Christian Labour Association of Canada v. Ledcor Industries Limited, 1993 CanLII 7840

[1993] OLRB Rep. August 758

2848-91-M; 3494-91-R; 3677-91-U Christian Labour Association of Canada, Appli­cant v. Ledcor Industries Limited, Responding Party; Labourers' International Union of North America, Local 183, Applicant v. Ledcor Industries Limited, Responding Party; Labourers' International Union of North America, Local 183, Applicant v. Ledcor Industries Limited, Responding Party v. Christian Labour Association of Canada, Intervenor

BEFORE: Susan Tacon, Vice-Chair, and Board Members D. A. MacDonald and R. R. Montague.

APPEARANCES: A. M. Minsky and T. Dionisio for the applicant; Stephen A. McArthur and James Rosien for the responding party; Elizabeth Forster and Ron Rupke for the intervenor.

DECISION OF THE BOARD; August 17, 1993

1Board File No. 2848-91-M is an application for early termination of the then current collective agreement between Ledcor Industries and the Christian Labour Association. Board File No. 3494-91-R is an application for certification by the Labourers' International Union of North America, Local l83. Board File No. 3677-91-U is a section 91 complaint alleging violation of speci­fied sections of the Labour Relations Act. The matters were heard together and a decision issued dated March 10, 1993 in which the Board, with reasons to follow, revoked its decision of Decem­ber 19, 1991 granting the early termination of the collective agreement between Ledcor Industries ("Ledcor" or the "company") and the Christian Labour Association of Canada ("CLAC"). The consequence of that revocation was to render the certification application by the Labourers' Inter­national Union of North America, Local 183 ("Local 183" or the "Labourers") timely. In that cer­tification application, the Board had conducted a pre-hearing representation vote wherein there were a number of segregated ballots due to challenges to the eligibility of those persons to vote by one or more of the parties on various grounds in addition to the assertion by Ledcor and CLAC that the application itself was untimely and, accordingly, the ballot box was sealed.

2The Board, in the March 10, 1993 decision, dealt only with the reconsideration request, on the agreement of the parties,, given that the Local 183 certification application would be untimely unless the reconsideration was granted and given that the section 91 complaint did not touch on the issues raised in the reconsideration request. The Board, therefore, directed the Regis­trar to realist these matters for hearing to deal with the remaining issues. Prior to the date sched­uled for continuation of the hearing, the parties informed the Board that all remaining matters had been resolved between them. It is appropriate to set out that settlement:

MINUTES OF SETTLEMENT

BETWEEN

LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183

("Local 183")

• and -

LEDCOR INDUSTRIES LIMITED

("Ledcor")

• and -

CHRISTIAN LABOUR ASSOCIATION OF CANADA

("CLAC")

RE: OLRB FILE NUMBERS 2848-91-M; 3494-91-R; 3677-91-U

Local 183, Ledcor and CLAC agree to resolve and finally settle all matters outstanding between them as follows:

1. Ledcor shall pay to Local 183 on or before May 28, 1993 the sum of Eight Thousand, Five Hundred Dollars ($8,500.00) which sum shall represent a full and final resolution of all matters outstanding in respect of complaints of unfair labour practice filed with the Ontario Labour Relations Board by Local 183 as set out in the above-captioned Board file numbers;

2. Ledcor, Local 183 and CLAC agree that all ballots cast in the representation vote conducted in accordance with the Board rules in respect of the above-captioned Board matters shall be counted, save and except that the ballots cast by the following shall not be counted:

i) Beauclair, Jr.

ii) Bento

iii) Carpino

iv) Cunha

v) Orfao, (did not vote)

vi) Sconza

3. Ledcor, Local 183 and CLAC agree that the terms of these Minutes of Settlement shall constitute the full and final resolution of all matters outstanding between them and, for further clarity, agree that upon the payment of the sum set out in paragraph I above and the counting of the ballots in accordance with paragraph 2 above, all mat­ters outstanding in the above-captioned Board files shall be settled and resolved.

Dated at Toronto this 21st day of May, 1993

3Having regard to the minutes of settlement, the section 91 complaint is resolved on the terms described therein. The Board regards this matter as terminated.

4As noted in the minutes of settlement, the parties also resolved the dispute in connec­tion with the segregated ballots. The parties signed a consent and waiver form wherein is indicated those persons who are agreed to be eligible for inclusion in the bargaining unit and whose ballots should be counted and those persons who are agreed should not be included in the bargaining unit and whose ballots should not be counted. The parties consented to an immediate counting of the ballots cast in the representation vote held on February 27, 1992 and waived any objections as to the regularity and sufficiency of the balloting.

5The results of the representation vote were that not more than fifty per cent of the votes cast were cast in favour of the applicant Local 183. Accordingly, the Board dismisses the certifica­tion application.

6In informing the Board of the settlement of the remaining matters, the parties joined together in asking that the Board issue the reasons for its decision revoking the Board's approval of the early termination application. In the parties' view, the issues raised in the reconsideration request are of sufficient importance that written reasons from the Board would benefit not only the parties, but the construction industry and the labour relations community in general.

7The Board is persuaded that it is appropriate to issue the reasons for the revocation, pursuant to its discretion in section [now] 108(1) of the Act, of the granting of the early termina­tion application and for its oral ruling, with reasons to follow, that Local 183 had status in its own right to bring the reconsideration application.

8The Board first deals with the standing of Local 183 to bring the reconsideration appli­cation. That ruling followed submissions by the parties which are briefly summarized.

9Counsel for Local 183 asserted that Local 183 had an independent right of standing to bring the reconsideration application as its interests were directly affected by the early termination application. That is, the open period during which Local 183 would otherwise have been able to bring its certification application would be closed through the granting of the early termination application. Counsel asserted that the first Local 183 was aware of the early termination applica­tion and the Board decision was through the intervention by CLAC in the Labourers' certification application. Upon learning of the granting of the early termination of the collective agreement, Local 183 acted promptly in seeking reconsideration of the Board's decision. It was contended that, since Local 183 would have had the right to intervene in the early termination application itself had it had notice of the matter, Local 183 had a right to seek reconsideration of the decision granting the early termination application given that Local 183 had no notice of those proceedings. Counsel submitted that Local 183 did represent employees of Ledcor at the time of the early termi­nation application and, while the union would be prepared to disclose that information to the Board, the union would seek to maintain the confidentiality of the identity of its supporters. In the alternative, counsel asserted that Local 183 was prepared to amend the application for reconsidera­tion to add individual employees of Ledcor as co-applicants but, again, for reasons of confidential­ity, preferred not to have those names disclosed.

10Counsel for CLAC acknowledged that an employee at the time of the early termination application would have standing to bring the reconsideration application. Otherwise, it was submit­ted, Local 183 was required to disclose its membership evidence as at the early termination appli­cation period to substantiate its claim to represent employees in the bargaining unit at the material time and, thus, be entitled to bring the reconsideration application.

11Counsel for Ledcor concurred with the position of counsel for CLAC. Counsel submit­ted that whether or not Local 183 was planning an organizing campaign in December 1991 was irrelevant; what was critical was whether Local 183 represented employees of Ledcor at that time. It was argued, therefore, that the status of Local 183 to bring the reconsideration application was solely dependent upon establishing representational rights with respect to at least one employee at the time of the early termination application.

