Van Landeghem v. Labourers' International Union of North America, 1988 CanLII 3778

[1988] OLRB Rep. August 800

3434-87-R Michael Van Landeghem, Tracy Van Landeghem and Terry Manzutti, Applicants v. The Labourers' International Union of North America, Ontario Provincial District Council, and its affiliated Local Union Labourers' International Union of North America, Local 1036, Respondent v. 657572 Ontario Inc. c.o.b. as Double S Construction, Intervener

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. Gibson and C. A. Ballentine.

APPEARANCES: J. Rossi and M. Van Landeghem for the applicants; L. A. Richmond, J. Lewis and T. Connolly for the respondents and for Labourers' International Union of North America, Locals 183, 247, 491, 493, 527, 597, 607, 625, 837, 1059, 1081 and 1089; Richard J. Nixon and John Smale for the intervener.

DECISION OF THE BOARD; August 19, 1988

1This is an application, under section 57 of the Labour Relations Act, for a declaration that the respondents no longer represent the employees of 657572 Ontario Inc. c.o.b. as Double S Construction ("Double 5") for whom they have heretofore held bargaining rights. It came on for hearing on July 11, 1988 and, upon motion for the respondents, was dismissed by a unanimous decision of the panel for oral reasons given at the hearing. For reasons which follow, the Board finds it appropriate to reconsider its decision to dismiss the application.

2The respondents submitted that the bargaining unit to which this application relates is described in the collective agreement (the "Utility Agreement"), effective May 12, 1986 to April 30, 1988, which is styled as being between:

The Utility Contractors' Association of Ontario Incorporated, on behalf of its member companies engaged in power, energy and communication construction, maintenance and similar work throughout the Province of Ontario.

(hereinafter referred to as the "Association")

OF THE FIRST PART:

• AND -

The Labourers' International Union of North America, Ontario Provincial District Council, and its affiliated Local Unions, Labourers' International Union of North America, Local 183, 247, 491, 493, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089, each of which, Council and Local Unions, are parties to this Agreement.

(hereinafter referred to as the "Union")

OF THE SECOND PART: [sic]

The respondents assert that the bargaining unit should be described in terms of all construction labourers employed by Double S in other than the industrial, commercial and institutional ("ICI") sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman. The respondents further submitted that, although the individual locals of the Labourers' International Union of North America are responsible for the territorial administration of the collective agreement, it is a province-wide collective agreement and that the necessary respondents are the Labourers' International Union of North America, Ontario Provincial District Council ("District Council") and all of its affiliated local unions named in the collective agreement. The respondents submitted that because this application seeks to terminate only the bargaining rights of the District Council and Labourers' International Union of North America, Local 1036 ("Local 1036"), and the petition (or statement of desire as it is otherwise commonly referred to) filed in support of the application unambiguously refers to only those two entities, the application is improper and must be dismissed.

3The applicants agreed that the bargaining unit should be described in accordance with the collective agreement, but submitted that, for purposes of this application, it should be described in terms of the construction labourers employed by Double S in other than the ICI sector of the construction industry in the District of Algoma, save and except non-working foremen and persons above that rank. The applicants also adopted the argument of Double S to the effect that the collective agreement is structured so that the local unions are proper but not necessary parties to this application because the District Council is the representative and agent for each of the named local unions, and that notice to the District Council was therefore notice to the local unions for all purposes. The applicants and Double S both submitted that, because all of the local unions had in fact been given notice of the proceeding, there was no prejudice to them and no reason to dismiss the application. Both also argued that the petition filed in support of the application unambiguously refers to a desire to terminate the bargaining rights of all of the local unions as well of the District Council. However, when questioned by the Board, the applicants and Double S both stated that any declaration that issued should refer to all local unions as well as the District Council, and further agreed that it followed that they should, for purposes of clarity at least, all be named as respondents in the title of the proceeding as well. In the alternative, the applicants, supported by Double 5, urged the Board to reject what they characterized as the respondents' overly technical argument and to amend, pursuant to section 104 of the Act, the title of the proceeding to include the District Council and all of the local unions named in the collective agreement.

