[1994] OLRB Rep. June 725
4047-93-R United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, Applicant v. Marli Mechanical Ltd., Responding Party
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members F. B. Reaume and G. McMenemy.
DECISION OF THE BOARD; June 2, 1994
By application dated May 12, 1994, the responding employer seeks reconsideration of the Board's April 13, 1994 decision certifying the applicant trade union as the exclusive bargaining agent for certain of its employees.
The employer pleads that it did not consent or otherwise agree to the certification of the applicant and that the Minutes of Settlement it entered into were "only" intended to "narrow the issue regarding the number of employees at work at the date of the application, and not as any kind of recognition agreement." The employer further pleads that it did not consult with a solicitor with respect to the Minutes of Settlement and was not advised to obtain independent legal advice before signing the said Minutes by either the applicant or the Board Officer authorized to deal with the matter. The employer further pleads that it did not understand the meaning or effect of paragraphs 1 and 3 of the Minutes of Settlement.
The employer pleads that it did not include the specimen signatures for the employees affected by this application as required by the Board's Rules but that it did send the Board specimen signatures for four employees on April 7, 1994. It pleads that it never provided the specimen signatures for a fifth individual, copy of which it submits with its request for reconsideration.
In support of its application, the employer also alleges that two employees have told it that they never signed any union card or application for membership, and that if another employee signed the card, he did so without understanding what he was signing.
Finally, the employer pleads that it had no employees at work in the industrial, commercial and institutional ("ICI") sector of the construction industry on the date of application.
Section 108(1) of the Labour Relations Act provides that:
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.
Pursuant to this provision, the Board has a broad discretion to reconsider any of its decisions. However, the same provision, and legal and labour relations considerations, also demand that the Board operate from the premise that a Board decision should be final and conclusive for all purposes unless there is a good reason to change it. Accordingly, the Board will generally not reconsider a decision unless an obvious error has been made; or a request for reconsideration raises important policy issues which have not been given adequate attention or consideration; or the party requesting reconsideration proposes to a adduce new evidence which it could not, with the exercise of reasonable diligence, have obtained and presented previously, and which new evidence would, if accepted, have a material impact on the decision in question; or a party seeks to make representations which it has had no previous opportunity to make. Section 108(1) of the Act is not intended to provide an opportunity for a party to reargue its case, or to present evidence or arguments which should have been put forward previously.
- The Minutes of Settlement entered into by the parties with respect to the application for certification provide as follows:
Ontario Labour Relations Board
File #4047-93-R
Between:
United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of
the United States and Canada, Local Union 46
- and -
Marli Mechanical Ltd.
Minutes of Settlement
- The parties agree that the following constitutes the correct description of the bargaining unit:
All plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Marli Mechanical Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
and
All plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Marli Mechanical Ltd. in Board Geographic Area No. 8, excluding the industrial, commercial and institutional sector of the construction industry, save and except non-working foremen and persons above the rank of non-working foreman.
- The following constitutes a correct list of employees at work on the date of the application within the description of the bargaining units set out above:
John Abballe — Plumber
Paul Molella — Plumber
Tony Trumboli — Plumber
Mike Chindamo— Plumbers' Apprentice
Nandor Tekse — Plumbers' Apprentice
- A formal Labour Relations Officer Report is not required Dated at Concord this 5th day of April, 1994.
"Vincent McNeil" "Tony Muto"
For the Applicant For the Responding Party
The fact that the employer chose to deal with this matter and entered into the Minutes of Settlement without obtaining legal advice is not a basis for reconsideration. The employer chose to proceed as it did at its peril. Neither the trade union nor the Board Officer were under any obligation to suggest to the employer that it should obtain legal advice.
Further, this application for certification was not a complex matter. Nor are the Minutes of Settlement. The employer does not specify what it is that it did not understand about the Minutes of Settlement, and it is difficult to discern what it might have understood. The terms of the agreements arrived at by the parties, as set out in the Minutes of Settlement, are clearly expressed in plain and simple language.