12The parties referred to or commented on a number of decisions in support of their respective positions, including: Atlantic Packaging Products Ltd., [1980] OLRB Rep. Jan. 4; The Continental Group of Canada Ltd., [1980] OLRB Rep. Oct. 1381; K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185; Connie Steel Products Limited, [1987] OLRB Rep. Oct. 1225; Image Painters L.M. Inc., [1988] OLRB Rep. Aug. 807; Mathers Concrete, [1988] OLRB Rep. Aug. 830; Ridgewood Industries, [1990] OLRB Rep. March 331; Vissers Nursery, [1990] OLRB Rep. Sept. 989; P.H. Atlantic Plumbing & Heating Division of 629629 Ontario Limited, [1991] OLRB Rep. Jan. 97; Ridge Landfill Corporation, [1991] OLRB Rep. Aug. 1002; Cunningham Drug Stores Ltd. v. British Columbia Labour Relations Board et al. (1972) 1972 CanLII 143 (SCC), 31 D.L.R. (3d) 459 (SCC); Sandercock Construction Limited, [1970] OLRB Rep. Jan. 1252; Di Lorenzo Con­struction Company, [1970] OLRB Rep. Apr. 33; Delcon Electric Limited, [1976] OLRB Rep. July 362; Goldcrest Furniture, [1989] OLRB Rep. Apr. 355.

13The Board commences its analysis with the source of its authority to reconsider its deci­sions in [then] section 106(1) of the Act:

'The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but, nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direc­tion, declaration or ruling."

That authority, on its face, grants the Board a broad discretion to determine the circumstances in which its section 106(1) jurisdiction should be exercised. The Board's jurisprudence has outlined the various factors which the Board considers in determining whether to exercise its discretion: K-Mart Canada, supra; John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096.

14At this point, however, the Board must determine the issue of the standing. There was no real dispute on the usual formulation of the principle, that is, that "standing" is restricted to "interested parties", to those whose rights are "affected" by a proceeding. It was conceded by counsel for CLAC and Ledcor, for example, that an employee of Ledcor at the time of the early termination application could seek to have the Board's decision reconsidered, whether or not the request should ultimately be granted. The question is whether Local 183 is such an interested party in its own right or whether its standing to bring the reconsideration application is dependent upon demonstrating (at least to the Board, given issues of confidentiality of membership evidence) that it represented one or more employees of Ledcor at the time of the early termination application. Counsel for CLAC and Ledcor argue that it is only in those latter circumstances that Local 183 would have standing before the Board.

15In the Board's view, the issue of standing is intrinsically related to the substantive pro­ceeding in which a party seeks to participate. What might be required to demonstrate the requisite "interest" in a certification application, for example, could well be different from the factors influ­encing the Board to grant or withhold standing in an unfair labour practice complaint. Thus, it is appropriate first to examine the provision of the Act which gave rise to the reconsideration appli­cation, section [then] 53(2), permitting the early termination of a collective agreement on the joint application of the parties with the consent of the Board.

16In that regard, it is useful to set out the oral reasons of the Board in Ridge wood Industries, supra, wherein the Board dismissed an application for early termination of a collective agreement:

8.... parties to a collective agreement are given wide latitude to make amendments or adjustments to their collective agreement should they so choose. Section 52(5) of the Labour Rela­tions Act makes that clear:

Nothing in this section prevents the revision by mutual consent of the parties at any time of any provision of a collective agreement other than a provision relating to its term of operation.

In addition to that one proviso, section 52(3) of the Act also stipulates:

A collective agreement shall not be terminated by the parties before it ceases to oper­ate in accordance with its provisions or this Act without the consent of the Board on the joint application of the parties.

That sole exception to the ability of the parties to order their own affairs reflects a clear policy on the part of the Legislature to preserve the two month "open period" established by the stat­ute for the bringing of representation applications. The requirement for Board consent is set out in the Act and is well known, as is the fact that what the Board effectively does is to act as an intermediary to ensure that notice of the parties' intention to alter the term of their existing col­lective agreement is posted in the workplace. That posting often produces no objection, and the Board grants its consent as a matter of course. Where it does produce an objection, however, it is difficult to conceive of a case where the Board would grant the early termination in a way that would abridge the rights initially guaranteed by the Act. Certainly the Board is unaware of any case to date that has done that; at best, the Board has sought to accommodate the interests of those seeking to implement a new collective agreement by moving the open period forward -- but that has always been done on advance notice to any interested parties, by way of the Board's decision in the application, and never for a period less than the two months that the leg­islators originally held to be appropriate.

Here the parties have only 10 days of the prescribed open period left to run. Or to put it con­versely, as Mr. Fishbein has, any interested party already has had the benefit of 50 of the 60 days that the open period was projected by the statute to run. We are not prepared, however, to try to decide in each individual case whether “50" days should be considered to be "enough", or "40", or "30", or “20"; the "open period" chosen by the Legislature is specifically prescribed to be two months, and we are not persuaded that the intention of the Act would be met by a deci­sion to shorten that period to something less.

17The thrust of the jurisprudence is that the legislative intention was to preserve an open period at readily identifiable intervals during which the employees could exercise their right to choose (i.e., change) their bargaining agent. That right overrides the ability of the parties to amend the expiry date of their collective agreement except on Board consent which, as noted, is only granted if no objections are filed with the Board in the period specified in the notices of the early termination application which are required to be posted. Where there are such objections, from employees themselves or from another trade union asserting it represents one or more of the employees, the Board acts to preserve the open period: See generally, Firestone Tire & Rubber, supra; National Cash Register, supra; Canada Building Materials, supra; Standard Products, supra; Ridgewood Industries, supra.

18In the Board's view, it is a corollary to the right of the employees to choose their bar­gaining agent that another trade union has the right to challenge the representational rights of the incumbent trade union during the open period. It is only through preserving the rights of another trade union to seek to persuade the employees to support it, rather than the incumbent, that the rights of the employees to freely choose their bargaining agent are given meaning. Similar senti­ments were expressed in The National Cash Register Company of Canada Limited, [1967] OLRB Rep. Apr. 90. In that case, in discussing the right of another trade union to intervene in and object to an early termination application, the Board commented:

4. It is true, as counsel for the company pointed out, that the intervener cannot rely on any 'right' to organize established under the Labour Relations Act since the Act makes no reference to organizational campaigns. There is undoubtedly, however, a right of employees to join the trade union of their choice (section 3) and for this right to have any practical value there must be the concomitant possibility of the chosen unions applying for certification at a time when it would be possible to do so.

5. Counsel for the applicant trade union urged that the intervener should be required to show a substantial degree of successful organization among employees of the company before the Board would give serious consideration to its objection. On this count, it is noteworthy that in the Firestone case the Board preserved an open season even though there was no evidence what­ever that any other union sought to represent employees. It is our view that the Board ought not to attempt to assess the changes (sic) of success of any union's organizational campaign nor should it attempt to establish what might constitute a 'substantial degree of successful organiza­tion' in any particular case.

19In the instant case, Local 183 filed an application for certification in what would have been the open period of the collective agreement had the Board not granted the early termination application. That certification application was supported by a sufficient number of employees to entitle it to a pre-hearing representation vote. Local 183 was met with an assertion that its applica­tion was untimely, barred by the existence of the collective agreement entered into by Ledcor and CLAC following the Board's consent to the early termination of the earlier collective agreement. The Board regards that as sufficient interest to justify granting standing to Local 183 in its own right to seek reconsideration of the early termination decision. Local 183 is directly affected by the initial determination by the Board in December 1991 that the extant collective agreement be termi­nated. Unless Local 183 has the opportunity to seek reconsideration of that decision, Local 183 will be unable to challenge the representational rights with respect to the employees in the bargaining unit until the open period of the replacement collective agreement.

