Ontario Labour Relations Board

[1982] OLRB Rep. August 1123

2064-78-R The Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27, 666, 681, 1133, 1304, 1963, 1747,2480,2482,3227, and 3233, Applicant, v. A. J. Fish & Son Limited, Respondent.

BEFORE: R. A. Furness, Vice-Chairman and Board Members H. J. F. Ade and C. Ballentine.

DECISION OF THE BOARD; August 18, 1982

I. This application for certification was filed on March 13, 1979. The extended terminal date fixed for this application was March 23, 1979. In a decision dated March 26, 1979, the Board issued a certificate to the applicant with respect to a bargaining unit defined as "all carpenters and carpenters' apprentices 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, save and except non-working foremen and persons above the rank of non-working foreman". In its decision dated March 26. 1979, the Board noted that the respondent failed to file a reply, a list of employees and specimen signatures within the time fixed in accordance with the Labour Relations Act and the Board's Rules of Procedure.

2. On March 20, 1979, the Registrar of the Board received the following letter which

was dated March 15, 1979:

Please find enclosed literature that was sent to my firm.

I have just returned from a two week vacation and on checking with my staff find that no one in our office requested these forms.

If these are new government forms that apply to our type of business, please send me a letter to that effect with a full explanation.

Yours very truly,

"Jim Fish"

A. J. Fish.

This letter was written on the stationery of Arthur J. Fish Limited. The Registrar did not send a letter in reply to the letter dated March 15, 1979.

3. The Board did not receive any further communication from or on behalf of the respondent until it received a letter dated May 4, 1982, from counsel for A. J. Fish and Son Limited and Arthur J. Fish Limited. This letter states:

Recently, our clients, A. J. Fish and Son Limited and Arthur J. Fish Limited (the latter being hereinafter referred to as the "Employer") received on or about the 6th day of April, 1982 a copy of a grievance from the United Brotherhood of Carpenters and Joiners of America through the Carpenters' District Council of Toronto and Vicinity, 290 Lawrence Ave. West, Toronto, Ontario against A. J. Fish and Sons, a related company of the Employer, alleging a grievance occurring on April 2, 1982 in that persons other than union carpenters were doing work on a job site at the Renaissance Hotel situated at Kennedy and Highway 401 in violation of Sections 3 (recognition) and 5 (union security) and all other relevant articles of the relevant collective bargaining agreement and seeking full compensation of wages and benefits for work done by those other than union carpenters. This came as a surprise to the Employer since his construction business has always been since 1909 a non-union business and because Arthur J. Fish and Son Limited is an investment company with the Employer being the sole company engaged in the construction business.

As a result, the Employer engaged our firm and both of us caused investigations to be done which resulted in ascertaining that on March 26, 1979 the Ontario Labour Relations Board ("Board") in its Decision and subsequent Certificate of the same date certified the Carpenters' District Council of Toronto and Vicinity on behalf of certain locals as the bargaining agent of all carpenters and carpenters' apprentices in the employ of A. J. Fish and Son Limited in the geographical area known as No. 8 save and except non-working foremen and persons above the rank of non-working foremen.

Our client was surprised and shocked inasmuch as he had never received any notice of the Decision or the above mentioned Certificate, copies of which are enclosed. In fact, on March 15, 1979, Mr. Fish wrote to the Registrar of the Board returning a March 14, 1979 letter bearing your file No. 2064-78-R and transmitting Form 51, Form 52, Form 47, Form 55, Schedules to Form 51 and a copy of your letter to the general contractors section of the Toronto Construction Association of even date. A copy of Mr. Fish's letter is enclosed from which it can be seen that they were returned unread with a request that:

"... If these are new government forms that apply to our type of business, please send me a letter to that effect with full explanation."

No reply to that letter or any communication from the Board has ever been received by our clients and they have recently thoroughly checked all their files for such purposes. As stated above, our clients received no advice from the Board in response to Mr. Fish's request or from the Board or the Union or the Construction Association or any of his employees of the certification up to the point of being apprised of this grievance. Since he heard nothing from the Board, Mr. Fish did not post the required Notices of the Application so that none of the permanent employees were ever advised of the certification application or of their right to support or oppose it.

Subsequent to receiving the grievance, Mr. Fish's mother received a telex from Mr. P. E. Whyte advising of his appointment as a Labour Relations Officer in the grievance and pursuant thereto requesting a conference with the parties to endeavor to effect a settlement of the grievance. With such in mind he suggested convening a meeting on Thursday, April 29, 1982 at the Board's offices. Based on the objection of the Employer to the certification and on notice to counsel for the union, that hearing was adjourned.

