International Union of Operating Engineers, Local 793 v. Peter Kiewit Sons Co. Ltd., 1988 CanLII 3653

[1988] OLRB Rep. July 688

2590-87-R International Union of Operating Engineers, Local 793, Applicant v. Peter Kiewit Sons Co. Ltd., Respondent v. Employee, Objector

BEFORE: Ian C. Springate, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

APPEARANCES: Harold F. Caley and Jack Slaughter for the applicant; Daniel J. Shields and Alex Drummond for the respondent; no one appearing for the objector.

DECISION OF THE BOARD; July 8, 1988

1. This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act.

2. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on July 13, 1978, the designated employee bargaining agency is the International Union of Operating Engineers and Local 793 of the International Union of Operating Engineers.

3. The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:

An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agency,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.

4. The Board further finds, pursuant to section 144(1) of the Act, that all employees of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees of the respondent in all other sectors in the Regional Municipality of Niagara and that portion of the Regional Municipality of Haldimand-Norfolk coming within the former County of Haldimand engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.

5. The respondent filed a list of employees indicating that there were five employees in the

bargaining unit on the date of the making of the application. The applicant filed acceptable evidence of membership with respect to three of these employees. In these circumstances, the Board is satisfied 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 January 7, 1988, 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.

6. The applicant has challenged the accuracy of the list of employees filed by the respondent. Given what follows, however, it appears that no useful purpose would be served by inquiring into this challenge.

7. One of the individuals who signed a union membership card also filed a statement indicating that he no longer supported the applicant. The Board has a long-established practice of exercising its discretion under section 7(2) of the Act to direct the taking of a representation vote on the basis of such a statement. Before it will do so, however, the Board must be satisfied that the apparent change of heart on the part of an employee who had previously become a member of the trade union was not motivated by a perceived threat to his job security or a concern that a failure to sign the document would be communicated to his employer and result in reprisals.

8. The Board's general practice is not to reveal the names of employees who have signed a statement in opposition to an application for certification. Individuals who come forward to testify as to how such a document came into being and the circumstances under which it was signed must, of course, identify themselves. If a statement proves not to be numerically relevant, that is, if it cannot affect the union's entitlement to be certified, or if it is numerically relevant but no one comes forward to testify as to its origination or the circumstances under which it came to be signed, the Board's practice is not to reveal the name of any employee who signed it. In the instant case the individual who filed the statement in opposition to the application was not in attendance at the hearing into the application on June 9,1988. At that time, however, counsel for both the applicant and the respondent indicated that they were aware that the individual in question was Mr. James Thiessen.

9. The application for certification was filed on December 17, 1987. Mr. Thiessen's statement in opposition to the application was dated January 1, 1988, and received by the Board on January 5, 1988. The statement contains a return address on a rural route in St. Catherines. The Board is not required to hold a hearing with respect to construction industry certification applications. The instant application was, however, listed for hearing to deal with all matters arising out of and incidental to the application, including a claim by the respondent that the Board lacked jurisdiction to entertain the application as well as the issue of the weight to be accorded to the statement ified in opposition to the application. On January 20, 1988 the Board's Registrar forwarded to the respondent a Form 79 "green sheet" addressed to employees which the respondent was directed to post so as to advise employees of the hearing. Because he had filed a statement in opposition to the application, the Registrar forwarded a separate notice of hearing to Mr. Thiessen at the St. Catherines address referred to on his statement. Part of the notice read as follows:

10. The purpose of the hearing is to receive the evidence and representations of the parties respecting all matters arising out of and incidental to the application, including, in particular:

(a) the issues raised in the Reply respecting whether the Board has jurisdiction to entertain the application; and

(b) the weight, if any, to be given to the statement filed in opposition to the application.

4. IF YOU DO NOT ATTEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS.

NOTES AND COMMENTS

1. Where the purpose of the hearing includes an inquiry into a statement of desire filed by an employee or group of employees, the attention of such employee or group of employees is directed to subsection 3(5) of the Board's Rules of Procedure which provides:

73(5) The Board may dispose of the application without considering the statement of desire of any employee who fails to appear in person or by a representative and adduce evidence that includes testimony in the personal knowledge and observation of the witness as to,

(a) the circumstances concerning the origination of the statement of desire; and

(b) the manner in which each signature on the statement of desire was obtained.

