International Brotherhood of Electrical Workers, Local 353 v. B & B Electric Co. Division of Electrobauer Systems Limited, 1996 CanLII 11130

International Brotherhood of Electrical Workers, Local 353 v. B & B Electric Co. Division of Electrobauer Systems Limited

[1996] OLRB Rep. November/December 907

1831-96-R International Brotherhood of Electrical Workers, Local 353, Applicant v. B & B Electric Co. Division of Electrobauer Systems Limited and/or Electrobauer Limited, Responding Party

BEFORE: G. T Surdykowski, Vice-Chair, and Board Members W N. Fraser and G. McMenemv.

DECISION OF THE BOARD; December 4, 1996

I

1. This is an application for certification made under the construction industry provisions of the Labour Relations Act, 1995.

2. By decision dated October 28, 1996, the Board (differently constituted in part) directed that a representation vote be taken on November 1, 1996 in accordance with Minutes of Settlement dated October 21, 1996 between the applicant and the responding employer, filed, as follows:

Before the Ontario Labour Relations Board

Board File #1831-96-R

Between:

International Brotherhood of Electrical Workers, Local 353

Applicant

• and -

B & B Electric Co. Division of Electrobauer Systems Limited

Minutes of Settlement

The parties agree to the following as full settlement of the above-noted matter:

(1) a vote in the above-noted matter will be held on Friday, November 1, 1996 between 7 am and 7:45 am at the premises of the Responding Party, 258 Toryork Dr. Weston. Ontario.

(2) Voters list is as follows:

(1) Arbic, Craig E.

(2) Barr, Greg A.

(3) Chircop, Joseph

(4) Gardner, Gordon N.

(5) Gulli, Frank

(3) scrutineers and agents for the count are as follows:

Applicant: Larry Venning

Respondent: Frank Sorichetti

(4) the Responding Party agrees to allow the Applicant to hold a meeting among the eligible voters on Wednesday, October 30, 1996, between 4 pm and 5 pm at the Responding Party's premises. The Responding Party agrees that no one other than the eligible employees and representatives of the applicant shall be present at the meeting and without limiting the generality of the foregoing, no members of management including Michael Bauer shall be present. The Applicant agrees that any action taken by the Responding Party to implement and comply with these minutes of settlement will not violate the Act.

(5) the Responding Party shall deliver a cheque in the amount of $750.00 to the Applicant's offices (to the attn: of L. Venning) no later than Thursday, October 24, 1996 in full and final settlement of this matter.

(6) the Board's notices for the taking of the Representation vote will be immediately posted.

Dated at Toronto this 21st day of October 1996.

('B. Fishbein")

For the Applicant

("U. Bauer")

For the Responding Party

3. The vote was held as directed on November 1, 1996. All five persons whom the applicant and employer had agreed were eligible to do so did in fact cast ballots. Three ballots were marked in favour of the applicant and two were marked against it.

4. The applicant requests that the appropriate certificates issue in accordance with the results of the vote, a result which would normally follow.

5. However, it appears that after the vote was taken and the results announced, the employer retained counsel. In written representations made by letter dated November 13, 1996, the employer. through its counsel, requests that the vote taken November 1, 1996 be declared "null and void". Although it is not entirely clear what the employer asserts should happen then, it appears that the employer's position is that the application should be reprocessed. In the alternative, the employer requests that the Board order an additional vote to determine the true wishes of the employees, tinder section 111(5) of the Act.

6. In addition, by letters from counsel dated November 13 and November 20, 1996, two individuals request a hearing and seek relief as follows:

1. An order adding my clients as interested parties to those proceedings;

2. An order that my clients be provided with copies of all existing and future documents filed with the Board in regard to this matter;

3. An order that the above-mentioned October 21, 1996, Minutes of Settlement are unen­forceable as they were the result of negotiations which resulted from a process that had failed to provide proper advance notice to my clients and failed to permit my clients to participate in the process;

4. An order setting aside the Board's October 28, 1996, decision as it was based upon the above-mentioned defective Minutes of Settlement and failed to include, as required by the Labour Relations Act, 1995 my clients as eligible voters;

5. An order, pursuant to subsection 111(5) of the Labour Relations Act. 1995 directing that my clients be added to the voting list and that a new representation vote be conducted, at which time my clients will be entitled to cast their secret ballots on the question whether the employees of the responding party wish to [sic] represented by the applicant in their employment relations with the responding party.

7. In its November 13, 1996 submissions, the employer indicated that it intended to apply for reconsideration of the Board's October 28, 1996 decision. It is also apparent that the employer assumes that the Board will hold a hearing with respect to its request that the November 1, 1996 vote be declared null and void and its request for reconsideration.