On April 26, 1982 Mr. Fish received a letter from you as Registrar of the Board dated April 23, 1982 addressed to A.J. Fish and Sons quoting your file No. 0150-82-M enclosing a Notice to Respondent of Referral of Grievance to Arbitration and of a Hearing with a copy of the application and reply forms. Based on what hereinafter follows, an application will be made to the Board on the return of the Notice of Hearing on May 5, 1982 requesting an adjournment of the arbitration until ultimate disposition of the challenge we are hereby making to the Board with respect to the original certification of the affected union.

Background

From the period of March 7 to March 28, 1979, Arthur J. Fish Limited, a non-union construction company, entered into a contract with Markborough Properties Limited, as a non-union employer to provide labour, equipment, tools and supervision to fit and install all hardware to 54 wood doors and 4 transom panels for the construction of an office building at a site located at 6820 Centuriet Argentia, West of Mississauga Road and Highway 401 at 6820 Century Ave., Mississauga. Ontario. Of the 15 employees of the Employer who could possibly fall within the bargaining unit defined in Section 7 of the March 26, 1979 Decision of the Board, a maximum total of 5 employees were working on the particular site from time to time during the job. At March 13, 1979, the date of the application for certification and on March21, 1979, being the terminal date fixed for the application as set out in the Notice of Application for Certification (the Decision refers to the terminal date as March 23, 1979) there were only two employees on the job site who apparently signed certificates of membership indicating that monthly dues of $17.75 were paid for at least one month within the six month period immediately preceding the terminal date of the application. These two individuals were Mr. Pat O'Connell and Mr. Charles O'Neill, temporary carpenters employed by the Employer who were union members but out of union work looking for any work and so employed on a non-union job. Then, there were 15 eligible employees for the union and now there are 24.

Subsequent to March 14, 1979, Mr. O'Connell apologized to Mr. Fish and indicated that under duress and intimidation he and Mr. O'Neill had been forced to sign union documents under threat of being fined by the union and losing their union accreditation [sic]. Since Mr. Fish did not hear from the Board, he thought nothing further of the matter.

In fact, until this grievance, all parties have acted as if there never had been any certification. No deductions for union dues has ever been made by the Employer and Mr. Fish has never been approached by his employees or by the union to do the same. The bargaining agents for the employers have advised Mr. Fish that they never received any notice from the union of the certification as is required pursuant to the terms of the provincial collective agreement, which the union now seeks to uphold. Furthermore, the employer's bargaining agents have advised that they have never considered the Employer to be a member of the Employer's Association and Mr. Fish has never been requested to pay dues or fees to support the employers' bargaining agents. To the best of the knowledge of Mr. Fish none of his full-time employees all of whom were employees in March of 1979 were then or are not now aware of the certification. Indeed, the Notice of Referral of Grievance to Arbitration filed by the union makes no mention of any of the employees of the Employer.

Request

On behalf of our clients, the Board is requested to exercise its jurisdiction pursuant to Section 106(1) of the Labour Relations Act of Ontario and reconsider its Decision and Certificate dated March 26, 1979 pursuant to which the Carpenters' District Council of Toronto and Vicinity on behalf of certain locals were certified as the bargaining agent of all carpenters and carpenters' apprentices in the employ of A. J. Fish and Son Limited in geographical area No. 8 save and except non­working foreman and persons above the rank of non-working foremen, and to revoke the certification. If thought appropriate, the Board is also asked to consider ordering an inquiry into the manner in which the membership evidence supplied to the Board on the application was obtained.

Material Facts Relied On

I. Improper notice of application sent to the Employer in that Section 9 of Form 51 states that if the Board determines that a hearing of the Application for Certification is to be held, the hearing will take place on Monday, the 2nd day of March, 1979 whereas the Notice is itself dated March 14, 1979 as are all other forms and documents in connection with the application.

2. The wrong party was named as the Respondent in that Arthur J. Fish and Son Limited is a holding company and the Employer is engaged in the construction business.

3. The Board was misled by the evidence filed in connection with the certification application as to complete facts surrounding the union membership of the two individuals in question and that the membership evidence was defective and irregular having been obtained by intimidation and duress.

4. The Board was materially misled by the number of employees in the bargaining unit at the time the application was tested in that a majority was not represented but only 2 out of 15 carpenters and apprentices.

