United Brotherhood of Carpenters' & Joiners of America, Local Union 27 v. Nimel Construction Limited, 1987 CanLII 3110

[1987] OLRB Rep. October 1299

0088-87-R United Brotherhood of Carpenters' & Joiners of America, Local Union 27, Applicant v. Nimel Construction Limited, Respondent v. Labourers' Interna­tional Union of North America, Local 183, Intervener

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members M. Eayrs and J. Redshaw.

APPEARANCES: Douglas J. Wray and Luis Camara for the applicant; no one appearing for the respondent; G. Charney and Onelio Zanin for the intervener.

DECISION OF THE BOARD; September 29, 1987

1. Subsequent to the taking of the representation vote directed by the Board in this appli­cation, in which no ballots were cast, a hearing was scheduled to hear the evidence and representa­tions of the parties with respect to all matters arising out of and incidental to the application, including whether or not the applicant should be permitted to convert the application into one in which no pre-hearing representation vote had been requested.

2. That hearing was scheduled for August 31, 1987. By letter dated and delivered to the Board on August 28, 1987, counsel for the applicant advised that:

This matter is scheduled for hearing on August 31, 1987. We have been advised by our client that the reason no one voted in this case was because the employees were not working on the site on the date of the vote. In the circumstances and if necessary, we will request that new vot­ing arrangements be made to ensure employees are given an opportunity to vote.

3. At the hearing on August 31, 1987, before a differently constituted panel of the Board, Mr. Caley appeared on behalf of the applicant. He advised that Mr. Wray, who had been counsel for the applicant throughout, had been suddenly called out of town on an urgent personal matter. Mr. Caley submitted that the Board should first deal with the issue of the intervener's status to par­ticipate in these proceedings. The intervener's position was that the Board should deal with the "vote result" issue first. Reasoning that the applicant should be in no different position now than it was when the matter was before the panel that directed the representation vote, the Board ruled that it was inappropriate to deal with the issue of the intervener's status before the issue of the vote result.

4. Mr. Caley, on behalf of the applicant, immediately requested an adjournment on the basis that he was unable to proceed on the vote result issue in the absence of Mr. Wray. The inter­vener opposed the adjournment. Under the circumstances, the Board adjourned the hearing to September 11, 1987 which date was agreeable to the applicant and the intervener. Mr. Mule, who appeared on August 31st for the respondent, indicated that he would be unable to attend on that date but did not suggest that the matter should not proceed then. Counsel for the intervener (then Mr. Richmond) then indicated that the intervener was taking the position that the applicant's objection to the manner in which the representation vote was conducted and its request for a new vote were untimely.

5. At the meeting with the Labour Relations Officer on May 13, 1987, which the respon­dent did not attend, the applicant and intervener agreed to vote arrangements. The proposed date of the vote was Monday, June 1, 1987. An alternate date agreed to was Monday, June 8, 1987. It was further agreed that the vote would take place between 11:30 a.m. and 12:00 o'clock noon at a job site of the respondent's at Bayview Avenue and 16th Line, Richmond Hill. Representatives of the applicant and intervener attended at the time and place agreed to for the taking of the repre­sentation vote on June 1, 1987. However, the Board's decision directing the taking of the vote did not issue until that day and the vote was not in fact taken on June 1, 1987. Subsequently, on June 5, 1987, a representative of the applicant attended at the Bayview Avenue and 16th Line job site. He spoke with the employees of the respondent on the job site and advised them that the repre­sentation vote would be taken on June 8, 1987.

6. On June 8, 1987, a Returning Officer and representatives of the applicant and inter­vener attended at the Bayview Avenue and 16th Line job site for the taking of the vote. When no one appeared to cast a ballot, the applicant's representative, Mr. Camara, searched the job site but could not find any employees of the respondent. He was advised by another contractor on the job site that the respondent's employees "might" be on a job in Burlington. Mr. Camara returned to the polling station and advised the Returning Officer only that there were no employees of the res­pondent on the job site. The polling station remained open until the designated time expired. No ballots were cast. The Returning Officer and the representatives of the applicant and intervener all executed a certification of conduct of election asserting that:

We, the undersigned, acted as scrutineers for the parties herein in the conduct of the balloting at the time and place above mentioned. We certify that the balloting was fairly conducted and that all eligible voters were given an opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote.

