Local Union 47 Sheet Metal Workers' International Association v. James Johnston Mechanical Contracting Ltd., 1994 CanLII 9797

[1994] OLRB Rep. December 1671

0548-94-R Local Union 47 Sheet Metal Workers' International Association, Applicant v. James Johnston Mechanical Contracting Ltd., Responding Party

BEFORE: Lee Shouldice, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.

APPEARANCES: David Jewitt and Ross Mitchell for the applicant; Susan Nicholas for the responding party.

DECISION OF LEE SHOULDICE, VICE-CHAIR, AND BOARD MEMBER G. McMENEMY; December 20, 1994

1. This is an application for certification. By way of decision dated June 6, 1994, this panel of the Board certified the applicant as the bargaining agent for all journeymen and apprentice sheet metal workers in the employ of the responding party in the I.C.I. sector of the construction industry, and all journeymen and apprentice sheet metal workers in the employ of the responding party in all other sectors in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non-working foreman. On June 22, 1994, the Board received correspondence from counsel for the responding party (hereinafter sometimes referred to as "the employer") in which the Board was asked to reconsider its earlier decision. As a result of the nature of the grounds upon which reconsideration was requested, and the particular circumstances of the casey the Board listed this matter for hearing for September 15, 1994.

2. When this matter came on for hearing on September 15, 1994, the Board asked counsel for the responding party to advise the Board of the responding party's best expected evidence. It appeared, based on the materials before the Board, including correspondence from applicant's counsel dated September 14, 1994, that the calling of evidence would easily take more than the one day of hearing then scheduled, and would involve lengthy argument on one or more motions relating to the proper scope of the evidence which could be adduced before us. In light of the general principles applied by the Board to the exercise of its discretion to reconsider its decisions (see, for example, John Entwistle Construction Limited [1979] OLRB Rep. Nov. 1096 and K-Mart Canada Limited (Peterborough) [1981] OLRB Rep. Feb. 185), the Board felt that to entertain the request of the responding party on its "best case scenario could streamline the proceedings. We advised counsel that, should the Board determine that the "best case" scenario of the responding party could warrant reconsideration of its earlier decision, further hearing dates would be convened to deal with the applicant's preliminary motions, to hear the evidence of the parties and to provide an opportunity for opposing counsel to challenge the evidence then offered. For the purposes of this decision, therefore, we were provided with the following information which counsel for the employer advised would be expected to be elicited from the responding party's witnesses.

3. On May 18, 1994, the responding party received the applicant's application for certification in a package of material which had been couriered from the Board on May 17, 1994. This package contained, in addition to the application for certification, a "Notice of Application for Certification, Construction Industry" (Form B-40), two Notices to Employees of Application for Certification, Construction Industry, one in French and one in English (Form B-43), and a Return of Posting (Form B-48). The envelope did not contain a Response Form or a Schedule which the Board typically includes in the package. We note here that the application for certification had been filed with the Board on May 12, 1994. The bargaining unit applied for by the applicant was described in the application thusly:

"All journeymen Sheet Metal Workers and registered apprentices employed by the respondent [sic] in the industrial, commercial and institutional sector, in the Province of Ontario, save and except non working foremen and persons above the rank of non working foremen [sic].

All journeymen sheet Metal Workers and registered Sheet Metal apprentices employed in board area #15, save and except non working foremen and [sic] persons above the rank of non-working foremen and persons employed in the IC.I. sector"

On the face of the application, the applicant identified "the site or sites of the jobs at which the work ... is being performed" as "Ikea store addition and renovation at Pinecrest Shopping Mall Ottawa".

4. Due to the absence of the President of the employer, Mr. James Johnston, the package from the Board remained unopened until the morning of Friday, May 20, 1994, at which time Mr. Johnston opened the package, reviewed its contents, including the Notice of Application for Certification, and posted the English copy of the Notice to Employees in his Downsview, Ontario shop. The French version of the Notice was sent to Ottawa over the weekend for posting at the one site identified on the application form as the site where work was being performed, that being the Ikea Store at the Pinecrest Mall in Ottawa, Ontario. As it turned out, work at that site had, by May 20, 1994, been completed by the responding party. In fact, the two employees of the responding party who had been working at that site were laid off on May 12, 1994, at 12 noon, the same date that the application for certification had been filed with the Board. It was Mr. Johnston's belief that because this project had ended the application would be unsuccessful. It should be noted here that prior to this application the employer operated as a non-union mechanical contractor, but counsel did not dispute that the employer was aware of the existence of the applicant.

