Labourers' International Union of North America, Local 1059 v. Brantco Construction

[1987] OLRB Rep. April 472

1669-84-R Labourers' International Union of North America, Local 1059, Appli­cant v. Brantco Construction, Respondent v. Group of Employees, Objectors

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members I. M. Stamp and C. A. Ballentine.

APPEARANCES: David Strang, Jim MacKin non, M. Reis, M. Clero for the applicant; Mark Conti­ni, Joe Graci for the respondent; Joe Freitas for the objectors

DECISION OF THE BOARD; April 23, 1987

1. The matters herein arise out a Board decision to issue certificates to the applicant pur­suant to section 144(2) of the Labour Relations Act. The certificates were issued as a result of an application for certification made by the applicant under section 144(1) of the Act. The application was disposed of by the Board without a hearing into it in accordance with the Board's discretion under section 102(14) of the Act. 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 of the construction industry in the counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, the Board's geographic area #3.

2. Some 15 months after the Board's decision issuing the certificates, the Board received a letter from Anthony Medeiros who purports to be an employee of the respondent affected by the application for certification. He claimed also to be writing on behalf of nine other persons whom he claimed were construction labourers employed by the respondent. As a result of that letter, the Board issued a decision listing these matters for hearing. At paragraph 8 of that decision, the Board commented as follows about the letter:

"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 that 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."

3. When these matters came before the Board for hearing, applicant counsel took the position that the letter was a request for the Board to reconsider and revoke its decision by which the two certificates were issued to the applicant. Counsel moved as a preliminary matter to have that request dismissed without a hearing. The grounds argued by counsel for doing so were that the Board either lacked jurisdiction to reconsider and vary or revoke its decision issuing two certifi­cates to the applicant, or, if the Board had jurisdiction, it should exercise its discretion and refuse to reconsider, vary or revoke the certification decision. Counsel made extensive submissions in support of both elements of his motion. The Board does not intend to set them out in any detail here, but it is useful to list in point form the principal branches of his submissions.

4. In support of his claim that the Board lacks jurisdiction to reconsider its decision, coun­sel argued that:

(1) The certificate with respect to the ICI sector is spent because, by operation of section 145(4) of the Act, the applicant and the respondent became bound to the labourers provincial agreement in effect at the time the certificate issued. Counsel relies on such Board decisions as Falconbridge Nickel Mines Limited, [1964] OLRB Rep. Dec. 440; Chappels Limited, [1974] OLRB Rep. Dec. 897; and Arnprior and District Memorial Hospital, [1981] OLRB Rep. Aug. 1089 and Oct. 1336, as standing for the proposi­tion that once the parties become bound to a collective agreement, the Board has no jurisdiction to amend the bargaining unit description and, therefore, has no jurisdic­tion to reconsider its decision issuing a certificate for the bargaining unit.

(2) The applicant has relied on the Board's non-ICI certificate to give notice to bargain and to apply for conciliation services.

(3) The effect of the Board attempting to reconsider its decision issuing the non-ICI certi­ficate would be to reconsider decisions of the Minister of Labour appointing a concili­ation officer and deciding not to appoint a conciliation board with respect to the non-ICI negotiations. Since the Board has jurisdiction only to reconsider its own decisions and has no jurisdiction to reconsider the decisions of the Minister, the result of the Board attempting to reconsider its decision would be a nullity.

(4) The person who brought the request was not entitled to do so because he was not an employee in either bargaining unit which the Board found to be appropriate, failed to appear at the hearing himself and made his request on the respondent's letterhead.

(5) Furthermore, the person bringing the application is really acting for the respondent, who is not entitled to bring the request, and not for the employees.

5. Applicant counsel relies on the same grounds and on the additional ones set out below in support of his claim that, should the Board find it has jurisdiction to entertain a request for reconsideration, it should exercise its discretion to refuse the request.

(1) Negotiations with respect to the non-ICI bargaining unit had reached the point at which legal sanctions could be applied by the parties by the time the Board received the letter referred to above. To revoke the Board's certificate in these circumstances would render the certification process ineffective.

(2) For the Board to revoke its certificate would be to terminate the applicant's bargain­ing rights. The Board should not permit Section 106(1) of the Act, under which it gets its jurisdiction to reconsider its decisions, to be used for the same purpose as those sections of the Act which were designed to deal directly with the termination of bar­gaining rights.

(3) For the Board to reconsider its decision in the circumstances giving rise to the request and because of the lapse of time between the issuing of the Board's certificates and the making of the request, would be to deny natural justice to the applicant.

(4) Parties rely on the Board's certifications to take various actions and for this reason it is important that these decisions be final. For the Board to reconsider its decision in the circumstances of this case would be to undermine the finality of the Board's deci­sions.

6. Section 106(1) of the Act from which the Board derives its jurisdiction to reconsider its decisions states as follows:

The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direc­tion, declaration or ruling.

The section is without limitation as to the type of decision which the Board can reconsider. The fact that others, including the Minister of Labour, may have relied on a Board decision does not deprive the Board of the jurisdiction which it otherwise has under the section. Were it not so, the Board would lose its ability, for example, to deal with a fraud discovered after certifying a trade union for a unit of employees in the ICI sector of the construction industry because of the effect of the section 145(4) of the act, or in other sectors of the construction industry, after a ministerial "no board" report had issued, if ministerial reliance on the Board's certificates were to deprive the Board of jurisdiction under section 106(1).

7. In the Board's view, all of the grounds raised by applicant counsel as to why the Board should refuse to reconsider and vary or revoke its decision are grounds which go to the exercise of the Board's discretion under section 106(1) of the Act and not to its jurisdiction to reconsider and vary or revoke its decisions. They are not matters which should be decided as part of a preliminary motion such as the one before the Board. They should be decided only after hearing and consider­ing the evidence and representations of the parties with respect to the matters which were put on for hearing. That is the point at which the Board should decide the exercise of its discretion under section 106(1), having had full opportunity to weigh the merits of the respective positions of the parties. For these reasons, the Board will not refuse to exercise its discretion under section 106(1) of the Act to consider the matters put forward in Medeiros' letter.

8. In the result, the Registrar is directed to relist this matter for hearing on the earliest available date 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.