Ontario Labour Relations Board
[1988] OLRB Rep. August 830
3238-87-R; 3239-87-U; 0433-88-R International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 230, Applicant/Complainant v. Pavage et Betonniere St-Eustache Ltee (carrying on business as Mathers Concrete), Respondent; International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 230, Applicant v. Pavage et Betonniere St-Eustache Ltee (carrying on business as Mathers Concrete), Respondent v. Daniel Olivier on behalf of a group of employees, Objectors
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members J. A. Rundle and J. Redshaw
APPEARANCES: David McKee and Marcel Villeneuve for Teamsters Local 230; Andra Pollak, J. P. Belhumeur and Robert Latour for the respondent; Daniel Olivier for the objectors.
DECISION OF THE BOARD; August 10, 1988
I
1The name of the respondent is amended to read: "Pavage et Bdtonniere St-Eustache Ltde (carrying on business as Mathers Concrete)".
2This is an application for certification.
3The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
4Having regard to the agreement of the parties, the Board further finds that the unit of employees appropriate for collective bargaining should be framed as follows:
All employees of the respondent in the Regional Municipality of Ottawa-Carleton save and except foremen, persons above the rank of foreman, office, clerical and sales staff.
There are about a dozen employees in this bargaining unit.
5This matter was originally scheduled for hearing together with a claim under section 63 of the Act that the respondent was a "successor employer" to an entity with subsisting bargaining rights with the union, and certain further allegations that the respondent had engaged in illegal conduct. The parties were agreed, however, that these issues need not be pursued pending a resolution of the objectors' request for an extension of the terminal date. It was also agreed that if that matter were resolved in the union's favour, it would probably be unnecessary to consider either of the union's alternative claims, and they would both be withdrawn.
II
6This application for certification was filed on May 13, 1988. Rule 2 of the Regulations governing the Board's procedure reads as follows:
- When an application is made, the registrar shall fix a terminal date for the application which shall be not less than five and not more than ten days, as directed by the Board, after,
(a) the day on which the registrar serves the employer with the notice of application for posting, where they are served personally; or
(b) the day immediately following the day on which the registrar mails the notices of application to the employer for posting, where they are served by mail.
In accordance with Rule 2, the Registrar fixed Monday, May 30th, as the terminal date.
7The terminal date is the date by which documentary evidence of membership in a trade union or objections by employees to certification of a trade union must be filed with the Board (see Rule 73). A document is deemed to be "filed" with the Board either when it is actually received, or when it is mailed to the Board by registered mail. Both the regulations and the Board's practice contemplate expedition. Time is of the essence in certification matters. As Laskin, J.A. observed in Hotel and Restaurant Employees and Bartenders International Union, A. F. L, C. 1.0, C. L. C, Local 197 and Ontario Labour Relations Board v. Nick Masney Hotels Ltd. (1970) 70 CLLC ¶14,020:
"The Ontario Labour Relations Board deals in certification matters with fluid situations which cannot be judged by the more leisurely standards that operate in the prosecution of a claim for damages for a tort or for a breach of contract where the situation is fairly well frozen when the tort or the breach of contract has occurred. Expedition is important to a union, to employees and to an employer, since the certification is merely the first step in an often laborious collective bargaining process
In Journal Publishing Co. of Ottawa Ltd. v. Ottawa Newspaper Guild et al (unreported, March 31, 1977 Ontario Court of Appeal) Estey, J.A. put it this way:
"Labour relations delayed is labour relations defeated and denied."
That is why the Rules prescribe relatively "tight" time frames for the filing of material in certification applications.
8The evidence discloses that the notices to employees in Form 6 (in both the English and French languages) were posted by the employer between 9 and 10 a. m. on Friday, May 27, 1988. The Form 6 notice clearly indicates that employees who wish to register an objection to the certification application may do so by mailing such objection to the Board by the terminal date. That notice, prescribed by the Regulations, was augmented by an additional explanation of employee rights, in poster form, which was also sent to the employer for posting on its premises where it would come to the attention of the employees potentially affected by this application. The poster, in question-and-answer format, includes the following:
What is the terminal date?