8. On November 26, 1996, the Board received formal requests for reconsideration under section 114(1) of the Act from both the responding employer and the two individuals. Although the employer and the two individuals both make some additional assertions of fact and additional submis­sions, both requests for reconsideration are substantially the same as the aforesaid letter representations, and both request substantially the same relief.

9. Normally, an application for reconsideration is dealt with by the same panel which issued the decision with respect to which reconsideration is sought. However, that is not invariably the case and in circumstances in which the original decision was based entirely on materials filed by the parties or the original panel cannot be re-constituted either at all or sufficiently quickly to deal with the matter as quickly as the circumstances appear to require, another panel may deal with such a request. In this case, the October 28, 1996 decision was based entirely on the materials filed by the parties, including (and most significantly) the Minutes of Settlement set out above. All of these materials are also before this panel. Further, this is an application for certification which both by its nature and under the scheme of the Act, and having regard to the issues raised, requires immediate attention and Vice-Chair Stamp, the Vice-Chair who along with the same two Board Members as herein issued the October 28, 1996 decision, is not immediately available. In the circumstances, this panel considers it appropriate to deal with the matter.

10. Further, the Board is satisfied that the issues raised in the written representations with respect to the vote and the requests for reconsideration can be disposed of on the basis of the written materials made, without an oral hearing and the delay which holding such a hearing would entail, unnecessarily in our view.

II

11. We turn first to the representations of the two individuals. They challenge the October 21, 1996 Minutes of Settlement as aforesaid and the October 28, 1996 decision which is based on them. In essence, they assert that:

(a) they are employees of the responding employer;

(b) the Board, the applicant and the employer failed to give them proper notice of the proceedings or of the November 1,1996 vote;

(c) as a consequence of the Board's October 28, 1996 decision and the subsequent vote on November 1,1996, they discovered that their rights had been affected, and, more specifically, that they would not be permit­ted to participate in the vote.

12. This application was filed on September 24, 1996. With its application, the applicant filed the requisite Form T-9 "Certificate of Delivery of Application for Certification (Construction Industry)", certifying that it had delivered copies of the application, a response form for the employer, a copy of Information Bulletin No. 2, and a copy of the Board's Interim Certification and Termination Rules to the responding employer. In its submissions, the employer asserts that it did not receive all of these documents, or other documents required by the Board's Interim Rules (see below). However, there is no suggestion that the employer did not receive a completed copy of the application, Information Bulletin No. 2 and a copy of the Board's Interim Certification and Termination Rules.

13. Subsequently, by decision dated September 27, 1996, a Board panel chaired by Vice-Chair Gee, directed that a hearing be held on October 21, 1996, and that the issue of when or if a representation vote should be held be dealt with at the hearing, unless the matter was dealt with or otherwise terminated prior to the hearing. By decision dated October 2, 1996, that same panel ordered the responding employer to post a copy of the application, and copies of the September 27 and October 2, 1996 decisions, "in a location or locations where they are most likely to come to the attention of those individuals who may be affected by the application." The Board went on to say that:

3. Any employee who may be affected by this application who wishes to make a statement to the Board about the application must send a written statement to the Board, setting out their name(s), address and phone number, the file number that appears at the top of this decision, the names of the applicant and responding party, and a detailed statement of what the employee wants the Board to consider. Such statement must be received by the Board no later than October II, 1996.

4. Any employee who files a written statement with the Board must send a copy of the statement to the applicant and responding party such that it is received by the applicant and responding party no later than October 11, 1996. The collect names and addresses of both appear on the Application for Certification posted beside this decision.

5. Any employee who sends a statement to the Board, must attend the hearing scheduled for October 21. 1996, or send someone to speak on their behalf, or the Board may decide the application without providing any further notice to such employee or considering the written submission filed.

14. On October 21, 1996, the applicant and the employer engaged in discussions and, apparently with the assistance of a Board Officer, entered into the aforesaid Minutes of Settlement.

15. Subsequently, the Board issued the October 28, 1996 decision. In accordance with the

Minutes of Settlement between the applicant and the employer, the Board directed that a representation vote be held of the individuals they had agreed constituted the voting constituency of November 1, 1996. Also in that decision, the Board directed that:

11. Any party or person who wishes to make representations to the Board about any issue relating to the application for certification which remains in dispute, must file a detailed statement of representations and all material facts upon which they rely with the Board and deliver it to the other parties, so that it is received within seven days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken.

