[1986] OLRB Rep. September 1252
0911-86-U; 0998-86-U; 0868-86-U The Metropolitan Plumbing and Heating Contractors Association, a division of the Mechanical Contractors Association Toronto, Frank Michelucci, Derwent Lewis, and Jack McCarron, Complainants, v. Sean O'Ryan; The United Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry of the United States & Canada, Local 46; Metropolitan Plumbing Contractors Association; Urban Mechanical Contractors Limited; Zentil Plumbing and Heating Co. Ltd.; Lou Pupolin Plumbing & Heating Co. Ltd.; Brady & Seidner Ltd.; DiMarco Plumbing & Heating Co. Ltd.; Keele Plumbing & Heating Ltd.; Municipal Plumbing & Heating Ltd.; Cesan Mechanical Systems Ltd.; D. Zentil Mechanical Ltd., Respondents; Metropolitan Plumbing and Heating Contractors Association, a division of the Mechanical Contractors Association Toronto, Applicant, v. Sean O'Ryan; The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46; Urban Mechanical Contractors Limited; Zentil Plumbing and Heating Co. Ltd.; Lou Pupolin Plumbing & Heating Co. Ltd.; Brady & Seidner Ltd.; DiMarco Plumbing & Heating Co. Ltd.; Keele Plumbing and Heating Ltd.; Municipal Plumbing & Heating Ltd., Respondents
BEFORE: Harry Freedman, Vice-Chairman and Board Members D. A. MacDonald and N. Wilson.
APPEARANCES: G. Grossman, W. J. McCarron and D. Lewis on behalf of the complainants/applicant; M. E. Geiger, Howard Roher, Edward I. Winter and Martin Rosenbaum on behalf of Metropolitan Plumbing Contractors Association, Urban Mechanical Contractors Limited, Zentil Plumbing and Heating Co. Ltd., Lou Pupolin Plumbing and Heating Ltd., Keele Plumbing and Heating Ltd., DiMarco Plumbing and Heating Co. Ltd.. Municipal Plumbing and Heating Ltd., Cesan Mechanical Systems Ltd., D. Zentil Mechanical Ltd.; L. C. Arnold and V. McNeil on behalf of Sean O'Ryan and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46; no one appeared on behalf of Brady & Seidner Ltd.
DECISION OF THE BOARD; September 18, 1986
- These consolidated complaints and application for consent to prosecute arise principally cut of conduct that the parties allege violated sections 131(1) and 132 of the Labour Relations Act. Sections 131(1) and 132 provide in part:
"131(1) No trade union...that has bargaining rights for employees of employers represented by an accredited employers' organization and no such employer or person acting on behalf of such employer, trade union….. shall, so long as the accredited employers' organization continues to be entitled to represent the employers in a unit of employers, bargain with each other with respect to such employees or enter into a collective agreement designed or intended to be binding upon such employees and if any such agreement is entered into it is void.
- An accredited employers' organization, so long as it continues to be entitled to represent employers in a unit of employers, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employers in the unit, whether members of the accredited employers' organization or not."
[emphasis added]
At the hearing on September 8, 1986, the Board received full submissions on a preliminary issue raised by counsel for the corporate respondents relating to whether this panel of the Board should find as a matter of law, that the Board erred in law and exceeded its jurisdiction when it issued an accreditation decision and certificate to the Metropolitan Plumbing and Heating Contractors Association, a division of Mechanical Contractors Association Toronto, in April 1973. Since both section 131(1) and 132 require a determination of whether there was at times material to this matter "an accredited employers' organization [that was] entitled to represent employers in a unit of employers", a finding by the Board that the accreditation decision and certificate was issued as a result of errors of law or jurisdiction and was therefore of no force or effect at the times material to this matter, would result in the dismissal of the complaints and application.
