neither. Counsel also contends that, if Local 1190's request is denied, it would be prejudiced by the Board's failure in the first instance to process its application, whereas, counsel asserts, there would be no prejudice to Local 183 because it has been unable to conclude a collective agreement with the respondent.
Counsel for Local 183 takes the position that Local 1190 was responsible for the carriage of its application and has failed to act with due diligence in that respect. Local 183 has relied on the certificate issued by the Board and has attempted to bargain a collective agreement with the respondent. When its initial attempts failed, it requested the services of a conciliation officer and subsequently has reached a position where it may lawfully strike. No strike has been called, but since reaching a lawful strike position, Local 183 has presented a collective agreement to the respondent and met its principal at its job site on several occasions in attempts, as yet unsuccessful, to obtain settlement of the agreement. Counsel contends that Local 183 would be seriously prejudiced were the Board to revoke its certificate and re-process its application together with that of Local 1190. This prejudice, it is contended, would arise from the expenditure of effort and expenses in attempting to negotiate a collective agreement and from the circumstances in which a representation vote would be held, were the Board to direct a vote. Counsel claims that a vote between Local 183 and Local 1190 would appear to the employees as being a vote for a strike if they vote for Local 183 or a fresh start and nothing to lose if they vote for Local 1190. For these reasons, counsel argues, the Board should exercise its discretion under section 103(3)(c) to dismiss Local 1190's application or, in the alternative, refuse its request for reconsideration.
The applicants were in the midst of intensive, competing organizing campaigns amongst the employees of carpentry contractors in housing construction when these two applications were filed with the Board. Local 1190 filed in excess of 100 applications during the campaign and James Tobin, an International Representative of the United Brotherhood of Carpenters and Joiners of America, was involved in 95 per cent of them. Tobin told the Board that he filed Local 1190's application herein and he recalled that it was during the postal strike. The Board's records show that it was delivered by hand. Tobin did not hear anything further from the Board and he did not receive any notice of the application that had been filed prior to his by-local 183. Tobin realized that the application was outstanding only when two of his business agents told him in mid-March 1982 that there were rumours on the job site that Local 183 had been certified to represent the respondent's employees. It was that event which prompted the April 7th letter from counsel for Local 1190. Tobin is wholly familiar with the Board's procedures for processing applications for certification in the construction industry and, in particular, was aware that he should have got a notice from the Board acknowledging receipt of the application and setting a terminal date for it. Although Tobin did not receive that notice, he did nothing about his application in the interval between August 5th and mid-March when he began the steps which gave rise to the April 7th letter. All of this time he was in possession of the membership cards which had been signed, before the application was filed, by the employees whom Local 1190 had organized. The record shows that all of these cards were dated July 10, 1981.
Quinto Ceolin, a business representative of Local 183 testified about the Local's actions following its certification as bargaining agent for carpenters, carpenters' apprentices and construction labourers employed by the respondent. It sent notice of its desire to bargain a collective agreement to the respondent and to a number of other carpentry contractors for whose employees it had been certified. It attempted to bargain with the contractors as a group, but was unsuccessful in getting many of them to attend meetings. Local 183 requested and was granted the services of a conciliation officer who was appointed October 12, 1981. The officer was unsuccessful in two attempts to convene meetings of the contractors and Local 183 ultimately received a "no board report" on November 12th, so by the end of November Local 183 was in a lawful strike position. It has not called a strike, however. No bargaining was attempted during the winter months when there was little or no construction activity. Meetings were resumed in February 1982. On February 4th and again on March 12th the respondent attended negotiating meetings together with half a dozen other carpentry contractors. Apparently there were other such meetings, but the respondent did not attend them. Business representatives of Local 183 did meet with the respondent on his job sites at least seven times between March 3rd and May 10th. At all of these meetings the representatives attempted to get the respondent to sign a collective agreement which had been presented to him at the first of the meetings. No further attempts have been made since Local 183 received the notice of hearing into these matters.