16. This decision was sent to the employer along with the Form T-l0 Notice concerning the application and the vote. This notice did several things. It advised all concerned that the applicant had applied to represent employees of the employer, it referred employees to a copy of the application posted beside the notice which describes the application, including the bargaining unit of employees the applicant seeks to represent, and, in large bold type, advised that "The Board has directed that a representation vote be held. A copy of the Board's decision is attached.".

17. The Notice described the voting constituency agreed to by the applicant and the employer by listing the names of the individuals who they had agreed were eligible to vote, and then went on to say:

If you believe that you are eligible to vote, or have any question as to your eligibility to vote, you should attend at a polling place and identify yourself to the Board Officer conducting the vote. If eligibility to vote is unclear, or in dispute. you will be given an opportunity to mark a ballot, but it will be segregated. meaning it will be sealed in a separate envelope, until eligibility to vote has been determined.

18. The Notice then described when and where the vote would take place, how the vote would be conducted, the question which would be on the ballot, what could happen after the vote is held, and how statements with respect to the application were to be made to the Board.

19. It appears that the employer posted everything which the Board directed it to post: that is copies of the application, the September27 and October 2 and 28, 1996, decisions, and the Form T-l0 Notice. There is no suggestion that it did not. However, the two individuals assert that Batter was unaware of the application or of the vote until November I. 1996 after the vote was held. In that respect, they assert that Bauer was not informed in either respect by his father (who on the representations of both the two individuals and of the responding employer is the principal/owner of the employer), and that he did not see the October 28, 1996 decision or the Form T-l0 posting regarding the vote, which they assert was posted only at the employer's office and not at the job site where the bargaining unit employees were working during the material times.

20. On the facts alleged by the two individuals in Schedule "A" to counsel's November 13,

1996 representations and their request for reconsideration, it is easy to see how one of them (Pennington) might not have actually seen any postings prior to October 15, 1996 when he allegedly returned to work after an absence due to a compensable injury. However, even on these representations, Pennington had actual notice of the application of the October 28, 1996 decision and the vote by at least October 30, 1996.

21. With respect. it is difficult to believe that Bauer was unaware of this application, or of the vote, until after the vote was held on November 1, 1996. It seems quite unlikely that he would not have become aware of the application from his father, or from either Pennington or any of the employees who voted and therefor obviously had notice. But assuming that he did not, and assuming that all of the documents which were required to be were posted at the employer's office and not at the job site, we note that the two individuals plead as follows (in their request for reconsideration):

10. While working at the field office since the beginning of October, Bauer would, on average, attend at the Company's head office approximately three or four times per week. These attendances varied from week to week, however, and there have been times where Bauer would attend at the head office only once per week.

11. When Bauer attended at the had [sic] office since October 4. 1996. Bauer would typically attend at the head office for a visit lasting from 20 to 60 minutes. Typically, Bauer would attend at the office for a short period of time during the afternoon or at the end of the afternoon.

22. The relevant postings giving notice of the application and proceedings before the Board. and specifically the hearing (which turned into a meeting at which the October 21, 1996 Minutes of Settlement were entered into), were up for over two weeks prior to that date. How is it that in his one to four 20 to 60 minute attendances per week at the offices between the time the postings went up and October 21, 1996 Baiter did not see these postings'? We think it more reasonable to infer that he did in fact see them.

23. But even if he did not, there was a reasonable opportunity for him to see the postings.

24. It should surprise no one that each and every person who might possibly be affected does not receive actual notice of each and every application for certification, or of each and every representa­tion vote which is held, in a timely way. The Board, relying as it must on the trade union and employer involved in an application for certification to do the things which they are obliged by statute or directed by the Board to do, does what it can to bring the application and proceedings in it to the attention of the person who may be affected. However, it is readily apparent that time is of the essence and the "quick vote in every case" certification system established under the Act (see Burns International Security Services Limited, [1996] OLRB Rep. March/April 192; The Corporation of the City of Toronto, [1996] OLRB Rep July/Aug. 552 (Board File No. 2603-95-R, decision dated July 3,1996) and it is inevitable that not every person affected will receive actual notice in every application for certification. There are any number of reasons why affected persons, generally employees, may not receive actual notice. For example, it is entirely normal, particularly in the construction industry, for persons to be absent from the workplace for vacations, medical reasons, or for other reasons. No workable certification system can guarantee that everyone affected by an application for certification will receive actual notice of the application. This is particularly true in a fast vote in every case system like the one the Board is charged with administering under the Act.