After receiving the submissions from counsel for the corporate respondents, the hearing adjourned. The next morning, counsel for Sean O'Ryan and Local 46 had no comments to make op the submissions. The Board did not call on counsel for the complainants/applicant who rely on the validity of the accreditation decision and certificate to reply to the submissions and delivered the following decision orally at its hearing on September 9, 1986:
Mr. Geiger, counsel for the corporate respondents, by letter filed with the Board on September 5, 1986 raised allegations that, counsel claimed, demonstrated that the Board (differently constituted) acted beyond its jurisdiction when it granted an accreditation certificate to the Metropolitan Plumbing and Heating Contractors Association, a division of Mechanical Contractors Association Toronto by decision dated April 5, 1973, in Board File No. 1339-71-R.
At the commencement of the continuation of the hearing in this matter on September 8. 1986 the Board received submissions from all counsel on how to proceed with the allegations raised. All counsel agreed that the complaints and application before us in this proceeding rested on whether the Metropolitan Plumbing and Heating Contractors Association, a division of Mechanical Contractors Association Toronto was an accredited employers' organization entitled to represent employers in the unit of employers described in the certificate of accreditation. While the Board had already decided in an earlier decision in this matter dated July 18, 1986 that it would neither determine the actual geographic scope of the bargaining unit for which the accredited employers' organization received bargaining rights in 1973, nor what exactly the accredited employers' organization is as preliminary matters, Mr. Geiger's allegations went further by asserting that the accreditation certificate and decision of 1973 was a nullity or was void. Counsel submitted that the determination of that issue, that is, whether the Board's decision of April 1973 was a nullity or void ought to be dealt with as a preliminary matter because that issue, if determined in the way sought by Mr. Geiger, would be dispositive of the matter before us. Following the submissions of counsel on the procedural point, the Board ruled orally:
"Having regard to the preliminary submissions made by counsel, and what appears now to be the agreement of counsel, the Board will receive, as a preliminary matter, the evidence and submissions of the parties with respect to:
(i) whether the Board should permit any party in this proceeding to challenge the validity of the accreditation decision and certificate issued by the Board on April 5, 1973 in Board File No. 1339-71-R and
(ii) assuming that the Board will permit the challenge to be made, whether the accreditation decision and certificate granted to the accredited employers' organization the right under the Labour Relations Act to represent the employers in the unit of employers."
We note that while counsel for the complainant/applicant agreed to the Board dealing with the first issue, he did not agree that the Board should consider the second issue as a preliminary matter. Nevertheless, the Board entertained Mr. Geiger's submissions for the balance of the hearing day on September 8, 1986.
Mr. Geiger submits that the Board has the authority under section 106(1) of the Act to decide all questions of fact or law that arise in any proceeding. He submits that he is not seeking to have this panel of the Board reconsider the decision of the panel that granted the accreditation certificate and expressed serious reservations about this panel's ability to act in that capacity. Counsel referred us to the decision of the Board in The Greater Niagara General Hospital case , [1972] OLRB Rep. May 544.
Counsel submitted that the Board functions in a judicial like way and in making determinations of the factual and legal issues that arise in any case before it, must decide those issues in a way similar to the way in which the courts determine legal and factual issues. See Rapid Ready Mix Limited [1985] OLRB Rep. Jan. 104 at para. 6-9. Counsel argued that the validity of the accreditation order is a legal issue before this panel of the Board that the Board must address in determining the merits of this case. Counsel submitted that this panel would not be acting as an appellate panel but rather would be examining the decision and record of the Board in the accreditation proceeding to determine whether errors of law on the face of the record or jurisdictional errors had been committed by the Board in that case. That process of review would be similar to the review process undertaken by the Divisional Court in an application for judicial review except that this panel's consideration of the legal issues raised would not be limited by the privative clause that limits the scope of the Divisional Court's review of Board decisions to jurisdictional error.
Counsel submitted that the Board's decision of April 1973 contained patent jurisdictional errors. Without setting out the nature of the errors claimed, suffice it to say that the errors that counsel submits the Board made are only apparent from an examination of the filings made by the parties and the employers who submitted employer returns in the accreditation proceeding. The Board's decision itself does not, in our opinion, disclose on its face any errors of jurisdiction or law. Those alleged errors of jurisdiction or law only become patent by reviewing the material in the Board's file of that matter.