5. The responding party's Vice-President, Elizabeth Bettles, made a telephone call to the employer's legal counsel on May 20, 1994, once she became aware of the application for certification. She was advised by counsel that no one in its offices was familiar with the Board's practices and counsel indicated to her that it would locate someone it could recommend to her for advice. The responding party's counsel did not call back with the name of a lawyer before close of business on May 20, 1994. As May 23, 1994 was a holiday in Ontario, the next business day was Tuesday, May 24, 1994. The terminal date set by the Board for the filing of a response and supporting documentation was Wednesday, May 25, 1994. (Although there was some suggestion made in counsel's letter of June 22, 1994 that the opportunity to respond to the application was quite short, we note that the employer was in possession of the application for an entire week before the terminal date, which is, in our view, more than sufficient time to respond to an application for certification, even when a statutory holiday intervenes during that week. It is apparent that the delay in opening the package once it arrived at the employer's premises made it more difficult to respond in a timely way and to obtain legal counsel in a timely fashion. The recipients of correspondence from the Board are responsible for opening it in a timely fashion and cannot rely on a delay in doing so to support an argument that they were not given a sufficient opportunity to respond).

6. On Tuesday, May 24, 1994, a Board clerk telephoned the office of the responding party and left a message for someone to return her call. This call was to ensure that the responding party had posted the Notice to Employees and returned to the Board the Notice of Posting form. Ultimately, Mr. Johnston returned the telephone call at 9:50 a.m. that same day as Ms. Bettles was absent from the office due to illness. Mr. Johnston tried to explain to the clerk that the job at the Ikea store in Ottawa had been completed. He was told to put the explanation on the Return of Posting Form and return it to the Board. Mr. Johnston's note of the conversation was recorded immediately after the telephone call and provides as follows:

Called asked if we had posted the form B-43 at Ikea in Ottawa, and would we fax a copy of form B48.

I stated that the men in Ottawa was layed of [sic] on May the 12 because the job was completed and that was the same day they filed.

She said to note this on form B48 and that would be the end of it.

As a result of this telephone call, Mr. Johnston believed that he had been advised by "the Board" that his responsibility for responding to the application for certification would be at an end upon his returning the Notice of Posting (Form B-48) to the Board. This he did by way of facsimile on that same date. On the bottom of the form sent to the Board Mr. Johnston typed the following note:

This job is a construction site, the Sheet Metal Work referred to in this application is completed, the 2 employees mentioned in Paragraph 8 on form A-65 was [sic] given their proper notice of lay off on May 9th, 1994 and their job was completed on noon May 12th, 1994.

We were not aware of this application until we received it from your office on May 18th, 1994.

If this is to proceed any further we request more time than May 25th, 1994 in order to find out what our rights as a [sic] employer is.

7. As noted earlier, the terminal date for this application for certification was May 25, 1994. On June 1, 1994 the Board file was forwarded to the Vice-Chair of this panel for disposition. On June 2, 1994, Ms. Bettles contacted the Board to enquire as to when the employer would receive confirmation that the application was to be discontinued. She had been assured by Mr. Johnston that everything had been dealt with but was unsure of that fact. Ms. Bettles was advised that the file was before the Board for determination. She was unsure of what that meant but took no further steps to contact counsel. On or about June 6, 1994, the decision certifying the applicant referred to above was issued by this panel. The decision was forwarded to the parties by the Registrar by way of letter dated June 13, 1994, and was received by the responding party on June 16, 1994. Counsel for the responding party wrote to the Board asking for reconsideration of the decision by way of letter dated June 22, 1994.

8. Counsel advised the Board that, as at May 12, 1994, the employer had two sheet metal workers working in Ottawa and five other sheet metal workers performing I.C.I. work in the southern Ontario area, all of which were either journeymen or apprentice sheet metal workers.

9. Counsel for the responding party submitted a number of grounds upon which she urged that the Board reconsider its decision. In essence, they are the following:

(a) the lack of a Response form and a Schedule in the package of materials forwarded to the employer by the Board caused the employer some confusion as it was unaware of the nature of the Response to be filed and the information that was required to be filed with the Board prior to the terminal date. Counsel notes that the Board's June 6, 1994 decision "relies on" the failure of the employer to file a Response and a Schedule of employees.

