[1986] OLRB Rep. March 315
2790-85-R International Association of Machinists and Aerospace Workers, Applicant, v. Custom Pharmaceuticals Ltd., Respondent
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members F. C. Burnet and K. V. Rogers.
APPEARANCES: Jack Cunningham, Mike Daley and Donald Bate for the applicant; W. J. Hayter, H. P. Thode and J. Fitzpatrick for the respondent.
DECISION OF S. A. TACON, VICE-CHAIRMAN AND BOARD MEMBER K. V. ROGERS; March 27, 1986
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
The respondent raised a preliminary motion requesting the extension of the terminal date. The Board heard argument with respect to this issue and made the following oral ruling:
The Board has considered the submissions of the parties with respect to the respondent's preliminary motion that the terminal date should be extended. The Board is responding to the motion on the assumption that, as asserted by the respondent, the Board notices were received February 20, 1986, at 10:00 o'clock a.m. The Board also accepts the criteria set out in Kilean Lodge Incorporated, [1977] OLRB Rep. Apr. 240, as confirmed in the other cases referred to by the respondent.
In the view of the majority, (Board Member Burnet dissenting), however, the application of those criteria do not lead to the conclusion that the terminal date should be extended. Firstly, the majority notes that the dates set by the Registrar do, in fact, comply with Rule 2, i.e., the terminal date was set for February 24th following receipt of the application on February 12th and the Board notices were mailed on February 14th. The issue then becomes one of adequate notice in the context, as noted, of the Kilean Lodge criteria. Excluding Sunday, for the moment, there were four days of notice. There is nothing to indicate the number and location of notices were inadequate given the number of employees in the bargaining unit and their shift schedule. With respect to the last criterion in Kilean Lodge, though, this request is not made by any employees but solely by the respondent. Further, the fact that the notice was posted at 4:00 o'clock p.m. rather than 10:00 o'clock a.m. on the Thursday is as a result of the respondent's decision. The majority does not agree that, if the respondent chooses to seek legal advice before the posting the Board notices, that delay can be raised by the respondent in a request for an extension of the terminal date.
The respondent argued that no adverse inference could be drawn from the failure of any employees to appear and, indeed, that one could conclude that the non-appearance was supportive of its position. The majority does not agree. There is no need to speculate as to why the employees are not here; the fact is none have appeared. And, the notice of hearing was more than sufficient to enable interested employees to attend if any wished to raise concerns. In the majority's experience, employee objectors have not been reluctant to express their views, indeed, many do so without representation by counsel. The fifth criterion enunciated in Kilean Lodge cannot be read except as to note the relevance of only the respondent seeking the extension, i.e., that that is less compelling than where the actual employees in the perspective bargaining unit are expressing their opinions about their potential bargaining agent.
Accordingly, the majority, on the basis of the foregoing, declines to exercise its discretion under section 57(2) of the Rules to extend the terminal date.
- The majority hereby confirms its oral ruling. The majority has read the dissent of Board Member Burnet and would add the following comments. As noted in the oral ruling, the Registrar did comply with Rule 2, i.e., the terminal date was set not less than five nor more than ten days after the date of mailing of the notices to the employer. "Sundays" and other holidays are not to be included in that calculation. However, the dissent imposes the same criteria as in Rule 2 to the issue of adequate notice to employees. With respect, the question of adequate notice is, and always has been, a separate issue. There is no compelling reason for discounting "Sunday" in considering whether the actual notice to employees is adequate. There is nothing improper about gathering signatures on a petition on a Sunday or other holiday. Indeed, collecting signatures away from company premises and not during working hours is far preferable. Thus, the Board did not fail to enforce its own regulations, as suggested in the dissent.
The majority considered the actual notice given employees to be adequate. Firstly, the notices were posted, inter alia, where the employees "clocked out". On the Thursday, both groups on the day shift (leaving at 4:00 p.m. and 4:30 p.m. respectively) had the opportunity of reading the notices. Of course, the night shift had a much longer period to do so. Thursday was regarded as one day; Friday as the second. The majority sees no reason not to count Saturday as day three and Monday as day four. The employees could send a statement of desire to the Board by registered mail dated Monday and still comply with the terminal date. The majority considered those four days sufficient and, in the oral ruling, did not reach a determination as to whether Sunday should count. Given the above comments, however, the majority considers that Sunday should be regarded as a "fifth" day of notice.
