International Union of Operating Engineers, Local 793 v. Smiths Construction Company Arnprior Limited, 1984 CanLII 942

[1984] OLRB Rep. March 521

1845-83-R International Union of Operating Engineers, Local 793, Applicant, v. Smiths Construction Company Arnprior Limited, Respondent, v. Group of Em­ployees, Objectors

BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members W. H. Wightman and H. Kobryn.

APPEARANCES: B. Fishbein, A. F Amis and J. Redshaw for the applicant; A. P Tarasuk and N Smith for the respondent; John Wissent and E. Schroeder for the objectors.

DECISION OF THE BOARD; March 21, 1984

1. This is an application for certification made pursuant to the construction industry provisions of the Labour Relations Act.

2. This case raises two substantive issues: who should be treated as an employee in the bargaining unit, and how the Board should respond when objecting employees choose not to appear to give the evidence required by the Rules. Each of these questions involves the Board's established approach to the litigation of certification applications and the importance of certainty and expedition in that process. It will be convenient to deal with each issue in turn.

WHO IS TO BE TREATED AS AN EMPLOYEE IN THE BARGAINING UNIT?

8. The Act requires the Board to ascertain the number of employees in the bargaining unit at the time the application was made. There are no legislated criteria to guide the Board in this task, but, of course, there is really no difficulty in respect of those individuals both employed and working on the application date. The problem arises in respect of individuals who may, in some sense, be considered "employees" but who may not have been at work on the application date and may not return to work for some time thereafter, if at all. Em­ployees on sick leave, maternity leave, long-term disability, workers' compensation, or layoff may fall into this latter category, as do the employees of a firm with a work force which fluc­tuates from day to day.

9. The construction industry poses special problems. Employment is necessarily tran­sitory. Employees are quite literally "here today and gone tomorrow". A construction project is completed in phases, so on any given day the mix of tradesmen on a site may be different. Moreover, there are always the exigencies of the market, collective bargaining difficulties, the weather, and the proverbial "snafu". Collective bargaining problems, jurisdictional disputes, controlled subcontracting arrangements, the availability of financing, and the dispersement of mortgage monies will effect the level of employment in any given trade at any particular time. So will the weather. A period of intense cold or rain will interfere with construction work and reduce the number of employees on the site until weather conditions improve. Likewise, bottlenecks, problems, or the possibility of missing a time limit or deadline may require the employment of more tradesmen to resolve the difficulties or get the project back "on the rails" even though such employment may only be on a short-term basis. For all of these reasons an employer's complement of employees may vary markedly from day to day so that, in the construction industry, it is very difficult to pin down with any precision those individuals who should be treated unequivocally as "employees" for the purposes of the Labour Relations Act. That is why, in the construction industry, the Board need not have regard for any increase in the employer's work force after the application for certification. And, of course, this inevitable fluctuation in the employee complement underlines the importance of the expeditious reso­lution of applications for certification. If there is any significant delay there will be a real possibility that any certificate ultimately issued will affect employees who were not even there when the application for certification was made. The union's support will have evaporated and bargaining rights will be largely academic. This possibility also exists in manufacturing en­terprises but is minimized by the relative stability of employment over the time frame when a certification application is likely to be before the Board. Such is not the case in the con­struction industry.

10. To cope with these special problems in the construction industry, the Board has de­veloped a particular rule of thumb as to the way in which it should ascertain the number of employees in the bargaining unit at the time the application was made. The Board determines the employee complement to be that which exists on the application date — fully realizing that the number may well be different the day before, or the day after and that, for example, if the application date is a rainy day, the union may find that its members are not at work so that its application may be dismissed. This "rule of thumb" has been accepted and applied by unions and employers in the construction industry for thirty years — and for a very practical reason: anything else would lead to costly and time-consuming litigation on every certification application causing delay which would severely prejudice the establishment of bargaining rights purportedly guaranteed by the statute. If time is of the essence generally in labour relations, that maxim is particularly true in the construction industry. That is why the Act expressly empowers the Board to issue certificates without a hearing where it considers it advisable to do so, and, as we have already noted, the Board need not have regard for a build-up of the work force after the application is made. Technically, a union may conclude a collective agree­ment even though there are no employees at the time it is entered into (see section 121), al­though as a practical matter, if there are no employees, there may be no bargaining leverage to induce an employer to do so.

