United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 463 v. P.H. Atlantic Plumbing & Heating Division of 629629 Ontario Limited, 1991 CanLII 6038

Ontario Labour Relations Board

[1991] OLRB Rep. January 97

1600-90-R United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 463, Applicant v. P.H. Atlantic Plumbing & Heating Division of 629629 Ontario Limited, Respondent

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. N. Fraser and J. Kurchak.

Appearances

APPEARANCES: Neil Meikie and Larry Cann for the applicant; James E. Bowden and Juliana Tang for the respondent;

Decision of the Board

DECISION OF THE BOARD; January 18, 1991

1. This request for reconsideration was listed for hearing by decision of the Board dated December 7, 1990.

2. By decision of the Board dated October 9, 1990 two certificates were issued to the applicant pursuant to section 144(2) of the Labour Relations Act ("the Act"). One certificate was with respect to all plumbers and plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the con­struction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman. The other was with respect to all plumbers and plumbers' apprentices, steamfitters, steamfitters' apprentices in the employ of the respondent in all sectors of the construction industry in the County of Peterborough (except for the geographic Township of Cavan), the County of Victoria (except for the geographic Township of Manvers) and the provi­sional County of Haliburton, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman. These cer­tificates were issued without a hearing in accordance with the Board's discretion under section 102(14) of the Act.

3. By letter dated November 8, 1990, the respondent through its solicitor applied to the Board to have it reconsider and revoke its decision to certify the applicant. That request was opposed by the applicant in a letter dated November 21, 1990. Counsel for the respondent made further written submissions in letters dated November 29, 1990 and December 11, 1990.

4. The primary ground for the request for reconsideration is the respondent's assertion that it did not receive timely Notice of the Application for Certification and was therefore unable to prepare a timely reply or provide proper notice to employees whose rights might be affected by this application.

5. In our decision dated December 7, 1990 listing this matter for hearing we noted the fol­lowing:

6. The respondent through its counsel asserts that it did not receive from the Board Forms 77, 78, 74, 81, Schedules to Form 77 and the notice entitled "Notice to Employees" ("the appropriate documentation") until October 1, 1990. It is further asserted that this documentation was not "brought to the attention of management until October 2, the terminal date". As a result, the notices were not posted until October 2, 1990 and were then only posted "in the shop located at its [the respondent's] head office" because "... there was no opportunity to post at the vari­ous construction sites in the province at which employees were working - . ." -

7. The respondent did not file a timely reply and schedules, and did not return Form 74, the Return of Posting Card. Counsel for the respondent in his letter to the Board states that the respondent posted the notices on October 2, 1990 and mailed the Return of Posting Card. The Board notes that it has not received any Return of Post­ing Card from the respondent. The Board further notes that it did not receive a reply from the respondent or a list of employees until it received this reply [sic] for recon­sideration on November 9, 1990.

8. We note that at the time of our decision dated October 9, 1990, this panel of the Board had received a duly completed "advice of posting" card, from the applicant. On that card Mr. Larry Cann, a representative of the applicant states that he had "as­certained from employees affected by this application that the Notices to Employees (Form 78) were posted by the employer on September 27, 1990." We also note that the records of the Board indicate that the appropriate documentation was sent to the respondent at its proper address at 3206 Wharton Way, Mississauga, Ontario by Quick Messenger Service (Ontario) Ltd. on September 25, 1990 and was received at that address on that day as evidenced by a signature on the consignee portion of the receipt bill.

9. On October 9, 1990, the Board therefore dealt with the application on the basis of the evidence before it and without a hearing pursuant to section 102(14) of the Labour Relations Act.

10. In its request for reconsideration the respondent asserts that at the time we made our decision the facts were not as indicated in paragraph 6 herein. The respondent asserts it received the documentation from the Board on October 1,1990 and not September 25, 1990 as indicated by the Quick Messenger Service receipt, and asserts that the notices were posted on October 2,1990 and not September 27, 1990 as indicated on the advice of posting card returned by the applicant.