4By agreement in writing dated December 21, 1987, Double 5, the respondents herein, and a group of employees represented by one of the applicants herein (Michael Van Landeghem) agreed to settle the matters in dispute between them in Board File Nos. 1300-87-R and 1301-87-G. Paragraph 3 of the agreement provides that:

Double S hereby acknowledges that is [sic] bound by and party to the collective agreement between the Utility Contractors Association of Ontario Incorporated and Labourers' International Union of North America, Ontario Provincial District Council and its affiliated Local Unions Labourers' International Union of North America, Local 183, 247, 491, 493, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089, each of which, Council and Local Unions are parties to the agreement, which agreement is effective from May 12, 1986 to April 30, 1988 ("the Collective Agreement"). Double S acknowledges that it is bound to the Collective Agreement as if it were an original party thereto and as if it were a member of the Utility Contractors Association of Ontario Incorporated. Double S acknowledges that it is familiar with all the terms and conditions of the Collective Agreement. Double S acknowledges that it became bound by the collective agreement effective April 29, 1987.

It is evident that Double S voluntarily agreed to be bound to the Utility Agreement and thereby recognized the District Council and all of its named local unions as the bargaining agent for its employees in the bargaining unit described therein. Consequently, Double S and the applicant Michael Van Landeghem knew that the District Council and each of its named locals held bargaining rights for Double S. Subsequently, the Board, differently constituted, issued a decision (dated April 11,1988) with respect to those matters which, among other things., declared that:

657572 Ontario Inc. cob, as Double S Construction, effective April 29, 1987, is bound by the collective agreement between the Utility Contractors Association of Ontario Incorporated and Labourers' International Union of North America, Ontario Provincial Disirict Council and its affiliated local unions, which agreement is effective from May 12, 1986 to April 30, 1988.

5The collective agreement which was referred to in the agreement between the parties and the Board decision in Board File Nos. 1300-87-R and 1301-87-G, and which the parties agreed was in the last two months of its operation when this application was made, is the Utility Agreement referred to in paragraph 2 above. The relevant parts of Article 2 of that agreement, which has since expired, provide:

ARTICLE 2- RECOGNITION

2.01 The Association on behalf of its member companies, recognizes the Labourers' International Union of North America, Ontario Provincial District Council, and its Affiliated Local Unions, 183, 247, 491, 493, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089, who are parties to this Agreement as the sole and exclusive Bargaining Agent for all construction labourers employed by its member companies in the Province of Ontario, save and except Non-working Foremen and persons above the rank of Non-working Foremen.

2.02 Each of the Local Unions listed in Section 2.01 above, agrees with all others, with the Council and with the Association:

(a) to maintain the Council as their representative and agent for the purpose of bargaining collectively and concluding a Collective Agreement with the Association in accordance with the Uniform District Council Constitution; and

(b) to delegate, and they do hereby delegate, to the Council acting as their representative and agent, their authority as aforesaid for members of their respective Local Unions who come within the scope of this Agreement and agree to not withdraw such authority nor to seek to bargain individually with the Association or its members.

This agreement had expired and Double 5, which is not a member of the Utility Contractors Association of Ontario Incorporated, was not bound, at the time of the hearing, to a collective agreement with any of the District Council or its affiliated local unions named in the Utility Agreement.

6By decision dated May 11, 1988 in this application, the Board differently constituted, adjourned the hearings so that notice of the proceeding could be given to the Utility Contractors Association of Ontario Incorporated and to Locals 183, 247, 491, 493, 527, 597, 607, 625, 837, 1059, 1081, and 1089 of the Labourers' International Union of North America. These entities were given notice in the following form:

Dear Sirs: Michael vanLandeghem, Tracy vanLandeghem and Terry Manzutti, and Labourers', Ontario Provincial District Council, and its affiliated Local Union Labourers' 1036 (657572 Ontario Inc. c.o.b. as Double S Construction -- District of Algoma and Province of Ontario)

I am enclosing herewith the following documents:

(a) Form 18 (Notice of Application for Declaration Terminating Bargaining Rights and of Hearing) and a copy of Form 17 (Application for Declaration Terminating Bargaining Rights), and

(b) Form 20 (Reply to Application for Declaration Terminating Bargaining Rights), in blank.

Please read these documents carefully. Copies of The Labour Relations Act and of the Board's Rules of Procedure are available upon request.

You will note that the Board will commence its hearing of this case in its Board Room, 6th Floor, 400 University Avenue, Toronto, Ontario, M7A 1V4, at 9:30 a.m. (EDT) on Monday, July 11, 1988.

