Ontario Labour Relations Board
[1992] OLRB Rep. October 1083
0408-92-R Stephen Myers, Applicant v. Sheet Metal Workers' International Association, The Ontario Sheet Metal Workers' Conference and Affiliated Bargaining Agents Locals 30, 47, 235, 269, 392, 397, 473, 504, 537, 539, 562, Respondent v. Industrial Metal Fabricators Limited, Intervener
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members F. B. Reaume and R. R. Montague.
APPEARANCES: Hank de Zoete, Elizabeth Forster and Stephen Myers for the applicant; Michael Mazzuca and Robert Maclntyre for the respondent; Edward W. Ducharme and F. Van Oir Schot for the intervener.
DECISION OF K. G. O'NEIL, VICE-CHAIR, AND BOARD MEMBER F. B. REAUME; October 8, 1992
This is an application for termination of construction industry bargaining rights under section 58 of the Labour Relations Act. There are two issues before the panel, the standing of the applicant to bring the application, and the voluntariness of the petition in support of the application. This decision deals only with the first issue.
The application date in this matter is April 30, 1992 and the terminal date May 14, 1992. On May 19, 1992, the applicant wrote asking that Scott Benn and Alfred Charbonneau be added as party applicants according to Rule 79 of the Board's Rules of Procedures. On June 1, 1992, the respondent union wrote advising the Board and the other parties that the respondent wished to amend its reply by adding the issue of status of the applicant as he was not at work on the date of application. Further, they submitted that an applicant may not add additional applicants after the terminal date is passed.
The union argues that section 58 provides that only an employee in the bargaining unit may apply. Since this is the construction industry, only people at work on the application date are considered to be in the bargaining unit. Since it is agreed he was not at work on that date, the union argues the applicant has no status to bring the application and therefore it is a nullity. Because it is a nullity, counsel argues that the Board has no jurisdiction to add applicants since there is nothing to which one may add. The application never existed in law.
Union counsel observes that the style of cause in this case only applies to Myers, and not to others as in some of the cases where the Board has treated all the petitioners as applicants. He asserts that the wording of the petition before us leaves no possibility of other applicants. Counsel asserts that there is no evidence before the Board that could cause us to conclude that there are other applicants than Steven Myers. Counsel also maintains that the statute has drawn a clear distinction between applicants and petitioners: a petitioner has the right to confidentiality and an applicant does not. Counsel maintains there is no time period in which we could add a party because the matter was always a nullity.
From the conclusion that there are no other applicants than Steven Myers and that he has no status to bring the application, we are asked to conclude that we are without jurisdiction to add Messrs. Benn and Charbonneau as applicants, to consider issues such as the interpretation of Rules 79 or 84, or to hear the application. Counsel maintains that this is not an issue of policy nor a mere irregularity. Myers was not an appropriate party. Rule 79 cannot give the Board jurisdiction as it is a regulation only. Adding new parties cannot give a non party status. Myers has no status; the proceedings are a legal nullity, and therefore the matter must be dismissed.
Union counsel referred to a number of cases in argument. On the issue of the standing of the applicant, these were Diplock Durable Floor Company Limited, [1982] OLRB Rep. Aug. 1159; Howard S. Clark Construction, [1968] OLRB Rep. Apr. 62; Uni-Form Builders Limited, [1968] OLRB Rep. Apr. 60; Stuart Riel Masonry Contractor, [1984] OLRB Rep Nov. 1630; Smale Bros. Company Limited, [1986] OLRB Rep. July 1019; Ro-Von Construction Limited, [1991] OLRB Rep. Mar. 384. Specifically on the issue of the substitution or addition of parties, these were, W.J. Realty Management Ltd. et al. v. Price et al (1973), 1973 CanLII 584 (ON CA), 1 O.R. (2d) 501 (C.A.); Colville v. Small (1910), 22 O.L.R. 426 (Div. Ct.); Croll v. Greenhow (1930), 38 O.W.N. 101, affd (1930), 1930 CanLII 314 (UK JCPC), 39 O.W.N. 1 (C.A.); Fields v. Purser (1928), 35 O.W.N. 205; St. Lawrence Rendering Company Ltd. v. The City of Cornwall, 1951 CanLII 81 (ON HCJ), [1951] O.W.N. 651 (High Ct.); Turgeon et al. v. Border Supply (EMO) Ltd. (1977), 1977 CanLII 1291 (ON HCJ), 16 O.R. (2d) 43 (Div. Ct.); International Alliance of Theatrical Stage Employees, Local 58 v. Canadian Broadcasting Corporation, 1971 CanLII 564 (ON HCJ), [1972] 1 O.R. 161 (High Ct.); Re McGhie et al and Canadian Air Line Flight Attendants' Association et al (1986), 1986 CanLII 2486 (ON HCJ), 58 O.R. (2d) 333 (High Ct.)