The Board sees no reason to permit the employer to resile from the Minutes of Settlement.
The "various agreements between the parties" referred to in paragraph 4 of the Board's April 13, 1994 decision are the agreements with respect to the bargaining unit description, the list of employees, and the Labour Relations Officer's Report in paragraphs 1, 2, and 3 respectively of the Minutes of Settlement. The Board did not treat the Minutes of Settlement as a recognition agreement or consent to certification. However, an employer's agreement or consent is not a prerequisite to certification.
Upon reviewing the Minutes of Settlement between the parties, the Board was satisfied that the application could be disposed of without an oral hearing, and that it was appropriate to do so, as the Board is entitled to do under Rule 110 (made under section 104(14) of the Labour Relations Act.
In considering the application, the Board considered all of the materials then before it; namely, the application, the applicant's membership evidence and Form A-67 Declaration Verifying Membership Evidence, Construction Industry, the employer's response, including the four specimen signatures which were filed late, and the Minutes of Settlement between the parties. On the basis of those materials, the Board found it appropriate to certify the applicant. It is not open to the employer to seek reconsideration of the certification decision on the basis that it failed to file a fifth specimen signature.
This application for certification was made under section 146(1) of the Act, which provides that:
146.-(l) An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector in section 119 shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (3) or by voluntary recognition.
There was a provincial element to the application; namely, the ICI sector part of the bargaining unit, and an "appropriate geographic area" element; namely, Board Area 8. The bargaining unit applied for is both the applicant trade union's "standard" construction industry bargaining unit, and was specifically agreed to by the employer.
- Section 146(2) provides that:
146.-(2) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade unions on whose behalf the application is brought, or, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade unions on whose behalf the application is brought, or have applied to become members the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
Accordingly, it is by operation of statute that two certificates were issued to the applicant once it was found to have sufficient membership support in the single bargaining unit applied for; that is, one certificate for the ICI sector and another one for Board Area 8 (that is, "in relation to all other sectors in the appropriate geographic area or areas").
The structure of the construction industry provisions of the Labour Relations Act make it neither necessary nor appropriate for the Board to make determinations with respect to the sector of the construction industry in which employees were working for purposes of an application for certification under section 146(1) (see Lyle West Electric Limited, [1978] OLRB Rep. Nov. 999, Pelar Construction Ltd., [1981] OLRB Rep. Feb. 210). Further, it is well established that so long as there are unrepresented employees at work for an employer in any sector of the construction industry on the certification application date, it is not necessary that there be employees employed in both the ICI sector and in some other sector for an application under section 146(1) to succeed and for certificates to issue under section 146(2) (Colonist Homes, [1980] OLRB Rep. Dec. 1729, Pelar Construction Ltd., supra, Watcon Inc., [1981] OLRB Rep. Nov. 1697). When an application is made under section 146(1), the trade union's right to certification is determined on the basis of the wishes of the employees in a single combined bargaining unit. If the application is successful, section 146(2) operates to create two bargaining units, one for the ICI sector and one for the other sectors of the construction industry. Consequently, the applicant trade union was entitled to a certificate with respect to the ICI sector whether or not there were any employees in the bargaining unit working in it on the certification application date.
In the Board's view, the most serious basis submitted for reconsideration is the employer's membership evidence allegations. However, the allegations with respect to Tekse Nandor are no more than speculation and do not constitute a sufficient basis to reopen the matter or reconsider its certification decision. Further, having regard to the materials before the Board, including those submitted with the request for reconsideration, and the results of the Board's usual investigation into the responding employer's allegations with respect to the other two persons, the Board is satisfied that there is no reason either to hold a hearing, or to doubt the reliability of the membership evidence filed in support of the application for certification.
In the result, the Board is satisfied that there is no reason to vary, amend or otherwise reconsider its April 13, 1994 decision herein, either as requested by the responding employer or otherwise. The request for reconsideration is therefore dismissed.