11. As indicated, the reason this request for reconsideration was scheduled for hearing was because of the factual assertions contained in the respondent's submissions that it had not received the application for certification until the date which preceded the terminal date and as result had failed to post it in a timely manner. The purpose of the hearing therefore was to hear the evidence and submissions of the parties concerning the disputed fact as to when notice of the application was given to the respondent.

12. At the commencement of the hearing of this matter on January 7, 1991, the respondent acknowledged that, contrary to its assertions in its request for reconsideration it did in fact receive notice of the application at its offices on September 25, 1990 - at least 7 days before the terminal date. The Board would not normally have conducted a hearing in respect of a respondent's request for reconsideration where, as here, the respondent admits that it inaccurately sets out the facts in support of its request for reconsideration. Indeed, if the respondent had admitted in the written submissions requesting reconsideration that notice of the application had been received on Sep­tember 25, 1990 but had not been posted until October 1, 1990, it is unlikely that this request for reconsideration would have been scheduled for hearing in the absence of any complaint from any other person whose rights are likely to be affected by the application that they had not received proper Notice of the Application.

13. The matters ultimately addressed by the parties in respect of Notice, the Advice of Posting by applicants and respondents, and the Board's jurisdiction to deal with Certification Applications in the Construction Industry without a hearing pursuant to section 102(14) of the Act, are important issues to all members of the labour relations community. As a result, in the circum­stances of this case, we have addressed the request for reconsideration and the submissions of the parties.

14. At the hearing of this matter on January 7, 1991, in addition to their agreement that the application for certification and other appropriate documentation was received by the respondent in its offices on September 25, 1990, the parties agreed that the person who normally opens such mail was away and did not in fact open the mail or become aware of the application for certifica­tion until October 1, 1990. It was further agreed that on October 1, 1990, one notice to the employees was posted in the respondent's shop located at its Head Office. This notice remained posted there until some time in December 1990. (From time to time employees attend at the respondent's shop.) The notices were never posted at any of the respondent's job sites. The respondent has approximately six to eight job sites throughout Ontario. The Advice of Posting Card returned by Mr. Larry Cann upon which the Board relied is inaccurate. It was mistakenly filled out with incorrect information.

15. In his submissions to the Board counsel for the respondent relied principally upon the Board's decision in Vissers Nursery, [1990] OLRB Rep. Sept. 989. Counsel argued that an appli­cant union has an obligation to ensure that the information which it provides to the Board is accu­rate. Counsel asserted that this case was not materially different from Vissers Nursery, supra. There, the Board was faced with a situation where certificates had been issued although the appli­cant had supplied incomplete information. Here, the certificates were issued although the appli­cant supplied inaccurate information.

16. In Vissers Nursery, the Board stated:

17. 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.

18. 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.

19. 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.

[emphasis added]

12. The substance of counsel's submissions was that if the Board had not received the inac­curate Advice of Posting Card provided by the union, it would not have issued certificates on October 9, 1990. Rather, the Board would have extended the terminal date and directed an officer to post the appropriate notices to ensure that the employees whose rights are likely to be affected by this application were given proper notice of it.

13. It was submitted that where the Board relies upon inaccurate information supplied by the applicant union to certify the applicant, and the Board subsequently ascertains that such infor­mation is inaccurate it should revoke the certificates, extend the terminal date and thereafter deal with the application in the usual manner.

14. In response to these submissions counsel for the applicant argued that the respondent ought not to be able to rely upon its own failure to post or file a reply in a timely manner to sup­port is request for reconsideration. Counsel asserted that when the respondent failed to "open its mail", post the notices or file a reply in a timely fashion it did so a its own peril. (See Ferano Con­struction L. T.D., [1985] OLRB Rep. Jan. 73, Norben Ontario Design Limited, [1984] OLRB Rep. June 851). Counsel argued that the respondent cannot take advantage of its own wrong doing.

15. Counsel for the applicant also submitted that none of the employees of the respondent have complained to the Board of insufficient notice of the application, and none have requested reconsideration of the Board's decision of October 9, 1990. Counsel asserted that the respondent employer cannot represent employees in a certification application.