2. All communications should be addressed to:

The Registrar, Ontario Labour Relations Board, 400 University Ave., Toronto, Ontario M7A 1V4

10. The initial hearing into the application was held on February 25, 1988. That hearing was before a differently constituted panel of the Board. The parties are in agreement that Mr. Thiessen was in the hearing room on the day in question, but only as an observer. He did not participate in the proceedings and did not fill in an appearance sheet. The only issue addressed at the hearing on February 25th was the jurisdiction of the Board to entertain the application. After hearing from the parties on that issue, the Board reserved its decision.

11. On February 23, 1988, the Board received a copy of a letter from applicant's counsel indicating that he would no longer be representing the applicant. A copy of this letter was forwarded by the Registrar to all parties who had made filings with respect to the application. The copy forwarded to Mr. Thiessen at the rural route in St. Catherines was returned to the Board with a notation that he was no longer at this address.

12. The decision of the Board concerning its jurisdiction to entertain the application was issued on May 18, 1988. That part of the decision which recorded who had appeared at the February 25th hearing contained the statement "no one appearing for the objectors". In fact, Mr. Thiessen had been the only employee to object to the application. As noted above, while Mr. Thiessen had been in attendance on February 25th, he had not come forward to participate in the hearing and had not filled in an appearance sheet. In that Mr. Thiessen had not entered an appearance at the hearing, he was not sent a copy of the Board's decision. Further, in accordance with Board practice and paragraph 4 of the Notice of Hearing, he was not sent a notice advising the parties that the continuation of hearing would be held on June 9, 1988.

13. The continuation of hearing on June 9, 1988 came on before the instant panel of the Board. Mr. Thiessen was not in attendance. Counsel for the respondent advised the Board that it was his information that Mr. Thiessen was now living in Lethbridge Alberta. Counsel contended that Mr. Thiessen had been entitled to receive notice of the continuation of hearing, and accordingly the hearing should be adjourned to a later date so as to enable Mr. Thiessen to receive such notice. This proposal was opposed by the applicant on the grounds that it had been Mr. Thiessen' s own doing which resulted in him not receiving notice of the continuation of hearing. The applicant contended it should not be put to any additional time or expense as a result of what had occurred.

14. In accordance with the Board's rules, by filing a statement objecting to the certification application, Mr. Thiessen became entitled to participate in these proceedings as a separate party. He was sent a notice of hearing. As did the notices of hearing sent to the other parties, it clearly stipulated that if he did not attend at the hearing, he would not be entitled to any further notice in the proceedings. Attendance at a hearing reasonably means attending as a party, not merely as an observer. Mr. Thiessen did not attend the hearing on February 25, 1988 as a party. Further, Mr. Thiessen did not write to the Board to indicate that notwithstanding his lack of participation in the February 25th hearing, he desired to be notified of any subsequent hearing date. Given these considerations, we are satisfied, on the material before us, that Mr. Thiessen was not entitled to notice of hearing with respect to the continuation of hearing on June 9, 1988 and the fact he did not receive such a notice does not require that this matter be relisted for hearing.

15. The Board has before it no evidence relating to the origination of the statement filed by Mr. Thiessen or the circumstances under which it came to be signed. In these circumstances, we are not prepared to give the statement any weight.

16. Our conclusions set out above are based on copies of correspondence to and from the Board contained in the Board's file, as well as the submissions of the applicant and the respondent. In the event that Mr. Thiessen believes the factual basis on which we have based our decision to be in error, or that we have erred in our decision, he can request that the Board reconsider this decision pursuant to the provisions of section 106(1) of the Act. To this end, the Registrar is to forward a copy of this decision to Mr. Thiessen at the address provided to the Board by respondent's counsel at the February 9, 1988 hearing, namely:

Mr. James Thiessen

137 McGill Boulevard

Lethbridge, Alberta

T1K 3V9

17. Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:

the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.

[emphasis added]

Pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 2 above in respect of all employees of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman.

18. Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all employees of the respondent in the Regional Municipality of Niagara and that portion of the Regional Municipality of Haldimand-Norfolk coming within the former County of Haldimand, excluding the industrial, commercial and institutional sector, engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman.