Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91 v. Trans Continental Printing Inc., 1989 CanLII 3018

[1989] OLRB Rep. November 1187

1781-89-R Teamsters, Chauffeurs, Warehousemen and Helpers, Local 91, Applicant v. Trans Continental Printing Inc., Respondent v. Group of Employees, Objectors

BEFORE: Owen V. Gray, Vice-Chair, and Board Members J. A. Rundle and P. V. Grasso.

APPEARANCE: Linda Huebscher, John Raudoy, Kim Cullen, Gordon Kelly, Mike Martin and Dan Broudol for the applicant; Michel Guay, Raymond Beaulieu, Victor Marcouz, Louis Bourdon and Jacques Michaud for the respondent; Russel Zinn and Garry Murree for the objectors.

DECISION OF THE BOARD; November 23, 1989

1. This is an application for certification in respect of which a Notice to Employees in Form 6 was posted in the respondent's premises on October 27, 1989 at 4:00 p.m. Paragraph 1 of that notice reads as follows:

2. TAKE NOTICE that the applicant on October 20, 1989 made application to the Ontario Labour Relations Board for certification as bargaining agent of employees of Trans Continental Printing Inc. in the following unit claimed by the applicant to be appropriate:

"All employees of the respondent in the County of Stormont, save and except group leaders, those above the rank of group leaders, office, clerical and sales staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period."

The notice also advised employees that the terminal date fixed by the Registrar was November 1, 1989, that the hearing of the application would take place on November 16, 1989 and that a Labour Relations Officer ("LRO") would convene a meeting of the parties to the application on November 9, 1989.

2. Representatives of the applicant, the respondent and a group of employees who had filed a petition opposing certification of the applicant all met with the Labour Relations Officer on November 9, 1989. The following issues had not been resolved among them by the time the meeting concluded:

(a) whether the applicant's membership evidence had been filed in a timely manner;

(b) whether the unit described by the applicant in its application was the appropriate bargaining unit or, as the respondent claimed, there should be two appropriate bargaining units: one of "skilled" employees and the other "unskilled" employees, both with the range of exclusions set out in the applicant's proposal;

(c) whether the "unskilled" employees were employees of the respondent or of a third party employment agency;

(d) whether, as the applicant claimed, Gary Murree, Chief Electrician, and James Watkins, Chief Mechanic, were excluded from the bargaining unit because, as the applicant claimed they exercised managerial functions within the meaning of clause 1(3)(b) of the Act as of the application date;

(e) whether the petition in opposition to the applicant represented a voluntary expression of the wishes of the persons who signed it.

Subject to the dispute about Messrs. Murree and Watkins and the identity of the employer of the "unskilled employees", all those present at the meeting with the Labour Relations Officer agreed on lists of the persons employed by the respondent in the appropriate bargaining unit (or units) as of the application date. They also agreed on the exclusions proposed by the applicant, including the exclusion of "group leaders".

3. When the application came on for hearing before this panel on November 16, 1989, representatives of the applicant, respondent and objecting employees ("the participants") agreed that the applicant's membership evidence had been filed in a timely manner, that the appropriate bargaining unit should be as described by the applicant and that the "unskilled" employees were employees of the respondent. We reviewed the remaining issues with the participants to determine what hearing time might be necessary to deal with them and how that hearing time might best be scheduled. Following that discussion, representatives of the participants came to some further agreements. They agreed that the Chief Electrician and Chief Mechanic did not exercise managerial functions within the meaning of clause 1(3)(b) as of the application date, so that Messrs. Murree and Watkins were employees in the bargaining unit on the application date. They also agreed to amend the bargaining unit description upon which they had earlier agreed, so as to now include all those employed as "group leader". They agreed that there were four persons whose job title was "group leader" on the application date: J. Bronzan, D. Brodeur, S. Reid and S. Martelle.

4. We then raised with the participants the question whether the hearing of this application on its merits should proceed without giving notice to the group leaders that it now affected them. The applicant took the position that no further notice should be given. The respondent and objectors took the contrary position.

5. Counsel for the applicant argued that notice of the application had been given to all employees, including the group leaders, when the Form 6 notice was posted in the workplace. As for the fact that the notice described group leaders as excluded from the unit for which the applicant was seeking certification, counsel for the applicant argued that the bargaining unit ultimately determined by the Board is often different from the one described in the application and that these differences often arise as a result of agreements made by the trade union and the employer when they meet with a Labour Relations Officer before the application is heard. She argued that the group leaders had had the opportunity to attend the meeting with the Labour Relations Officer; having not done so, she argued, they were not entitled to further notice.

6. Counsel for the applicant argued that if we determined that group leaders had not already received adequate notice that the application affected them, we should proceed to dispose of the application on the basis of the material before us, then advise the group leaders of our decision and of their right to reconsideration if they had any difficulty with it. If we were not prepared to do that, counsel argued, we should at least rule that the only issue on which group leaders could speak once notice had been given to them was whether group leaders should be included in or excluded from the appropriate bargaining unit.

