International Union of Operating Engineers, Local 793 v. Russell H. Stewart Construction Company Limited
[1990] OLRB Rep. January 79
1580-89-R International Union of Operating Engineers, Local 793, Applicant v. Russell H. Stewart Construction Company Limited, Respondent v. Group of Employees, Objectors
BEFORE: Ken Petryshen, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
APPEARANCES: Bernard Fishbein, John Monti, Alcino Silveira and Dave Ottaway for the applicant; Henry Dinsdale, Robert Tout and Ronald Fetterley for the respondent; James E. Bowden and Randy D. Parks for the objectors.
DECISION OF KEN PETRYSHEN, VICE-CHAIR, AND BOARD MEMBER W. N. FRASER; January 29, 1990
1This certification matter came on for hearing on January 12, 1990 for the purpose of hearing submissions (and, if the Board finds it appropriate, evidence) with respect to Randy Parks' request for reconsideration of the Board's decision dated October 20, 1989, as set forth in letters dated October 27, 1989 and November 2, 1989 from counsel for Mr. Parks. After entertaining the parties' submissions, which consumed the entire hearing day, the Board reserved its decision and advised the parties that it would attempt to advise them as soon as possible of its decision. We propose herein to simply provide the parties at this stage with our decision.
2The Board (differently constituted) issued a decision dated October 29, 1989 certifying the applicant to represent a bargaining unit of the respondent's employees. Randy Parks, an employee in the bargaining unit, seeks reconsideration of the Board's decision and bases his request on two relatively distinct grounds. It is alleged that the applicant utilized improper solicitation techniques in securing its membership evidence and the particulars of these allegations are contained in paragraphs 5-10 of the letter dated November 22, 1989 from counsel for Mr. Parks. At the hearing, counsel for Mr. Parks conceded that Mr. Parks did not exercise due diligence in investigating the matters and placing the allegations before the Board. After considering the parties' submissions on this aspect of the reconsideration request, the Board is satisfied that these allegations have been made in an untimely manner and, for this reason, the Board will not entertain them.
3In support of the reconsideration request, it is alleged that the application has been tainted by fraud. In this regard, Mr. Parks alleges in essence that an employee in the bargaining unit circulated a petition prior to the terminal date, but that this employee had never intended at any time to file the document with the Board, nor to appear at the hearing. It is alleged, as well, that this employee was acting in the capacity of "agent" for the applicant. We note that a petition was not filed with the Board prior to the terminal date. In our view, the allegations made by Mr. Parks on this aspect of his reconsideration request suggest a serious abuse of the Board's process, which may constitute fraud. After considering the parties' submissions, the Board (H. Kobryn dissenting) has determined that it will set this matter down for hearing in order to give Mr. Parks the opportunity to call evidence to support the allegations concerning the petition. The hearing for this purpose will be held on February 16, 1990.
4This matter is referred to the Registrar.