5. The failure to have notices posted denied the opportunity to the other permanent employees of the Employer eligible to be in the bargaining unit and be represented by the union of the certification application and of the right to oppose it or support it.

6. There has been a denial of natural justice in that the Board failed to respond to Mr. Fish's letter of March 14, 1979 in proceeding to consider the matter without his participation and without answering his request thereby denying him the opportunity to be heard and constituting a denial of natural justice to the Employer.

7. The union has failed to inform the employees of the Employer and the Employer of the certification as is required pursuant to the terms of the provincial collective bargaining agreement it now seeks to uphold and has made no request for deductions for union dues.

8. The employers' bargaining agent for the construction industry has never considered the Employer to be a member of the employers' association and has never asked the Employer to pay dues or fees to support the employers' association.

Submissions

As stated above, on the return of the hearing of the referral by the Board of the above grievance to arbitration on Wednesday, May 5, 1981

[sic] an application for adjournment of those proceedings will be made pending ultimate disposition of this request for the Board for reconsideration of its March 26, 1979 Decision and certification. If necessary, an application to court to stay these proceedings will be brought.

This application for reconsideration has been made with all due diligence and dispatch since the matter first came to the attention of our clients on or about April 6, 1982 and is not made for delay or any other improper purpose. Rather, the Board is asked to reconsider its March 26, 1979 decision and certification based on the errors and facts now at light above identified.

All of which is respectfully submitted.

4. A copy of the letter dated May 4, 1982, was sent by the Board to the applicant. On May 25, 1982, the Board received the following letter (also dated May 25, 1982) from counsel for the applicant:

We are acting on behalf of the Applicant in this matter.

We understand that the Respondent by letter dated May 4, 1982 is requesting that the Board reconsider its decision and certificate dated May 26, 1979, pursuant to Section /06(1) of the Act.

The Applicant's position is that the request for reconsideration should be denied without the necessity of a Board hearing.

The Board has consistently exercised its discretion under Section

106(1) in a cautious manner. Reference is made in the case of Imperial

Tobacco Products (Ontario) Limited, (1974) OLRB Rep. September

609, to this discretion as a "unique jurisdiction" and in paragraph 3 of

that decision the Board states its reason 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."

The general grounds on which the Board will reconsider a decision are set forth in the Board's decision in the case of 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 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 ~

In the instant case, it is submitted that the Respondent has not indicated any basis upon which the Board should exercise its discretion pursuant to Section 106(1) of the Act to reconsider its earlier decision.

In this case, the Applicant applied for certification on March 13, 1979. The Board acknowledged receipt of the application by letter dated March 14, 1979. In the same letter, the Applicant was advised that the terminal date had been fixed for March21, 1979, and that if a hearing was to be held, it would be held on Monday, April 2, 1979. Membership evidence and a Form 54 Declaration was sent to the Board on or before the terminal date. The applicant was sent a copy of the Board's decision and certificate dated march 26, 1979 by covering letter from the Board dated March 27, 1979.

Dealing specifically with the eight (8) material facts set out on pages 4 and 5 of the Respondent's May 4, 1982 letter in support of the request for reconsideration, the Applicant's position (using the Respondent's numbering) is as follows:

I. The Applicant has no knowledge whether Form 51, paragraph 9 sent to the Respondent referred to Monday, March 2, 1979. The Notice sent by the Board to the Applicant dated March 14, 1979 stated that if the Board determines to hold a hearing, it would be on Monday, April 2, 1979.

We note that even if the Notice sent to the Respondent dated March 14, 1979 stated that if a hearing was to be held it would be held on Monday, March 2, 1979 (as is alleged in the Respondent's May 4, 1982 letter), the Respondent ought to have realized the mistake. The Board's letter was dated March 14, 1979; March 2, 1979 did not fall on a Monday (rather, on a Friday), and April 2, 1979 did fall on a Monday.

More importantly and in any event, the possible error on Form 51 sent to the Respondent is completely irrelevant and had no bearing in the case. The fact is that there was no hearing the Respondent was, there­fore, not prejudiced. It was the Respondent's failure to complete the Reply to the application which had been sent to it (including the failure to request a hearing as provided for in paragraph 14 of Form 55) which led to a certificate issuing without a Board hearing. This is entirely in accordance with the Board's Rules of Procedure and paragraph 8 of the Form 51 which was sent to the Respondent.