Applicant's counsel argues that there are two bases on which the Board can proceed to hear the application. Firstly, the Board can grant the application to add the two additional parties under Rule 79 as it was made promptly and deserves favourable consideration. This is in line with the power under Rule 84 to cure technical irregularities which is what counsel argues this is. Counsel submits that this representation application is not a dispute between the parties, as in the jurisprudence cited by the applicant. Rather, it arises because of a statutory scheme which provides a method for determining the wishes of employees to have or to not have a union represent them. Counsel argues that this is not a cause of action and thus the Court decisions on the power to cure defects should not be of assistance to the panel. Contrary to union counsel's submission that we should not be looking at the issue of prejudice because that is something that can happen only when the Board has jurisdiction, applicant's counsel maintains that we should exercise our discretion under Rule 79 because there is no prejudice to the union in so doing.
The second basis for proceeding is the line of cases which holds that petitioners are applicants. Counsel maintains that the jurisprudence supports the idea that one can look to any petitioner as an applicant. She underlines that most of the cases cited by the union were ones with a one employee unit. The issue is critical for the count but not so critical in dealing with the identity of the applicant. Applicant's counsel referred us to St. Michael Shops of Canada Limited, [1979] OLRB Rep. Oct. 1023, Selinger Wood Ltd., [1979] OLRB Rep. May 434.
The employer's counsel said that he was content to leave the matter in the Board's hands.
Section 58 provides in relevant part as follows:
58.-(1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 62, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 62, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;
(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be.
(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.
(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as it determined under clause 105(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
Rules 79 and 84 of the Board's Rules of Procedure provide as follows:
The Board may direct that any person be added as a party to a proceeding or be served with any document, as the Board considers advisable.
No proceeding under these Rules is invalid by reason of any defect in form or of any technical irregularity.
The style of cause on the Form 17 filed by Mr. Myers is as above, listing Steven Myers as the only name in the line for applicant. The application was supported by a petition with the following heading which bears the signatures of nine people.
PETITION
to
Ontario Labour relations Board
400 University Avenue
Toronto, Ontario
M7A 1V4
We, the undersigned employees of Industrial Metal Fabricators Limited in Chatham, no longer wish to be represented by Local No. 235 Sheet Metal Workers' International Association, Ontario Sheet Metal Workers' Conference or any of their affiliated local unions in the industrial, commercial and institutional sector of the construction industry in the province of Ontario.
Dated at Chatham Ont. On 29th day of April, 1992.
As set out in many of the cases cited above, the wording of section 58 and the Board's jurisprudence make it quite clear that an employee in the construction industry not at work in the bargaining unit on the date of application does not have status to bring an application for termination. Mr. Myers, the named applicant, therefore does not have status to bring this application. The real issue then is whether or not there are other applicants, either because the petition as a whole should be considered as a list of applicants or because the request to add two employees who were at work on the date of application as applicants should be granted.
