Labourers' International Union of North America, Local 183 v. Vissers Nursery, 1990 CanLII 5788

[1990] OLRB Rep. September 989

0378-90-R Labourers' International Union of North America, Local 183, Appli­cant V. Vissers Nursery, Respondent

BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. Gibson and N. Wilson.

DECISION OF THE BOARD; September 26, 1990

1. Two certificates were issued to the applicant pursuant to section 144(2) of the Labour Relations Act in this application for certification. One certificate was with respect to construction labourers employed by the respondent in the industrial, commercial and institutional (I.C.I.) sec­tor of the construction industry in the Province of Ontario and the other with respect to construc­tion labourers employed by the respondent in all other sectors of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham. These certificates were issued without a hearing in accordance with the Board's discre­tion under section 102(14) of the Act.

2. Approximately a month later, the respondent, through its solicitors, applied to the Board to have it reconsider and revoke its decision to certify the applicant. One of the grounds for reconsideration is that the employees did not receive proper notice of the application for certifica­tion. A copy of the respondent's request was sent to the applicant for comments. The applicant has made its reply in writing, opposing the application for reconsideration, and has sent a copy of its reasons to the respondent. The Board has received no further submissions from the solicitors for the respondent.

3. The application for certification was made on May 8, 1990 and the Board set May 23, 1990 as the terminal date for the application. The terminal date fixed for an application for certification made under the construction industry provisions of the Act, as this one was, is the date by which the respondent is required to file its response to the application, the applicant is required to file its membership evidence in support of the application, and any employees who are opposed to the application are required to file their written statements of opposition.

4. On May 14, 1990 the Registrar sent to the respondent a notice of the application together with a copy of the application, a supply of notices to employees of the application, a form on which to reply to the application, forms on which to list the names of employees who would be in the bargaining unit sought by the applicant and a Return of Posting Card. The Registrar's instructions to the respondent include the instruction to post immediately the notices to employees in such conspicuous locations on your premises as may be necessary to bring this matter to the attention of your employees who may be affected by the application.". The Registrar also instructed the respondent to return to the Board forthwith the duly completed Return of Posting Card. That card, properly completed, contains information as to the name and position of the rep­resentative of the respondent who completes it and information on the number of notices to employees which were posted, the time and date on which they were posted and is to be dated and signed by the respondent's representative.

5. On May 14, 1990 the Registrar acknowledged to the applicant receipt of the applica­tion, advised the applicant of the terminal date fixed for the application and notified the applicant of its obligation to file the membership evidence on which it would be relying. The material sent to the applicant with the Registrar's letter included an Advice of Posting Card, with respect to which the Registrar's letter states:

Failure of the employer to post these documents may result in delay and if there has been a fail­ure to post, you should notify me immediately by telephone or telegram. Whether there has been a posting or not, the enclosed Advice of Posting Card should be returned to me forthwith duly completed.

[emphasis in the original]

The Advice of Posting Card asks for information on the posting in the following format:

File No.__________

Re:

I, _____________________ have ascertained

(name of representative)

from employees affected by this application

that the Notices to Employees (Form ______)

were posted by the employer on___________

representative of applicant

6. The respondent did not reply to the application and did not file a Return of Posting Card. The applicant did file an Advice of Posting Card, signed by a representative of the applicant but without any information as to when the employer had posted the Board's notices to employees.

7. No statements of objections from employees were filed.

8. The alleged facts on which the respondent relies for making its application for reconsid­eration include the fact that the respondent failed to comply in a timely fashion with the Board's instructions to post its notices to employees. That allegation carries with it the clear inference that employees whose rights may have been affected by the application did not have due notice of it and that the Board should remedy that defect by reconsidering "...the Certification of Labourers' International Union of North America, Local 183 as the bargaining agent for the construction lab­ourers in the employ of Vissers Nursery.".

9. The Board's jurisdiction to reconsider a decision comes from subsection 106(1) of the Act which gives the Board the discretion to ". . . reconsider any decision, order, direction, declara­tion or ruling made by it and vary or revoke any such decision, order, direction, declaration or rul­ing.". For the reasons stated in K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, at paragraph 4, the Board has been cautious in the exercise of its discretion in order to pre­serve the finality of its decisions. In this case, the respondent's application for reconsideration is based primarily on the allegation that it failed to post the Board's notices to employees, as a result of which employees whose rights might be affected by the application have not had proper notice of it. The Board notes that, in the period between June 24th and July 6th, it received letters from four persons purporting to be employees of the respondent affected by the application. None alleges that he/she did not have notice of the application. Nor did any one of them request the Board to reconsider its decision. The Board has often said that an employer is not empowered to act on behalf of employees in matters concerning their choice of a trade union as their exclusive bargaining agent or their opposition to a trade union.