The terminal date is set by the Board. It is normally seven to ten days following the date the application for certification was received. This is the date by which the trade union applying for certification must file its membership evidence and interested employees must file any documents expressing opposition to certification of the trade union or revoking that opposition. Material sent by registered mail on or before the terminal date is considered to have been filed as of the date of mailing. Otherwise documents are filed when they are received by the Board.
If documents opposing the union or indicating an employee no longer wishes to oppose the union are not received by the Board by the terminal date or sent by registered mail to the Board by that date, the Board generally refuses to consider them.
Evidence of employee wishes is kept confidential by the Board.
Accordingly, the dozen or so employees affected by this application were advised precisely what to do to register their objection, and that it had to be mailed by May 30th. We were also told that on Friday, May 27th, the day the notice was posted, a group including most of the bargaining unit employees met to consider the matter, but nothing was done in a concrete way until the following week when one of their number consulted with a lawyer.
9Late Monday, May 30th, a representative of some of the employees met with a solicitor to discuss their options. That solicitor promptly wrote to the Board requesting an extension of the terminal date. However no statement of employee opposition was actually delivered to the Board until Friday, June 10, 1988, the date of the hearing. As Daniel Olivier, the representative of the employees explained, it was only well after the terminal date that he and some of his fellow employees had "got their act together". Mr. Olivier also confirmed that by Friday, May 27th, everyone had read the explanatory notices and knew that it was necessary for objectors to sign a document opposing the trade union if their position was to be taken into account by the Board. Yet the document which he proposed to file at the hearing on June 10th was itself dated June 8, 1988, nine days after the terminal date. Nevertheless Mr. Olivier urged the Board to extend the terminal date to at least June 10th in order to allow him to file that document which otherwise would be untimely.
10Pursuant to Rule 82 of the Board's Rules of Procedure, the Board has the authority to extend the time for filing of material, including documentary evidence of membership or employee statements of opposition to a union's certification. In this case however, the Board declined to exercise that discretion.
11The bargaining unit here is very small. All employees potentially affected by the application had notice by Friday, May 27th, of what they had to do to register their opposition, and they had four days to do it. There is no great formality involved - as indicated by the form of the document which Mr. Olivier eventually sought to put before the Board on June 10th. All that is necessary is a simple statement indicating opposition to the union's certification. However, the statement which Mr. Olivier urged us to receive was not prepared until June 8th and not actually received by the Board until the date of the hearing, eleven days after the prescribed terminal date. While it is understandable that some employees may have wanted additional time to consider their positions or consult with a solicitor to explore the legal options open to them, the fact of the matter is that they had until May 30, 1988 to register an objection to the union's certification, or by their silence or inaction indicate to the Board that they were content to have the matter decided on the basis of the documentary evidence of union membership then before it - which, we note, in this case, indicates the unequivocal support for the union by more than 55% of the employees in the bargaining unit. That union membership evidence was filed in accordance with both Rule 73 and sections 1(1)(l) and 103(2)(h) of the Act, and was received by the terminal date. Finally, as we have already mentioned, time is of the essence in certification matters. Both the Rules and the Board's practice contemplate the prompt filing of material respecting employee wishes either for or against the trade union.
12We should also note (as we did at the hearing for Mr. Olivier's benefit and here record) that an employee who has not signed a union card is automatically treated as someone who does not support the certification application. No formal step is necessary. The only real significance of a petition of the kind Mr. Olivier sought to file, is that it may indicate that some union members have changed their minds after signing union cards and prior to the terminal date, and may wish to have that fact recorded in documentary form as required by the Act and Rules. If such change of heart is filed in a timely fashion, and is voluntary, the Board will take it into account in dealing with the certification application and may direct a representation vote to clear up the matter. But all simple expressions for or against the trade union must be filed (which means at least sent by registered mail) by the terminal date.
