Ontario Labour Relations Board
[1986] OLRB Rep. May 635
0507-85-R; 0508-85-R; 0509-85-R; 0510-85-R; 0841-85-R; 0877-85-R International Union of Operating Engineers, Local 793, Applicant, v. Harnden & King Construction Ltd., Respondent, v. Group of Employees, Objectors
BEFORE: Harry Freedman, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.
APPEARANCES: S. B. D. Wahl and J. Slaughter for the applicant; Bruce Binning and Grant Robinson for the respondent; Peter M. Whalen for the objectors.
DECISION OF THE BOARD; May 15, 1986
The hearing in this matter reconvened before the Board on May 1, 1986. At the commencement of the hearing, the Board gave the parties copies of the memorandum the Board had received from the Labour Relations Officer that met with the parties pursuant to paragraph 28 of the Board's decision of April 22, 1986. The parties agreed that the Officer's memorandum correctly described the review of the files conducted by the Officer with the parties pursuant to that decision.
Counsel for the respondent then requested reconsideration of the Board's oral ruling made at its hearing on April 14, 1986, that was set out in its decision of April 22, 1986 in respect of Board File No. 0877-85-R. The Board, after hearing the submissions of counsel for the respondent and counsel for a group of objecting employees, delivered the following oral ruling. It was not necessary for the Board to hear from counsel for the applicant.
Counsel for the respondent requests reconsideration of the Board's oral ruling set out in its written decision of April 22, 1986 with respect to Board File No. 0877-85-R on the grounds that the employees affected were all on lay-off at the time the application was processed and notices to employees were posted. Counsel for a group of objecting employees also concurs in the request for reconsideration.
The application for reconsideration is hereby dismissed. That fact was before the Board and was considered by us in our first decision. The Board's oral ruling determined that the notice to employees were given in accordance with the Labour Relations Act and the Board's Rules of Procedure. That being the case, it is not open to the respondent and to counsel for a group of objecting employees who have had adequate notice throughout to complain about other employees not having had proper notice of this matter.
- Following that ruling, the Board proceeded to deal with the parties submissions with respect to the Labour Relations Officer reports, commencing with the report in Board File No. 0507-85-R. Counsel for the respondent sought to argue that the Labour Relations Officer report mistakenly stated that the parties had agreed to the exclusion of a particular person from the bargaining unit in Board File No. 0507-85-R. After hearing the submissions of all counsel, the Board recessed and then returned to deliver the following oral ruling:
The hearing in this matter convened to deal initially with the representations of the parties with respect to the Labour Relations Officer report in Board File No. 0507-85-R.
Counsel for the respondent, by letter dated April 18, 1986 wrote:
"Dear Sirs.
Re: International Union of Operating Engineers, Local 793, and Harnden & King Construction (Ontario) Ltd. and a Group of Employees BOARD FILE NO: 0507-85-R
We are Counsel to the Respondent Employer in the above-noted matter. in his Report dated November 6, 1985, the Labour Relations Officer notes that Clayton Elliott should be struck from the list (page 2, para. 6). We have no record or recollection of such an agreement, and consequently disagree with the Examiner's Report in that one respect.
Yours very truly,
Mathews, Dinsdale & Clark
Per:
Bruce W. Binning
BWB:ea
cc. Mr. G. Robinson
Mr. P. Whalen
Mr. S. WahI"
The Officer's report was issued on November 6, 1985. The Notice of Report of Labour Relations Officer (Form 68) permits representations to be made and provides in the second section of paragraph 2:
"If you desire to make representations as to the accuracy of the report, your statement of desire must contain a concise statement of your allegations as to errors in or omissions from the report."
[emphasis added]
The Notice of Report of Labour Relations Officer in Form 68 also required that those representations be filed in writing with the Board by November 15, 1985.
Paragraph 6 on page 2 of the Labour Relations Officer report provides:
"The parties agreed that #5 on Schedule "A" Clayton Elliott should be struck from the list as he does not fall within the scope of the agreed bargaining unit."
Counsel for the respondent, by letter dated November 13, 1985 wrote:
"Dear Sirs.
Re: International Union of Operating Engineers, Local 793, and Harnden & King Construction Ltd., and a Group of Employees
BOARD FILE NO: 0507-85-R
We are the Solicitors for the Respondent Employer in the above-noted matter and are in receipt of a Labour Relations Office's [sic] Report dated November 6, 1985. We confirm the accuracy of the Report and make the following cursory representations on the evidence of the witnesses contained therein.