11. The present application for certification is one of a series of similar applications made in respect of the respondent's road building operations in various parts of Northern Ontario. This application was made on November 9, 1983, which, we are told, was a couple of days after the start of the hunting season in and around North Bay. The employer submits that we should take into account the importance of the hunting ethos in Northern Ontario com­munities, which prompts some employees to take time off at this time of the year to engage in such activity. The employer argues that those employees who were not at work because they were off hunting should really be treated as employees in the bargaining unit despite the Board's established practice in that regard.

12. We do not accept the respondent's submission. Given the inherent instability, un­certainty, and ephemeral nature of employment in the construction industry, it would add yet another element of complexity and uncertainty if the parties and the Board had to take into account and weigh the multitude of possible reasons why an individual would not be at work for a particular employer on a particular day. No union or employer would ever know who should be included on the list submitted with the employer's reply. The issue could only be resolved after an enquiry before the Board, by which time the picture would probably have changed again. Such approach would not further the orderly and expeditious processing of construction industry certification applications in which, we repeat, time is of the essence. The Board's existing practice is neutral, easy to understand and administer, and has been applied without difficulty for more than thirty years. In particular cases it may benefit a trade union or employer but, overall, we think it is a sensible and workable compromise which is much preferrable to the alternatives. This is not to say that a concern for the consequences of a particular interpretation can confute the clear meaning of a statute. However, where in a par­ticular context the statutory language does not give an unequivocal answer, it must be of real concern for the Board to consider which of the competing interpretations urged upon us is more consistent with the orderly resolution of certification applications and the promotion of rights dealt with in the Act. And, in so doing, we do not think we can overlook the fact that the Board's existing approach is of long-standing, well accepted in the labour relations com­munity, and provides an important element of certainty for all parties, despite the volatile en­vironment of the construction industry.

13. In the circumstances of this case, we are not persuaded that we should depart from the Board's usual practice in the construction industry of treating the "employees in the bar­gaining unit at the time the application is made" as including only those employees who were working on the application date. The employer's request for a revision of its employee lists to include persons "off hunting" on the application date is therefore rejected.

THE EMPLOYEE PETITION

14. In support of its application for certification, the trade union filed documentary evi­dence of membership on behalf of more than fifty-five per cent of the employees of the re­spondent in the above-mentioned bargaining unit. This documentary evidence took the form of membership cards, which include a combination application for membership and an at­tached receipt. These cards are each signed by the subject employee, and the receipts are countersigned by a witness ("the collector") and indicate that a payment of one dollar has been made to the union in respect of its membership fees. The one dollar payment is in the nature of consideration and confirms the act of signing. There is also a certificate of mem­bership, signed by a trade union official confirming that the individual is a member and has paid the required monthly union dues.

15. The documentary evidence is supported by a properly completed Form 80, Statutory Declaration, Construction Industry, attesting to its regularity and sufficiency. There is no al­legation of any irregularity in the form of this documentary evidence, nor is there any alleged impropriety in the manner in which it was solicited. Certainly there is nothing to call into question the "voluntariness" of the individual acts of signing or to suggest that, by so doing, the employees were not indicating their desire to be represented by the applicant union. The form and contents of this evidence are consistent with the requirements of section l(l)(l) of the Act and, as well, it meets the form and time limits prescribed pursuant to section 103(2)(j) of the Act. This documentary evidence, standing by itself, demonstrates that the union has a level of "membership support" well in excess of that required by section 7(2) of the Act for certification without recourse to a representation vote.