In addition, of course, there was and is no requirement for the Board to hold a hearing and the Board's practice in the construction industry is not to schedule a hearing unless there are valid grounds requiring a hearing before the Board disclosed in the Respondent's Reply Section 1 02(1 4) of the Act.

2. The Applicant named the Respondent on the basis of information supplied by employees and the name appearing on trucks seen on the project at the time. We note that the Respondent responded to the application using the letterhead of "Arthur J. Fish Limited" which has the same address as the named Respondent. If the wrong corporate entity was named, it is solely the fault of the Respondent for not correcting any mistake (as is provided for in paragraph I of Form 55). There is certainly no allegation that Arthur J. Fish Limited failed to receive notice of the application.

3. The Applicant challenges the status of the Respondent employer to raise this objection at all. The Applicant further submits that the Respondent not be permitted to raise the allegations three years later. Pursuant to what is now Rule 72, the Board has required the prompt filing of particulars of any misconduct. The Board's practice has been to refuse to entertain such allegations not filed in a timely fashion.

See, for example:

V. Trigiani Contracting Ltd. (1979) OLRB Rep. February 141.

Cable Tech Wire Company Limited, (1978) OLRB Rep. June 496.

Magna-Cote (Division of Magna International Inc.) (1978) OLRB Rep. May 433.

4. The Applicant was not aware of any employees employed by the Respondent in the bargaining unit on the date of application other than the two(2) for whom membership evidence was submitted. If there were more employees in the unit (which the Applicant does not admit) once again, it is solely the fault of the Respondent that the Board was not advised — see Form 51, paragraph 8, Form 55 and attached schedules.

5. It is submitted that the Respondent cannot rely on its own default if it failed to post notices as a ground for its own request for reconsideration.

6. It is submitted that the application was handled in accordance with the provisions of the Act and the Board's Rules of Procedure and Regulations. The Forms sent to the Respondent are patently self-explanatory. The Respondent apparently returned the Forms to the Board and asked for an explanation. It can only be assumed the Respondent did not even read Forms, which, in our submission, is a not ground for requesting reconsideration.

7. and 8. It is submitted that these paragraphs are not relevant to the Respondent's request for reconsideration of the Board's March 26, 1979 certificate.

Finally, it is submitted that the Respondent's allegation that it did not receive a copy of the Board's decision or certificate does not affect the validity of the certificate. Even if true (which is not admitted) it is submitted that, at most, this only could be used to explain the delay in requesting reconsideration of the Board's certificate. This is not a case where the Respondent is alleging it did not receive notice of the application.

In summary, it is submitted that there is no new evidence or representations which the Respondent could not have made prior to the Board's decision. The Respondent alone is responsible for its failure to respond to the application for certification. The Applicant respectfully requests that the Board dismiss the request for reconsideration, without the necessity of a hearing.

We have taken the liberty of delivering a copy of this letter to Respondent's counsel.

5. On June 1, 1982, the Board received the following letter, which was dated May 31,

1982, from counsel for A. J. Fish and Son Limited and Arthur J. Fish Limited:

We hereby reply to the May 25, 1982 letter of counsel for the Carpenters' District Council of Toronto and Vicinity, sent in furtherance of our application by letter dated May 4, 1982, under Section 106(1) of the Ontario Labour Relations Act which letter requested the Board to reconsider and revoke its earlier March 26, 1979 Decision and Certificate for the above union. Counsel for the union has asked the Board to deny our request for reconsideration without the necessity of a Board hearing.

To this we must disagree and re-affirm our original request.

General Reply

The Board's power to reconsider is plenary, independent one entitling it to deal with cases not specifically otherwise provided for in the Act. Here, we submit, those exceptional circumstances exist which justify the Board exercising its discretion and are listed in our May 4th letter. There has been a litany of errors which, if not corrected, will amount to a breach of natural justice not only for our client, but more particularly for those employees who have never had an opportunity to know or participate in any of the proceedings before the Board to date.

Material Facts

1. Our client has been diligent and could not be said to be deemed to realize the mistake in the Board's Form 51, paragraph 9. There is nothing more fundamental to justice than the holding of a hearing to enable all sides to present their respective cases. Otherwise, as in this case, prejudice results not only for the employer, but for all affected employees. Our client did not fail to complete the Reply, as alleged, but asked the Board for its advice, which was not forthcoming. Reasonable diligence on the part of our client therefore exists, especially since no Decision or Certificate was ever received. There also existed at the time valid grounds for holding a hearing. We refer the Board to the material facts in our May 4th letter.