7In their Reply, filed on June 23, 1988,subsequent to the release of the Board's May 11, 1988 decision in this matter, the respondents asserted that the correct name of the respondents should be "Labourers' International Union of North America, Ontario Provincial District Council and its affiliated local unions, Labourers' International Union of North America, Local 183, 247, 491, 493, 527, 597, 607, 837, 1036, 1059, 1081 and 1089".

8The applicants have named only the District Council and Local 1036 as respondents. The application makes no reference to any of the other local unions of the Labourers' International Union of North America named in the Utility Agreement. The petition, which contains three signatures, filed in support of the application states:

IN THE MATTER of The Labourers' International Union of North America Ontario Provincial Council, and its affiliated Local Union Labourers' International Union of North America, Local 1036.

AND IN THE MATTER of the employer, 657572 Ontario Inc. c.o.b. as Double S Construction

AND IN THE MATTER of the Ontario Labour Relations Act, R.S.O. 1980,

AND IN THE MATTER of an Application to Terminate the Union's Bargaining Rights with respect to the employer Double S Construction

PETITION

We the undersigned employees of Double S Construction do hereby petition the Ontario Labour Relations Board and apply to terminate the bargaining rights of The Labourers' International Union of North America, Ontario Provincial District Council, and its affiliated Local Union Labourers' International Union of North America, Local 1036. We no longer wish to be represented by this Union and our signatures below, reflecting this desire, represents more than 45 per cent of the employees bargaining unit.

9Nowhere on the face of any of the application, petition, the various notices with respect to the application (including those sent pursuant to the Board's May 11, 1988 decision), or any other document, is there an express indication that the applicants are seeking to terminate the bargaining rights of any one other than the named respondents; that is~ the District Council and Local 1036. Nor did the applicants seek to amend their application prior to the hearing on July 11, 1988.

10Section 57(2)(a), 57(3) and 57(4) of the Act are applicable to this application and provide that:

57.-(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as it determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

(4) If on the taking of the representation vote more than 50 per cent of the ballots cast are cast in opposition to the trade union, the Board shall declare that the trade union that was certified or that was or is a party to the collective agreement, as the case may be, no longer represents the employees in the bargaining unit.

In an application under section 57, the Board must determine whether the employees in the bargaining unit, as defined by the applicable collective agreement, desire that the right of "the trade union" to represent them be terminated. Before the Board can direct the taking of a representation vote in which the employees can express their wishes in this respect, the Board must be satisfied that at least forty-five per cent of them have "voluntarily signified in writing", in the form of a petition, that they no longer wish to be represented by the trade union. Section 57(3) and section 57(1) of the Board's Rules of Procedure operate together to preclude the Board from receiving evidence of the employees wishes other than in writing, in the form of a petition filed by the terminal date fixed for the application. Accordingly, although the Board, having regard to the nature of petitions, is concerned with the substance rather than the form of such documents, and therefore construes them liberally, it must be satisfied that the wording and form of the document are such that its intent and purpose are unequivocal (see for example, Irwin Toy Limited, [1983] OLRB Rep. Apr. 536); that is, that, if proved voluntarily, it indicates that the employee signing it no longer wish to be represented by "the trade union".

11Sections 104 and 114 of the Act provide that:

104. Where in any proceedings before the Board the Board is satisfied that a bona fide mistake has been made with the result that the proper person or trade union has not been named as a part or has been incorrectly named, the Board may order the proper person or trade union to be substituted or added as a party to the proceedings or to be correctly named upon such terms as appear to the Board to be just.

105. No proceedings under this Act are invalid by reason of any defect of form or any technical irregularity and no such proceedings shall be quashed or set aside if no substantial wrong or miscarriage of justice has occurred.

They operate together to ensure that errors of form or technical deficiencies do not stand in the way of the adjudication of the real matters in dispute in proceedings before the Board.

12It was our view that the bargaining unit to which this application applies, as defined by the Utility Agreement, is all construction labourers employed by Double S in the Province of Ontario, excluding the ICI sector of the construction industry, save and except non-working foremen and persons above the rank of non-working foreman.