25. Further, this is no different from other situations in which notice is given in a manner which does not include personal service and which therefore cannot guarantee actual notice to persons whose rights may be affected. For example, various kinds of legal notices are routinely published in newspa­pers, and in the Ontario Reports (which arc not widely read by persons who are not legal professionals). More to the point, actual personal notice is not necessarily given to everyone who may be entitled to vote in Municipal, Provincial, Federal or other elections.

26. In this case, the relevant postings giving notice of this application were up for more than two weeks prior to October 21, 1996, and for nearly a month before the vote was held, well in excess of the times such postings are generally up before a vote, and well in excess of the time the Legislature has at least implicitly approved as being sufficient having regard to the vote based certification (and termination) system established under the Act, and specifically the direction in section 8(5) of the Act that wherever possible certification votes be held within 5 days of the making of an application.

27. In the circumstances of this case, including the apparent size of the employer, it is difficult to believe that Bauer was unaware of the application or vote until after the vote was held on November I, 1996. On the facts alleged, it is clear that Pennington had actual notice of the application and of the vote by October 30, 1996, before the vote. It is therefor more probable than not that both individuals had timely notice of the application, proceedings and vote. However, even if they did not, the various documents relating to the application and proceedings were posted as directed by the Board in a manner in which Pennington and Baiter are deemed to have received proper notice.

28. In the result, the Board is satisfied that Pennington and Bauer (the two individuals who seek another vote), or either or them, could have filed a written statement with respect to the application in accordance with the Board's October 2, 1996 decision. They did not do so. They could have, and they should have if they either had anything to say about the application or wanted to ensure that their interests were protected or represented, attended at the Board on October 21, 1996. Had they done so, they could have participated in the discussions which led to the Minutes of Settlement, which in turn led to the Board's October 28, 1996 decision. They did not do so. Even if it is true as Bauer asserts that he did not attend at the employer's office and therefor did not actually see the Board's October 28, 1996 decision or the Form T-l0 Notice regarding the vote, this was because of his own failure to make representations or attend at the Board on October 21. 1996. Accordingly, both Bauer and Pennington could have, and they should have, attended at the polling place established for the vote and requested an opportunity to cast a ballot. They failed to do this either. Having failed to do any of these things, it is not now open to them to challenge the proceedings before the Board, the October 28, 1996 decision of the Board, or the vote.

29. Further, it is apparent that Pennington was not at work in the bargaining unit at the time the application was made; that is, on the date of application. For the reasons given in Ken Anderson Electric Inc.. [1996] OLRB Rep. Sept./Oct. 846, (Board File No. 0550-96-R, decision dated September 18, 1996), he was therefore not eligible to vote in any event.

30. We observe that there may remain some dispute regarding Bauer’s status as an "employee" within the meaning of the Act and whether or not he is someone who is included in the bargaining unit in this application. Counsel for Bauer asserts that it is not open to the applicant and the employer to agree that Bauer is not "employee", (which we observe is not necessarily the same as being an (“employee of the company") when Bauer asserts that he is. With respect, we disagree. Under the Labour Relations Act, 1995, a trade union and an employer are entitled to make such an agreement. Whether or not a person who is the subject of such an agreement is bound by it will depend on the circumstances. For example, if a person who disagrees with such an agreement acts in a timely way s/ he may not be bound by it. But Bauer did not act in a timely way in this case. In any case, we note that the applicant's position (as set out in its November 19. 1996 letter of representations) is that he is not an "employee", and that it is therefor not seeking to represent him as an '~employee" in the bargaining unit. It is apparent that Bauer does not wish to be represented by the applicant and that the applicant does not wish to represent him. In any case, there is no matter in dispute with respect to Bauer's "employee" status. Batter, or the employer, could have raised that issue previously (indeed the employer did but abandoned it when it agreed to the October 21, 1996 Minutes of Settlement), but it is too late to do so now.

III

31. We now turn to the responding employer's request. In support of its request, the employer asserts that the Minutes of Settlement as aforesaid which were the basis for the Board's October 28, 1996 decision are "non-enforceable", that the IBEW failed to comply with the Board's Interim Rules regarding the serving of the relevant forms, and that the vote taken does not represent the true wishes of the "relevant" employees. The employer has filed 6 pages of representations in support of these assertions. Its request for reconsideration is 8 pages long.

