[1986] OLRB Rep. July 951
0376-86-R; 0389-86-R Labourers' International Union of North America, Ontario Provincial District Council, Applicant, v. Elgin Construction Company Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Harry Freedman, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballenttne.
APPEARANCES: L. A. Richmond, D. Randall and J. MacKinnon on behalf of the applicant; Richard J. Charney and Robert Nioli on behalf of the respondent; Mike Gregory on behalf of the group of employees.
DECISION OF THE BOARD: July 11, 1986
These are two applications for certification filed under the construction industry provisions of the Labour Relations Act. The application in Board File No. 0376-86-R was filed on May 6,1986 and the application in Board File No. 0389-86-R was filed on May 7, 1986.
The Board listed these two applications for hearing in view of the statements of desire that were filed in opposition to the applications. Prior to the scheduled hearing, the Board also authorized a Labour Relations Officer to inquire into and report back to the Board on the list and composition of the bargaining unit in each application.
The applicant and the respondent met with a Labour Relations Officer and agreed upon the bargaining unit description in respect of each application. They also reviewed the lists of employees and reached partial agreement on those lists.
These applications for certification relate to the industrial, commercial and institutional sector of the construction industry and are made pursuant to section 144 of the Act.
The Board finds that Locals 183, 247, 491,493, 506, 527, 597, 607, 625, 837, 1036, 1059, 1081, and 1089 of the Labourers' International Union of North America and the Labourers' International Union of North America Ontario Provincial District Council are trade unions within the meaning of section l(l)(p) of the Labour Relations Act. The Board further finds that they are constituent trade unions of the applicant.
The Board further finds that the applicant is a council of trade unions within the meaning of section 1(1)(g) of the Labour Relations Act.
The Board is satisfied that the constituent trade unions of the applicant have vested appropriate authority in the applicant to enable it to discharge the responsibilities of a bargaining agent within the meaning of section 10(1) of the Labour Relations Act.
The Board also finds that the applicant is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on September 6, 1978, the designated employee bargaining agency is the Labourers' International Union of North America and The Labourers' International Union of North America Ontario Provincial District Council.
At the hearing of this matter, Mike Gregory, a representative of the group of objecting employees agreed to the agreements reached between the applicant and the respondent with respect to the description of the bargaining unit in each application and the lists of employees in the units. Mr. Gregory advised the Board that he was only concerned about the statements he filed in opposition to the application.
In Board File No. 0376-86-R, the Board finds, having regard to the agreement of the parties, that all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the province of Ontario and all construction labourers in the employ of the respondent in all other sectors of the construction industry in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township) and The County of Wellington, save and except non-working foremen and persons above the rank of non-working foreman constitute a unit of employees of the respondent appropriate for collective bargaining. In Board File No. 0389-86-R, the Board finds, having regard to the agreement of the parties, that all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the province of Ontario and all construction labourers in the employ of the respondent in all other sectors of the construction industry in the Counties of Oxford, Perth, Huron, Middlesex, Bruce, and Elgin, save and except non-working foremen and persons above the rank of non-working foreman constitute a unit of employees of the respondent appropriate for collective bargaining.
Counsel for the respondent advised the Labour Relations Officer that he wished to argue that six employees who were at work in the bargaining unit in Board File No. 0376-86-R on the day that application was filed ought not to be considered as employees for purposes of determining the level of membership of the applicant among the employees in that bargaining unit. The Officer informed counsel and the Board advised the parties at the hearing that whether or not those six persons were included in the bargaining unit for purposes of the count, the applicant had as members at the relevant time more than fifty-five per cent of the employees in the bargaining unit. The statements of desire, if found to be voluntary, would cause the Board to exercise its discretion under section 7(2) of the Act to order a representation vote because a sufficient number of the applicant's members also signed the statements of desire so that the Board would be uncertain as to whether the requisite number of the respondent's employees continued to support the application for certification at the relevant time.