7. Any person who would fall within any bargaining unit for which a trade union might be certified in a certification application is a person whose legal rights may be directly affected by the outcome of that application. As the Board observed in Tektron Equipment Corporation, [1983] OLRB Rep. Nov. 1932:

8. The granting of an application for certification has a substantial effect on the rights and obligations of the individual employees in the bargaining unit for which the certificate is granted. An employee's right to bargain individually with his or her employer, however real or illusory that right may be, is terminated if the applicant trade union is granted a certificate for a bargaining unit which includes that employee. The terms and conditions of his employment are thereafter subject to the influence of the trade union, which thereafter has the exclusive right to bargain with respect to his terms and conditions of employment and to establish with his employer a collective agreement by which he is bound by virtue of section 50 of the Labour Relations Act. The rules of natural justice require that persons so directly affected by quasi-judicial proceedings be given notice of those proceedings and an opportunity to make representations. Pursuant to the Board's Rules of Practice, notice is given to affected employees of applications for certification (Forms 6, 7 and 78), as well as of applications to terminate bargaining rights (Form 19), applications to declare successor trade union status (Form 24) and applications under Sections 63 and 1(4) (Forms 28 and 33).

9. The combined affect of sections 5 and 6 of the Statutory Powers Procedure Act, R.S.O. 1980 c. 484, is that the Board is obliged to give notice of its proceedings to all those whose legal rights might be affected by those proceedings. Each and every such person is a "party" to those proceedings in the sense in which that word is used in the Statutory Powers Procedure Act.

10. It is true, as counsel for the applicant argues, that the bargaining unit found by the Board to be appropriate in a particular application may be different from the one proposed by the applicant. It is not legally necessary for those ultimately included in the bargaining unit to have received express notice of the possibility of that precise bargaining unit configuration, so long as they have notice of the possibility of their being included in some bargaining unit as a result of the application. The applicant's argument that no further notice to group leaders is needed would be more tenable if the Form 6 notice simply advised all employees of the respondent that the applicant had applied for certification as exclusive bargaining agent for "a unit of employees of the respondent" or if, having set out the unit sought by the applicant, the notice went on to inform employees that the Board might certify the applicant for a unit which included employees other than those in the unit described in its application. The Form 6 notice does neither of those things, nor should it. It would be undesirable to encourage the intervention of employees for whom an applicant trade union clearly does not seek certification unless and until there is some suggestion that the appropriate bargaining unit should include such persons. The only Board notice given to group leaders employed by the respondent informed them that the applicant was not seeking bargaining rights for group leaders. At the time of our hearing, the group leaders had had no notice, from the Board or otherwise, that the applicant had amended its application or that any other interested party was proposing their inclusion in the appropriate bargaining unit, nor did they have such notice at the time of the LRO's meeting. They would have had no reason to attend either the LRO's meeting or the hearing; their non-attendance cannot prejudice their right to notice.

11. We are not dealing here with a situation in which the Board has decided a point in the belief that all those affected have been given notice and has later discovered that through misunderstanding or misadventure some affected persons have not had notice. In those circumstances it would be highly appropriate for the Board to bring the decision to the attention of those whose possible lack of notice it has subsequently discovered and request that any application for reconsideration on those grounds be made within a particular period of time. That is not the situation here. We know there are affected parties who do not have notice. They are entitled to a hearing before the Board makes a decision, not just the opportunity to persuade the Board to change a decision made in deliberate disregard for their right to notice and of the Board's statutory obligation to give such notice. No one would seriously suggest that the Board could respond to a certification application by giving the employer notice that the application had been granted subject to the employers right to request reconsideration. The employer's right to notice and the opportunity to participate in a hearing before a decision is made is no greater than that of the affected employees.

12. An employee affected by an application before the Board is ordinarily entitled to address any issue of substance which arises in that application: see Tektron Equipment Corporation, supra. The proposition that group leaders should only be permitted to address the question whether the bargaining unit should include them or not is an issue which should not be determined in their absence when they have had no notice of the proceedings.

13. For the foregoing reasons, at the hearing on November 16, 1989 we ruled orally that the Board should give notice to employees of the application in its amended form.

14. There was then the question of extending the terminal date. We observed that that question could not be determined against the group leaders until they had been given notice that they are affected this application. Against any possibility that the Board might then be persuaded not to extend the terminal date, we invited the union to consider that an extension granted at the next hearing would result in a much later terminal date than an extension granted at this time. The union asked that the Board extend the terminal date at this time.

15. Accordingly, we direct that the Registrar prepare and forward to the respondent for posting a Form 6 notice in which the first paragraph reads as follows:

16. TAKE NOTICE that the applicant on November 16, 1989 amended this application to the Ontario Labour Relations Board to seek certification as bargaining agent of employees of Trans Continental Printing Inc. in the following unit claimed by the applicant, respondent and objecting employees to be appropriate:

"All employees of the respondent in the City of Cornwall, save and except foremen, those above the rank of foreman, office, clerical and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period."

We hereby extend the terminal date to a date to be fixed by the Registrar. In fixing that date, the Registrar is to apply the principles of section 2 of the Board's Rules of Procedure with reference to the date on which the new Notice to Employees is served on or mailed to the employer for posting. The Registrar is also directed to relist this matter for hearing. The new hearing date and extension of terminal date are to be reflected in paragraphs 2 and 3, respectively, of the new Notice to Employees. A fresh LRO meeting should be scheduled, and notice of that should also appear in the new Notice to Employees. Copies of this decision shall be appended to the new Notices to Employees. The respondent is directed to post those notices in conspicuous places where they are most likely to come to the attention of all employees who may be affected by the application and to keep the notices posted until the close of business on the extended terminal date set out therein.