32. We note that the employer's representations with respect to the applicant's unfair labour practice allegations are largely irrelevant. These formed no part of the basis for the Board's October 28, 1996 decision. Similarly, the employer's representations regarding what it alleges was improper conduct by representatives of the applicant may form the basis for other proceedings, but do not go to the root of the Board's October 28, 1996 decision, or suggest a prima facie case for relief under section ] 1(2) of the Act (in that respect, see, Centro Mechanical Inc., [1996] OLRB Rep. Sept/Oct. 762, (Board File No. 3727-95-R, decision dated September 6, 1996). We note that both the Centro decision and the Board's earlier jurisprudence (albeit developed under previous versions of the Act) draw a distinction between the abilities of trade unions and employers to affect employment. It is far from clear that the facts now alleged by the employer would constitute a breach of the Act, either at all, or if they did that the Board would either reconsider a decision to grant a certificate, or revoke a certificate as part of the relief granted in an unfair labour practice complaint (see, Bruno Plumbing & Contracting Inc., Board File No. 2037-94-R, October 24, 1994, unreported; Can-Eng Metal Treating Ltd., [1988] OLRB Rep. May 444).

33. The employer concedes that it received notice of this application on September 24, 1996, the same day the application was filed with the Board. It asserts that it did not receive a response form, but instead received a Form T-20 "Application for Termination of Bat-gaining Rights, Construction Industry". The employer also asserts that it did not receive "other documents required by Interim Rule 43u". Counsel does not specify what "other documents", in addition to the appropriate response form, it asserts were not delivered as required by Interim Rule 43u.

34. Section 123 of the Act provides that:

123. No proceeding under this Act is invalid by reason of any defect of form or any technical u-regularity and no proceeding shall be quashed or set aside if no substantial wrong or miscarriage of justice has occurred.

The applicant denies that it sent the employer any incorrect forms, or that it otherwise failed to comply with the Board's Interim Rules. But assuming that it did: what of it?

35. In its request for reconsideration, the employer relies upon "Gerald E. Baird Contractor Ltd.. [1983] OLRB Rep. Jan. 19" [sic] in support of its submission that the alleged failure of the applicant to deliver the appropriate documents to the employer is fatal to the application.

36. It is not clear whether the employer is referring to the decision in Gerald E. Baird Contractor Ltd. which is reported at [1979] OLRB Rep. Aug. 729, or to Beatty-Hall Construction Co. Limited which is reported at [1983] OLRB Rep. Jan. 19, but both decisions stand for the same proposition: that the Board will give no weight to membership evidence which is not supported by an appropriate declaration attesting to the adequacy and sufficiency of the membership evidence, with the result that an application for certification in which the declaration has not been filed will be dismissed.

37. Assuming that these decisions remain "good law" under the current Act (and it is far from clear that they do), failing to file with the Board material which the Act requires, or which the Board considers essential, is quite different from the failure alleged by the employer in this case. An application for certification can be dealt with and disposed of whether or not the employer concerned files anything, and whether or not anything which the employer does file is in the prescribed form. Although it is preferable for materials to be filed in the form prescribed by the Board, if only to ensure that all of the requisite information is provided in a manner which makes it readily accessible, the Board's practice is to accept materials filed in other than the prescribed form, so long as it is intelligible and is in substantial compliance with the requirements in the Board's Rules regarding the information which must be provided, unless another party can demonstrate real prejudice.

38. In this case, it is not alleged that the employer has been prejudiced. Nor is it apparent that it has been, or how it could have been, prejudiced even if what the employer alleges is true. The employer pleaded its response as it considered appropriate, and the matter proceeded on that basis. Further, having regard to the documents the employer either does not dispute or it is apparent it did receive it, the employer could have readily obtained whatever forms or documents it felt were required. However, the employer waited until after the vote was held, more than five weeks after it had notice of the application, to complain about this alleged deficiency.

39. The Board is satisfied that even if the applicant did send the employer an incorrect form, or failed to send it some other form(s), in the circumstances of this case this constitutes no more than a technical irregularity, and no substantial wrong or miscarriage of justice has occurred.

40. Part of the basis suggested for the employer's request with respect to the vote in this case appears to be that it did not have legal representation or advice, while the union did, and that the employer's representatives did not fully understand the employer's legal position or what they were getting into when they entered into the aforesaid Minutes of Settlement. Counsel specifically asserts that the Minutes of Settlement "were made through an inequality of bargaining power, and undue influence".

41. There is no merit to these assertions. The employer's representatives appear to be adults who operate in the business world. It is apparent from counsel's submissions and the materials before the Board that the employer had ample opportunity to seek and obtain legal advice with respect to the application and its legal position prior to October 21, 1996. It is not clear why it chose not to do so, but that is not important. The fact is that the employer chose not to. The Board is a quasi-judicial administrative tribunal. It is not part of the Board's function to give legal advice to parties which are involved in proceedings before it. It may be stating the obvious, but given the adversarial nature of such proceedings, the union is under no obligation to do so either.