16. There was also filed with the Board a "statement of desire" or "petition" signed by a number of employees indicating that they wish to oppose the certification of the appli­cant. This petition included the names of certain individuals who had previously signed mem­bership cards and paid one dollar in respect of membership fees, and, therefore, were "members" of the union within the meaning of section 1(1)(l) of the Act. These individuals had had a purported change of heart, and now allegedly no longer wish to support the ap­plicant's certification. It was apparent that if the change of heart was a voluntary one so that the union's documentary evidence may not be fully reflective of the employees' subsequent or current wishes, the Board, in accordance with its usual practice, would exercise its discretion to order a representation vote to resolve the question of the applicant's certification. This is the course of action urged upon us by both the respondent employer and the employee ob­jectors. They argue that, in the circumstances of this case, the formalities required by the Act and the Board (writing, signatures, consideration, witnesses) are still insufficient to indicate the employees' real intentions — even though in a commercial context they might be quite suf­ficient to create binding and enforceable contractual obligations.

17. "Statements of desire" (see Form 78), usually in the form of a "petition", are not regulated by the Act as directly or precisely as union membership evidence. There is no sta­tutory definition equivalent to section 1(1 )(l), nor is there any requirement for a monetary pay­ment, in the nature of consideration confirming the act of signing. There is no statutory declaration similar to Form 80 attesting to the regularity and sufficiency of the membership evidence. Nevertheless, the existence of such statements appears to be contemplated by section 103(2)(j) of the Act and Rule 73 of the Rules of Procedure; and, in any event, the Board has a long-established practice of accepting such petitions and exercising its discretion to order a representation vote where: the petition is voluntary (as evidenced by testimony adduced in accordance with Rule 73 of the Rules of Procedure), and the petition contains the signatures of a sufficient number of persons who have previously signed membership cards that there is some doubt whether these "members" (in accordance with section 1(l)(l)) continue to support its certification.

18. The Board must be satisfied however, that when these union supporters sign the petition indicating an apparent change of heart, they were doing so voluntarily and were not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their employer, or could result in reprisals. It is for this reason that the Board undertakes the enquiry contemplated by Rule 73(5) of the Rules of Procedure, in order to satisfy itself from the circumstances of the origination, preparation, and circulation of the petition, that the document truly represents the voluntary wishes of those who signed

it. Rule 73 reads as follows:

73. -(1) Evidence of membership in a trade union or of objection by em­ployees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a dec­laration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,

(a) is accompanied by,

(i) the return mailing address of the person who files the evi­dence, objection or signification, and

(ii) the name of the employer; and

(b) is filed not later than the termination date for the application.

(2) No oral evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by em­ployees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection (1).

(3) Any employee or group of employees affected by an application for certification or by a declaration of termination of bargaining rights and desiring to make representations to the Board in opposition to the ap­plication may file a statement in writing of such desire in the form pre­scribed by subsection (1) not later than the terminal date for the application, but this subsection does not apply where the Board grants a request that a pre-hearing representation vote be taken.

(4) An employee or group of employees who has filed a statement of desire in the form and manner required by this section may appear and be heard at the hearing or, in the case of an application to which sections 87 to 99 apply, at any hearing directed by the Board, in person or by a representative.

(5) The Board may dispose of the application without considering the statement of desire of any employee who fails to appear in person or by a representative and adduce evidence that includes testimony in the per­sonal knowledge and observation of the witness as to,

(a) the circumstances concerning the origination of the statement of desire; and

(b) the manner in which each signature on the statement of desire was obtained.

[emphasis added]

The material portions of Rule 73 are also reproduced on the Form 78 Notice to Employees. The Notice specifically indicates, in bold letters, that the Board may dispose of the application without considering the statement of desire of any person who fails to attend and that "where employees fail to attend in person or by a representative or to testify or produce witnesses to testify [concerning the origination of the material filed and the manner in which each of the signatures was obtained], the Board normally does not accept the statement of desire as casting doubt on the evidence of membership filed by the applicant". It should have been clear, therefore, that if the objecting employees did not appear to provide the supporting evi­dence contemplated by Rule 73(5), the Board would likely decide not to give any weight to the statement in opposition to the union's certification.