2. The wrong employer is named which causes prejudice in light of all attending circumstances.

3. Our client has promptly filed before the Board particulars of the misconduct alleged. Timeliness exists because our client was unaware that anything material was taking place before the Board in 1979 and has filed the information as soon as it became known to be material.

4. The union has made no attempt to contact our client concerning collective bargaining for all employees it claims to represent. This is in breach of the collective bargaining agreement. In fact, the failure of the Board to be informed of the number of all affected employees amounted to a material misrepresentation before the Board.

5. Our client is not relying on its own misconduct but asks the Board to protect those most vitally affected employees who have never had any notice of the proceedings before this Board.

6, 7 and 8. We rely on our submissions.

In conclusion, we ask the Board in light of all the circumstances at hand to reconsider its earlier Decision and Certificate.

All of which is respectfully submitted.

6. The revival of interest in the instant application commenced after the applicant, as presently constituted, filed a referral of grievance to arbitration under section 124, construction industry, with the Board on April 20, 1982, in which A. J. Fish & Sons was named as the respondent. See Board File No. 0150-82-M. The referral contains a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement. The referral is presently before a differently constituted division of the Board. In a decision in Board File No. 0150-82-M dated May 7, 1982, the Board stated:

7. The parties are agreed that this matter should be adjourned until the applicant's request, contained in a letter from its solicitors to the Board dated May 4, 1982, that the Board reconsider its decision in board File No. 2064-78-R to certify the applicant which issued March 26, 1979 is determined by the Board. Agreement by the applicant to the adjourn­ment is without prejudice to any right to make written submissions to the Board on the May 4th letter, which its counsel has undertaken to do by the week commencing May 10th.

8. Should the Board refuse the request for reconsideration or decline to exercise its discretion to vary or revoke its decision in Board File No. 2064-78-R; this matter will be re-listed for hearing. The Board notes, however, the parties' undertaking that they would attempt to resolve this grievance if, after the request for reconsideration has been determined by the Board, the applicant still holds bargaining rights.

9. Issues have been raised before the division of the Board in the instant application which, in our opinion, is more properly raised before the division of the Board in Board File No. 0150-82-M. In the instant decision, the Board proposes to deal with only the matters which relate to the issuance of the certification on March 26, 1979. Where the parties have addressed their representations to the present existence of bargaining rights and to the subsequent conduct of the parties and other persons, such representations are more properly considered by the divisions of the Board in Board File No. 0l50-82-M.

10. There can be no doubt that the respondent received notice of this application for certification. The central event which gives rise to this request for reconsideration results from the failure of Mr. Fish to read the material from the Board and his request that the Registrar send him a letter with a full explanation. The material which was sent to the respondent states in a concise manner what the respondent is required to do. The material is written in plain English clearly sets forth the consequences of failing to file a reply and accompanying documents. Paragraph 8 of Form 51 states:

11. IF YOU FAIL TO FILE A REPLY OR THE LIST OF EMPLOYEES AND DOCUMENTS CONTAINING SIGNATURES AS SET OUT ABOVE WITHIN THE TIME FIXED BY PARAGRAPH 5 OF THIS NOTICE OR IF YOUR REPLY IS INCOMPLETE, THE BOARD MAY PROCEED TO DISPOSE OF THE APPLICATION ON THE EVIDENCE AND REPRESENTATIONS BEFORE IT WITHOUT FURTHER NOTICE TO YOU AND WITHOUT A HEARING.

Paragraph 2 of Form 51 also states:

2. You are required to post the enclosed Notice to Employees of Application (Form 52), immediately. These notices are to be posted in conspicuous places where they are most likely to come to the attention of all employees who may be affected by the application. You shall keep them posted upon your premises until the close of business on the terminal date shown in paragraph 4.

The respondent was further advised in paragraph 9 of Form 51 that if a hearing was to be held it would take place on Monday, the 2nd day of March, 1979. However, that paragraph also states that if the Board determines that such a hearing take place, the respondent would be served with a Notice of Hearing in Form 53. In our opinion, it is readily apparent that the date of "Monday, the 2nd day of March, 1979" was an error because as the date of the possible hearing it occurred prior to the date of March 14, 1979, which was the date on Form 51.These facts, however, do not obscure the admission that Mr. Fish did not read the material and the fact that the Board did not hold a hearing of this application. In applications for certification which are filed under the construction industry provisions of the Act, the Board need not hold a hearing. See section 102(14) of the Act. This provision of the Act explains the conditional nature of paragraph 9 in Form 51. The Board did not hold a hearing in this application because, as far as the Board was aware, there was no issue in dispute between the applicant and the respondent.