Similarly, in Board File No. 0389-86-R, the Board advised the parties that statements of desire may be relevant to the exercise of the Board's discretion, but that determination can only be made once the challenges to the list are resolved.
The Board was about to begin the inquiry into the statements of desire filed in opposition to the application when Mr. Gregory requested an adjournment. The Board received representations from the parties. As counsel for the applicant did not accept the factual assertions made by Mr. Gregory, Mr. Gregory testified. The only evidence adduced before the Board with respect to the request for the adjournment was given by Mr. Gregory. Following the submissions of the parties, the Board recessed and then returned and gave the following oral ruling:
Michael Gregory, a representative of a group of employees opposed to these applications for certification requested an adjournment of this hearing.
These are two applications for certification made under the construction industry provisions of the Labour Relations Act. The notices to employees in Form 78 that were posted state:
"4. Any employee or group of employees affected by the application and desiring to make representations to the Board in opposition to this application must send to the Board a statement in writing of such desire, which shall,
(a) contain the return mailing address of the employee or representative of a group of employees;
(b) contain the name of the employer concerned;
(c) be signed by the employee or each member of a group of employees.
Should the Board direct that a hearing of the application take place before the Board, any employee, or group of employees, who has informed the Board in writing of his or their desire in accordance with paragraphs 4 and 5 may attend and be heard at the hearing in person or by a representative. Any employee or representative who appears at the hearing will be required to testify, or produce a witness or witnesses who will be able to testify from his or their personal knowledge and observation, as to (a) the circumstances concerning the origination of the material filed, and (b) the manner in which each of the signatures was obtained.
If the Board determines that a hearing of this application is to be held, any employee or group of employees, who has informed the Board in writing of his or their desire in accordance with paragraphs 4 and 5 will be served with a notice of hearing in Form 79."
[emphasis added]
A hearing was scheduled as a result of the statements filed in opposition to the application. The statement that Mr. Gregory filed stated in part:
"The employees of Elgin Construction Company Limited 140 Burwell Road, St. Thomas, hereby show by the following signatures that we do not wish to be represented by the Labourers' International Union of North America."
The return mailing address on the envelope used to file the statement was "Elgin Construction 140 Burwell Road, St. Thomas".
The statement filed is not in the proper form because it does not comply with paragraph 4(a) of Form 78 since it did not contain the return mailing address of Mr. Gregory, the representative of the group of employees.
The Board's administrative staff acknowledged receipt of the statement in opposition by mailing a letter to the employee whose name and signature appeared first on a statement. That employee's address was not on the statement and the Board's staff obtained his address through other means.
That employee received actual notice of the hearing from the Board. He attended at the hearing but did not wish to participate and therefore did not appear on behalf of the group of employees. The respondent also received notice. No notice of hearing was sent to Mr. Gregory because the statement
he filed did not indicate that he was the employees' representative nor did it give his return address.
Mr. Gregory only found out about the hearing yesterday. He called the Board and was told that he did not get notice because there was no indication that he was the employees' representative.
The Board did not issue a notice of hearing in Form 79 to the employees of Elgin Construction. No notice was sent to any employees except for the first employee named on the statement in opposition. Paragraph 9 of Form 78 states:
"If the Board determines that a hearing of this application is to be held, any employee or group of employees who has informed the Board in writing of his or their desire in accordance with paragraphs 4 and 5, will be served of the notice of hearing in Form
79."
Had the Board issued a notice of hearing in Form 79 to the employees of Elgin Construction at the address indicated in the statement, Mr. Gregory would have received or been deemed to have received notice of this hearing. However, since no notice to employees of the hearing in Form 79 was posted or mailed to the address provided by Mr. Gregory in the statement, we are satisfied the Mr. Gregory did not have adequate notice of the hearing.
Mr. Gregory requested an adjournment to retain counsel. In our view, it would be unfair to Mr. Gregory to proceed with the hearing since he had less than one day's actual notice of the hearing, and therefore did not have an opportunity to retain or instruct counsel.
This hearing is hereby adjourned.
[Paragraphs 14-17 omitted: Editor]