[1998] OLRB REP. NOVEMBER/DECEMBER 991
2422-97-R Labourers' International Union of North America, Local 183, Applicant v. New Generation Group c.o.b. as Leaside Mews Inc., Responding Party
BEFORE: Lee Shouldice, Vice-Chair, and Board Members G. Pickell and A. Haward.
APPEARANCES: Mark J. Lewis, Rocco Lotito and Victor Ferreira for the applicant; Erin R. Kuzz, Joseph Ko and Leo Renimato for the responding party; David McKee and Cesar Rodriguez for Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America.
DECISION OF THE BOARD: November 9, 1998
I. Introduction
This is an application for certification, filed under the construction industry provisions of the Labour Relations Act, 1995 (hereinafter "the Act"). This proceeding came on for hearing before this panel of the Board on October 1, 1998.
At the outset of the hearing, counsel for the applicant (the latter entity hereinafter referred to as "Local 183" or "the union") advised the Board that the parties had reached an arrangement which would eliminate the need for Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America (hereinafter "Local 675") to intervene in this proceeding. After hearing the parties' brief submissions, the Board indicated that it was satisfied with the arrangement reached, and that the bargaining unit description requested by Local 183 would be amended to exclude any persons employed by the responding party who were covered by an existing collective agreement as at the certification application date. As the identity of the responding party is still a live issue, it is impossible for the Board to state the exact wording of the appropriate bargaining unit at this time. Accordingly, that amendment will follow in due course.
II. The Preliminary Motion
After a brief recess, Local 183 brought a preliminary motion to preclude the responding party from challenging the status of the persons who voted in the representation vote previously ordered by the Board (differently constituted). After entertaining the submissions of the parties on that preliminary motion, the Board recessed and ultimately determined to reserve its ruling on the motion. We have now considered the merits of the preliminary motion and provide our decision to the parties.
It is helpful at this stage to outline the facts, which are undisputed for the purpose of the preliminary motion. The application for certification in this proceeding was filed with the Board by Local 183 on Monday, September 29, 1997. Local 183 had properly served the responding party with the necessary documentation prior to filing the application with the Board. The response to the application was required by the Board's Rules of Procedure to be delivered to Local 183, and filed with the Board, no later than 5:00 p.m. Wednesday, October 1, 1997. No such response was delivered to Local 183 or filed with the Board by that time.
On Thursday, October 2, 1997, a decision of the Board directing that a representation vote be taken of persons in a defined voting constituency was issued. Local 183 thereafter was in contact with a Labour Relations Officer, in accordance with the Board's usual pre-vote procedures. Local 183 identified two persons who it felt ought to be on the list of persons eligible to cast a ballot in the representation vote. As the responding party had not filed a response with the Board at that time, no contact appears to have been made by the Board with the responding party.
On the next day, Friday, October 3, 1997, at approximately 12:00 noon, the responding party delivered to Local 183 a response to the application. In fact, it would appear that two responses were delivered to Local 183, as the responding party takes the position that it is, in reality, two entities. (For the purposes of this decision, we will refer to the entity identified by Local 183 as "the responding party", without prejudice to any party's position on that issue. We will also refer to the responses collectively as "the response", as they are, for the most part, identical in substance). No list of employees (the "Schedule A and B") was attached to the response form. However, it is evident from the response that the responding party took the position that it had no employees on the certification application date, and that any persons previously identified by Local 183 as "employees" were, in reality, employees of sub-trades list filed by the responding party, the applicant had asserted a list of employees consisting of four persons.
The employer's list of voters attached to its response contained 14 names. Ten persons of the 14 on the list actually cast ballots. Six of those ten persons were not on the list of employees asserted by the applicant. Their ballots were segregated, and the ballot box was sealed. At the hearing, the employer requested that the time for filing its response be extended, so as to permit for the filing of the late response and the list of eligible voters consisting of 14 names. The applicant, on the other hand, argued that the employer ought not to be able to do so in light of the prejudice caused to it. Arguments similar in nature to those made in the instant case were made before that panel of the Board.