9. The respondent by its conduct disentitled itself from raising issues in March of 1979 which the Board would have considered. At that time the Board could have investigated any differences in the list of employees by appointing a Labour Relations Officer. Similarly, the Board could have entered the representations of the applicant and the respondent with respect to any alleged mistake in the names of parties under the provisions of section 104 of the Act. In addition, allegations of improper or irregular conduct (the intimidation and duress subsequently alleged by counsel for A. J. Fish and Son Limited and Arthur J. Fish Limited), if they had been filed with the Board promptly upon discovering the alleged conduct, could have been inquired into by means of a hearing before the Board. However, where such allegations have not been filed promptly upon discovering same, the Board has a discretion whether to entertain such allegations. See section 72 of the Board's Rules of Procedure. These various possibilities would have constituted a reason for holding a hearing of this application in April of 1979. The conduct of Mr. Fish in returning the material to the Board deprived himself of raising the issues which his counsel now attempts to raise. It is not an answer to the present state of affairs in this application to say that the Registrar did not reply to Mr. Fish's letter dated March 15, 1979. There is nothing in the Act, the Board's Rules of Procedure and the material sent to the respondent by the Registrar which constitutes a holding out that the Registrar would enter into correspondence of the nature apparently desired by Mr. Fish. The respondent did not co-operate with the Board in the processing of this application and, indeed, did not post Form 52, Notice to Employees of Application for Certification, Construction Industry, although, as stated earlier, this requirement is clearly set forth in paragraph 2 of Form 51. Because of the conduct of the respondent, it was necessary for the Board in a decision dated March 16, 1979, to extend the terminal date from March21, 1979, to March 23, 1979, and serve by mail the employees who were known to the Board to be affected by this application. The Board served Form 52 on each of the two employees who were known by the Board to be affected by this application. As far as the Board was aware, no other employees were affected by this application. The Board did all that it would do when faced with the lack of co-operation and a reply from the respondent.

10. The Board has not denied anyone natural justice in this application. The respondent was served with notice of this application and was given a reasonable opportunity to make its position known to the Board. If Mr. Fish, A. J. Fish and Sons Limited and Arthur J. Fish Limited believe that they have been prejudiced and denied natural justice, then such a state of affairs is of their own making and due to their own intransigence. They are very much the authors of their own misfortune. The board proceeded to issue its decision in this matter on the basis of the material before it on March 26, 1979.

11. In the absence of a denial of natural justice and with the failure of counsel for A. J. Fish and sons Limited and Arthur J. Fish Limited to allege any matters which with due diligence could not have been filed before the Board in a timely fashion in March of 1979, the Board is not prepared to reconsider, vary or revoke its decision or certificate dated March 26, 1979, pursuant to the provisions of section 106(1) of the Act. The Board has considered the facts and the arguments raised before it and is of the opinion that no useful purpose would be served in holding a hearing of this request for reconsideration. Accordingly, the request for a hearing is denied.

12. While the Board has the jurisdiction to reconsider, vary or revoke its decisions, such a jurisdiction is exercised carefully and cautiously, having regard to the merits of each request. Clearly, in a tribunal such as the Board there must be finality to its proceedings after the parties have been given an opportunity to present their representations to the Board. The exceptional factors referred to in Canadian Union of General Employees, [1975] OLRB Rep. April 320 are not present in the instant application. The allegation that other employees did not receive notice of this application remains an allegation and the Board notes that the alleged lack of notice to such employees in entirely the responsibility of the respondent. The allegations of improper of irregular conduct raised by A. J. Fish and Sons Limited and Arthur J. Fish Limited were not made in accordance with the provisions of section 72 the Board's Rules of Procedure and the Board, in the exercise of its discretion, will not entertain such allegations.

13. The matters raised with respect to the conduct of the applicant and third parties after the issuance of the certificate are matters which are more properly raised before the division of the Board in Board File No. 0l50-82-M. The Board notes that a copy of the decision and certificate dated March 26, 1979, was mailed to the respondent on March 27, 1979. Moreover, a copy of the decision of the Board dated March 16, 1979, was mailed to the respondent on March 16, 1979. Neither of these letters has been returned to the Board by the Post Office.