20The Board's conclusion in this regard is not dependent upon Local 183 demonstrating membership support by at least one employee of Ledcor at the time of the early termination appli­cation. Rather, the relevant time is the point at which the certification application is filed, provided that the application is filed within what would have otherwise been the open period of the collec­tive agreement whose expiry date was amended by the Board. The Board also considers it appro­priate to restrict the granting of standing to a trade union which actually files a certification appli­cation in the period just described and which application is not dismissible on its face. These criteria, in the Board's opinion, adequately balance the legitimate interests of the incumbent trade union and the employer in avoiding unnecessary disruption to their affairs and of the Board in the finality of its decisions. The Board is concerned with protecting the rights of the employees in the bargaining unit during the open period to select (or change) their bargaining agent, as intended by the Legislature. Those employee rights can only be adequately protected by permitting a trade union which has solicited the support of those employees and filed a certification application seek­ing to displace the incumbent trade union to request reconsideration of the Board's decision to grant early termination. For it is the Board's consent to the early termination of the collective agreement then in force which enabled the company and the incumbent trade union to enter a new collective agreement which would otherwise constitute a bar to the certification application.

21The Board finds support for its analysis in the jurisprudence quoted above and in Atlantic Packaging Products, supra, wherein two trade unions who demonstrated membership sup­port as at the time of the reconsideration request were granted standing to seek reconsideration of the Board's decision, several months earlier, to certify a third trade union.

22This approach also preserves the confidentiality of the identities of the employee sup­porters of the trade union seeking to displace the incumbent. The trade union, in this case Local 183, need only point to its certification application wherein it was entitled to a pre-hearing vote, to demonstrate its membership support. The trade union need not disclose, in the reconsideration application, the actual membership evidence to have sufficient standing to seek reconsideration of the decision granting early termination. Nor, by implication, need the reconsideration request be supported by named employees.

23The foregoing are the reasons for the Board's ruling, given orally, that Local 183 has the standing in its own right to bring the reconsideration request.

24The Board next turns to the merits of that request and to the reasons sustaining the Board's decision issued in bottom line form in March 1993 revoking the decision in December 1991 granting the early termination of the collective agreement. In so doing, the Board first gives its fac­tual findings, followed by the submissions of the parties and the reasons themselves.

25In reaching its findings of fact, the Board has weighed and assessed the testimony of the fourteen witnesses, including their relative credibility, in the context of the documentary evidence and what is reasonably probable in the circumstances. Much of the evidence was not in dispute and, of the contradictions in the testimony, most dealt with minor details. Where it is necessary to resolve contradictions in the testimony, the Board has done so.

26Ledcor is a construction company whose origins are in western Canada and which com­menced operations in Ontario in 1986-87. The company is involved in several areas of construc­tion, including the utilities field. J. Rosien is the Vice-President and District Manager for Ontario. The company's head office is in Mississauga with a small managerial staff and secretarial support. As well, the company maintains a facility in Bolton which is used for the repair and storage of equipment and materials and consists of a large building (primarily divided into garage bays) and a fenced yard. The mechanic (A. Jackson) regularly works at Bolton. A few other employees work there from time to time. At the relevant period in late 1991 and early 1992, the company had employees working at two job sites in Toronto: near the intersection of Leslie and Hwy. 401 (the "Leslie/401" site) and in downtown Toronto at King and Strachan (the "King/Strachan" site). Those employees, with a few exceptions to be noted, directly reported to and departed from their work sites in the morning and evening. The Board deals with the activities and movements of the employees in more detail below at paragraphs 40-44.

27The bargaining unit employees are represented by CLAC as a result of voluntary recog­nition granted in the spring of 1990 for the geographic area described as Board Area 8, essentially the Metropolitan Toronto area. The collective agreement for which Ledcor and CLAC sought early termination was the first between the parties, with a two year term expiring in February 1992. Bargaining rights for employees in the Ottawa area, Brantford/Hamilton and Simcoe County were subsequently obtained by CLAC, also through voluntary recognition. It is unnecessary to describe the geographical areas with any greater precision. At the relevant time, there existed four collec­tive agreements covering the employees in each area. While the agreements were entered into at varying times (as CLAC received voluntary recognition in each area), all four had a common expiry date of February 28, 1992. It should be noted that CLAC also represents Ledcor employees in Alberta and British Columbia in several sectors of the construction industry.

28In October 1991, Rosien wrote to R. Rupke, the CLAC representative, requesting that the parties negotiate special rates in the collective agreements for particular types of contracts which Ledcor hoped to obtain. In the utilities field, Ledcor had bid on and won what were referred to as "specific" contracts with Bell Canada. Bell Canada and Ontario Hydro have a system of per­mitting contractors to first compete for specific contracts and then, by invitation, to bid on "gen­eral" contracts which cover a period of one or two years. Ledcor had been invited to bid on several "general" contracts with Bell. The general contracts potentially represented a new type of work for the company. Rosien testified that the company felt that, in order to bid competitively, Ledcor needed to negotiate different wage rates for that category of contract. In his letter, Rosien referred to the special rates in the collective agreement between CLAC and Jen-Ry, another contractor in the utilities field.

29The parties met on November 21, 1991 to negotiate. Several persons, including Rosien, represented the company. The union bargaining committee consisted of Rupke (the senior CLAC representative), D. Schreiber (another union official) and employee members from areas where the company then had projects. Rosien outlined his concern with competitiveness and the compa­ny's desire to have certainty in its wage rates for bidding purposes. In the ensuing discussion, Rupke raised the issue of the early termination of the extant collective agreement. Rupke explatned the process to Rosien who was unfamiliar with the statutory provision regarding early termination of collective agreements. On that day, the parties concluded negotiations, subject to ratification by the employees, and agreed to proceed with an application for the early termination of the Toronto area collective agreement. In Rupke's view, such a process made sense in the cir­cumstances. The changes sought by the company with respect to the rates for the general contracts would have to be ratified by the members. Further, the parties would be commencing negotiations relatively soon, in January 1992, for a renewal of that collective agreement. Rather than go through the negotiation and ratification process twice, Rupke considered it preferable to seek early termination of the 1990-92 agreement and enter into a new collective agreement. Rupke testified that, in his opinion, circumstances would not change between November 1991 and January 1992, when bargaining for a renewal collective agreement would otherwise take place; there was no rea­son not to deal with all matters at the same time.

30Rupke was informed by Rosien that all employees in the Toronto area were working at the Leslie/401 site. Rupke went to that site, spoke with every worker there and handed out a notice of a union meeting to ratify the collective agreement for 1992-94. The notice of meeting was not posted at the Bolton facility. The CLAC meeting was held after work on November 26, 1991 at a restaurant near the site. Six bargaining unit employees attended in addition to Rupke and Schreiber on behalf of CLAC. Rupke outlined the proposed changes to language and wages in the new collective agreement and explained the rationale for the changes. Those attending were given handouts containing the proposed changes. With respect to compensation, the proposed agree­ment provided for no increase for July 1992 (July being the usual date for an annual raise) and wage rates reduced by 10% for general contracts. Evidently, wages had been raised by 6% in July 1991. Rupke felt that, given the current conditions in the construction industry, it was not unrea­sonable to suspend the expected wage increase in July 1992 but review the compensation issue in December 1992. Further, Rupke indicated that the company and the union would be applying to the Board for early termination of the current collective agreement before its scheduled expiry on February 28, 1992 SO that the new terms could be implemented earlier. There were questions with respect to some provisions in the proposed agreement, although no objections were raised regard­ing the impending application for early termination of the current agreement. The proposed collec­tive agreement was ratified unanimously in a secret ballot vote.