42. Parties to a proceeding before the Board are free to appear with or without counsel or other legal representation. The Board is sensitive to the need for it to be accessible to those who are unable or who do not wish to be represented by counsel or anyone else, and the Board is sensitive to the difficulties which an unrepresented party may face when it becomes involved in proceedings before the Board. Accordingly, the Board will generally take some time to explain its processes to an unrepresented party if it appears appropriate to do so, and will give an unrepresented party some leeway in the manner in which it conducts itself. But Board proceedings are not "free-for-alls". They are legal proceedings which are governed by the Act, the Board's Rules, and to the extent that the Board's Rules do not cover something, by the rules of fairness and natural justice. These Rules are there for the benefit and protection of all parties, and they apply to all parties, represented or not.

43. A party which participates in Board proceedings without representation, or without in­forming itself with respect to matters of practice, procedure, or law, must live with the consequences of doing so. No one can expect to be in a more advantageous position, procedurally or in law, because s/he chooses to proceed unrepresented or unadvised. Concomitantly, a party (in this case the applicant) cannot be criticized or in a worse position because it is represented by counsel.

44. Having chosen not to retain counsel or other representation or to obtain legal advice, the employer must bear the consequences of exercising that choice. It is now too late for the employer to say that it should have obtained legal advice, or to seek to subvert the certification process because it previously failed to do so. The employer cannot rely on its own failure to obtain legal advice to claim that it was disadvantaged.

45. With respect what actually occurred in this case, counsel makes certain assertions with respect to what at least two Board Officers said to the employer's representatives. These Officers were involved in a normal settlement process which is engaged in every proceeding before the Board. As a general matter, the Board does not entertain representations with respect to what was said to or by its Labour Relations Officers. To do so would be contrary to sections 119(4) and (5) of the Act, and would undermine an effective labour relations process which has a very high success rate. In any event, it does not appear that anything unusual or untoward occurred, and the employer knew or ought to have known what it was getting into.

46. In that respect, the employer was informed as follows:

(1) In the Board's September 27, 1996 decision, the Board gave notice that a hearing would take place on October 21, 1996 and that the hearing would continue day-to-day until finished unless otherwise ordered by the Board (and also gave the location and starting time of the hearing).

(2) The Board's October 2, 1996 decision indicated what the parties had to do with respect to the hearing.

(3) Whether or not the employer received a telephone call from a Board Officer on October 18, 1996, which we accept that it probably did, the Board also sent the parties a letter dated October 18, 1996 as follows:

This will confirm that the hearing in this matter scheduled for October 21, 1996 is adjourned.

The parties will now meet with a Labour Relations Officer, on October 21, 1996, at the Board's Offices, 400 University Avenue, 3rd Floor, Toronto, Ontario commencing at 9:30 am.

In the event that this matter is not settled on October 21, 1996, the hearing will commence on October 22, 1996.

47. Accordingly, it is difficult to accept counsel's submission that the employer's representatives "did not understand [the October 21, I 996 meeting] to be a settlement meeting with IBEW, and did not prepare for such". Indeed, it is inconsistent with the assertion in the next sentence of counsel's representations (and repeated in the request for reconsideration) that they "believed that the IBEW clearly had no case, and believed that the meeting would simply be to end the proceeding". Something had to happen before the proceeding ended.

48. In any case, the employer pleads in that respect that:

s. Bauer and Leclair were told by the officer at the meeting that B & B could not obtain an adjournment of the hearing in order to obtain legal advice and that if they did not immediately enter into an agreement with IBEW there would be a hearing the next day. In effect, Rule 34 of the Board was misrepresented to Bauer.

t. Bauer was not advised by the Ministry of Labour that employees who were temporarily away from work could possibly be listed as eligible employees for the purposes of this proceeding, nor the potential ramifications of the proposed voting list stated in the Minutes of Settlements. Bucik told Bauer that the most he could hope for was a repiesentation vote, but she did not advise him that he may have indeed been able to defeat the IBEW's application for certification without a vote straight out. Bucik told Bauer that he had nothing to fear concerning a vote given that the Board had received a statement from the employees that they did nor wish to be represented by trade union.

u. B & B and IBEW entered into a Minutes of Settlement during the meeting on October 21, 1996. Pursuant to the Minutes of Settlement it was agreed between B & B and IBEW that there would be representation vote, with a restricted "voters" list which limited the number of eligible employees to five (5). Excluded were the following employees:

1. Michael Bauer (Journeyman Electrician)

2. Andrew Pennington (Journeyman Electrician)

3. Edward Casella Journeyman Electrician/working foreman)

v. Bauer was told by the officer that he had nothing to worry about in signing the Minutes of Settlement given that almost all of the employees had signed a declaration stating that they did not wish to the IBEW to be certified.

