[1987] OLRB Rep. August 1110
0023-82-R United Brotherhood of Carpenters and Joiners of America, General Workers Local Union No. 1030, Applicant v. Richard D. Steele Construction (1979) Ltd., Respondent
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members J. P. Wilson and H. Kobryn.
DECISION OF THE BOARD; August 11, 1987
1The United Brotherhood of Carpenters and Joiners of America, General Workers Local Union No. 1030 (hereinafter "Local 1030") was certified pursuant to section 144(5) of the Labour Relations Act to represent the construction labourers employed by the respondent in the Board's geographic area #30 without reference to sector, therefore including the respondent's construction labourers employed in the industrial, commercial and institutional ("ICI") sector. Local 1030 was a newly chartered local of the United Brotherhood of Carpenters and Joiners of America (hereinafter "the United Brotherhood") and this was its first application for certification. That being the case, it was necessary for the Board to determine whether Local 1030 was a trade union within the meaning of section l(l)(p) of the Act. It was also necessary for the Board to determine whether it was a trade union which pertains to the construction industry within the meaning of section 117(f) of the Act, since the application had been brought under the Act's construction industry provisions. While Local 1030 anticipated that a hearing would be necessary in order for the Board to make these determinations, section 102(14) of the Act gives the Board the discretion to dispose of applications for certification in the construction industry without a hearing. In this case, Local 1030 had filed with the Board the documents on which it would be relying in order to establish that it was a trade union within the meaning of the Act which pertains to the construction industry. It was implicit in those materials and in the application that Local 1030 was taking the position that it was not an affiliated bargaining agent within the meaning of clause (a) of section 137(1) of the Act. Since the application was unopposed, the Board relied on the material filed by Local 1030 and its implied assertion that it was not an affiliated bargaining agent and disposed of the application without a hearing.
2Approximately three weeks later, Local 1030 made further applications for certification under the construction industry provisions of the Act to represent the employees of a number of companies. These applications raised the issue of whether Local 1030 was an affiliated bargaining agent. That issue was fully litigated and decided in the Board's decision in Manacon Construction Limited, [1983] OLRB Rep. March 407, reaffirmed in Manacon Construction Limited, [1983] OLRB Rep. July 1104. The Board found in those decisions that Local 1030 was an affiliated bargaining agent and that certain legal consequences flowed from that finding. These were that there was no appropriate bargaining unit which would include employees in the ICI sector in trades other than the carpenter and millwright trades for which Local 1030 could be certified; if Local 1030 wanted to make applications for certification which relate to the ICI sector, it could only make them pursuant to section 144(1) of the Act; and, since Local 1030 was an affiliated bargaining agent but not a designated employee bargaining agency, it was prevented by section 146(2) of the Act from bargaining or attempting to bargain a collective agreement or any other arrangement respecting employees employed in the ICI sector.
3Immediately after the Board issued its first decision in Manacon Construction, it issued a decision in the instant application directing that the application be listed for hearing to receive the representations of the parties respecting what action, if any, the Board should take as a result of its findings in the Manacon decision, with respect to the legal consequences flowing from the certificate which had been issued to Local 1030 making it the exclusive bargaining agent of the respondent's construction labourers. Hearings were scheduled for this purpose but did not proceed because of the request for reconsideration of the first decision in Manacon Construction, supra. After the Board reaffirmed its decision in Manacon Construction, the parties eventually agreed that the Board should decide, on the basis of their written submissions, what action, if any, it should take in the instant case. This decision deals with those submissions.
4The parties are agreed that, on the date of making up this application, the three construction labourers employed by the respondent were working within the ICI sector. They are further agreed that the parties had entered into a collective agreement following the issuing of the certificate to Local 1030.
5Local 1030's submissions on the issues, made through its solicitors, are as follows:
The Applicant's first position in this matter is that the Board should not revoke its April 29, 1982 certificate because of a decision made in another case nearly one year later, particularly where the parties have relied on the original decision and certificate and, in fact, negotiated a collective agreement.
In this regard, we rely on the Board's comments in the Silverwood Dairies case - (1977) June OLRB Rep. 392, where reconsideration of a Board decision was sought on the basis that it was inconsistent with two later decided cases. They rejected the request, and stated at pages 393-394 of its decision:
"The applicant's request that the Board reconsider its earlier decision in the light of subsequent cases rests on equally doubtful ground. The legitimate need of parties involved in the collective bargaining process to rely on the finality of the determination of their rights by the Board would be ill-served, to say the least, if such settled rights must be called into question every time a different, or arguably different, decision of the Board was rendered in some subsequent case. As was stated by the Board in The Corporation of the County of Lambton 65 CLLC para. 16,057:
It is obvious that whatever rights an application may have to make a new application, some limit must be imposed as to the time and circumstances under which the Board should reopen and review a former decision on the grounds that in the meantime the Board has rendered another decision which appears to indicate that the Board's earlier decision may be erroneous. There must obviously be instances in the growing jurisprudence of this Board where interpretations of law and policy and finding of fact applied by the Board in earlier cases will, as a result of new arguments and experience and further consideration, be decided differently in later cases. It would, however, be too much to say that whenever the Board alters or overrules an interpretation of law or policy of finding of fact which it had followed or adopted in earlier cases, that it must or should in all events, review and reopen all such earlier cases whatever the circumstances or the length of time which may have elapsed in the meantime. In the courts the fact that the law as applied in an earlier judgment in another case is later overruled by a higher court in another case, does not afford, on that basis alone, a ground for allowing a litigant in the former case leave to appeal where the time prescribed by the rules therefore has expired. (See Re Blackwell (1962) D.L.R. (2d) 369.)"
We also refer to the decision of the Board in the Monte Carlo Carpentry case (1982) June OLRB Re. 914. In that case, Labourers' Local 183 was certified. Due to the Board's administrative error, a competing timely certification application filed by the Carpenters' Union was not processed. When the Carpenters' Union realized the mistake, it requested the Board reconsider the Local 183 certificate. The Board refused, emphasizing the need for finality in this decision and the reliance placed upon the Board's decision in that case by Local 183.
It is therefore submitted that the Board ought not to interfere with the April 29, 1982 certificate issued to the Applicant in this matter.
Alternatively, if the Board is to interfere with the certificate, we submit that the appropriate course of action would be to exclude the ICI sector of the construction industry from the certificate. As the Board held in the Rolland Duquette Construction case (Board File No. 1081-83-R, Unreported decision dated November 8,1983) there is no impediment to the Applicant, Local 1030, becoming certified and entering into a collective agreement for other than Millwrights in any sector other than the ICI sector. It is therefore submitted, in the alternative, that an appropriate balancing of interests in this case would be to amend the certificate by exempting the ICI sector.
6With respect to Local 1030's first position, the Board's decisions in Silverwood Dairies and Monte Carlo are distinguishable on their facts and circumstances from the instant one. Each was a decision in which the Board refused requests to reconsider a prior decision. In the Monte Carlo decision, the Board was being asked to reconsider a decision certifying the Labourers' International Union of North America, Local 183 (hereinafter "Local 183") to represent certain employees of Monte Carlo. Like the instant case, the Board's certificate had issued without a hearing. Two days prior to the terminal date of Local 183's application and a week prior to the Board's decision issuing, a sister local of Local 1030 had filed a competing application for certification. That application did not get processed as a result of an administrative error by the Board. Had it been processed and had the two applicants been able to demonstrate that not less than 45 per cent of Monte Carlo's employees were members of the respective applicants, the Board would have directed the taking of a representation vote. The error was not disclosed until some eight months after Local 183 had been certified. In that time, Local 183 had persistently pursued its bargaining rights flowing from the certificate. Since the local of the United Brotherhood was responsible for carriage of its application, and therefore in a position to protect its interests, but had done nothing for eight months, the Board held that the better balancing of the interests of the parties to the two applications would result from the Board refusing to vary or revoke its decision certifying Local 183, thus leaving its bargaining rights undisturbed. In Silverwood Dairies, the Board had had the benefit of the parties' submissions on the issue relied upon by the two parties seeking reconsideration and those submissions had been considered fully by the Board in its original decision. Thus the Board saw the requests for reconsideration to be an appeal to reopen the case and reconsider arguments already made, which was "...not the purpose or intention of section [106(1)] of the Act." But beyond that concern and more to the point for the instant case, even if the request for reconsideration were not inappropriate, the Board took the position that it would have denied the request because it was satisfied that there was nothing in the two later decided cases which would cause it to change its view of the proper disposition of the [Silverwood Dairies] case. Furthermore, the effect of the Board's original decision had not been to authorize either party to do something which in fact was contrary to any provisions of the Labour Relations Act, as was the result of the Board's decision in the instant case.