31It is appropriate to note at this point that the negotiations with the company concerned the provisions of all four collective agreements, covering the Toronto area, Ottawa area, Brantford/Hamilton and Simcoe County. Ratification votes on the proposed changes were held in Toronto, as noted, and in Ottawa on December 1, where the meeting paralleled that in Toronto. No votes were taken in Brantford/Hamilton or Simcoe County as there were no employees work­ing on projects in those areas at that time. The company and CLAC only applied for early termina­tion of the Toronto area collective agreement; the other three agreements were permitted to run their course before the negotiated changes took effect. Rupke testified that it was only with respect to the Toronto area that the start dates of the upcoming general contract bids were an issue. The Ottawa project was winding down at the time of the ratification meeting and there were no bar­gaining unit employees in that area in the relevant period. Rupke testified that it was decided not to seek an early termination of the Ottawa collective agreement as Ledcor was not bidding on gen­eral contracts in that area. It is useful to note here, however, that the company was not successful in obtaining general contracts with Bell in the Toronto area for some time. Ledcor did receive a Bell general contract in April 1992 for the Ottawa region. As well, Rosien's letter of October 30, 1991 which led to the early negotiations specifically stated that "...we plan to bid approximately 15 to 20 Bell General Contracts in South Central and Eastern Ontario..." and "Time is of the essence. The Hamilton and Niagara contracts bid on November 19, 1991."

32Following the ratification meeting, Rupke learned that there were employees at the King/Strachan site and directed Schreiber to visit that location to explain the changes in the new agreement. Schreiber did meet the day after the ratification meeting with three persons at the King/Strachan site: R. Wheaton, J. Sconza and J. Jeronimo. The discussion was relatively brief, in part because of the bitterly cold weather, and focused on the compensation provisions. Schreiber did mention that CLAC and Ledcor would be applying for early termination of the current collec­tive agreement; no objections were raised regarding that issue.

33Rupke prepared the application for early termination of the current collective agree­ment. Rupke used as a model an early termination application Rupke had been involved with pre­viously with another company. Rupke, Schreiber and P. Pound signed the application on behalf of CLAC. P. Pound was a member of the Toronto bargaining unit, had sat on the bargaining commit­tee and was a union steward at the Leslie/401 site. The application was delivered by hand to the Mississauga location for management to sign and then forwarded to the Board. The Board fol­lowed its usual procedure for dealing with such applications: a terminal date was set, notices were forwarded to Ledcor for posting and a notice of posting was returned to the Board signed by Rosien. As no objections to the application were received by the Board by the terminal date, the Board issued a decision dated December 19, 1991, granting the early termination. The new collec­tive agreement was signed by Ledcor and CLAC on December 23, 1991, following notification of the Board's decision, in order to implement the terms of the renewal agreement as of January 1, 1992, as intended. The Board next recounts the details of the posting.

34Rosien and Rupke spoke by telephone regarding the posting. Both agreed that there was no place at the Leslie/401 site to affix the posting. Rupke could not recall if the King/Strachan site was similarly discussed. Rupke testified that Rosien indicated that the postings would be at the Bolton facility and the Mississauga office. Rupke testified that he asked Rosien if there was any­where closer to the work sites to post the notices and was informed that there was not. In Rupke's view, the postings were the responsibility of the employer, as directed by the Board; he made no suggestions to Rosien as to where to post the notices. However, Rupke was also of the view that the employees were well aware, through the ratification meeting and discussions with those not at the meeting, that there would be an application for early termination. Rupke testified that he regarded the Board's directions as literally to "post" the notices, rather than to bring the notices to the attention of the employees affected in any way possible.

35Rosien received the material from the Board, including the directions that he post the notices of the early termination application. He posted one copy of the Board notice of the early termination application at the Mississauga office near the back door in the vicinity of the mail slots where the cheques are picked up for delivery to the workers on the project sites. Two other copies were affixed to a wall in the Bolton facility near the lunch room and washroom, an area north of the garage bays. That location had been used for posting other material, such as health and safety notices. There, the Board notices were posted in single sheets in the English and French versions. Another copy, stapled together, was placed in a plastic covering and taped to the outside of the southwest door into the bays at the Bolton facility; that door was the one generally used by employees entering the building. An employee, J. Beauclair Jr., assisted Rosien in taping that notice to the door. The other copies were posted by Rosien alone. All documents were posted on Monday morning, December 9, 1991. Rosien removed the documents on the evening of December 16 and faxed the Declaration of Posting Form to the Board.

36Rosien testified that he regarded those locations as fulfilling the Board's directive that the notices be posted "in conspicuous locations where they are most likely to come to the attention of all employees who may be affected" by the early termination application. In Rosien's view, there was no suitable location to post the material at either the Leslie/401 or King/Strachan sites. Rosien acknowledged that a used trailer had been delivered to the King/Strachan site on the morn­ing of December 11, 1991 but, as the trailer needed repairs and lacked heating, he thought that the trailer would not be used by employees at that point. The trailer was repaired and heating installed during the Christmas shutdown from December 20 (the last day worked) to January 6, 1992. Rosien testified that he estimated a good number of the 13 to 15 employees would have visited the Bolton facility during the week of the posting and, in addition, employees were often asked to pick up paycheques from the Mississauga office on Thursdays, for distribution on Fridays on site.

37Rosien acknowledged in his testimony that the company had, on occasion, put notices in the employees' paycheques when Ledcor wished to ensure workers were informed of a specific matter. For example, the invitation to the Christmas party and a notice regarding theft had been included with paycheques in the past. Rupke, too, indicated that CLAC had used several mecha­nisms to ensure notices were received by employees from direct mailings to asking the employer to include material with paycheques. In passing, the Board notes that the notice regarding Local 183's certification application was posted in the trailer at the King/Strachan site and, more generally, there is no dispute as to the adequacy of the postings with respect to the certification application.

38During this period, both Rosien and Rupke testified that they were unaware of any organizing activity by Local 183. Rosien stated that he first became aware in late January when Local 183 filed its application for certification. Rupke indicated that he learned, in the third week of January, from union stewards on site that Local 183 representatives had visited the Leslie/401 and King/Strachan locations. Rosien also testified that he did not realize that the early termination and signing of the new collective agreement would operate to close the open period for a raid by Local 183. Rupke and Schreiber had had a general conversation in August or September 1991 with respect to the possibility of a raid by Local 183. Schreiber was told to make the union stewards on site aware that they should contact CLAC if Local 183 representatives appeared on site. Rupke testified that CLAC was not afraid of the upcoming open season in the collective agreement, that the union knew its members and their expectations. Further, Rupke stated that, given the Board practice not to grant an early termination of an agreement if an employee objected, he would have been stuck with a negotiated deal while a raiding union (Local 183) would have been able to make more attractive promises to the workers. In essence, Rupke implied that the November negotia­tions and early termination application indicated that CLAC was unaware of Local 183's inten­tions, rather than evidence CLAC was seeking to close the upcoming open period to avoid a raid by Local 183.