We have carefully considered all the cases referred to in the thorough argument of union counsel. We acknowledge the judicial support shown there for the idea that substitution of a party should not occur when the original party had no cause of action. However, we are of the view that the cases involving the civil courts are of limited assistance to the Board in this matter. Whatever may be said of the utility of the technical approach elsewhere, we do not see it as equally applicable in this context. Firstly, Myers' situation is not strictly analogous to parties with no cause of action such as someone with no privity of contract trying to sue on a lease as in W. J. Realty Management Ltd., supra. Myers had a "cause of action" whenever he was at work. He just did not happen to be at work on the application date.
More specifically, those wanting to be added as applicants are not newcomers to this proceeding. They are petitioners who have made it very clear that they wish to be applicants, thus waiving their right to confidentiality. They apparently signed a document petitioning the Board for termination of bargaining rights prior to the application and terminal dates. In that circumstance, given that it is undisputed that they would have had the right to bring the application on the application date, we see no sufficient reason to consider the application a nullity, or to find ourselves without jurisdiction.
Although it is not necessary to decide if all the petitioners should be considered applicants in this case, it is worth noting that the wording of the petition before us is not dissimilar from the petition in St. Michael's Shops, supra, where the Board found it to be a properly constituted application for two bargaining units, despite the fact that the named applicant had no status in one of those bargaining units.
There are good labour reasons to exercise our discretion under Rules 79 and 84 to add Messrs. Benn and Charbonneau as party applicants. The application represents a work place issue which ought to be resolved. The application is by necessity representative. Without a petition showing support of forty-five percent of the employees in the bargaining unit, it would have no effect. The fact that Myers was not at work on the application date need not defeat those other employees' request to have the issue heard. There is no problem of notice, or other substantial labour relations problem, caused by the recognition of two of the petitioners as applicants. If in other cases, such problems were shown, other results might follow. Therefore, we will add Scott Benn and Alfred Charbonneau as applicants in this matter.
We had commenced hearing the evidence on the voluntariness of the petition on the last day of hearing, and set November 13, 1992 to continue if necessary. This matter will resume on that date at the "MacDonald Room", Compri Hotel, 333 Riverside Drive West, Windsor, Ontario, commencing at 9:30 a.m.
DECISION OF BOARD MEMBER RENE R. MONTAGUE; October 8, 1992
With respect I totally disagree with the majority decision.
1 cannot agree that in the circumstances of this case that Scott Benn and Alfred Charbonneau be added as party applicants according to Rule 79 and 84 of the Board's Rules of Procedures after the application date of April 30, 1992.
Form 17 requires that the applicant provide a name, address and telephone number and a copy of Form 17 is sent to the respondent union. The union is required to reply on Form 20. In accordance with Rule 72, if the union intends to adduce evidence that there has been improper or irregular conduct in the gathering of written evidence which signifies the employees no longer wish to be represented by the trade union, the union must file those facts on which it intends to rely prior to the hearing. It must be recognized that Form 17 requires that there be an applicant and the union is entitled to know who the applicant is in order to prepare its case at the Board. Section 111(1) of the Labour Relations Act prohibits the disclosure without the consent of the Board, of whether a person does or does not wish to be represented by a union. In short, Form 17 requires the applicant to provide a name and a union is provided with a copy of Form 17. However, the union is not entitled to know the names of the petitioners. Accordingly, the Labour Relations Act does not contemplate that petitioners are applicants. The jurisprudence of the Board must be read in light of this fundamental nature of the Act and its Regulations.
I do not find that the adding of the above-named individuals as applicants is a defect in form or of any technical irregularity but rather a violation of the rules. In addition what we clearly have before us is not an application as contemplated by 58(2) of the Act. Had these two petitioners sought to have their names added during the open period as applicants maybe I could have agreed that the Board would have to amend the application. In this case however the amendment came 1 1/2 months after the date of application, the last day that it was possible to apply for terminating bargaining rights. For these reasons and for the reasons outlined by counsel for the union in the majority decision at paragraphs 3, 4, 5, I therefore would have dismissed this case.