[1986] OLRB Rep. January 6
1669-84-R Labourers' International Union of North America, Local 1059, Applicant, v. Brantco Construction, Respondent
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members I. M. Stamp and C. A. Ballentine.
DECISION OF THE BOARD; January 16, 1986
The applicant in this application for certification was certified pursuant to section 144(2) of the construction industry provisions of the Labour Relations Act by a decision of the Board dated October 19th, 1984. Two certificates were issued, one with respect to construction labourers employed by the respondent in the industrial, commercial and institutional ("ICI") sector of the construction industry in the Province of Ontario, and the other with respect to construction labourers employed by the respondent in all other sectors in the counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, the Board's geographic area #3. These certificates were issued without a hearing in accordance with the Board's discretion under section 102(14) of the Act. At the time the certificates issued, no reply had been received from the respondent. In addition, the applicant had informed the Board that its notice to employees of the application had not been posted at the employer's job site, which made it necessary for the Board to extend the terminal date set for the application and to serve notice on the individual employees known to be affected by the application.
The respondent acknowledged receipt of the Board's transmittal letter which accompanied its October 19, 1984 decision and certificates in a letter dated October 26th, 1984, which states:
We acknowledge receipt of your letter dated October 22, 1984.
We have no intention of entering into any agreement or certification with the Labourers'
International Union of North America, Local 1059 whatsoever.
We would like to have the opportunity to argue our intentions.
We trust you will reply accordingly.
The Board's response to that letter crossed in the mails with a letter dated November 19, 1984, from the respondent's solicitors requesting the Board to reconsider its decision on the basis of the following information set out in the letter:
As is apparent from the correspondence that our client has sent directly to you, our client is objecting to the issuance of a Certificate to the Labourers.
Our client has advised us that while he may have received the Application for Certification, he did not appreciate its importance and as a result did not post notices or make any attempt to reply. He also acknowledges that he received a telephone call from the Board, at which time he advised the caller that he had no intention of signing any agreement with Labourers' Local 1059.
We have also been advised that on the date of the Application for Certification, September 24th, 1984, there were six construction labourers at work in the employ of Brantco Construction. Since notices were not posted, it would appear that four of these employees may not have received any notice of the Application for Certification. Consequently, their views on the matter were not considered, notwithstanding the fact that their interests were significantly affected.
On behalf of our client, we wished to bring this matter to the attention of the Board and would respectfully request that the Board's decision in this marter be reconsidered in light of this information.
The Board sent a copy of the letter from the respondent's solicitors to the applicant for its information and comments and, in turn, sent to the respondent's solicitors a copy of the applicant's response. There is no record in the Board's file of any further communication with the parties. Nor does the file contain any record that the Board decided the respondent's request to reconsider the decision certifying the applicant as bargaining agent for the respondent's construction labourers.
The Board is now in receipt of a letter dated December 18, 1985, from a person purporting to be an employee of the respondent. It was sent registered mail in an envelope postmarked January 2, 1986, and was received by the Board on January 3, 1986. Its text in major part states as follows:
I am writing to you on behalf of all the labourers employed by Brantco Construction.
Our company occasionally takes on a contract in the vicinity of London, Ontario. The last time we worked in that area was September, 1984, which was over 1 year ago. The location of the work was at Chi-Chi's Restaurant, Wellington Rd, London.
We were only just recently informed about an alleged certification of our company which may have occurred just shortly after the completion of this project.
In the event our company is in fact certified, we, being all the labourers currently employed by Brantco Construction, wish to advise you that we object to the certification and we ask that you reconsider your position and de-certify our company.
Please find below a petition against certification signed by all the labourers in our company. Note, some of the names on this list may be considered both labourer and machine operator.
With respect to the respondent's request, made through its solicitors, that the Board reconsider its decision of October 19, 1984, the Board regrets that it failed to decide the request. The Board's failure, notwithstanding the letter requesting reconsideration does not identify any grounds which would cause the Board to exercise its discretion under section 106(1) of the Act to reconsider and vary or revoke its decision. The grounds advanced in the letter are that there were some employees affected by the application who may not have received notice of it by reason of the respondent's failure to heed the Board's direction to post its notice. The respondent clearly is not empowered to act on behalf of any such employees in matters concerning their choice of or opposition to a trade union as their exclusive bargaining agent. Therefore, the respondent is not the proper party to raise an objection on their behalf. Had it come to the attention of the employees, by the time of the respondent's request for reconsideration, that the Board had certified the applicant without them having received proper notice of the application, it would have been up to them to challenge the Board's decision certifying the applicant. There was no communication of any sort from employees either at the time the respondent's request was received or during the exchange of correspondence between the Board and the parties respecting that request.
Thus, at that time, all the Board had before it was the respondent's allegation that some employees may not have received notice of the application. That alleged lack of notice was entirely due to the respondent's own failure to comply with the Board's instructions to post its notice and file a reply and list of employees. Moreover, by means of the Form 81 - Reply to Application for Certification, Construction Industry, the respondent had the opportunity to make representations or raise objections to the application. Paragraph 14 of the form makes specific provision for the respondent to request a hearing and put forward those matters on which it wishes to be heard. For reasons known only to the respondent, it chose not to file a reply.
These circumstances do not constitute the kind of exceptional circumstances which, having regard to the need for finality to the Board's proceedings, would cause it to exercise its discretion under section 106(1) of the Act to reconsider a decision made after the parties have been given the opportunity to make their representations to the Board. In this respect see the Board's decision in Canadian Union of General Employees, [1975] OLRB Rep. April 320, cited with approval in K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185. In short, the respondent has not alleged any matters which, with due diligence, could not have been filed with the Board prior to issuance of its October 19, 1984 decision. Therefore, on the basis of the respondent's request contained in the November 19, 1984 letter from its solicitors, the Board is not prepared to reconsider, vary or revoke its decision or certificate dated October 19, 1984 pursuant to section 106(1) of the Labour Relations Act.
It remains for the Board to consider the letter dated December 18, 1985 from a person purporting to be an employee of the respondent and affected by the application for certification. He claims to be writing on behalf of nine other persons who are alleged to be labourers employed by the respondent at the time of writing. It is implicit in the letter that there may be employees who should have received notice of the application for certification and did not. In these circumstances, the Board considers it appropriate to list this matter for hearing for the purpose of receiving the evidence and representations of the parties respecting whether there were employees who were entitled to notice of this application for certification who did not receive notice and, if there were, what effect that should have on the certificates which have been issued to the applicant.
Accordingly, the Registrar is directed to list these matters for hearing and to serve notice in the Board's customary manner on the parties and the employees. The respondent is directed to post copies of this decision together with copies of the Board's Notice of Hearing in conspicuous places where they are most likely to come to the attention of all employees who may be affected by these matters. The copies of the decision and notice are to remain posted until the close of business on the day of hearing. The respondent is directed further to furnish to the Board forthwith the names of all construction labourers who were employed by the respondent as at September 24, 1984 and their addresses of record.