The construction industry provisions of the Act and the Board's Rules of Procedure which apply to applications for certification in the construction industry, together with the Board's discretion under section 102(14) which relieves the Board of the need to hold a hearing into such applications, operate to allow expedited handling of construction industry applications for certification. Section 89 of the Rules of Procedure require the Registrar to set a terminal date not less than four nor more than six days after the date when notice of the application is served on the employer. For non-construction applications the comparable time period is not less than five nor more than ten days. Section 91(1) of the Rules of Practice direct the Registrar to notify the applicant of the terminal date by serving it with a notice fixing that date. An example of how this operates is provided by the manner in which Local 183's application was processed. The application was delivered by hand to the Board on July 27th, 1981. The Board's notice fixing the terminal date was issued the next day, July 28. It was accompanied by a form letter which, inter alia, advised the applicant that notices to the employees about the application had been sent to the employer with instructions to post them where employees could see the notices. The letter instructed the applicant to advise the Registrar if there was any delay or failure to post the notice and return forthwith the advice of posting card included with the letter. The letter also enclosed a Declaration Concerning Membership Documents, Construction Industry and instructed the applicant on the due filing of that document and the membership evidence on which the applicant would be relying. The advice of posting card was returned and the declaration together with membership evidence was filed by the terminal date August 7th. On August 12th the Board issued its certificate to Local 183.
It is regretable that the parties hereto are confronted with these problems as a result of the Board's administrative error. it is patently clear that Local 183 has relied and acted upon its certification and the bargaining rights which the certificate established in order to seek a collective agreement with the respondent. It was not only entitled to do so, but was obligated to act promptly if it wished to preserve those rights. As a matter of fact, the Act operates to give a newly certified bargaining agent a period of stability by giving it twelve months free of the risk of being displaced as bargaining agent. Local 183 was still within that period at the time these matters were brought on for hearing.
Just as Local 183 is entitled to rely on the Board's certificate, Local 1190 is entitled to rely on the Board's administrative procedures in order to have its application processed expeditiously and it should not be prejudiced by any failure of the Board to process the application. Coupled with this entitlement, however, the applicant has responsibility for carriage of the proceedings with respect to its application and can determine whether to proceed with or withdrawn the application. Therefore Local 1190 had a responsibility to pursue its application when it did not get processed in the normal manner. It failed to do so for some eight months, notwithstanding the fact that it had on hand the membership documents for those employees of the respondent whom it was seeking to represent. That lapse allowed the Board's error to go undetected for those eight months. The time frame within which Local 183's application was processed is fairly typical of the processing of uncomplicated applications for certification in the construction industry, in fact a certificate will usually issue on the first or second business day after the terminal date. Tobin is an experienced trade union representative and fully familiar with the Board's procedure with respect to applications for certification. He knows that he should receive promptly following the filing of an application the notice fixing the terminal date and the accompanying documents and instructions.
In order to for the Board to determine whether to exercise its discretion under section 106(1) of the Act to revoke the certificate issued to Local 183, it is necessary for the Board to attempt to balance the interests of the three parties affected by the two applications and to assess the impact of the Board's decision on those interests. The respondent did not attend the hearing and was not represented at it, therefore the Board has no submissions from the respondent about possible prejudice to it arising out of how the Board exercises its discretion. There can be no doubt that Local 1190 was the only party which should have been aware of its application having been filed with the Board. Therefore it was the only party in a position to bring to the Board's attention its error in a timely enough fashion to permit the error to be rectified without prejudice to any of the parties. It has not acted in a timely fashion. Local 183, on the other hand, has actively pursued its bargaining rights to seek to bind the respondent to a collective agreement. While none has been concluded, Local 183's efforts to date would go for naught if the Board revoked its certificate. In addition, were a representation vote to be held as a result of the Board's decision there is the possible prejudice to Local 183 of the choice between the two unions being coloured by the fact that Local 183 is now in a position to call a lawful strike. Since Local 1190 was in the possession of information and knowledge which would have allowed it to protect its interest had it acted more promptly in pursuing its application and since it appears to the Board that Local 183, which was not in a position to protect its interest vis a vis the Board's error, would suffer prejudice even though it has acted with reasonable diligence in exercising its bargaining rights, the Board is of the view that the better balancing of interests would result from the Board not varying or revoking its decision to certify Local 183. Therefore the Board declines to vary or revoke its decision in Board File No. 0962-81-R which issued August 12th, 1981.
In the result, that decision and the certificate which issued with it stands and the certificate is a bar to the application of Local 1190 filed in Board File No. 1033-81-R. The application in Board File No. 1033-81-R, therefore, is dismissed.