16. Counsel further argued that the request for reconsideration did not fall within the parameters set out in Practice Note 17. He submitted that in the circumstances of this case, if the Board reconsidered its decision it would cause prejudice to the applicant and undermine the con­cept of finality of Board decisions.

17. For the reasons set out herein we have determined not to exercise our discretion under section 106(1) of the Act to reconsider our decision dated October 9, 1990.

18. We concur with and adopt the statements of the Board in Vissers Nursery, supra that both the applicant and the respondent are directed and obliged to advise the Board as to whether proper notice of the application has been given to the employees whose rights may be affected by it. We emphasize that it is an important duty of an applicant union to promptly and accurately advise the Board as to whether the notices have been properly posted. Indeed, the exercise of due diligence in this regard benefits the applicant in certification proceedings and advances the interest of the persons it seeks to represent.

19. It has been the experience of the Board that a significant number of employers in the construction industry either do not post the notices or alternatively post the notices but fail to return the Notice of Posting Card or file a timely reply to the application. If an applicant ascertains that notices have been properly posted and advises the Board, the Board may be able to deal with an application for certification pursuant to section 102(14) of the Act without a hearing and on the basis of the material submitted by the applicant without undue delay. This notwithstanding a respondent's failure to file a reply. If a respondent fails to post the notices and an applicant so advises the Board, the Board can authorize a Board Officer to enter the employer's premises and post the notices without unduly delaying an application for certification.

20. Where an applicant mistakenly or negligently files inaccurate information which is sub­sequently challenged by a respondent or its employees it runs the risk that the certificates which have been granted to it will be revoked because, for example, employees whose rights are likely to be affected by the application have not been properly notified.

21. Notwithstanding these observations and our adoption of the decision of the Board in Vissers Nursery, we do not view that decision as applicable to the facts before us.

22. In Vissers Nursery there was "nothing on the Board's record from which the Board might satisfy itself that employees affected by the application had proper notice of it." Indeed, in Vissers Nursery the Board listed the matter for a hearing for the very purpose 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."

23. In the case before us, the parties are agreed that the notices were posted at the employ­er's shop on October 1, 1990 and that they remained posted there until some time in December 1990 - a period of at least two months. The respondent's employees from time to time attend at the shop. They would therefore have become aware of the union's application yet during the period from October 1, 1990 to January 7, 1991 (the date of hearing) no employee has written to the Board to object to the application for certification, or alleged that s/he did not have proper or suffi­cient notice of the application, or request the Board to reconsider its decision.

24. In the circumstances we have determined that the respondent cannot rely upon its own failure to post the notices or reply in a timely fashion to support its request for reconsideration. The employer was provided with sufficient time to post and reply but did not do so. It acted or rather failed to act at its own peril. As stated in Ferano Construction L. T. D., supra at paragraph 4:

25. In proceedings under the Labour Relations Act, the Board is governed by the Act and the Regulations under the Act. Provision is made in the Rules of Procedure for the filing of a reply by the respondent. The respondent did not file a reply to this application and now seeks to have the Board re-open the application at the respondent's leisure. Under the Rules of Procedure, the respondent was required to file its reply no later than the terminal date fixed for this applica­tion, namely, November 27, 1984. In proceedings before the Board there is a need for finality and, to this end, the Rules of Procedure under the Act provide for the appropriate time when a respondent is required to make its position known to the Board. It is not open to the respondent to refuse mail, to wait until the certificates have been issued, and then to present the Board with a set of facts which could have been presented in a timely manner.

26. In the circumstances of this case, the respondent employer also cannot rely upon its allegation that the employees did not receive proper notice. In Re. Canada Labour Relations Board and Transair Ltd. et al 1976 CanLII 170 (SCC), 67 D.L.R. (3rd) 421, the Supreme Court of Canada stated at page 438:

If there is any policy in the Canada Labour Code and comparable provincial legislation which is pre-eminent it is that it is the wishes of the employees, without intercession of the employer (apart from fraud), that are alone to be considered vis-a-vis a bargaining agent that seeks to rep­resent them. The employer cannot invoke what is a jus tertii, especially when those whose posi­tion is asserted by the employer are not before the Court.