(b) the comment by the Board clerk to the effect that all Mr. Johnston had to do was to return the Notice of Posting lulled Mr. Johnston into believing that there was no need to do anything else to protect the position of the employer;

(c) the Board did not pay heed to or respond to Mr. Johnston's request for extra time to respond, and because of the short time for response ought to have done so;

(d) the Board ignored or did not consider or address information provided by Mr. Johnston in the note contained on the Return of Posting; and

(e) the five employees of the responding party working in Southern Ontario are now unionized notwithstanding that the application would have been dismissed had the responding party filed a Response, having regard to the number of cards filed by the applicant and the type of work being performed by these employees on May 12, 1994, the date of application.

We will consider each of these grounds for reconsideration below.

10. Section 108(1) of the Act, which provides the Board with the authority to reconsider its decisions, states as follows:

108.-(1) 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.

As has been referred to above, the Board's general approach to the reconsideration of its decisions has been clearly enunciated in cases such as John Entwistle Construction Limited, supra and K Mart Canada Limited (Peterborough), supra. Recently, in John Maggio Excavating Limited [1994] OLRB Rep. Jan. 31, the Board's policy was reiterated:

As a general proposition, the Board will not reconsider a decision unless a party intends to introduce new relevant evidence which could not have been previously obtained by the use of reasonable diligence, and where such evidence, if adduced, would be practically conclusive of the case. Alternatively, the Board may reconsider its previous decision if a party intends to raise objections or make representations which were not already considered by the Board and which the party had no prior opportunity to raise. The rationale for the narrow limits imposed on the exercise of the Board's power to reconsider its earlier decisions is obvious - oniy if Board decisions are considered to be final can they be relied upon as establishing the rights as between the parties.

This general rule is not one which is "cast in stone". However, for the reasons referred to in the excerpt from John Maggio Excavating Ltd., supra, (and numerous other decisions) it will be observed by the Board in most cases. One concept which is central to the exercise of the Board's reconsideration power is that of "reasonable diligence". The evidence desired to be introduced by the party seeking reconsideration must be evidence which could not have been previously obtained by the use of such reasonable diligence. Furthermore, objections or representations to be raised can only be raised if the Board has not previously considered the objection or representation and the party had no prior opportunity to raise it. In light of these general principles, we consider the grounds raised by the employer for the reconsideration of our prior decision.

(a) Incomplete Package of Materials

11. For the purposes of this decision, we will assume as a fact that the responding party did not receive the blank Response form and Schedule which are typically provided in the package forwarded by the Board to the employer in an application for certification. It is probably not unfair to say that someone reviewing such an incomplete package may well be slightly confused by the lack of a document on which to respond to the application. However, the "Notice of Application for Certification, Construction Industry" which was specifically directed to the employer (and which Mr. Johnston conceded that he read) provides as follows:

12. If you wish to participate in this case, you must file with the Board your response as well as the material listed below so that it is received by the Board not later than the terminal date shown in paragraph 4 or, if it is mailed by registered mall (including Priority Post) addressed to the Board at its office, 4th Floor, 400 University Avenue, Toronto, Ontario, M7A 1V4, it is mailed not later than the terminal date shown in paragraph 4:

(a) schedules of employees in alphabetical order in the form set by the Board;

(b) a declaration verifying the schedules in the form set by the Board;

(c) sample employee signatures from existing employee records, arranged in alphabetical order.

IMPORTANT NOTES

IF YOU DO NOT FILE YOUR RESPONSE AND OTHER REQUIRED DOCUMENTATION IN THE WAY REQUIRED BY THE RULES, THE BOARD MAY NOT PROCESS YOUR RESPONSE AND DOCUMENTS, AND MAY DECIDE THE APPLICATION WITHOUT FURTHER NOTICE TO YOU. FURTHERMORE, YOU MAY BE DEEMED TO HAVE ACCEPTED ALL OF THE FACTS STATED IN THE APPLICATION.

THE BOARD'S RULES OF PROCEDURE DESCRIBE HOW A RESPONSE MUST BE FILED WITH THE BOARD, WHAT INFORMATION MUST BE PROVIDED AND THE TIME LIMITS THAT APPLY.

