[1995] OLRB Rep. August 1123
1544-95-R International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, Applicant v. Olympus Plastics Ltd., Responding Party
BEFORE: Gail Misra, Vice-Chair.
APPEARANCES: Michael McFadden and Brian DeWagner for the applicant; John Mastoras, Stanley Joffe and Doug MacKenzie for the responding party.
DECISION OF THE BOARD; August 14, 1995
This is an application for certification in which the parties have reached agreement on a number of matters in dispute between them. However, the responding party raised a question about the alleged lack of notice of this certification application provided to employees and asked for a hearing before the Board on this issue.
The facts giving rise to the employer's concern are not in dispute. On July 14, 1995 the applicant (also referred to as the "union") applied for certification for all employees of the responding party in the city of Barrie, save and except supervisors and all those above the rank of supervisor. July 14, 1995 was also the date upon which this place of employment began its summer shut-down, which ran until July 30, 1995. After July 18, 1995 no employees who may fall within the applicant's bargaining unit were at work. Employees returned to work on July 31, 1995.
The responding party (also referred to as the "employer") received notice from the Board of the certification application on July 21, 1995 and posted the Form B-4 "Notice to Employees of Application for Certification and of Hearing before the Ontario Labour Relations Board" on July 24, 1995. The terminal date set by the Board for this application was July 27, 1995. Neither the union nor the employer informed the Board of the plant shut-down. The Form B-4 has remained posted at the workplace up to the date of this hearing on August 14, 1995.
The employer's concern is that no employee who may be in the applicant's bargaining unit received notice of the certification application until after the terminal date had passed as the employees did not return to work until July 31,1995. It is the employer's position that the employees cannot be said to have had notice of this application, either real notice or deemed notice, and since having notice is a fundamental aspect of the principles of natural justice, so this application should be found to be void ab initio. It is suggested by the responding party that it is the union's responsibility to inform the Board of the shut-down and since it did not do so, it bears the risk of having its application voided.
The union maintains there is no basis for the Board to dismiss this application. It claims the union enjoys substantial support among the employees of the proposed bargaining unit (the count of employee support for the union has been made known to the employer at the Labour Relations Officer meeting of August 9, 1995). The union suggests the employees have known since their return to work on July 31, 1995 that the application for certification had been filed and that a hearing was scheduled before the Board on August 14, 1995. It is undisputed that no employee has expressed any interest in participating in this application or in the hearing. The union argues there has been no prejudice to the employer in the circumstances and it is not for the employer to come to the Board when it is a question of the notice to employees. The union further alleges that the employer in this case does not come to the Board with clean hands as it did not take any steps to inform the Board of the plant shut-down until it filed its response to the application for certification, dated July 27, 1995.
By way of reply the responding party states that it is not only employees who should have had notice, but any independent contractors or other unions who may have had an interest. It is suggested that if proper notice is not given one of any of the potentially-affected parties may come back to the Board at some later date and ask for the matter to be re-opened. The employer wants there to be some finality to this issue. The employer maintains that the situation cannot be rectified by the fact that the employees have now had notice since July 31, 1995 of this application and hearing date because the giving of notice is a mandatory requirement which cannot be waived, and cannot be discounted due to the apparent acquiescence of the employees in this case.
DECISION
It is noteworthy at the outset that there is no requirement in the Labour Relations Act for the giving of notice to employees of an employer where there has been an application made for certification of that workplace. However, Rules 28 to 33 of the Board's Rules of Procedure, outlined below, make reference to the Registrar's and the Board's powers to set terminal dates and the requirements of giving notice:
The Registrar may set a terminal date in any proceeding.
Where a hearing will be held in a case, written notice of the hearing will be given to all parties setting out the time, date and place of the hearing.
Where the Registrar considers that it is impractical to give written notice of the hearing, the Registrar may give verbal or other notice of the hearing.
The Registrar may give directions as he or she considers necessary to provide notice to any person.
The Registrar or the Board may require any person to post notices. The Registrar or the Board may also give any directions about the posting, including when the notices must be posted, where, how many and for how long.
The applicant and any person directed to post notices must promptly inform the Registrar of the date and time of the postings.
For an employee's purposes, the terminal date on an application for certification is the date by which any employee who has filed a petition or re-affirmation relevant to the application in question must file a written statement containing some basic information to bring to the Board's attention that a petition or re-affirmation had been filed with respect to that particular application. This is to ensure that the Board can match up any petition or re-affirmation which may have been sent in prior to the application date for that application. Pursuant to section 8 of the Act however, the Board cannot consider any new petition or re-affirmation evidence filed after the application date. If any employee wishes to participate in the certification proceedings on an issue other than with respect to a petition or re-affirmation, a written statement must be filed with the Board by the terminal date.