39Local 183, meanwhile, was indeed preparing to raid Ledcor. Local 183 represents con­struction workers in the Toronto area in most sectors of the construction industry, including the utilities field. A. Dionisio, the president of Local 183, testified that his union was interested in organizing Ledcor and the employees of another utilities contractor, Jen-Ry, also represented by CLAC. To this end, he obtained copies of the current collective agreements for both companies which had their open periods commencing in January 1992. Two union representatives were instructed to "keep an eye" on the Leslie/401 and King/Strachan sites in December 1991 50 the union would be ready to move once the open period arrived. In late January 1992, Dionisio was informed by representatives trying to organize the Jen-Ry employees that there had been an early termination of the collective agreement. Dionisio asked counsel to investigate and learned that an early termination application had been granted on April 5, 1991 and, thus, there was no open period in January 1992. Dionisio then learned, shortly after the certification application was filed by Local 183 on January 31, 1992, that the Board had granted its consent to the early termination of the collective agreement at Ledcor on December 19, 1991. Local 183 representatives spoke to several Ledcor employees on site who stated that they did not see any posting regarding the early termination application. The reconsideration request which is the subject of this decision was filed immediately.

40Considerable evidence was led concerning the activities and movements of the various employees, particularly during the period from December 9 to 16, 1991 when the Board notices were posted at the Mississauga office and the Bolton facility. Some of that evidence was not in dis­pute. Further, where there are contradictions in the evidence, the Board is of the view that the wit­nesses were trying to accurately recall events of quite some time ago which were not out of the ordinary at the time, a difficult task at best. It is necessary, however, to deal with this issue in some detail.

41As noted earlier, the employees working at the Leslie/401 or the King/Strachan sites, with few exceptions, reported to and departed from those sites. A. Jackson, who was not in the bargaining unit, worked as a mechanic at the Bolton facility. In the weeks prior to Christmas, J. Beauclair Sr. also regularly worked at Bolton supervising the repair and winterizing of equipment needed on an upcoming job in Manitoba. Beauclair Sr. is a superintendent at Ledcor and not in the bargaining unit. (In January, Beauclair Sr. acted as a foreman at the King/Strachan site in order to learn the utilities end of the business.) J. Smith, a bargaining unit member, regularly worked at Bolton as a mechanic and welder or, when he was not needed at Bolton, as a truck driver making deliveries or driving the float with operating equipment to the work sites. R. Whea­ton, also in the bargaining unit, was a truck driver as well. Wheaton reported to Bolton daily in December, prior to the Christmas shutdown, as his truck was parked there each night. Wheaton primarily hauled dirt from the King/Strachan site as the work there progressed but he would also deliver material to the sites as needed or pick up material from suppliers. K. Armitt, also in the bargaining unit, worked at the Leslie/401 site but left his pickup truck at Bolton each evening to prevent theft of tools from the job site. Armitt, Wheaton or Jackson would unlock the facility in the morning. Also regularly working out of the Bolton facility was J. Beauclair Jr. His duties involved driving a truck delivering material or parts to the sites or picking up material from suppli­ers, helping Jackson and Smith as needed, and cleanup at the Bolton facility. In December 1991, Beauclair Jr. indicated that he would frequently visit the Leslie/401 and King/Strachan sites.

42There is no doubt that other employees would visit the Bolton yard on occasion to pick up tools or material, if Beauclair Jr., Smith or Wheaton were not available, or to work there for some specific reason. For example, P. Gair worked at Bolton helping get the equipment ready for the Manitoba job. Several employees, including J. Jeronimo and M. Sturino, helped build forms at Bolton. J. Sconza and G. Ducey frequently visited the Bolton facility for various reasons. It appears that some employees never attended at the Bolton yard. For example, Bento testified that he had never been at the Bolton facility. Jackson stated that he had never seen Bento, Cunha or Orfao at Bolton.

43The evidence was less clear as to which employees visited the Bolton facility during the period from December 9 to 16 when the Board notices of the early termination application were posted. Wheaton, Smith, Beauclair Jr., and Armitt visited Bolton daily. It is also more probable than not that Sconza and Ducey would have been at Bolton during that time. Jackson testified that P. Pound, J. Pound and M. Savitch were at the shop in December but could not say for certain if they were there between the 9th and 16th. Savitch testified that he was at Bolton because a tor­pedo needed repair and he did see the Board notices although he did not read the document as he already knew that the union would be making an application for the early termination of the cur­rent collective agreement. Beauclair Sr. could only place Gair and Jeronimo in the Bolton shop in December. Jeronimo, however, stated that he had been at Bolton building forms and occasionally drove to Bolton with Wheaton but was not at the yard in December. In summary, the Board is sat­isfied that it is reasonable to conclude that not more than a few of the employees working at the Leslie/401 or the King/Strachan sites were at Bolton during the period the Board notices were posted.

44Even less often would employees have reason to attend at the Mississauga office. The paycheques were usually picked up by the foremen each week, although Wheaton and Beauclair Jr. had done so on occasion. The Board is not persuaded that it was common for other employees to do so.

45There was also evidence as to discussions at the job sites regarding the proposed collec­tive agreement and the early termination application. The Board has already noted the occasion Schreiber appeared at the King/Strachan site after the union ratification meeting. Beyond that, Ducey testified that those issues came up in general discussions during coffee breaks. M. L'Hereux likewise testified that the terms of the new collective agreement were discussed during breaks; L'Hereux placed Jeronimo, Wheaton, Cunha and Gair in those conversations at various times. Jer­onimo agreed that L'Hereux mentioned that there would be a new collective agreement and that there was talk of an early termination application, although Jeronimo could not recall who else was present. The Board will deal with the impact of these discussions infra at paragraphs 60-63.

46The Board next summarizes the submissions of counsel in highly abbreviated form.

47Counsel for Local 183 reviewed the standard for granting reconsideration in the juris­prudence. It was argued that the two fold test, that the applicant intended to adduce new evidence which was not previously available on a due diligence inquiry, and that the new evidence would likely make a substantial difference to the outcome, did not apply where, as here, there had been a failure to give adequate notice to Local 183 and the employees, which failure constituted a denial of natural justice. In the alternative, if the usual test applied, counsel submitted that Local 183 sat­isfied the standard. That is, Local 183 was planning an organizing campaign in December 1991, could not have learned of the early termination application through the exercise of due diligence at the time given the locations where the notices were posted, and the new evidence (the inadequacy of the notice) would make a substantial difference to the outcome of the early termination applica­tion. Counsel reviewed the evidence in support of his contention that notice of the early termina­tion application was not posted at all or, in the alternative, the manner in which the notices were posted did not comply with the Board's directions to the employer. It was suggested that there were other mechanisms readily available to ensure all employees received notice of the early termi­nation application. In counsel's view, Local 183 was an interested party and, had the Labourers objected to the early termination application, the open period, at least, would have been preserved by the Board. It was argued that the company and the incumbent trade union both had an obliga­tion to ensure the Board was acting on accurate information regarding the posting in reaching its decision with respect to the early termination application. Counsel also reviewed the evidence with respect to the knowledge of Ledcor and CLAC officials of the likelihood of a raid by Local 183 and viewed as suspicious the early termination of solely the Toronto area collective agreement given the upcoming bids on general contracts and the awarding of those contracts. In summary, counsel requested that the Board revoke the early termination of the collective agreement and set aside the renewal contract so that the certification application could be considered. Cases cited in support included: Firestone Tire & Rubber Company Limited (Leaside Branch) (1954), 54 CLLC ¶17,078; Silverwood Dairies Limited, Brantford Branch, [1967] OLRB Rep. Jan. 837; The National Cash Register Company of Canada Limited, [1967] OLRB Rep. Apr. 90; Canada Building Materials Limited, [1968] OLRB Rep. March 1210; Standard Products (Canada) Limited, [1969] OLRB Rep. Apr. 123; Saga Investments, [1970] OLRB Rep. June 312; Adena Investments Limited, [1971] OLRB Rep. Jan. 1; Vroom Developments (Central) Limited, [1973] OLRB Rep. Nov. 557; AIwell Forming Limited, [1973] OLRB Rep. Nov. 559; Cochrane Nursing Home Limited, [1974] OLRB Rep. Apr. 204; Atlantic Packaging Products Ltd., [1980] OLRB Rep. Jan. 4; The Continental Group of Canada Ltd., [1980] OLRB Rep. Oct. 1381; Campbell Red Lake Mines Limited, [1983] OLRB Rep. May 623; Trans Continental Printing Inc., [1989] OLRB Rep. Nov. 1187; Ridgewood Industries, [1990] OLRB Rep. Mar. 331.