PLEASE CONSULT THE BOARD'S RULES OF PROCEDURE BEFORE COMPLETING YOUR RESPONSE. COPIES OF THE BOARD'S RULES MAY BE OBTAINED FROM THE BOARD'S OFFICE LOCATED ON THE 4TH FLOOR AT 400 UNIVERSITY AVENUE, TORONTO. ONTARIO (TEL. (416) 326-7500).

12. The assumed fact that the Board's Response form and the Schedule to the Response were not included in the package forwarded to the responding party does not satisfy the test enunciated above. It was not disputed that on May 20, 1994 Mr. Johnston read the documents that were contained in the package delivered by the Board. A simple reading of the Notice of Application for Certification, Construction Industry would make any reasonable person question whether certain documents were missing from the package. Numerous references are made in that document to the "response" expected from the employer and simple instructions are provided should the reader require a copy of the Board's Rules of Procedure. The reader is directed to consult the Board's Rules of Procedure (which can be obtained by calling the Board's telephone number listed on the document) before completing a Response. Mr. Johnston, having reviewed the package, should have, if confused, called the Board for assistance to obtain a copy of the Rules of Procedure and the Response form and Schedule. He did not do so on the Friday that he reviewed the forms in the package sent to him. The employer obviously was aware of the significance of the package, in light of its immediate posting of the Notice to Employees and the telephone call to its legal counsel. By not contacting the Board concerning the missing forms Mr. Johnston failed to exercise reasonable diligence to enable the employer to file a Response with the Board in a timely manner, and the Board will not reconsider its earlier decision as a result of these circumstances.

(b) Comment by Board Clerk

13. The comment which we have assumed was made by a Board clerk to Mr. Johnston does not, in our view, lead to the conclusion that we should reconsider our decision. Once again, we are willing to assume, for the purposes of this decision, that Mr. Johnston's note was made contemporaneously and reflects the exact comments made by the Board's clerk. We do not think that a reasonable person would have relied on those comments in light of the clear and unambiguous warnings on the Notice of Application for Certification, Construction Industry. As noted above~ Mr. Johnston clearly realized that this application was significant to his business operation - upon reviewing the documents forwarded to his office by the Board, he posted the Notices to Employees and his Vice-President contacted the employer's lawyers. The form which he reviewed was clear -should he fail to file a Response and the other documents required "... the Board ... may decide the application without further notice to you. Furthermore, you may be deemed to have accepted all of the facts stated in the application". The Notice of Application for Certification is signed by the Registrar of the Board and is unambiguous.

14. In our view, an employer faced with comments made by a Board clerk which he interprets as contrary to the unambiguous written directions of the Registrar of the Board would, acting reasonably, call the Registrar or the Board's legal counsel to clarify the contradictory information. Mr. Johnston accepted the clerk's "advice" in its entirety and we question whether, perhaps, some degree of wilful blindness was involved. The comments made by the clerk are hardly unambiguous and there was no suggestion that Mr. Johnston was otherwise in the process of preparing a response to the application or actively seeking legal advice prior to his conversation with the Board clerk. In our view, Mr. Johnston did not exercise reasonable diligence when he relied on the comments assumed to have been made by a Board clerk and accordingly such reliance does not justify the reconsideration of our prior decision.

(c) Comment Regarding Extension of Date to Respond

15. With respect to Mr. Johnston's comment regarding his need for further time, there can be no doubt that Mr. Johnston's note on the Return of Posting form may, if read one way, suggest that he felt that he needed further time than that provided by the Board to respond to the application. It can also be read to refer to the need for further time should a hearing be scheduled.

16. As noted above~ however, this application was referred to the Vice-Chair of this panel for review and determination with the Board Members of this panel on June 1, 1994 - one week after the terminal date. This is typically the case in the construction industry where the Board is not required by the Act to hold oral hearings. The Board's decision was made on June 6, 1994 -almost 2 full weeks after the terminal date, and almost three full weeks after the employer first received the application. Assuming, for the purposes of argument, that the employer was requesting an extension of the terminal date, there was absolutely no indication on the document to suggest why such an extension was required. In light of the clear warnings on the Notice of Application for Certification, Construction Industry, and the late date at which the request was made, in

our view it was unreasonable for the employer to assume that a bald request for an extension of the terminal date would be satisfactory to obtain the extension. In our view, a person using reasonable diligence would have contacted the Board's Registrar. These circumstances do not warrant reconsideration of our previous decision.