49. The Rule 34 referred to provides that:

34. The Board may adjourn a case if it considers that the adjournment is consistent with the purposes of the Act. The Board may adjourn on such terms as it considers advisable.

It does not follow that the Board readily adjourns matters before it (other than on agreement of the parties). Indeed, quite the contrary is true. It is the Board's long-standing practice and policy not to adjourn proceedings except in extraordinary circumstances or on agreement of the parties. No party is entitled to or can expect an adjournment of a proceeding of which it has had adequate notice for its convenience, or to obtain legal advice it had a reasonable opportunity to obtain beforehand (see, for example, Ellis-Don Limited. [1992] OLRB Rep. Sept. 999; Re Flamboro Downs Holdings Ltd. and Teamsters Local 879, 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400 (Ontario Div. Court)). Accordingly, even if the Officer did make statements to the effect alleged in paragraph "s" in (Schedule "A") to the request for reconsideration, these were neither inaccurate nor contrary to Rule 34u. Further, and in any event, the employer could have refused to sign the October 21, 1996 or any other Minutes of Settlement, could have sought legal advice that day or evening, and could have asked the Board for an adjournment. It did none of these things.

50. It is not clear what counsel is getting at in paragraph "t". The Board and the Ministry of Labour are not the same entity. In any event, neither the Board nor the Ministry (so far as we are aware) give legal advice with respect to proceedings before the Board. Officers may offer practical "advice" or suggestions in the course of their efforts to assist parties to a settlement, but it is difficult to see how they could do their job if they did not. In any event, if the Officer said the things alleged in paragraph "t" (and the Board could properly consider them), she was correct. The best that the employer could hope for was a representation vote. As the Board described in Burns International Security Services Limited, supra, and The Corporation of the City of Toronto, supra, the current Act contains a vote-based certification system. The employee "statements" (or "petitions" as they have commonly been known) to which counsel refers may have been relevant under previous versions of the Act but they are irrelevant under the current Act.

51. Similarly, even if a "you have nothing to worry about" comment was made as alleged, it was or should have been clear that the employees which the employer agreed were entitled to would be given an opportunity to vote, as the Act contemplates. Whether or not the employer had anything "to worry about", no one can predict or guarantee the results of a vote. There is nothing in any of the representations before the Board which suggests that there was any good reason not to hold a vote in this case, in accordance with the "fast vote in every case" direction in the Act.

52. Nor does any of this amount to a situation where an "officially induced error" (submitted by counsel in paragraph "z" of Schedule "A" to the employer's request for reconsideration) could be found, assuming that such a concept even applies to Labour Relations Officers designated under the Act to try to effect the settlement of a matter before the Board.

53. Counsel asserts that in the Minutes of Settlement the employer agreed to exclude three persons which it now asserts are employees who should have been allowed to vote. He submits that:

The said employees had no knowledge that B & B [the employer] would have and was going to purportedly bargain away their rights to, inter alia a representation vote. Indeed, Bauer [a different Mr. Bauer] and LeClair did not believe that they would be making a deal with IBEW on October 21, 1996, nor even contemplated making a deal.

54. First of all, it is not open to the employer to now complain that it "bargained away" someone else's rights.

55. Second, what did the employer's representatives think they were doing when they signed Minutes of Settlement on October 21, 1996 if they were not making a "deal"?

56. Third, when did this revelation which the employer now asserts come to its representatives? It appears that the employer neither said nor did anything between October 21st and the Board's October 28, 1996 decision 7 days later. Nor did it do or say anything between October 28, 1996 and the taking of the vote on November 1, 1996. The employer made no complaint at the vote. Indeed, its representatives signed a Certificate of Conduct of Election with respect to the vote as follows:

CERTIFICATION OF CONDUCT OF ELECTION

DATE OF ELECTION - Friday, November 1, 1996

PLACE OF ELECTION - Weston, Ontario

WE the undersigned, acted as scrutineers for the parties herein in the conduct of the balloting at the date and place above mentioned. We certify that the balloting was fairly conducted and that all eligible voters were given an opportunity to east their ballots in secret, and that the ballot box was protected in the interest of a fair and secret vote.

Not until after the vote, and after the ballots cast had been counted and it was revealed that the applicant had won the vote (and even then it apparently was not until several days later), that it occurred to the employer to even seek legal advice.

