[1989] OLRB Rep. March 274
2939-88-R Labourers' International Union of North America, Local 1059, Applicant v. Lonco Construction Limited; Caradon Developments Inc., Respondents
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and C. A. Ballentine.
DECISION OF THE BOARD; March 22, 1989
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 by the Minister under section 139(1) of the Act on September 30, 1983, the designated employee bargaining agency is the Labourers International Union of North America and the Labourers International Union of North America, Ontario Provincial District Council.
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).
As filed, the application specifies two separate entities as respondents. Although the applicant does not specify that it is seeking relief under section 1(4) of the Act as well as certification, such a request is implicit. By letter dated March 15, 1989, however, the applicant seeks to withdraw the application insofar as it relates to Caradon Developments Inc. without prejudice to its right to seek relief under section 1(4) of section 63 at some later date. In the circumstances, including the replies filed by the two respondents, the Board finds it appropriate to grant that request and the application with respect to Caradon Developments Inc. is therefore withdrawn with leave of the Board.
In its reply (as amended by letter dated March 7, 1989), the respondent Lonco Construction Limited agrees with the bargaining unit description suggestion by the applicant for this application (as amended by the withdrawal as against Canadian Developments Inc.). It has, however, requested that the Board hold the hearing with respect to the application because it "desires the opportunity to test the membership evidence filed in support of the application" and it "alleges that the membership evidence filed in support of the application does not reflect the wishes of the employees of the bargaining unit with respect to representation by the applicant".
The Labour Relations Act provides that the certification of trade unions in this province is based primarily upon an assessment of a trade union's membership support as evidenced by membership records filed in support of an application for certification. The Board does not inquire into opinions about the virtue of trade union representation except as evidenced by the documentary membership evidence and any timely petitions filed in opposition to the application. The representation vote exists as a mechanism for ascertaining the wishes of bargaining unit employees in cases where an applicant trade union has filed membership evidence on behalf of more than forty-five per cent of such employees but does not have the support (as evidenced by membership documents) of more than fifty-five per cent of them which is required for outright certification under section 7(2) of the Act, or where the circumstances are such that the Board sees fit to exercise its discretion to require such a vote to be held notwithstanding that there is documentary evidence showing membership support for the applicant trade union in excess of fifty-five per cent. In certification proceedings the Board places heavy reliance upon membership evidence filed by the trade union. Because of the consequences of the reliance that the Board places on what is a form of hearsay evidence which is not (normally) disclosed to the employer and is not (normally) subject to cross-examination, the Board requires a high standard of integrity in the nature and quality of the membership evidence filed. It is for an applicant trade union to satisfy the Board that every membership card upon which it relies was signed by the employee on whose behalf it is tendered and that each employee has paid the initiation fee that accompanies it. For this purpose, the Board requires that a Declaration Concerning Membership Documents (in Form 9 or Form 80 as the case may be) be filed in every application for certification.
Any party which asserts, in any proceeding before the Board, any irregular or improper conduct is obliged to give notice and full particulars of its allegations (section 72 of the Board's Rules of Procedure and see, among others, Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138). This requirement has a basis in both legal and labour relations considerations. The legal consideration is a recognition of the rule of natural justice that a party against which allegations of wrongdoing are made is entitled to have sufficient notice of them to enable it to know and prepare the case that it must meet. The labour relations consideration is that labour relations delayed are labour relations defeated and denied and that there should therefore be no unnecessary prejudicial delay in proceedings before the Board (see Pebra Peterborough Inc., [1987] OLRB Rep. March 421; Unlimited Textures, supra).
Where a party has information that the trade union, or anyone on its behalf, has either attempted to perpetrate a fraud on the Board with respect to the membership evidence, or has otherwise acted improperly, that party can make those allegations. With the exception of allegations, which must also be particularized, that membership evidence is defective because the employee with respect to whom it is submitted did not actually sign the card or did not make the payment referred to in it, the Board does not conduct investigations into allegations of impropriety with respect to the solicitation of membership evidence. Such allegations must be made, particularized and proven by a party to the proceeding.
Further, other than at a hearing that the Board finds it appropriate to hold with respect to "non-sign" or "non-pay" allegations, a party (other than the applicant trade union) is not permitted to either inspect or examine witnesses with respect to membership evidence filed in support of an application for certification. This practice is founded in section 111(1) of the Labour Relations Act, which provides that:
111.-(1) The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union.
The processes which the Board has adopted with respect to membership evidence have stood the test of time and have been shown to be reliable (see Grand & Toy Limited, [1986] OLRB Rep. Sept. 1223).
In addition, the construction industry provisions of the Labour Relations Act generally, and specifically section 102(14), together with the Board's Rules of Procedure with respect to applications for certification in the construction industry, enable the Board to deal with such applications in an expedited manner without an oral hearing. Accordingly, unless there is something on the face of the material before the Board which suggest that a hearing is necessary, or a party offers some cogent reason for holding one, the Board will dispose of an application for certification in the construction industry without holding an oral hearing.
In this application, the respondent Lonco Construction Limited has offered no basis whatsoever for either its request or its allegation. There is nothing in any of the material before the Board which suggests any need for a hearing at this time.
The Board finds, pursuant to section 144(1) of the Act that all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of the respondent in all other sectors of the construction industry in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, 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.
However, the material before the Board is such that it cannot make the other determinations necessary in order to dispose of the application at this time. In that respect, the Board finds it appropriate to authorize a Labour Relations Officer, to be designated by the Registrar, to inquire into and report to the Board with respect to the list of employees in the bargaining unit.