For purposes of this decision, we assume that the Board in 1973 issued an accreditation certificate in respect of the geographic area and sector described in that certificate based in large part upon employer filings that indicated that the majority of the employers and employees in respect of whom the necessary determinations had to be made were not working in the area and sector described in the bargaining unit found by the Board to be appropriate. The Board's consideration of those employers and employees when it decided to grant the accreditation certificate, counsel submits, created a jurisdictional error that must result in our determination that the accreditation certificate and decision is a nullity.
While counsel does not say that he is asking us to reconsider that previous panel's decision, he wants this panel of the Board to find that the decision of a previous panel, as a matter of law, is a nullity. It seems to us that the practical effect of counsel's submission, if successful, is for this panel to revoke the decision made by a previous panel of the Board.
In the circumstances of this case, we are not prepared to accede to counsel's request, even assuming that the Board's decision was made as a result of both errors of law and jurisdiction.
The decision of April 1973 created a bargaining structure in the residential sector of the construction industry. That structure had been in place for more than 13 years when the dispute that gave rise to this proceeding began. That structure existed and exists because of the accreditation certificate. None of the persons Mr. Geiger represents who had notice of that accreditation proceeding chose to challenge the validity of that decision when it was issued in 1973. There are also other persons that Mr. Geiger represents who subsequently became subject to that accreditation certificate that chose not to challenge the validity of that decision when they first became bound by it. Several rounds of collective bargaining have taken place pursuant to that accreditation certificate. Therefore, we do not believe that it is appropriate for parties now, by way of this proceeding, to attempt to have the Board in effect revoke the accreditation order made by the Board in 1973.
We believe that a certificate of accreditation must be viewed as conclusively establishing the granting of bargaining rights pursuant to section 106(1) of the Labour Relations Act until that certificate is revoked or quashed. Even if the certificate was issued as a result of a misapprehension of the law or of the evidence presented to the panel of the Board that decided to grant it or both, the need for certainty and stability in labour relations militates against subsequently questioning the validity of the bargaining rights created by the certificate in another proceeding in which the existence of those bargaining rights is an issue, albeit an important issue.
If a person affected by a certificate of accreditation issued by the Board wishes to question its validity, that person should do so in the proceeding that gave rise to the certificate or in some other forum.
Furthermore, while our approach to disposing of this issue is akin to the approach of a panel of the Board being asked to reconsider one of its own decisions, we also expressly reject counsel's submission that this panel of the Board should determine whether a previous Board decision of another panel in a different proceeding was correct in law or made within its jurisdiction as part of its authority to determine issues of law in this proceeding.
In Knight Security Guards Limited, [1970] OLRB Rep. June 377 at 380, the Ontario Court of Appeal determined that while the Board's interpretation of the Labour Relations Act was incorrect, that error was not reviewable. After the court's decision, a party sought reconsideration of the original decision that had not been quashed on the grounds that the Board erred in law in misinterpreting the Labour Relations Act. That party also sought to have a panel of the Board different from the one that originally heard the case deal with the matter. In rejecting that request, the Board wrote at paragraphs 9 and 10:
..9 The decision dated September 17th, 1968 is not merely the decision of a division of the Board which heard the case but is, in fact, the decision of the Board. It is trite to say that the jurisdiction conferred by section 79(1) (now section 106(1) of the Act, whereunder the Board may reconsider any decision, must be exercised by the division which is seized of the matter. The very act of reconsideration contemplates that the matter will be considered again by the division which considered the matter the first time. If section 79(1) (now section 106(1)) contemplated that a decision of one division could be reviewed by another division of the Board, the Act would have provided for review rather than reconsideration.
- The Board has never adopted the practice of having one division of the Board to sit in appeal on decisions of another division. In our view, the Act is not broad enough to permit the Board to set up an appellate division in the manner suggested by the applicant in this case."
It appears to us that Mr. Geiger's submission that the Board, as a matter of the exercise of jurisdiction under section 106, can determine that another panel of the Board erred in law or jurisdiction in issuing a certificate, runs squarely into the view that one panel of the Board ought not to act as a review or appellate panel over another panel of the Board.
Section 106(1) of the Act states:
“The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling."