III
13Following the Board's ruling at the hearing that it was not prepared to extend the terminal date, the Board proceeded to consider the other issues in the case: the description and scope of the bargaining unit, the number of employees in that unit, and the number of employees who, by the terminal date, had signified their support for the trade union by documentary evidence meeting the statutory and regulatory requirements of section 1(1)(l) and section 103(2)(j) of the Act, together with Rule 73 of the Regulations. After a determination of the scope of the bargaining unit, a review of the union's documentary evidence of membership, an indication that the union appeared to be in a "certifiable" position, and further explanation for the benefit of Mr. Olivier (who was not represented by counsel) as to why we had not been disposed to extend the terminal date, and our proposed disposition of the case, Mr. Olivier mentioned, for the first time, that there may exist another document which might meet the requirements of the regulations and might have been filed by the terminal date. Mr. Olivier asserted that, as he understood it, some employees had signed the Form 6 notice itself in a way which might signify their opposition to the union. He believed that another employee, who was not present at the hearing, had mailed that material to the Board. However, he had no direct evidence in this regard and was relying solely upon what a fellow employee had told him. That employee was not present at the hearing nor was any copy of the document produced.
14Counsel for the union protested that this proceeding should not be derailed because of the possible existence of a document which might have been relevant if filed in a timely way; moreover, if a copy of such document existed, it should have been available at least by the date of the hearing. Counsel pointed out that Mr. Olivier did not come to the hearing in anticipation of supporting this annotated Form 6 (as would be required by Rule 73(5)), and had no direct knowledge that it had ever been mailed to the Board. In short, he was not caught by surprise by the absence of a document upon which he planned to rely, and adverted to it only obliquely, at the conclusion of the proceeding. Before that, neither the objecting employees nor their solicitor had indicated the existence of, or intent to rely on, this annotated Form 6 (as opposed to the objectors' petition which Mr. Olivier sought to file, belatedly), nor had they suggested that this was the timely statement of objection which the Board should take into account. Counsel for the union characterizes Mr. Olivier's representation as a convenient and self-serving afterthought and reserves his right to lead evidence about what was going on in the plant at the time, should the document surface and the Board decide that it should be received. Nor, without evidence, was the union prepared to concede that the document ever was filed, or that its form or the circumstances in which any signatures might have been obtained reflect a voluntary change of heart of its previous supporters.
IV
15On the basis of the evidence before the Board, the union was clearly entitled to certification. More than fifty-five per cent of the employees in the bargaining unit had signified their desire for trade union representation by signing membership cards which met the requirements of the Act and were filed in a timely fashion. However, in view of the employee representative's submission that there might be some other document properly filed, and bearing upon this determination, or the exercise of the Board's discretion to enquire further or direct the taking of a representation vote, the Board issued this decision:
DECISION OF THE BOARD; June 13, 1988
- At the hearing in this matter on June 10, 1988, the representative of the objecting employees indicated that a document, potentially relevant to these proceedings, had been sent by registered mail on May 30, 1988 - that is, prior to the terminal date. The Board has no record of receiving this document. Accordingly, the parties (including the representative of the objectors) agreed that the objectors would have until June 20, 1988 to make submissions to the Board on this matter. Such submissions should include the nature and contents of the alleged lost document, the circumstances surrounding its mailing to the Board, and the objectors' proposed disposition of this proceeding in the event that the facts asserted can be proved. Failing receipt of such submissions, a certificate will issue because the trade union has documentary evidence of membership for more than fifty-five per cent of the employees in the agreed bargaining unit.
16In response to the Board's decision the objecting employees did not, through their counsel or otherwise, record their submissions concerning "circumstances surrounding the alleged lost document's mailing to the Board". Indeed, they did not assert that it ever was, in fact, mailed to the Board; and from counsel's written submissions one can only conclude that an annotated Form 6 notice was not sent by May 30, 1988, the terminal date, and that it may still be in the possession of the objectors or their counsel. We cannot conclude that a potentially relevant document has, somehow, been lost in the mails, nor, in all the circumstances, are we prepared to reopen the hearing for the purpose of receiving further material.
17The Board is satisfied on the basis of all the evidence put before it in a timely fashion, 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 May 30, 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 Act.
18A certificate will issue to the applicant in respect of the bargaining unit described at paragraph 4.