[1992] OLRB Rep. July 769
0304-92-R Simone Iaquinta, Applicant v. Ontario Sheet Metal Workers' and Roofers Conference, Sheet Metal Workers' International Association and Sheet Metal Workers' International Association Locals 30, 47, 235, 269, 392, 397, 473, 504, 537, 539 and 562, Respondents v. A & G Metro Roofing Ltd., Intervener
BEFORE: Robert Herman, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.
DECISION OF THE BOARD; July 30, 1992
This is an application brought by Simone Iaquinta for a declaration terminating the bargaining rights of the respondent unions with respect to the employees of A & 0 Metro Roofing Ltd.
This application (the "Iaquinta" application) was filed on April 22, 1992, and in accordance with its usual practice, the Board assigned it an application date (April 22, 1992), and a terminal date (May 7th, 1992). The Board also set a hearing date, May 28, 1992, and Notice of Hearing was forwarded to all parties.
On May 19, 1992, the Board received a Reply filed by the respondents Ontario Sheet Metal Workers' Conference and the Sheet Metal Workers' International Association, Local Union 235. The respondents asserted that the instant application was not the first termination application for the bargaining unit in question. The respondents noted that there was already a proceeding before the Board, Board File No. 4146-91-R (the "Koutsoumbelas" application) in which a different applicant had brought an identical application. The terminal date of the Koutsoumbelas application was April 7, 1992. The instant application was therefore filed after the terminal date of the earlier application. The applications are related in that in both, an employee has filed an application seeking a declaration terminating the bargaining rights with respect to the same bargaining units, the same employer, and the same union respondents. The bargaining rights at issue are therefore the same in both proceedings. The respondents accordingly requested that the instant application be delayed until the issues in the prior application had been determined.
Pursuant to section 105(3) of the Act, the Board has a discretion as to the manner in which it treats subsequent applications affecting employees covered by earlier applications. That section reads as follows:
105.-(3) Despite sections 5 and [58], where an application has been made for certification of a trade union as bargaining agent for employees in a bargaining unit or for a declaration that the trade union no longer represents the employees in a bargaining unit and a final decision of the application has not been issued by the Board at the time a subsequent application for such certification or for such a declaration is made with respect to any of the employees affected by the original application, the Board may,
(a) treat the subsequent application as having been made on the date of the making of the original application;
(b) postpone consideration of the subsequent application until a final decision has been issued on the original application and thereafter consider the subsequent application but subject to any final decision issued by the Board on the original application; or
(c) refuse to entertain the subsequent application.
If the subsequent application is filed on or before the terminal date fixed for the original application, the Board usually takes the approach described in subsection 105(3)(a), assigning the subsequent application the application date of the earlier application, together with the terminal date of the earlier application. See, in this respect, Koehring Canada, [1986] OLRB Rep. Nov. 1530; Kirouac Contracting Ltd., [1987] OLRB Rep. Oct. 1262. When the subsequent application is filed after the terminal date of the earlier application however, the Board will assign to the subsequent application its own application date, reflecting the date on which it was filed, its own terminal date, and will apply the approach set out in section 105(3)(b), postponing consideration of the subsequent application until a final decision in the original application has been made.
These decisions are made at the time the subsequent application is filed, since the Board must process the application upon receipt. The first step in processing an application is to assign it an application date and a terminal date. There is no realistic option of convening a hearing or inviting the submissions of the parties, with respect to which option under section 105(3) will be applied, prior to making the initial assessment as to the manner in which the subsequent application will be processed.
Since the instant application appeared to affect some or all of the same employees as the earlier application, and since it was filed after the terminal date of the first application, the Board would not have set a hearing date had it followed its customary practice. That date was inadvertently set. Given this, when the Board discovered that a prior application had been filed, the Board advised the parties that the hearing of May 28, 1992 was cancelled, and directed the parties' attention to the provisions of section 105(3) of the Act.