The Form B-4 is a "Notice to Employees ..." and informs them of the application, of the terminal date, the significance of the terminal date if an employee has filed a petition or re-affirmation, or if an employee wishes to participate for some other reason, and informs employees of the application date, the date and place of the Labour Relations Officer meeting, and the date and place of the hearing. The name, address, and telephone number of the Registrar of the Board are included on the notice so that any person wishing to will know where to send their submissions or who to call at the Board for further information. It is noteworthy that the Labour Relations Officer meeting in this case was scheduled for August 9, 1995, more than one week after the employees had returned to work. No employee chose to attend at the Officer's meeting to participate in this matter. As noted earlier, no employee attended at the hearing to participate in the proceedings on August 14, 1995.
I am troubled that neither the employer nor the union contacted the Board to inform the Board that the Form B-4 would be ineffective since no employees would be at work until after the expiration of the terminal date.
The employer was sent a Form B-5, "Notice of Application for Certification and of Hearing before the Ontario Labour Relations Board" on July 20, 1995. Paragraphs 2 and 3 of the Notice state as follows:
You must post the enclosed Notices to Employees of Application for Certification and of Hearing (Form B-4) immediately. These notices are to be posted where they are most likely to come to the attention of all employees who may be affected by the application. (emphasis added)
You must promptly inform the Registrar of the date and time of the postings. You may use the Return of Posting form attached.
By a facsimile dated July 25, 1995 Mr. Cliff Chandler, the Plant Manager for the employer, informed the Board that he had completed the posting on July 24, 1995. Part of the form completed and signed by Mr. Chandler informed the Board that:
(3) 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.
[emphasis added]
The union, upon receipt of its application for certification and at the same time as the employer is informed of the application, receives a Form B-2, "Notice of Hearing - Certification before the Ontario Labour Relations Board". In the third paragraph of that notice it states as follows:
You must promptly inform the Registrar as to whether Notices to Employees have been posted, and the date and time of posting, if known. You may use the attached Advice of Posting form.
The Board's records disclose that no "Advice of Posting" form was returned to the Board to indicate whether the union had ascertained that the posting had been completed. As with the employer, the union did not inform the Board that no employees would be in a position to see the posted notice since they were not at work at the requisite time. The Board has deemed it helpful to have the union confirm that the employees have had notice of an impending certification application. Had the union in this case checked on the posting and had it then informed the Board that there was a plant-shutdown so that no employees were going to be at work, the Board would have had an opportunity to ensure that employees received the notices about the certification application.
In all of the circumstances, it is therefore apparent that the employees affected by this application did not receive notice of the application prior to the expiration of the terminal date. While no employee has expressed any interest in participating since July 31, 1995, it is impossible for the Board to be satisfied that had proper notice been given no employee would have come forward. The Board has noted in its decisions that it has an institutional interest in ensuring that its processes and directives are adhered to by the parties involved (see Ledcor Industries Limited, (1993] OLRB Rep. Aug. 758). As the Board noted in Vissers Nursery, [1990] OLRB Rep. Sept. 989, it is concerned that employees whose rights are likely to be affected by an application should be given proper notice of such an application. At Paragraph 11 of that decision the Board indicated as follows:
... If the Board has not been promptly advised of the posting problem, it may be necessary to extend the terminal date fixed for the application in order for proper notice to be given to employees, thus delaying the application's processing....
It was argued on behalf of the employer, relying on the decision of the Divisional Court in Re Namusa Enterprises Ltd. and City of Etobicoke et al. (1984), 1984 CanLII 2074 (ON HCJ), 47 OR. (2d) 769, that the Board could not simply extend the terminal date in this application, but must make the application void ab initio. In that case the Court found that the municipality had failed to give the applicant any notice of a meeting of the board of control and that the applicant had been given insufficient opportunity to make submissions in the circumstances of that case. It was held that the municipality had breached even the minimum duty to treat the applicant with fairness in the process. For this reason, and two other more substantive reasons, the Court quashed the resolution of the council of the city of Etobicoke. That case is entirely distinguishable from the case before me. In the case at hand no final determination has been made by the Board and none will be made until the employees of this responding party have had the notice which they would have had had the parties informed the Board earlier of the plant shut-down. The employees will therefore be put in the same position which they would have been in but for the events which transpired in July 1995. There is therefore no issue of a breach of the duty of fairness in the process which the Board seeks to adopt.
Since no certificate has yet issued in this case it would be most feasible in the circumstances to extend the terminal date to August 22, 1995 50 that sufficient notice may be given to any employee who may wish to participate in these proceedings to make him- or herself known to the Board. The employer and the union have already met with a Labour Relations Officer and have reached agreement on all matters in dispute between them, except for this issue and the status of two employees. The Form B-4 will therefore not contain any reference to a meeting with a Labour Relations Officer, nor any reference to a hearing date before the Board. In the event that the Board receives representations from any employee the Board will assess such a representation to determine whether it raises any other issues which need to be dealt with by the Board. In the absence of any employee representations being made by the terminal date, the Board will process this application in the normal course.
This panel will remain seized.