7Local 1030 clearly has relied on its certificate to enter into a collective agreement with the respondent. That certificate issued without the Board having had the benefit of the parties' submissions on the question of whether Local 1030 was an affiliated bargaining agent and on the implied assertion of Local 1030 that it was not an affiliated bargaining agent. The Manacon decision found that Local 1030 was an affiliated bargaining agent and, as such, could not represent in the ICI sector persons and trades other than the trades of carpenters or millwrights. Of even greater significance for this case is the fact that the Board also found that it was unlawful for Local 1030 to enter into any collective agreement or other arrangement respecting employees in the ICI sector. That immediately made its collective agreement with the respondent unlawful insofar as it purported to apply to the ICI sector. Therefore, the Board's decision certifying Local 1030 purported to authorize Local 1030 to do something which it could not lawfully do; that is negotiate a collective agreement for the respondent's construction labourers which related to the ICI sector.
8With respect to Local 1030's alternate position that the Board should amend the certificate to exclude the ICI sector from the certificate making Local 1030 the bargaining agent for the respondent's construction labourers employed in sectors other than ICI, on the facts of this case, there is no appropriate bargaining unit of construction labourers in sectors other than the ICI sector because none of the respondent's construction labourers were employed outside of the ICI sector on the date of making of this application. Local 1030 originally had sought to bring the application under section 144(5) of the Act which reads as follows:
Notwithstanding subsections (I) and (4), a trade union that is not represented by a designated or certified employee bargaining agency may bring an application for certification or enter into a voluntary recognition agreement on its own behalf.
The effect of the Manacon decisions is that Local 1030 cannot bring applications under that provision of the Act. Since it is an affiliated bargaining agent, if it wants to bring an application for certification which relates to the ICI sector it must do so under section 144(1), and, if it wants to bring one which relates to sectors other than ICI, it must do so under section 144(3). (Clarence H. Graham Construction Limited, [1981] OLRB Rep. Sept. 1195). Section 144(3) states:
Notwithstanding subsection 119(1), a trade union represented by an employee bargaining agency may bring an application for certification in relation to a unit of employees employed in all sectors of a geographic area other than the industrial, commercial and institutional sector and the unit shall be deemed to be a unit of employees appropriate for collective bargaining.
Section 144(3) of the Act clearly deals with persons employed in sectors other than the ICI sector. The agreed facts here are that the three persons employed by the respondent on the date of making of Local 1030's application were employed in the ICI sector. Therefore, even were the Board to consider the application as having been made under section 144(3), there was no unit of the respondent's constructions labourers which would have been appropriate for collective bargaining.
9Therefore, having regard for the findings of the Board in the Manacon decisions, the Board herein is satisfied that Local 1030 can make an application for certification which relates to the ICI sector of the construction industry only pursuant to section 144(1) of the Act, thus precluding it from applying on behalf of trades other than carpenter or millwright, and, since it is an affiliated bargaining agent but is not a designated employee bargaining agency, section 146(2) of the Act makes it unlawful for Local 1030 to make or attempt to make a collective agreement for employees of the respondent in the ICI sector. In the result, the Board is satisfied that there was no unit of the respondent's construction labourers which was appropriate for collective bargaining at the time Local 1030 made its application for certification.
10The Board finds it appropriate in all of these circumstances to exercise its discretion under section 106(1) of the Act to reconsider and vary or revoke its decision certifying Local 1030 as bargaining agent of the respondent's construction labourers. Therefore the Board directs that Local 1030 and the respondent return forthwith to the Registrar their copies of the certificates issued to Local 1030.```