Shortly thereafter, counsel for the applicant wrote to the Board, requesting reconsideration of the Board's decision that the application be adjourned or deferred, pending resolution of the earlier application. The applicant included extensive submissions in the reconsideration request. The request for reconsideration and supporting submissions were circulated to the other parties, for their comments, indicating that their submissions would be placed before a panel of the Board for its decision. The Board received submissions from the union and the employer, and further submissions from the applicant in response.
Turning to the grounds for the request, the applicant first argues that the union's Reply, and request for adjournment of the instant proceeding, ought not to be considered by the Board since it was filed beyond the terminal date of the application, contrary to Rule 17 of the Board's Rules of Procedure. The applicant has not asserted that it suffered any prejudice from this late filing of the Reply, and it is not apparent to the Board that there is any prejudice in the late filing. In any event, whether the Reply was filed in a timely fashion, the fact remains that the instant application does appear to be a subsequent application filed after the terminal date of the earlier application. It does appear as if the Board in error set a hearing date. Had no Reply been filed, but this matter brought to the attention of the Board, the Board would still have cancelled the hearing of May 28th.
The applicant next asserts that the adjournment ought not to have been granted because it was not on consent of all the parties. Again, the decision to cancel the hearing was made because of the provisions of section 105(3) of the Act, and the fact that the instant application fell within the parameters of that section. The hearing was not cancelled merely because the respondent unions requested an adjournment.
The applicant submits that the Board breached the rules of natural justice by making its decision in this respect without affording the parties an opportunity to make submissions on how the Board ought to have exercised its discretion pursuant to section 105(3) of the Act. We agree with the applicant that he, and all the parties, are entitled to full and fair opportunity in any proceeding to be heard. We do not agree however, that such a requirement demands that the Board list for hearing the question of how the Board ought to treat a subsequently filed application. As discussed, when an application is received by the Board, it must assign an application date and a terminal date to the application. Once that assessment has been made, and the parties so advised, they should be given full opportunity to challenge the Board's decision. That is precisely what has occurred here.
Pursuant to section 104(13) of the Act, the Board is master of its own practice and procedure, provided it gives full opportunity to the parties to any proceeding to present their evidence and make their submissions. Whether an oral hearing is necessary in all circumstances is a matter that is within the Board's discretion, consistent with the requirements of natural justice and section 104(13). In a variety of contexts, the Board has adopted procedures designed to deal with matters more expeditiously, and without the need for full hearings. For example, parties meet with Board Officers on representation matters prior to the scheduled hearing day, in attempts to narrow the issues or settle the matter, often rendering a hearing unnecessary. Even when an issue remains in dispute, there may be no need for an oral hearing.
Here, the parties have had full opportunity through their written submissions. The applicant filed submissions in support of its reconsideration request (as Practice Note 17 directs). Those submissions were forwarded to the other parties, and the parties were all advised that their submissions would be placed before the Board for its decision. Unless the written submissions raise evidentiary disputes that need resolution or present sufficient other reason to hold a hearing, the Board sees no reason to set the matter down for oral hearing, with all the attendant delay and cost of such a hearing. Accordingly, we will dispose of the matter on the basis of the written submissions.
There is nothing raised by the applicant which would lead us to exercise our discretion differently. The applicant asserts that the instant application gives rise to different issues than in the Koutsoumbelas application. While it may be true that not all the issues in the instant application are issues in the earlier application, there is no question that the two applications each deal with the identical bargaining unit, for the same employer, with respect to the bargaining rights held by the same respondent unions. The issue in each is the same, whether the bargaining rights of the respondent unions, for these bargaining units, ought to be terminated.
We are not here deciding that the instant application will not be heard, only that it will be deferred pending a decision in the application that was earlier filed. In our view, the first application ought to be completed before the parties and the Board embark on an potentially duplicative second hearing. We are therefore satisfied that we ought to exercise our discretion pursuant to section 105(3) of the Act to postpone consideration of the instant application until a final decision has been issued in the prior application.
The request for reconsideration is therefore denied.