II

19. As we have already noted, the present case is one of a series of certification ap­plications filed by the union in respect of the respondent's operations in northern Ontario. The applications respecting its Renfrew projects were filed on November 2, 1983. The present ap­plication affecting North Bay (Board area #16) was filed on November 9, 1983, and on No­vember 10, 1983, the union filed a companion application affecting the Sudbury area (Board area #17). In both the North Bay and Sudbury cases employee petitions were filed, and in both cases the petitioners were represented by the same counsel. Rather than having two cases with the same parties and counsel proceeding separately before two different panels of the Board, it appeared more convenient, and the parties agreed (the union reluctantly), that both matters would be dealt with sequentially by a single panel of the Board beginning with the Sudbury case. The Renfrew cases were resolved by the agreement of the parties that there should be a representation vote.

20. The remaining cases were set down for hearing in December, but counsel for the employer advised that he would be in hospital on the day fixed for hearing. He requested an adjournment. Although the union was seriously concerned about the consequent delay, it was prepared to accommodate counsel and agreed to adjourn on the stipulation that the case would come back on for hearing as soon as possible. This was acceptable to counsel for the re­spondent and January 3rd and 11th were set aside as the dates upon which the hearing would resume. The union's worry, of course, was that given the volatility of the work force, it could be seriously prejudiced by the passage of time, even if it was ultimately successful in getting certified. A certificate would have little practical meaning if, by the time it was issued, the union's membership base had been eroded as the respondent acquired a new work force for the 1984 construction season. These concerns prompted the union to reject a subsequent re­quest for a further adjournment because the owner of the respondent planned to be on vacation in January and would be unavailable to instruct counsel either in respect of the petition issue or the composition of the bargaining unit about which there remained some dispute despite the earlier agreement on its description.

21. The question concerning the composition of the bargaining unit was also related to the unique employment characteristics of the construction industry. Because of the fluctuating levels of employment and the periodic transfer of employees in or out of the geographic area to which the certification application applied, there was some problem in determining who, in fact, was in the unit on the application date. The resolution of this issue required the pro­duction and examination of the respondent's employment records, as well as some discussion between the parties and independent investigation. This inquiry could not take place while the owner was away, and there were some difficulties arranging meetings to settle the employee list.

22. The hearing on January 11th was scheduled for Ottawa (rather than Toronto) in or­der to facilitate the presence of witnesses. The respondent and the objecting employees both submitted that the case should not proceed, and the Board should not embark upon a con­sideration of the petition until the final composition of the bargaining unit had been settled. There was a possibility that the petition would turn out to be irrelevant because the union would be in a "vote position" in any event (i.e., its membership support would be insufficient to warrant automatic certification, so that there would necessarily be a representation vote quite apart from the effect of the petition). The respondent and the petitioners were content to have the certification application resolved by a representation vote, and argued that it would be a waste of time to inquire into the petition when there was a possibility that it might later be shown to have been unnecessary. They argued that the proceedings should be adjourned until the necessary record checks could be completed, and the parties (or the Board if necessary) had determined the precise number of employees in the unit.

23. The union strenuously resisted any further delay, pointing out that it had already sought to accommodate the respondent and that the owner's vacation plans should not have interfered with the finalization of the employee list. The union argued that there was a real likelihood that the petition would be relevant (as turned out to be the case in both applications) and that, if the inquiry was postponed, the final disposition of this application could take ad­ditional weeks or months. Meanwhile~ the union's support would be melting away and with the approach of the new construction season there might be a substantially different work force. The union proposed that the finalization of the employee list and the inquiry into the petition should proceed in tandem, even though the evidence respecting the petition might later turn out to be unnecessary.

24. The Board agreed. There had already been considerable delay in the processing of these applications, there was a real likelihood of prejudice if there was any further delay, and the balance of convenience clearly favoured the mode of procedure proposed by the union. The Board ruled that it would schedule hearings for the purpose of considering the petition (i.e., the evidence contemplated by Rule 73(5)) while, at the same time, a Board Officer would meet with the parties in an effort to settle the list of employees in the unit. In retrospect, that was the correct decision. As it turned out, in each case the petition proved to be relevant, in the sense that the union had sufficient support to warrant certification without a represen­tation vote, but if the petition were voluntary, the Board would ordinarily exercise its dis­cretion to seek the confirmatory evidence of a vote.

25. The other matters canvassed at the hearing on January 11th were the dates and lo­cations of the subsequent hearings. The Board heard representations concerning the availability of counsel, the availability of witnesses, and the desirability of holding the hearings in Sud­bury, or North Bay, or Ottawa, or Toronto. Each location posed certain difficulties for counsel or the parties in one case or the other. Counsel for the objecting employees indicated that he had personal reasons (an impending birth) for not wanting to be away from Toronto on a num­ber of the proposed hearing dates. Counsel for the union indicated that, if it would expedite matters, he would make himself available in Toronto with all of the union's witnesses on any dates that the Board should choose to schedule. Having heard these submissions, the Board determined that the hearings should be continued in Toronto and several days were set aside for the purpose of completing the evidence in both cases. Meanwhile, the parties would pur­sue the other issue with the assistance of a Labour Relations Officer. It was clear, however, and the Board expressly ruled, that it would carry on with the inquiry into the two petitions unless and until it was affirmatively demonstrated that such inquiry would be unnecessary. The evidence respecting the petition in the Sudbury file was completed on February 16, 1984. The next hearing day was March 8, 1984, when it was anticipated that the Board would begin its inquiry into the North Bay petition.

26. In the days preceding the hearing of March 8, 1984, the Officer completed his check of the employee records, and on the morning of the hearing the count was finalized. The union had sufficient support (i.e., more than fifty-five per cent) among the employee group to war­rant automatic certification so, as the Board had anticipated, the petition could be relevant to the discretion to direct a representation vote. It was therefore necessary to undertake the in­quiry contemplated by Rule 73(5) as the Board had earlier done in respect of the petition in the Sudbury case. Accordingly, the Board turned to counsel for the objectors to call their wit­nesses and give evidence concerning the origination, circulation, and preparation of the pe­tition document.

27. Counsel for the petitioners advised the Board that he had no witnesses to call at this time. He had spoken to his clients a couple of weeks before the hearing, and they had indicated to him that they had no wish to appear until they were positive that their testimony would be necessary. They were no longer working for the respondent. They were no longer working at all. They expressed a concern about the travel and legal costs which their con­tinued participation in the proceeding might entail. Counsel further advised the Board that his clients had learned about the mechanics of the hearing as a result of the Sudbury case, where there also was a petition. They were by no means sure that they wanted to take part in this case and subject themselves to cross-examination. They wanted time to examine their position and decide whether they would continue their participation in this proceeding. Counsel in­dicated that if they chose to do so, the inquiry could continue in April on the days already set aside and on such further days as were necessary.