At no time did the representative of the applicant take any exception to the manner in which the vote was conducted or indicate that they applicant intended to make any objections or representa­tions with respect thereto.

7. A Form 72, Notice of Report of Returning Officer, where a Board has directed that bal­lot box be sealed dated June 8, 1987 was sent to the parties. Attached to it was a copy of the Offi­cer's report with respect to the representation vote. Paragraphs 3 and 4, Form 72 states:

TAKE NOTICE that if you desire to make representations,

(a) as to any matter relating to the representation vote; or

(b) (where a pre-hearing representation vote has been held) in connection with the application;

you shall send to the Board a statement of desire to make representations which shall,

i. be in writing signed by the person making the statement or his representa­tive,

ii. contain the names of the parties to the application,

iii. contain a return mailing address, and

iv. contain a statement as to whether you desire a hearing before the Board.

Your statement of desire must contain a summary of the representations you wish the Board to consider.

4. A statement referred to in paragraph 3 shall be sent to the Board so that,

(a) it is received by the Board; or

(b) if it is mailed by registered mail addressed to the Board at its office, 400 University Ave., Toronto, Ontario, M7A 1v4, it is mailed; not later than

the 15th day of June, 1987.

Mr. Wray admitted that the applicant received its copy of Form 72. In our view, there is no merit to Mr. Wray's suggestion that because a copy was not sent to his office, as requested on the appli­cation, the notice received by the applicant is defective. The applicant did nothing whatsoever sub­sequent to the taking of the representation vote, either before or after receiving Form 72, until August 28, 1987. Subsequent to June 8, 1987, it conducted no investigation with respect to why no employee of the respondent appeared to cast a ballot or where any of them were during the period of time the polling station was open. It did not contact counsel. It did not write or otherwise con­tact the Board. It did nothing at all until a meeting of Mr. Wray on August 28, 1987. Immediately upon learning of the circumstances surrounding the taking of the vote, Mr. Wray wrote the letter set out above.

8. Mr. Wray, for the applicant, argued that a new representation vote should be directed in order to give affected employees a real opportunity to vote. He submitted that such a direction would prejudice no other party.

9. The Board has always recognized the need for expedition in matters that come before it, particularly in applications for certification in the construction industry. Consequently, the Board, while acknowledging that its procedures ought not to be unduly technical, has concluded that that expedition and certainty are essential in proceedings where representations votes in the construction industry have been held and. Accordingly, the Board has been relatively stringent in applying the deadlines established with respect thereto. The Board has concluded that the test to be applied in relation to the timeliness of objections with respect to the taking of a representation vote is not prejudice to another party, but whether, with the exercise of reasonable diligence, the factual basis of the objection would not have come to the attention of the objector until after the deadline for making objections had passed (see Ontario Engineered Suspensions (Blenheim) Ltd., [1987] OLRB Rep. May 768; H.D. Lee Company of Canada Limited, [1975] OLRB Jan. 55; Pure Spring Canada Ltd., [1964] OLRB Rep. Dec. 476).

10. In this case, the applicant was aware of the general nature of the problem on the very day the vote was taken. It did nothing to either investigate the matter or to indicate any objection until almost three months later and, in our view, fail to exercise reasonable, or any, diligence with respect to either investigating the material facts or making its objections. Accordingly, we find that the applicant's request must be denied and we so ruled, orally and without reasons at the hearing.

11. After ruling as aforesaid, the Board asked counsel for the applicant whether, under the circumstances, he could offer any reason why this application should not be dismissed. He offered no such reason and specifically did not pursue any argument that the applicant should be permitted to convert its application to one in which no pre-hearing representation vote had been requested.

12. Accordingly, this application was dismissed.