48Counsel for Ledcor submitted that there was no absolute requirement in the jurispru­dence that notices be delivered individually to employees. The Board's directive requires that the notices be posted. Further, Local 183 was not entitled to direct notice in any event, that is, notice to a union interested in challenging the incumbent's representational rights was effected through notice to the employees in the bargaining unit. The Board, it was argued, in directing the posting of notices, was balancing the need for expeditious and final determination of the early termination application with adequate notice to the employees affected by the application. Moreover, counsel contended the adequacy of the notice in the instant case must be considered in the context of the other events at the time, including the CLAC meeting to ratify the new collective agreement where the early termination application was mentioned, workplace conversations amongst employees and the visit to the King/Strachan site by Schreiber. Counsel reviewed the evidence in support of his assertion that the notices were posted at Bolton and the Mississauga office and that the notices there satisfied the Board's directions in the circumstances. The lack of a suitable place to post the notices at the work sites was noted. As well, counsel submitted that the evidence indicated a sub­stantial majority of the Ledcor employees visited the Bolton site during the week the notices were posted. Counsel argued that there was no evidence of subterfuge on the part of Ledcor and CLAC to avoid the upcoming open period in the current collective agreement and that absence of illicit motives should be considered by the Board in dealing with the reconsideration request. Counsel asked that the decision granting the early termination application be upheld. Cases referred to included: Brantford Builders' Supplies Limited, [1969] OLRB Rep. July 518; Kilean Lodge, [1977] OLRB Rep. April 240; Macdonnell Memorial Hospital, [1979] OLRB Rep. Oct. 996; Campbell Red Lake Mines Limited, supra; Custom Pharmaceuticals Ltd., [1986] OLRB Rep. Mar. 315; Cable Tech Co. Ltd., [1988] OLRB Rep. June 562; Ventra Group Inc., [1990] OLRB Rep. Aug. 903; Vissers Nursery, [1990] OLRB Rep. Sept. 989; P.H. Atlantic Plumbing & Heating Division of 629629 Ontario Limited, [1991] OLRB Rep. Jan. 97; Ridge Landfill Corporation, supra.

49Counsel for CLAC reviewed the principles guiding the Board with respect to reconsid­eration applications and stressed the reliance interest of the parties, as here, in the finality of the Board's decisions. Counsel argued that the weight of the evidence supported a conclusion that the notices had been posted at the Bolton facility and the Mississauga office. With respect to the ade­quacy of the notices, counsel submitted that the company had followed the Board's directions, that there was no misconduct by Ledcor or CLAC and that the notices had been seen by a substantial majority of employees. Counsel contended that the position of those employees who had not seen the notices because they were not at the Bolton facility or the Mississauga office during the rele­vant period was no different from those who did not receive notice because of illness or vacation and, thus, should not affect the adequacy of the notices. In essence, counsel contended the notices as posted satisfied the requirements of natural justice. It was asserted that Local 183 was not enti­tled to direct notice and that the caselaw required more than a mere assertion by Local 183 that it wished to apply for certification in what would have been the open period to warrant reconsidera­tion of the Board's decision granting early termination. Local 183 had to rely on its contacts amongst the employees for notice and, in that regard, the Board should also take into account the discussions about the new collective agreement and the ratification meeting. Counsel also submit­ted that there was no evidence of improper motives on the part of Ledcor or CLAC in seeking early termination, that the company acted for logical business reasons. In summary, counsel stressed that, to allow reconsideration in the instant case, would undermine the finality of Board decisions where an interested party appeared later seeking to challenge the decision. The notice was adequate in the instant circumstances and the finality of the early termination decision should be affirmed. Cases cited: Regina v. Canada Labour Relations Board, ex parte Martin et al., 1966 CanLII 283 (ON CA), [1966] 2 OR. 684 (C.A.); De Smith's Judicial Review of Administrative Action (Stevens & Sons Limited, Toronto, 1990); Re David et al. and City of Welland et al. Allied Tower Merchants Ltd. et al. v. City of Welland et al., 1973 CanLII 808 (ON HCJDC), [1973] 2 O.R. (2d) 679 (Div. Ct.); Kevton Holdings Ltd. (1977), 78 CLLC ¶16,116; Macdonnell Memorial Hospital, supra; Northern Construction Company (1976), 77 CLLC ¶16,071; O.J. Pipelines Ltd., [1984] OLRB Rep. Dec. 1737.

50In reply, counsel for Local 183 argued that the "word of mouth" notice to employees should not be taken into account given the lack of evidence as to the timing of those discussions and their content. That is, the conversations did not adequately communicate the information con­tained in the Board notice of the early termination application with respect to the rights of employ­ees to object to the application. As well, the decisions cited by the other counsel were commented on in his submissions that the reconsideration request be granted in the circumstances of the instant case.

51As noted earlier, the Board is granted a broad discretion in the statute with respect to revocation or amendment of a prior decision (see paragraph 13). The Board has adopted a cau­tious approach to this authority given the institutional interests of the Board and the parties in the finality of Board decisions. The Board's processes are not to be subject to attempts by parties to repair or reargue a case in which they were unsuccessful at first instance. Likewise, parties are enti­tled to rely on the finality of a Board decision in organizing their affairs. The legitimacy of these interests is heightened where representational rights are involved. It is sufficient to refer to the fol­lowing excerpts to outline the considerations which underlie the Board's determination as to whether or not reconsideration should be granted.

"To avoid abuse of the reconsideration provision and bring some finality to its adjudicated deci­sions the Board has adopted principles not unlike those of the courts. The Board will not nor­mally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due dili­gence, and then only where such additional evidence, if proved, would be likely to make a sub­stantial difference to the outcome of the cases. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of a party's conduct, and the resulting prejudice to another party if the case is reopened. (See, generally, International Nickel Company of Canada, 63 CLLC 16,284; The Detroit River Construction Limited, 63 CLLC ¶16,260; National Steet Car Corporation Limited, [1966] OLRB Rep. Apr. 55; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; York University, [1976] OLRB Rep. Apr. 187 affirmed, sub. nom. Jordan v. Ontario Labour Relations Board, York University Faculty Association, York University, 78 CLLC ¶14,132, (Ont. Div. Ct.)"

[K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185 at ¶4.]