26. In its earlier decision in Cunningham Drug Stores Ltd. v. B. C. Labour Relations Board et al. (1972), 1972 CanLII 143 (SCC), 31 D.L.R. (3d) 459, the Supreme Court of Canada stated at pp 464-5:

There is a further question which arises in respect of the issue now raised by the appellant, and that is as to its right to seek to set aside the Board's decision because it alleges that the rights of other parties were not observed. In Quebec Labour Relations Board v. Cimon Ltee (1971), 1971 CanLII 143 (SCC), 21 D.L.R. (3d) 506, [1971] 5CR. 981, the employer company sought the rescission by the Quebec Labour Relations Board of its directing a vote on the application of a trade union for certifica­tion on the ground that notice of the petition for certification had not been given to another union, whose earlier petition for certification had been rejected following an employee's vote. The company contended that the unsuccessful union was successor to former unions which had been certified, whose certification had not been cancelled, and that it was therefore entitled to such notice.

The Board ruled that the company was unlawfully pleading on another's behalf an objection in which it had no legal interest. This position was sustained in this Court, which held that the com­pany was not entitled to invoke the rights of another party before the Board.

[emphasis added]

In our view the same reasoning applies to the facts of this case.

27. For all of these reasons the request for reconsideration is dismissed.

28. We note that on the day following the hearing two letters were delivered to the Board.

These letters state as follows:

My name is Danny Kwan and I am employed by PH. Atlantic Plumbing & Heating. I was present at the Hearing today as 7 January, 1991 at the labour board.

I have been employed by this company for 5 years, and wish to remain with this company. I Do Not want to join a Union. I wanted to speak at the hearing, but was told whom [sic] I raised my hand to speak, that I was not allowed even though it was a public Hearing. I wish to go on record as saying I Do Not want to join the Local Union 463.

Please accept this letter in that regard.

Yours very truly,

Danny Kwan.

My name is Xian Jui Chen, I appeared with Danny Kwan at the Hearing for PH. Atlantic Plumbing & Heating as January 07, 1991.

I was working in Peterborough in September of 1990 when the Union approached us at the job site. I have worked with P.H. Atlantic for one year and want to stay with this company.

I Do Not want to join a Union and wanted to tell the Board this at the Hearing. This letter is to inform the Board of my reasons for being at the Hearing.

Yours truly

Xian Jiu Chen

Date: January 07, 1991

29. We note that Mr. Kwan's letter insofar as it states that "I wanted to speak at the hear­ing, but was told [when] I raised my hand to speak, that I was not allowed ..." is, in our view factu­ally inaccurate. Nevertheless we have considered the written submissions of Messrs. Kwan and Chen.

30. We must assume that had Messrs. Kwan and Chen been made parties to the proceed­ings, and made oral submissions to the Board at the hearing they would have addressed only those matters set out in their January 7th correspondence to the Board. Messrs. Kwan and Chen were in attendance in the body of the hearing room throughout the hearing. They were therefore present when counsel made their submissions in respect of the posting of the notices and the sufficiency of notice. Their written submissions do not refer to that issue. Neither these two employees or any other employee wrote to the Board in the three months preceding the hearing to indicate that they were opposed to the application for certification, wished to participate as a party in these proceed­ings, objected to the sufficiency of Notice of the Application which had been given to employees, or wished to raise any other matter with the Board. We must therefore assume that the only mat­ters which Messrs. Kwan and Chen wish the Board to consider are contained in their letters and consist of their personal objection to join a union.

31. The written submissions received merely state the individual employee's opposition to becoming a member of the applicant union. The Act does not require that a union obtain the unan­imous support of employees before it is entitled to be certified. Rather the Act provides that if more than fifty-five percent of the employees in the bargaining unit are members of the applicant union as of the terminal date (the date which is established pursuant to the Board's authority under section 103(2)(j) of the Act) the Board is authorized to automatically certify the trade union. In this case, notwithstanding the opposition of these two employees to the union's application, the Board is satisfied that more than fifty-five percent of the employees in the bargaining unit were members of the applicant union as of the terminal date.

32. We therefore confirm our decision dated October 9, 1990 and the certificates granted to the applicant union.