Ontario Labour Relations Board
[1990] OLRB Rep. February 159
2673-89-R Amalgamated Clothing and Textile Workers Union, Applicant and v. Goody Canada Limited, Respondent
BEFORE: Owen V. Gray, Vice-Chair, and Board Members J. A. Rundle and B. L. Armstrong.
APPEARANCES: J. Hayes, Jack Matraia, Frank Aquino and Tony Pileggi for the applicant; Irv Kleiner, Stephen L. Wood and D. Lynch for the respondent.
DECISION OF THE BOARD; February 23, 1990
1This application for certification was filed in the name of "Amalgamated Clothing and Textile Workers Union Toronto Joint Board" (hereafter referred to as "the joint board"). That organization was found to be a trade union in Board File 0850-78-R.
2When the applicant and respondent attended the hearing scheduled in this matter, they were advised that the membership evidence filed by the applicant consists of applications for membership in the "Amalgamated Clothing and Textile Workers Union" (hereafter referred to as "the international union"). An organization by that name was found to be a trade union in Board File 0956-76-R. According to their representatives and counsel, "Amalgamated Clothing and Textile Workers Union" and "Amalgamated Clothing and Textile Workers Union Toronto Joint Board" are two distinct trade unions.
3An application for membership in one trade union is not treated as evidence of membership in another unless the former is a local of the latter, which is not the case here. At hearing, we were asked to amend the application to name "Amalgamated Clothing and Textile Workers Union" as applicant. The respondent did not oppose the request. Having regard to the representations of the trade unions involved and their history of organizing, we were satisfied that this application was intended to be brought by the organization to which the membership evidence relates. In the circumstances, we granted the request. The title of these proceedings has been amended accordingly.
4There then arose the question whether the affected employees had been given proper notice that the international union had applied to be certified as their bargaining agent, when the only notice they had was the Board's Form 6 notice naming the joint board as applicant. It may be, as counsel's submissions and representations suggest, that the affected employees would be indifferent about the distinction. It is not for us to assume away their right to decide whether they care, however. Given the importance which the Board's jurisprudence assigns to the separate existence of related trade unions, we cannot treat notice to employees of an application by the joint board as notice of an application by the international union.
5As the respondent was content to have us proceed without first giving notice to the affected employees, counsel for the applicant suggested that we do so and give notice of the result to the affected employees so they could make representations if they wished. In answer to that suggestion, we adopted the observations of the Board (somewhat differently constituted) in Trans Continental Printing Inc., [1989] OLRB Rep. Nov. 1187 at paragraph 10:
- 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.
In our view, the affected employees are entitled to notice of the international union's application before the Board considers it.
6Accordingly, we direct the Registrar to prepare and forward to the respondent for posting fresh Form 6 Notices to Employees reflecting the amendment to name the international union as applicant. 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.