"The Board exercises its jurisdiction under section 95(1) [as it then was] of the Act to reconsider and vary or revoke any decision with care and caution in order not to undermine the finality of its decisions and, as stated by the Board in Canadian Union of General Employees, [1975] OLRB Rep. April 320:

'Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclu­sive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously."

These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board's decisions some degree of certainty of what to expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly. Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise significant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision."

[John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096 at ¶5.]

52In the instant case, the Board determined that Local 183 had standing in its own right to seek reconsideration of the Board's decision granting the early termination of the then extant col­lective agreement between Ledcor and CLAC. The Board must next consider whether, on the merits, reconsideration should be granted.

53There can be little doubt that, had Local 183 intervened in the early termination appli­cation, the application would not have been granted or, at least, the open period would have been preserved so that Local 183 would have had the opportunity to challenge the representational rights of the incumbent, CLAC: Firestone Tire & Rubber, supra; The National Cash Register, supra; Canada Building Materials, supra; Standard Products (Canada), supra; The Continental Group, supra; Ridgewood Industries, supra. The jurisprudence on the point and the Board's con­cerns in dealing with early termination applications were noted in paragraphs 16 and 17 and need not be repeated here.

54Generally speaking, once the Board grants an early termination application, parties are entitled to rely on the finality of that decision in ordering their affairs. In the instant case, after the Board consented to the early termination of the extant agreement, Ledcor and CLAC proceeded to execute and implement the new collective agreement which had been ratified by the employees. Obviously, the finality of any Board decision and the initial decision in this case is subject to the Board's reconsideration authority. The point is that, at the reconsideration stage, what would oth­erwise have been been a basis for preserving the open period (i.e., the intervention of Local 183) must be balanced against the need for finality. Local 183, in order to succeed in its reconsideration request, must establish more than its attempt to organize the Ledcor employees and its actual application for certification.

55Local 183 is not entitled to direct notice of the early termination application notwith­standing its interest in organizing the employees of Ledcor. To hold otherwise would effectively nullify the statutory provisions permitting parties to seek Board consent to the early termination of their collective agreement. The Board, on receipt of early termination applications, directs the employer to post notices informing affected employees of the application and their right to file an objection, if they wish, by a specified terminal date. The Board cannot effect similar notice to all

other trade unions who might be interested in challenging the representational rights of an incum­bent trade union. This is not merely an administrative matter but, rather, goes to the heart of the statutory provisions regarding early termination applications. The Act addresses the right of employees to join a trade union of their choice (subject to other statutory restrictions); the Act does not speak of organizational rights of trade unions in similar terms. Thus, while Local 183 has a right to standing to bring the reconsideration application in its own name in order to give mean­ing to the rights of the employees to freely choose their bargaining agent, Local 183 must rely on those employees and the Board's usual posting process to receive notice of a termination applica­tion which might ultimately affect its interests by closing or postponing an open period during which the representational rights of the incumbent trade union could be challenged.

56Whether or not the employees in the bargaining unit informed Local 183 of the termination application is not a matter of concern for the Board. The Board appreciates the difficulty which a trade union may face in acquiring sufficient information to mount a successful raid and in persuading employees to change their union allegiance, particularly in the construction industry where the work sites are less permanent and the work force is often more mobile. But, that is a problem which a trade union seeking to challenge an incumbent's bargaining rights must over­come. What is of direct concern to the Board is whether the employees in the bargaining unit were given adequate notice of the termination application. As the following excerpt from the Registrar's letter to the employer indicates, the Board recognizes that other trade unions may have an interest in the early termination application but considers that notice to such organizations is effected through notice to the employees:

The Board is prepared to give consideration to the parties' request that the collective agreement between them be terminated, provided that it is first assured that such action will not prejudice the rights of any interested individual or organization.

Accordingly, you are required to post the enclosed Notice to Employees, in English and in French, immediately. These Notices are to be posted in conspicuous locations where they are most likely to come to the attention of all employees who may be affected by this application. The Notices shall remain so posted for a period of five working days from the posting thereof.

Thus, while the Board agrees with counsel for Local 183 that the failure to give notice may well constitute a denial of natural justice, the Board does not agree that Local 183 was entitled to direct notice and can claim a denial of natural justice on the ground that Local 183 did not receive direct notice of the early termination application. That is not a basis for revoking the Board's decision of December 1991 granting the early termination of the CLAC-Ledcor collective agreement.

57The Board is satisfied that the notices were posted by Rosien in the Mississauga office and at the Bolton facility from the morning of December 9, 1993 to the evening of December 16, 1991. The notices, therefore, were posted for more than the requisite period of five working days. At the Bolton facility, the notices were located on the outside of the southwest door and on a wall in the hallway near the lunchroom. For those employees affected by the application who were at Bolton in the relevant time period, for example, picking up or delivering tools and material, there was opportunity to learn of the early termination application. Likewise, for those employees who travelled to the Mississauga office to pick up cheques or drop off paperwork, the location of the notices there, near the back door in the vicinity of the mail slots was appropriate. The Board heard some evidence from employees who testified the notices were seen but not read because it was known that the union would be making an application to terminate the existing collective agreement before its usual expiry date. The Board has always considered that employees who choose not to read Board notices but rely on other sources of information for knowledge of their rights to be the authors of their own misfortune if their information proves inaccurate: Cable Tech, supra.

58The issue in the instant case is one of the adequacy of the posting given the work pat­terns of the employees, that is, whether the notices comply with the Board's directive that they be posted "in conspicuous locations where they are most likely to come to the attention of all employ­ees who may be affected by this application". Considerable jurisprudence was cited dealing with the adequacy of notice, primarily in certification applications where one party sought an extension of the terminal date. The cases referred to espouse a number of principles or approaches which the Board regards as applicable to the instant case and with which the Board agrees. For example, the case law speaks of the "reasonableness" of the notice in the circumstances, including the size of the bargaining unit, the length of time the notices were posted and their location. It is recognized that employees are not entitled to individual, personal notice and it is expected that, at any point in time, employees may be on vacation or ill. Those circumstances would not warrant an extension of the terminal date or reposting provided that, at the relevant period, a representative number of employees were scheduled to work and would have had the opportunity to read the posting. See: Brantford Builders' Supplies, supra; Kilean Lodge, supra; Macdonnell Memorial Hospital, supra; Campbell Red Lake Mines, supra; Custom Pharmaceuticals, supra; Ridge Landfill, supra; Silverwood Dairies, supra. Where the Board has concluded that notice was inadequate, the termi­nal date was extended or the earlier Board decision was revoked: Saga Investments, supra; Adena Investments, supra; Vroom Developments, supra.

59In the Board's view, the postings in the instant case are inadequate in the circum­stances. The Board recognizes that the reference to "all employees who may be affected by this application" is not literal. That is, employees who are ill or on vacation may not see the posting yet such circumstances would not render the notice "inadequate" provided that a representative num­ber of employees were scheduled to work during the relevant period. However, in the instant case, the evidence establishes that employees reported to and departed from the two job sites at Leslie/401 and King/Strachan. The Bolton facility and the Mississauga office are at quite some dis­tance from the work sites. It is accurate to note that a few employees were at Bolton daily and a few others may have travelled to Bolton or Mississauga during the period the postings were up, in order to pick up supplies, drop off paperwork and such like. The Board has detailed its findings regarding the employees' movements supra at paragraphs 40 to 44 and those need not be repeated here. However, on balance, the Board is not persuaded that a representative number of employees would have had occasion to visit the Bolton yard or the Mississauga office from December 9 to 16, 1991. Those employees did not have the opportunity to read the Board notices regarding the early termination application. That lack of opportunity is a compelling ground to revoke the Board's decision granting the early termination application.