13We were also satisfied that each of the District Council and the local unions of the Labourers' International Union of North America named in the title in Article 2 of the Utility Agreement are parties to it and, further, that Article 2.02, at most, constitutes a delegation of authority to bargain (as opposed to bargaining rights)by the local unions to the District Council. This delegation, which is analogous to the bargaining authority vested in am employee bargaining agency with respect to province-wide bargaining in the ICI sector by section 142 of the Act, does not constitute the District Council as the agent for the locals for the purposes of termination proceedings which affect bargaining rights and are not part of the bargaining process. In that respect we preferred the reasoning articulated in Clarence H. Graham Construction Limited, [1982] OLRB Rep. Aug. 1147 (at paragraph 15) to that in Stuart Riel Masonry Contractor, [1984] OLRB Rep. July 1011 (at paragraph 10).

14We concluded that, not only did Locals 183, 247, 491, 493, 527, 597, 607, 625, 837, 1059, 1081, and 1089 of the Labourers' International Union of North America not receive actual notice that their bargaining rights could be affected by this application, but, in the circumstances, notice to the District Council (or to Local 1036) did not constitute constructive notice thereof. Further, as was implicitly accepted by the applicants and Double 5, a declaration terminating the bargaining rights of the District Council or Local 1036 would not terminate the bargaining rights of the other locals (and might not even effectively terminate those of the District Council or Local 1036; see Jan Peters Ltd., [1980] OLRB Rep. May 714 at paragraph 4).

15For for purposes of this application, "the trade union", as used in section 57 of the Act, means the District Council and all of the local unions of the Labourers' International Union of North America named in the Utility Agreement, and that, consequently, all are necessary parties (as respondents) to this application. The Act does not contemplate the possibility of terminating representation rights of anything less than the entire "trade union" or for anything less than the entire bargaining unit.

16In the result, we concluded that the locals other than Local 1036 had not been given sufficient notice that the applicants sought to terminate their bargaining rights as well as those of the District Council and Local 1036. Further we were persuaded that the omission or deficiency in the application was one of substance and not one of mere form and that, in the circumstances, it was not appropriate to grant the amendment requested at the hearing either nunc pro tunc pursuant to section 104 or otherwise. Accordingly, the application was dismissed, but without prejudice or bar to the bringing of a new application.

17Upon further reflection, however, we find that, although the Board's conclusions with respect to the description of the bargaining unit affected by, and the respondents necessary to, this application were correct, the Board erred in refusing to amend the title of the application, albeit with an adjournment, to include all those local unions named in the Utility Agreement as respondents. In that respect we observe that:

(a) all of the unions named in the Utility Agreement did receive actual notice of the application and of the hearing which took place on July

11, 1988;

(b) all of the unions named in the Utility Agreement were represented at the hearing on July 11,1988;

(c) the reply, which itself asserts that all of the unions named in the Utility Agreement are necessary respondents and suggests that there should have been no surprise that an amendment was sought, was obviously filed in response to the Board's decision of May 11,1988 which, on a fair reading, suggests, implicitly if not expressly, that the bargaining rights of all the unions named in the Utility Agreement are affected by this application (which was the reason for giving them all notice);

(d) having regard to the exigencies of the delivery of mail in this Province, it was not unreasonable for the applicants to seek, albeit in the alternative, the amendment at the July 11, 1988 hearing;

(e) there would be no prejudice, arising out of any inadequacy of the notice they received, to any of the unions named in the Utility Agreement if the amendment had been granted that could not have been cured by an adjournment;

(f) it was overly technical, inconsistent with the intent of the Act, and not in the interests of fairness and justice to deny the amendment.

18Accordingly, pursuant to the Board's powers under section 106(1) of the Act, the Board hereby reconsiders its oral decision at the hearing of July 11, 1988 by revoking that decision insofar as it dismissed the application and the applicants' request for an amendment to the title of the application. Instead, the Board now finds its appropriate to grant that request and, accordingly, the title of this application is amended, nunc pro tunc by adding Locals 183, 247, 491, 493, 527, 597, 607, 625, 837, 1059, 1081 and 1089 of the Labourers' International Union of North America as respondents.

19The Registrar is directed to schedule this application for hearing on the merits in consultation with the parties. The purpose of the hearing is to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to the application. In the circumstances, the hearing should be held in Sault Ste. Marie if any party so requests.

20This panel is not seized.