Sudbury Mine, Mill & Smelter Workers Union Local 598 v. Mansour Rockbolting Limited and Mansour Mining Equipment Supply and Repair Incorporated

[1985] OLRB Rep. May 699

3313-84-R Sudbury Mine, Mill & Smelter Workers Union Local 598, Applicant, v. Mansour Rockbolting Limited and Mansour Mining Equipment Supply and Repair Incorporated, Respondents, v. Group of Employees, Objectors

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members M. Eayrs and P. V. Grasso.

APPEARANCES: John B. Lang and Roland K. Gauthier for the applicant; Milad Mansour, Rose Mansour and Claude MacMillan for the respondent; Michel G. Landry for the objectors.

DECISION OF THE BOARD; May 3, 1985

1. This is an application for certification.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

3. At the hearing of this application, we were advised that the correct names of the respondents were: Mansour Rockbolting Limited and Mansour Mining Equipment Supply and Repair Incorporated, and the style of cause has been amended accordingly. We were also advised that the respondents carry on associated or related activities or businesses under common control or direction, and that the parties had agreed that the Board should grant the trade union's application under subsection 1(4) for a declaration that the Board treat the respondents as constituting one employer for the purposes of the Labour Relations Act. We so declare.

4. Having regard to the agreement of the parties, we find that:

all employees of Mansour Rockbolting Limited and Mansour Mining Equipment Supply and Repair Incorporated in the Regional Municipality of Sudbury, save and except supervisors, persons above the rank of supervisor, office and clerical staff,

constitute a unit of employees of the respondents appropriate for collective bargaining.

5. The respondent employers filed a list of employees in the bargaining unit showing a total of ten names. Two of those named were not at work on the application date. Both had been at work within the thirty day period prior to the application date, but neither had returned to work within the thirty day period following that date. Neither, therefore, fell within the scope of the Board's usual test in determining who were employees of the respondents on the date of the application. Accordingly, there were eight employees of the respondents in the bargaining unit on the date of the application.

6. The applicant trade union filed eight combination membership applications and receipts. The names on seven of those documents coincide with the names of employees of the respondents in the bargaining unit on the date of the application. Each of the documents indicates the Local is properly dated and bears original signatures which correspond with signatures on specimens provided by the employers. The documents also indicate the payment and receipt of $1.00, and bear the signature of a collector and the countersignature of the employee applicant. All of the applicant's membership evidence was delivered to the post office and tendered for registered mailing on March 28, 1985, the terminal date fixed for this application, was accompanied by a declaration in Form 9 signed by a responsible officer of the applicant attesting to the authenticity of the membership evidence.

7. On April 4, 1985, the Board received a handwritten statement of desire dated April 1, 1985, apparently signed by six of the employees in the bargaining unit on the application date. Their representative, Mr. Landry, had posted the document to the Board by registered mail on April 1, 1985. In his letter to Mr. Landry acknowledging receipt of this document, the Registrar noted that it appeared it had been mailed to the Board after the terminal date.

8. Subsections (1), (2) and (3) of section 73 of the Board's Rules of Procedure provide:

(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 filed the evidence, objection or signification, and

(ii) the name of the employer; and

(b) is filed not later than the terminal 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 (I) 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.

[emphasis added]

Mr. Landry attended at the hearing of this application on April 12, 1985, to explain the circumstances in which the statement of desire had been filed and to request that the Board extend the terminal date so that the statement of desire could be considered.

9. There was no serious dispute over the facts giving rise to Mr. Landry's request. Upon receiving the applicant's application for certification, the Board gave notice of the application of the respondent employers. The material sent to the respondents included copies of a Reply in blank, Schedules on which the respondents were directed to list the persons they employed as of the date of the application in the bargaining unit applied for by the applicant, several copies of a green Notice to Employees Application for Hearing Certification and of Hearing which the respondents were required to post immediately in conspicuous locations on their premises and a Return of Posting card by which the respondents were to advise the Board of the date of posting of the green notices. Those notices were posted between 12 noon and 1:00 p.m. on Friday March 22, 1985, and Return of Posting cards were completed and returned to the Board accordingly. On Tuesday March 26, 1985, Milad Mansour, the President of the respondents, spoke by telephone to an official of the Board. He said the company solicitor was out of town until the terminal date, March 28th and that the respondents could not complete and return their replies and schedules of employees by that date. The official in question is reported to have said that it would be satisfactory if the respondents' replies and schedules were mailed to the Board on Monday April 1, 1985. Two days after this conversation, Rose Mansour, the respondents' bookkeeper, had a morning meeting with the company's solicitor. After that meeting, she used a pen to alter by hand each of the posted Form 6 Notices by changing paragraph 3, which then read:

3. The terminal date fixed for this application as directed by the Board is the 28th day of March, 1985.

by stroking out 28th and March out with pen and writing in their place 01 and April respectively. It is not contended that this alteration was in any way authorized or suggested by any official of this Board. Rose Mansour simply and mistakenly thought that the change should be made as a result of the telephone conversation of March 26th. For the purpose of dealing with the question of an extension of the terminal date, the applicant trade union did not dispute Ms. Mansour's good faith in this respect.

10. Mr. Landry's testimony was that the steps leading to the mailing of the statement of desire had not been completed until April 1, 1985, because he believed he had until that date to do so. He based that belief on the fact that Notice had been altered to show the terminal date as April 1, 1985. It emerged, however, that Mr. Landry had actually seen Rose Mansour alter the form. He knew it was she, and not any official of the Board, who had made that alteration on the Board's form. He testified that he had no idea why Rose Mansour changed the form. He made no effort to determine whether the change was authorized by the Board.

Although Mr. Landry was not entirely sure about the dates on which various things occurred, two things were clear. First, it was clear that he had read the unaltered form prior to the date on which it was altered. The second was that, although he said he discussed the pros and cons of having the trade union prior to March 28th, it was not until after the form was altered that Mr. Landry had any discussion with any other employee about the signing of a statement of desire. His first meeting with fellow employees for that purpose was the following day, March 29th, during the lunch hour, and the document in question was not actually prepared until the following Monday, April 1st.

11. Subsection 7(1) of the Labour Relations Act requires that we ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who are members of the trade union at such time as is determined under section 103(2)0). Section 103(2)0) provides:

(2) Without limiting the generality of subsection (I), the Board has power,

(j) to determine the form in which and the time as of which evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees trade union shall be presented to the Board on an application for certification or for a declaration terminating bargaining rights, and to refuse to accept any evidence of membership or objection or signification that is not presented in the form as as of the time so determined;

12. When an application for certification is made, the Registrar initially fixes a terminal date for the application, which section 2 of the Board's Rules of Procedure requires be between six and eleven days after the day on which notices of the application are mailed to the employer. Time is of the essence in labour relations matters, and the Board's general practice is to fix an early terminal date. The Board's constant practice is to select the terminal date as the date determined under section 103(2)0). The provisions of section 73 of the Rules apply equally to an applicant trade union and to objecting employees. As the provisions of Form 6 make clear to the latter, the Board will make its determination on the basis of the written evidence submitted by that date. It is important that that be a firm date. The Board will extend that date if employees have not had adequate notice of it. The Board has had occasion to consider the adequacy of notice on many occasions: see, for example, Hostess Food Products Limited, [1980] OLRB Rep. May 710 and the cases referred to therein. The notice in this case had been posted for a full five working days by the time the alteration was made. We are satisfied that that was more than adequate notice to employees, and reject Mr. Landry 's argument that the terminal date should be extended merely because, in his view, the employees needed more time to think about whether or not they wished a union.

13. Did the employer's alteration of Form 6 warrant an extension of the terminal date? In our view, it did not. The employees had clear notice that March 28, 1985, had been set as the terminal date for the application. The form went unaltered from March 22nd, when it was posted, to March 28th when it was altered. The alteration was made by hand. Even an employee who had not seen Rose Mansour make the alteration, as Mr. Landry had, would have had no reason to suppose that the Board had changed the terminal date. Accordingly, at the hearing of this matter we ruled orally that there were in this case no circumstances which we considered would justify an extension of the terminal date.

14. The Board is satisfied on the basis of all the evidence before it 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 March 28, 1985, 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.

15. A certificate will issue to the applicant.