28. This request for an adjournment came as a surprise to the other parties, and par­ticularly the trade union. Counsel for the trade union had contacted counsel for the objectors in the week prior to the hearing to determine whether the union's case would be reached in the first day, so that it should have its witnesses present. Counsel for the union was advised that there were potentially four witnesses on the North Bay petition, and on the strength of that comment, he assumed, not unreasonably, that the petitioners' case would consume the day, and it was unnecessary for him to have the union's witnesses present. Of course, counsel for the union and the respondent were themselves present, together with their advisers, on the day fixed for the hearing. Neither anticipated a request for an adjournment, nor had there been any request to change the location of the hearing. The union argues that the objectors are simply flouting the Board's procedural ruling, and it is no answer to say that there are other days on which the hearing can proceed. The whole purpose of the Board's ruling respecting the mode of procedure was to get on with the case on the assumption, which turned out to be correct, that the petition could very well be relevant. Nor is it sufficient for the petitioners' counsel to say, as he did at the hearing, that he did not think there was any obligation to "tip his hand" prior to the hearing itself. That may be so; but it is a little inconsistent for the objectors to complain about the possible costs of litigation while at the same time the union and the employer are put to the cost of appearing to deal with an issue with which the pe­titioners themselves are not prepared to proceed and which they may, upon reflection, decide not to pursue.

29. The Board is not a court, and in some respects the evidentiary and procedural for­malities have been relaxed. But they have not been eliminated altogether. When the Board prescribes a mode of procedure and sets a hearing to deal with specific issues, the parties expect, and should be entitled to expect, that the hearing will proceed with those issues on that date unless there are proper grounds for an adjournment — preferably raised prior to the hearing in order to minimize the cost. A party cannot stand aside, silent, then unexpectedly say, in effect, "I will not proceed on the day fixed for hearing. I do not want to become involved unless the evidence will be decisive and I didn't know that until today. Moreover, I still want to think about whether I want to participate at all". We doubt whether that sub­mission would be accepted by a court, and we certainly do not think it can be accepted by this Board — particularly when the result is a wasted day, costs thrown away, and more delay in a proceeding in which delay inevitably prejudices the applicant's position. If the circum­stances here were sufficient to derail a Board proceeding and postpone the hearing, few cases would ever proceed with certainty to an expeditious conclusion. In our view, the observations of Laskin, J.A. (as he then was) in Hotel and Restaurant Employees and Bartenders Inter­national Union et al. v. Nick Masney Hotels Ltd., 70 CLLC ¶ 14,020 are particularly apposite to the circumstances of this case:

The Ontario Labour Relations Board deals in certification matters with fluid situations which cannot be judged by the more leisurely standards that operate in the prosecution of a claim for damages for a tort or for a breach of contract where the situation is fairly well frozen when the tort or the breach of contract has occurred. Expedition is important to a union, to employees and to an employer since the certification is merely the first step in an often labourious collective bargaining process. When, as here, adequate notice has been given of a hearing date and an op­portunity afforded to make representations, the failure of a party to secure an agreement for an adjournment where it has not been misled by another party to that other's advantage and where the Board has stood above the negotiations and has properly followed its own rules, fashioned for the protection of all parties, there is no denial of natural justice to support a successful resort to certiorari against the Board.

30. These comments apply with equal force to the circumstances of the instant case. The objectors had notice of the hearing. They had notice of its purpose: to give them an op­portunity to lead evidence respecting their petition. They knew that such evidence was p0­tentially relevant. They knew that similar evidence was led in respect of the Sudbury petition. They also knew (or ought to have known) that a failure to appear at the hearing to give their evidence would result in the Board declining to give their petition any weight. Not only are they represented by counsel, who would presumably advise them of the Rules, but also the material portions of Rule 73(5) were reproduced in bold letters on the original Notice to em­ployees of the application. Yet, on the day of the hearing, they have not appeared and have instructed their counsel to seek an adjournment while they consider their position and con­tinued involvement in this proceeding. The request is denied. We are not satisfied that this is sufficient reason for an adjournment which will further postpone the resolution of this ap­plication. There being no one present on the day fixed for hearing to tender the evidence con­templated by Rule 73(5), although the opportunity to do so was extended, the Board is satisfied that it should proceed on the basis of the evidence before it.

31. Having regard to the totality of the evidence before it, the Board finds that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on November 21, 1983, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

32. A certificate will therefore issue to the applicant union for the bargaining unit set out in paragraph 6 above.

33. The concurring opinion of Board Member W. H. Wightman will follow.