10. In the Board's view, these are not circumstances in which the Board ordinarily might exercise its discretion to reconsider a decision. Rather, they are circumstances in which the panel herein would have dismissed the application for reconsideration without a hearing. However, in this case and for the reasons given below, the Board is not prepared to dismiss the application without a hearing.

11. As paragraph 4 indicates, the materials sent to the employer named as respondent to an application for certification includes notices to employees and a direction to the employer to post the notices. These notices advise the employees of the application and their rights to participate in it. It is the legal obligation of the respondent to an application for certification to make sure that the notices are posted. The Board is concerned that employees whose rights are likely to be affected by an application are given proper notice of it. For that reason, the Board seeks informa­tion from both the applicant and the respondent described above in paragraphs 4 and 5 with respect to the posting of its notices to employees. When the Board is aware that the employer has not posted the notices to employees, it will exercise its powers under clauses (e) and (g) of subsec­tion 103(2) of the Act to authorize a Board officer to enter the premises or job sites where employ­ees of the respondent are working and make the posting. If the Board has not been promptly advised of the posting problem, it may be necessary to extend the terminal date fixed for the appli­cation in order for proper notice to be given to employees, thus delaying the application's process­ing. Therefore, by being prompt in checking to see whether the employer has posted the Board's notices, the applicant's representative can avoid the delay caused by the need to extend the termi­nal date. Applicants under the construction industry provisions of the Act are duly forewarned of the risk of delay by the passage quoted above from the Registrar's instructions to the applicant.

12. In this application it would appear that the representative of the applicant was not prompt in checking on the posting. As noted above, the Registrar's notice to the applicant acknowledging the application and instructing the applicant on filing the Advice of Posting Card was sent on May 14, 1990. The Advice of Posting Card was received by the Board on May 24, 1990, one day after the terminal date. The applicant's representative was not diligent either. If the representative did ascertain that the posting had been made, he failed to indicate the date on which it was observed to have been made. If he ascertained the contrary, he failed to record that informa­tion on the Advice of Posting Card. The result for this application is that there is nothing on the Board's record from which the Board might satisfy itself that employees affected by the application had proper notice of it.

13. It is not too much to ask of an applicant, who expects the Board to exercise its discre­tion to process the application for certification without a hearing, to investigate or ascertain from employees affected by the application whether the Board's notices to employees have been posted, to properly complete and duly file an Advice of Posting Card. This is particularly so when the important rights which flow from certification under section 144(2) of the Act are considered. When the certificates were issued to the applicant in this application, in addition to the applicant becoming the exclusive bargaining agent of the respondent's construction labourers employed in the bargaining unit described in the certificates, the applicant and the respondent became bound immediately to the provincial agreement for construction labourers, pursuant to subsection 145(4) of the Act.

14. In the circumstances of this application for reconsideration, since the Board cannot be satisfied that employees whose rights may be affected by the application were given proper notice of it, the Board considers it appropriate to list this matter for hearing for the purposes of receiving the evidence and representations of the parties respecting whether employees received proper notice of the application for certification and, if not, what effect that should have on the certifi­cates which have been issued to the applicant.

15. Accordingly, the Registrar is directed to list these matters for hearing and to serve notice in the Board's customary manner on the parties and the employees. The respondent is directed to post copies of this decision together with copies of the Board's Notice of Hearing in conspicuous places where they are most likely to come to the attention of all employees who may be affected by these matters. The copies of the decision and notice are to remain posted until the close of business on the day of hearing. The respondent is directed further to furnish forthwith to the Board the names and addresses of record of all construction labourers who, as at May 8,1990, were employed by the respondent in the bargaining unit described in this application. In the cir­cumstances of this case, in addition to serving notice in the customary manner as stated above, it is appropriate also that the Registrar serve the individual employees at the addresses supplied by the respondent with a Notice of Hearing and copy of the Board's decision.