(d) Consideration of Information Provided

17. The responding party also states that the Board did not consider or address the information provided by Mr. Johnston on the note attached to the Return of Posting Form. In point of fact, the information confirmed to the Board that the application should be successful. In the note, Mr. Johnston confirms the following:

(1) the employees in Ottawa were engaged on a construction project;

(2) the work performed was sheet metal work;

(3) there were two employees at the site (as stated in the application); and

(4) the two employees were at work on May 12, 1994, the date of application, and spent the majority of their working day performing sheet metal work.

All of this information was considered by the Board in making its decision. This ground of complaint does not warrant the reconsideration of our earlier decision.

(e) Southern Ontario Employees

18. The last ground urged as supporting the request that we reconsider our prior decision is that the employer also employed five individuals in the Toronto area, which employees were not approached by the applicant, but who were performing sheet metal work in the I.C.I. sector of the construction industry on the date of application. If the employer had responded to the application, and if, in fact, these five employees would properly have been included on the Schedule used for the purpose of determining the count, it is evident that the application for certification would have been unsuccessful. Counsel for the responding party submits that this result should cause the Board to reconsider its decision, as it clearly constitutes a windfall for the applicant and "sweeps in" five people who have not shown any desire to be represented by the applicant.

19. Without a doubt, this applicant has, if the evidence of the responding party ultimately established the "best case" scenario provided to the Board, obtained a certificate when it otherwise would have been unsuccessful in doing do. We do not, however, believe that it is appropriate to reconsider our decision solely on that basis, as we are of the view that it was evident from the application and from Mr. Johnston's conduct that Mr. Johnston was aware that the employees at the employer's Downsview shop would be captured by any certificate obtained by the applicant. As noted earlier, the application filed by the union was for a "standard" I.C.I. unit of sheet metal workers:

All journeymen Sheet Metal Workers and registered apprentices employed by the respondent [sic] in the industrial, commercial and institutional sector, in the Province of Ontario, save and except non-working foremen [sic] and persons above the rank of non-working foremen.

All journeymen Sheet Metal Workers and registered Sheet Metal apprentices employed in Board Area #15, save and except non-working foremen and persons above the rank of non-working foremen [sic] and persons employed in the I.C.I. sector.

This application clearly identifies as part of the bargaining unit appropriate for collective bargaining all journeymen sheet metal workers and registered apprentices in the I.C.I. sector in the Province of Ontario. It would appear that Mr. Johnston was aware that his shop employees were affected by this application, as is evident from his immediate posting of the "Notice to Employees of Application for Certification" in the Downsview area shop. The Notice of Posting form, signed by Mr. Johnston, declares that "I posted all of the notices in the work place where they are most likely to come to the attention of all employees who may be affected by the application". In this light, it is hard to accept, at this late date, that it was not known to Mr. Johnston that his Downsview area employees were subject to and affected by this application for certification.

20. In essence, all of the information necessary for Mr. Johnston to determine the full extent of the scope of this application was in his possession as at May 18, 1994. The scope of the unit desired by the applicant was unambiguous and could hardly have been lost on Mr. Johnston, who has operated his business for approximately 15 years. Mr. Johnston determined that he would not file a Response with the Board as required. The consequences of doing so, admittedly severe from his perspective in the circumstances of this case, were caused directly by his own conduct.

21. Accordingly, we decline to reconsider our decision of June 6, 1994.

DECISION OF BOARD MEMBER F. B. REAUME; December 20, 1994

1. I respectfully dissent on the majority decision not to reconsider its earlier decision.

2. Personally, I submit that the panel failed to note that the application was from a different geographical Board area than that of the employer's home base of operations which certainly would have raised concern about the possibility of a representation problem, and had it checked out by a Board Officer.

3. Even if we decide that the employer did not, without cause~ exercise reasonable diligence in this matter, which I most emphatically do not, we simply cannot rationalize the representational problem in this application on the basis of the action or inaction of the employer. By doing so, we simply allow the union to "luck out" on the application rather than show true majority support for the application by the employees so affected. In other words, the action or inaction of the employer cannot be allowed to override the true representational wishes of the majority of affected employees.

4. For all the above reasons, while noting the offer of the union to accept all the affected employees into membership to preserve their employment opportunity with this employer, I would support a reconsideration.