[emphasis added]
In our opinion, the Board's decision of April 1973 was "final and conclusive for all purposes", when it granted the employers' organization bargaining rights in the unit described in the accreditation certificate. That decision remains in effect until revoked or quashed. We do not think it is appropriate to exercise the kind of review power, even assuming we have it, that Mr. Geiger contends we ought to exercise to find that the accreditation certificate is a nullity or is void, or was made without jurisdiction.
If Mr. Geiger was seeking reconsideration or revocation of that decision, we would decline to exercise our discretion to do so, assuming that this panel could revoke a decision of another panel of the Board, for the reasons expressed earlier. Therefore, the Board will continue to rely on the certificate of accreditation as validly creating bargaining rights until such time as that decision is revoked or quashed by an appropriate tribunal.
- The Board made the following evidentiary ruling during its hearing on September 9, 1986:
During the testimony in chief of Jack McCarron, director of labour relations of Mechanical Contractors Association Toronto, the Board expressed a concern over hearing evidence relating to conversations with a mediator. During the discussions with counsel about that concern, it became apparent that a great deal of evidence about discussions and meetings where a mediator was present or participated would attempt to be introduced.
Section 111 of the Act provides that information received by or furnished to a mediator in the course of attempting to effect a collective agreement shall not be disclosed, and further that a mediator is neither competent nor compellable as a witness in respect of the information or statements given to or made by him in attempting to effect a collective agreement.
It is apparent to us that the legislature recognized that the efforts made by a mediator to effect a collective agreement would be seriously hampered or be made ineffective if mediators were required to disclose what took place in bargaining. That is accepted, and no party suggests that the mediator should be called to give evidence in this proceeding. However, the parties may wish to adduce evidence of what the mediator said to them and what they said to the mediator. In our view, conversations that took place with the mediator in the presence of both the union and the employer representatives to the extent that the evidence of the contents of those conversations is relevant, and is not hearsay, is clearly admissible. (See Shaw Almex Industries Limited. [1984] OLRB Rep. Jan. 109.
However, we are also satisfied that we ought not to permit any evidence of what a mediator may have said to either the employers or the union in the other's absence. To do so would lift the veil of confidentiality that section 111 creates for mediators when they endeavour to effect a collective agreement. Furthermore, a party could, with impunity, testify as to what a mediator told him in private knowing that such evidence could not be contradicted or tested since the mediator could not be called to give evidence about those statements. In our opinion, the inherent danger in letting a witness give evidence about what he was told by a mediator, since it cannot be tested, together with what we see as the purpose of section 111 of the Act causes us to refuse to admit evidence about what a mediator says to one party in the absence of the other.
We are also troubled about whether to admit evidence about what one party said to the mediator in private. The concern expressed by the Board in Shaw Almex Industries Limited, supra, at paragraph 16 is shared by us. The Board there stated:
“…….we do not accept the argument that testimony concerning one party's private conversations with a conciliation officer or mediator should be accepted in evidence as prima facie proof of what must have taken place between the mediator or conciliation officer and the opposite party. Apart from the doubtful logic and, in the case of statements by the mediator, the hearsay dangers involved in that approach, its adoption would completely undermine the confidentiality of such private conversations. One party's revelations would force the other party to reveal his version of what he said to the mediator. Both parties would then clamour for permission to call the mediator to resolve the inevitable inconsistencies. Even on a question (if relevant) of the party's mental state, any inference that might be drawn from the party's version of his conversations with the mediator is no more trustworthy than his direct statement of what he was thinking at the time, since the other participant in the alleged conversation is not a compellable witness. Reference to the conversation, therefore, adds nothing but further adverse pressure on the confidentially, and thence the efficacy, of the conciliation process.
However, we are satisfied that where the evidence of what was said to the mediator in private is relevant for some purpose other than proving that that communication was conveyed to or received by the other party, it is admissible, subject to it being relevant and not hearsay. The admission of such evidence would not, in our opinion, impinge on the purpose of maintaining confidentiality of mediation discussions aimed at effecting a collective agreement.
Similarly, we see no reason not to hear evidence about what the mediator did in the presence of one of the parties, save to the extent that his conduct is introduced for the purpose of proving that he communicated information to that party, and subject of course, to that evidence being relevant and not introduced for a hearsay purpose.