60It was argued that the employees had actual notice of the intention of Ledcor and CLAC to apply for early termination and, indeed, that the employees ratified the new collective agreement. Those facts, it was suggested, constituted the "context" which rendered the notice ade­quate. The Board does not agree. The Board has found, as facts, that there were some on site dis­cussions amongst employees and with representatives of CLAC which touched on the fact that the company and CLAC would be applying for the early termination of the collective agreement. And, there was a union meeting in November 1991 where the new agreement was ratified and the upcoming early termination application mentioned. However, the Board is not satisfied that the evidence establishes that the employees knew, through these discussions and meetings, of their right to object to that application or that the Board might proceed with the application if no objec­tion was filed by the terminal date. In short, there was no actual notice of the Board proceeding

whereby the Board dealt with the early termination application. Furthermore, the Board, in The National Cash Register Company, supra, commented that very clear evidence would be required to demonstrate that employees had "waived" their right to object to an early termination application and that "ratification" of a new collective agreement would not necessarily imply the waiver of employees' rights under the Act or to receive notice according to the usual Board processes. The evidence falls far short, in the instant case, of such knowledge or waiver.

61Moreover, the Board has an institutional interest in ensuring that its processes and directives are adhered to by the parties. The notice which the employer is required to post reads as follows:

"A JOINT APPLICATION, copy of which is attached hereto, has been made by the above named Employer and Christian Labour Association of Canada.

The aforementioned Agreement would normally terminate on February 28, 1992.

Any person having objection to the granting of such consent shall file the same with the Board, on or before the 16th day of DECEMBER, 1991.

In default of filing a Notice of Objection as aforesaid, the Board may take such action in the matter as may appear to the Board to be just."

This notice informs the employees directly that objections to the early termination application may be made but must be filed by the date specified and, in the absence of any timely objections, the Board may dispose of the application. It is through this posting that the Board is satisfied that the affected employees are given notice of the application and their rights. In the Board's opinion, it would encourage needless litigation and undermine the integrity of the Board's processes to readily accede to an argument by an incumbent trade union and a company that the employees received "actual" notice of the early termination application in lieu of compliance with the Board's posting instructions.

62There was testimony that the notices could not be physically posted at the job sites and that posting at the Bolton yard and the Mississauga office was regarded as a reasonable substitute. The Board is cognizant that the exigencies of the construction industry may render compliance with a posting directive somewhat more difficult. However, the Board has dealt with numerous applications for certification or termination of bargaining rights in the construction industry. The focus for those postings is the individual job site unless, for example, the employees report to a marshaling yard before proceeding to the work site and, thus, posting at such a central location would comply with the Board's instructions. In cases where some job sites were missed, the Board has directed the notices be riposted and the terminal date extended: Atwell Forming, supra.

63Further, the argument that notices could not be physically posted at the job sites is unacceptable for other reasons as well. The employer, on receipt of the Board's instructions, did not seek a ruling or assurance from the Board that the posting at the Bolton yard and Mississauga office was an adequate substitute. Had Ledcor done so, the issue could have been dealt with far earlier. It is the responsibility of the parties to promptly inform the Board of particular circum­stances which might render compliance with the Board's instructions difficult or impossible. Led­cor chose to rely on its own interpretation of the Board's instructions; CLAC discussed the issue but was prepared to accede to the company's view. The Board need not determine what other mechanisms would have constituted adequate notice in these circumstances; to do so, would be speculative at best and perhaps misleading to other parties. It is sufficient to note that parties who do not comply with the Board's direction that the notices be posted "in conspicuous locations where [the notices] are most likely to come to the attention of all employees who may be affected by this application" take such action at their own peril. In the instant case, the Board has con­cluded that the postings, as actually effected, were not adequate.

64The Board emphasizes that its conclusions are not dependent upon a finding of bad faith or improper motives by Ledcor and CLAC in seeking the early termination of their extant collective agreement. Counsel for Local 183 asserted that the company and CLAC acted as they did in order to close off the upcoming open period and avoid the risk of a raid by Local 183. Some evidence is supportive of that assertion, such as the fact that only the Toronto area collective agreement was terminated early despite negotiations for all four new contracts and the fact that CLAC officials had had a general discussion about the possibility of a Local 183 raid. On balance, however, the evidence is insufficient to establish mala fides on the part of Ledcor and CLAC in fil­ing the early termination application. In any event, even assuming complete good faith in the con­duct of the parties seeking early termination of their collection agreement, where the Board finds the notice to employees is inadequate, that will be grounds for revoking the Board's decision grant­ing such early termination.

65The inadequacy of the notice to employees of the early termination application provides a basis for revoking the Board's December 1991 decision. Nonetheless, the Board must still con­sider whether to do so at the behest of Local 183. This determination requires an examination of Local 183's conduct and considerations of delay and reliance by the incumbent trade union and company on the Board's initial decision. In the instant case, the early termination was granted on December 19, 1991. The new collective agreement was signed on December 23 to be implemented as of January 1, 1992. The certification application was filed by Local 183 on January 31, 1992. Local 183 learned shortly thereafter of the early termination decision and that the new collective agreement was being raised as a bar to the certification application. The reconsideration applica­tion was filed immediately thereafter.

66The Board is satisfied that Local 183 could not reasonably have known of the early ter­mination application given the inadequacy of the notice to employees of that application. When Local 183 learned of the Board's December 1991 decision, Local 183 acted promptly to inquire of employees as to whether the notices had been posted and received a negative response. Local 183 then filed the instant reconsideration request. Local 183 cannot be said to have acted with other than due diligence in making inquires and filing the reconsideration application once it was apprised that the early termination application had been granted. In the Board's view, the usual criteria for granting reconsideration should be applied to Local 183 and Local 183 has satisfied those criteria in the instant case.

67The Board is also persuaded that it is appropriate to revoke its December 1991 decision notwithstanding the fact that the new collective agreement was implemented and the absence of improper motives by Ledcor and CLAC in seeking early termination or of fraud on the Board. As noted, the new agreement was executed on December 23, 1991 to take effect as of January 1, 1992. The reconsideration request was filed on February 12, 1992. That is a relatively brief period during which the parties acted in compliance with the new collective agreement prior to notice of the reconsideration application. On balance, the Board considers that, in these circumstances, the institutional interest of the Board in providing adequate notice to the affected employees out­weighs any reliance interest of the company and the incumbent trade union on the finality of the Board's decision granting early termination. Obviously, the calculus may well result in a different result in other circumstances. The Board would weigh such factors as fraud on the Board or other improper motivation in connection with the early termination application, a lengthy passage of time before the trade. union seeking to challenge the incumbent's representational rights learned of the early termination and during which the new collective agreement continued to operate or a lack of promptness in seeking reconsideration once the circumstances came to light. In such instances, the Board might well refuse to revoke its prior decision or might vary that decision through, for example, the imposition of conditions which ensured an open period at a specified time.

68For the foregoing reasons, the Board revoked its decision of December 19, 1991 grant­ing the early termination of the collective agreement between Ledcor and CLAC. However, as noted earlier, the certification application by Local 183 was ultimately dismissed. The effect of the Board's revocation, then, has been to delay the implementation of the new collective agreement to the date on which the earlier collective agreement would have expired of its own accord. The par­ties have resolved the remaining matters in their settlement which the Board set out above at para­graph 2.