Yours very truly,
Mathews, Dinsdale & Clark
Per:
Bruce W. Binning
BWB:ea
cc. Mr. G. Robinson Mr. P. Whalen Mr. S. WahI"
Counsel for a group of objecting employees by letter dated November 15, 1985 wrote:
"Dear Sirs:
Re: Harnden & King Construction (Ontario) Ltd. and International Union of Operating Engineers, Local 793 - Group of Employees - O.L.R.B. File No. 0507-85-R
We are in receipt of Board Officer Larry Stickland's report with respect to the above noted matter dated November 6, 1985.
We confirm its accuracy and further, wish to make submissions at a hearing of the Board.
Yours very truly,
Beard, Winter, Gordon
Per:
P. Whalen
cc. Mr. Louis Doucette
Mr. Bruce Binning
Mr. Barry McCracken
Mr. Stephen WahI"
Counsel for the respondent and counsel for the group of employees submitted at the hearing in this matter that the Officer erred in making the statement in paragraph 6 on page 2 of the report. Counsel for the respondent argued that that error only came to the respondent's and his attention recently, and on becoming aware of it, promptly filed his letter of April 18, 1986. Counsel submits that no such agreement was ever made, and further, that the applicant never challenged the inclusion of Mr. Elliott in the bargaining unit.
Counsel for the applicant submits that no error was made in the Labour Relations Officer's report. He argues that an agreement had been reached prior to the Officer's report issuing. In any event, counsel submits that it is simply too late to permit the respondent to raise the alleged error at this time.
One of the purposes of the written representations filed in response to a Form 68 Notice of Report of Labour Relations Officer is to define the issues in dispute between the parties. Those disputes can relate to the accuracy of the Labour Relations Officer report and to the conclusions the Board should reach in view of the report.
We assume, for purposes of this ruling, that the Officer erred when he wrote paragraph 6 on page 2 of the report because we did not hear any evidence on that factual dispute. Nevertheless, we are satisfied that there must be some certainty to the Board's process. It is inappropriate to permit a party, who in a timely fashion states that a Labour Relations Officer report is accurate, to take a contrary position six months after the date for filing representations and less than two weeks prior to the hearing scheduled to deal with the report.
In our opinion, the parties, although free to make submissions to the Board consistent with their written representations filed in response to Form 68, are not entitled to make submissions to the Board that are opposite to their written representations.
Therefore, the Board now finds that Clayton Elliott is struck from the list as he does not fall within the scope of the agreed to bargaining unit.
Counsel for the employees, after the Board made its oral ruling, asked the Board to note that he submitted during argument that he was not present when the agreement referred to in the Board's ruling was reached, if there was such an agreement reached. He did not submit that the Labour Relations Officer erred in his report.
Following the disposition of that issue, the parties agreed to submit written argument with respect to the Labour Relations Officer reports in Board File Nos. 0507-85-R, 0508-85-R, 0509-85-R, 0510-85-R, 0841-85-R and 0877-85-R.
The parties agreed that they would deliver three copies of the written argument to the Board and one copy to the other counsel by 3:00 p.m. on the following dates: Counsel for the applicant is to deliver written argument by May 9, 1986; counsel for the respondent and counsel for a group of objecting employees are to deliver written argument by May 20, 1986, and counsel for the applicant is to deliver reply written argument by May 26, 1986. Counsel for the respondent and counsel for a group of objecting employees advised the Board that they did not desire to reply to each others argument. The parties also agreed that no further oral argument will take place with respect to the Labour Relations Officer reports.
The parties further agreed that the hearing commencing on May 27, 1986, will relate to the voluntariness of the statements of desire filed in opposition to the applicant.
The parties also agreed that the Board would make its determination with respect to the issue of whether certain persons should be excluded from the bargaining units in these matters because they exercise managerial functions on the basis of only the Labour Relations Officer reports and the parties' written arguments. Evidence that the Board receives in relation to the voluntariness of the statements of desire in opposition to the applicant that might also be relevant to the issue of managerial exclusion will not be considered by the Board in making its determination as to whether certain persons in dispute exercise managerial functions.
The parties also agreed that the information in the Labour Relations Officers reports that is relevant to both the managerial exclusion issue and the issue of voluntariness of the statements of desire may be applied by the Board in determining the issue of voluntariness. However, any information that might be relevant to employees perception and therefore relevant only to the issue of voluntariness of the statement of desire contained in the Officer reports will not be relied on by the Board in determining the issue of voluntariness of the statement of desire in opposition to the applicant.
This matter will continue for hearing before this panel of the Board on May 27, 1985.