It must also be stressed that no employees appeared at the hearing. The terminal date certainly allowed employees, even those perhaps confused by the wording on the Board notices, the opportunity to obtain legal advice, to be informed that, notwithstanding the terminal date, employees could appear at the hearing and make representations about various matters, including an extension of the terminal date. In this instance, a sizable majority (80%) of the employees had signified support for the applicant through the signing of membership cards. No employee, in person or in writing, signified opposition. The majority was, and is, not prepared, on the basis of speculation and possible employee opposition to accede to a request solely by the respondent to extend the terminal date and thereby delay the certification of the applicant and subsequent representation of the employees in the bargaining unit.
The parties continued their discussions before a Board Officer and reached agreement on all matters in dispute and signed a waiver, subject to the respondent's right to challenge the oral ruling.
Having regard to that agreement, the Board finds that all employees of the respondent in the Town of Fort Erie, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff, laboratory personnel, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, constitute a unit of employees appropriate for collective bargaining.
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 February 24, 1986, 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.
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER F. C. BURNET;
While the interests of both the applicant union and the respondent employer are legitimately involved in this issue, the primary interest is that of the employees themselves. It concerns their right to free expression of their views either in support of or in opposition to the certification application. Moreover, apart from the intrinsic merits of such rights in a democratic society, they go to the heart of the promotion of harmonious labour relations to which the Act, in its preamble, is dedicated. The development of such harmonious relations requires that the bargaining agent has been freely selected by a majority of employees and that this fact is apparent to the other parties of interest, the union and the company.
To this end, the Board regulations require that a terminal date be established, not less than five days nor more than ten days after the date on which the Registrar mails to the employer the notice of application for certification of the union; and that the employees be advised by the posting of provided notices that this period is reserved to employees for further expressions of support for, or opposition to, the application.
The Board notices were dated and presumably mailed February 14th, and specified a terminal date of February 24th. On the assumption of overnight mail delivery and prompt employer posting, the period to be allowed employees was thus contemplated to be at or near the ten day maximum.
The employer stated that the material from the Board was not received until about 10:00 a.m., Thursday, February 20th and was posted in the plant about 4:00 p.m. that same day. The effective period for employees to register objections to, or further support of, the application was thus from 4:00 p.m., Thursday, February 20th to the close of the post office business day on the terminal date of Monday, February 24th, presumably about 6:00 p.m. The actual time given to employees was thus only several hours in excess of four days.
Regulation (1)(2) provides that time periods specified in the Regulations shall be exclusive of holidays and a frontispiece to the published Regulations states that in accordance with the Interpretations Act, Sundays are holidays. The majority decision nevertheless includes Sunday in its computations. Applying this Regulation, the legally defined time from posting in the plant to the terminal date shrinks to slightly over three days. In any case, both the actual time allowed and the legally defined time were less than the prescribed five day minimum.
The majority, in concluding that the minimum had been met, also counted Thursday, February 20th as the first day, even though over 80% of employees were not provided the information until the end of that work day, which occurred at 4:00 and 4:30 p.m. respectively, for each of two equal sized groups. I disagree with this conclusion. To argue that anyone given notice of any work event at the end of his work day has thereby already received one day's notice of the event is not supportable in logic nor in equity.
The Board did not take evidence as to when the material was actually mailed from the Boards' office or received by the employer, nor in my opinion is this pertinent to the issue. Any delinquency or deficiency, if such there was, by other parties, whether the employer, the postal service, or the Board itself, should not serve to extinguish employee rights to express their representational desires within the prescribed time.
The fact that no employees appeared at the hearing is neither conclusive nor persuasive evidence that they had in effect waived their rights. The posted Board's notice itself unequivocally states that the Board will not accept objections after the terminal date. In any event, the issue is not whether the employees wished to object or were dissuaded from doing so, but simply the preservation of their right to do so, whether exercised or not; and the enforcement by the Board of its own Regulations.
Under these circumstances, I think there was a failure to provide the five day minimum stipulated in the Regulations. However caused by other parties, the failure contravenes the spirit and letter of the Regulations and represents a denial of natural justice to employees. I would accordingly have extended the terminal date appropriately.