57. With hindsight and the results of the vote in aid, it may be that the employer now considers that it was imprudent for it to enter into the Minutes of Settlement which led to the vote, and that it would not, in hindsight, have entered into the Minutes of Settlement had it known what would occur or had it obtained legal advice. But the employer has made its "deal". It would seriously undermine the Board's settlement process, and it would be patently unfair to the applicant, to permit the employer to resile from its agreement unless there was good reason to do so. The vast majority of matters which come before the Board are settled or expeditiously litigated on the basis of agreements made between the parties, very often with the assistance of a Board Officer, and which agreements typically are incorporated in or form the basis for a Board decision in the matter, which decision is "final and conclusive for all purposes" (section 114(1) of the Act). To allow a party to resile from an agreement because it acted without legal advice, or because it has reconsidered its position or "changed its mind", without good reason, would make a mockery of the Board and its processes, and would substantially retard and prejudice the timely resolution of labour relations disputes which both the Board and the courts have long recognized should be determined expeditiously (see, for example, Runnymede Development Corporation Limited, [1987] OLRB Rep. Oct. I 305; Journal Publishing Co. of Ottawa Ltd. et al. v. Ontario Newspaper Guild, Local 205 et al. [1977] 1 A.C.W.S. 817 (Ontario Court of Appeal); Dayco (Canada) Ltd. v. CAW - Canada et al., 1993 CanLII 144 (SCC), [1993] 2 S.C.R 230 (Supreme Court of Canada)).

58. In this case, the employer has not made out a prima facie case of unfairness or undue influence. It had ample opportunity to obtain legal representation or advice if it wished to do so. It had ample opportunity to inform itself, either by simply reading what had been sent to it, or otherwise. It knew or ought to have known what the process was and what it was doing when it entered into the Minutes of Settlement. There is no guarantee of equality of bargaining power, either before the Board or elsewhere. Further, it appears that the employer is now attempting to avoid the ultimate result of its own choices and conduct. In order to do justice between the parties in the circumstances of this case, it is appropriate to give effect to the October 21, 1996 Minutes of Settlement.

59. There is no reason to grant the employer's requests and the Board is not satisfied that there is any other good reason either to declare the October 21, 1996 Minutes of Settlement between the parties null and void, or to permit the employer to resile from those Minutes of Settlement.

60. In that respect, the employer's representations regarding Bauer, Pennington, and a third person, Edward Casella, add nothing to the representations made by counsel for Bauer and Pennington. Just as Pennington was not entitled to vote in any event because he was not at work in the bargaining unit on the date of application, Casella was not at work on that day and was not entitled to vote either. Indeed, it appears that he still has not returned to work, and on any test ever applied by the Board in any case (construction or non-construction), Casella would not have been entitled to vote in this application.

61. In the result, the Board is not satisfied that there is any reason to grant any of the requests made by either the two individuals or by the employer, or for the Board to otherwise reconsider the October 28, 1996 decision. Nor is there any good reason not to give effect to the results of the vote.

IV

62. On the taking of the representation vote on November I, 1996 as directed by the Board, more than fifty per cent of the ballots cast were marked in favour of the applicant.

63. In its October 28, 1996 decision, the Board found the following bargaining unit to be appropriate for collective bargaining:

all electricians and electricians apprentices in the employ of the responding party in the industrial. commercial and institutional sector of the construction industry in the Province of Ontario and all electricians and electricians' apprentices in the employ of the responding party in all other sectors in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York. the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, save and except non-working foremen and persons above the rank of non-working foreman.

64. Accordingly. and having regard to the provisions of section 160(l) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario (the designated employee bargaining agency) in respect of all electri­cians and electricians' apprentices in the employ of B & B Electric Co. Division of Electrobauer Systems Limited and/or Electrobauer Limited 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 nun-working foreman.

65. Further, and also pursuant to section 160(l)of the Act, a certificate will issue to the applicant trade union in respect of all electricians and electricians' apprentices in the employ of B & B Electric Co. Division of Electrobauter Systems Limited and/or Electrobauer Limited in all sectors of the construction industry in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

66. The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a fully particularized statement requesting that the ballots not be destroyed, and which the Board considers sets out good reasons not to destroy the ballots, is received by the Board from one of the parties before the expiration of that 30-day period.

67. The responding employer is directed to post copies of this decision immediately, adjacent to the "Notice to Employees of Application and of Vote" posted previously, and if this does not already include them, at its job sites as well. These copies must remain posted for a period of 30 days.