The Board concluded that there were no compelling reasons identified for extending the time for filing a response in that case. At paragraph 17 of the decision, the Board states as follows:
The materials served on the employer clearly set out what is required. The employer chose not to respond in a timely fashion as is required under the Rules. The employer did not post notices as required but delivered them to each employee. The Board's past case law is not helpful in light of the changes in the legislation. Under Bill 7 the Act requires a vote be held within 5 working days after the day on which the application is filed with the Board. If the union is unsuccessful a mandatory twelve months bar is applied to any subsequent application for certification. Had the applicant been aware of the employer's list in a timely fashion it could have made an informed decision on whether to withdraw to avoid the possibility of a twelve months bar or attempt to organize some of the other employees. The list was provided too late in the day prior to the vote for the applicant to make any choices. The reasons in these circumstances for not complying with the Board's Rules are not acceptable in light of the applicant's prejudice of having a twelve months bar imposed should it lose the vote. Being too busy to retain counsel is not a reason to allow the employer to extend the time limit for filing its response.
Ultimately, the Board refused to extend the time limit for filing a response, and ruled that those eligible to vote were the four persons listed by the applicant.
- Counsel for Local 183 asserts that the facts disclosed by the Board's decision in Ion Plaster & Drywall Contractors Ltd. are on all fours with the facts of the instant case, and that the conclusion reached in that decision ought to apply here as well.
III. Decision of the Board
- First, there can be no doubt that the responding party did not abide by the Board's Rules of Procedure when it filed its response in this proceeding. The response was late and it did not include a Schedule A and B, containing the names of employees that the responding party alleged were in the bargaining unit identified in the application. As in every application for certification, the application form (Form TA-65) delivered by the applicant to the responding party contains various warnings regarding the potential consequences of failing to respect the Board's Rules of Procedure. Entitled "Important Notice to Responding Party", the form provides the following caution to those in receipt of an Application for Certification:
"Your response to this application (including Schedule A and B) must be filed with the Board not later than two (2) days after the application was delivered to you. The response may be filed by facsimile transmission. The Board's facsimile number is (416) 326-7531. You must also ensure that a copy of your response, excluding Schedule A and B, is delivered to the applicant union before you file these documents with the Board.
The Board's Rules of Procedure (as amended by the Interim Certification and Termination Rules) describe how a response must be filed with the Board, what information must be provided and the time limits that apply.
If you do not file a response to the application or other document in the way required by the Rules, the Board may not process your response, you may be deemed to have accepted all of the facts stated in the application, and the Board may decide the case on the material before it without further notice."
Responding Parties are expected to read and understand the materials that relate to Board proceedings. If they cannot understand them, they are expected to seek some help in order to do so. Those who do not bother to read the materials they receive respecting certification applications risk the consequences of not doing so - that the Board may determine that it is inappropriate to permit the responding party to rely upon facts not previously identified by the responding party, and that the Board may rely upon the facts asserted by the applicant for the purpose of determining the merits of the proceeding.
That risk was realized by the responding party in Ion Plaster & Drywall Contractors Ltd., cited above. In that case, the ultimate disposition of the Board was identical to that urged upon this panel of the Board by counsel for Local 183 - that only those persons identified by the applicant as properly on the voters list ought to be entitled to remain on that list for the purpose of the taking of the vote. No additions, no deletions. The success or failure of the certification application was determined by those persons, and only those persons.
There are strong policy reasons for adopting such an approach. As was emphasized by counsel in both the instant case and in Ion Plaster & Drywall Contractors Ltd., trade unions are now subject to a one year bar should an application for certification be dismissed after the taking of a representation vote. Accordingly, the taking of the vote is an important event. Any significant factual information which is required by the Board's Rules to have been but which, in fact, was not provided to a trade union by the responding party before the taking of such a vote is information which cannot be utilized by the trade union to decide whether to proceed with the application - in particular, whether to proceed with the representation vote which is typically ordered by the Board. It is clearly offensive for a responding party to withhold certain information from the trade union in an attempt to mislead it into believing a certain state of affairs, only to fill in that informational gap at a later time. Responding parties which fail to provide information in error create the same difficulties. After the representation vote is taken, the damage to the trade union may well be beyond repair. In such circumstances, the result reached in Ion Plaster & Drywall Contractors Ltd. makes sense. We are satisfied that that decision is right in its result.
But each case must be determined on the basis of its own specific facts. Even the slightest difference in material facts may lead to a corresponding difference in result. The facts in Ion Plaster & Drywall Contractors Ltd. are on all fours with those in the instant case, with one significant exception. Although not explicitly stated, it is evident from a reading of the reasons for decision in Jon Plaster & Drywall Contractors Ltd. that there was no dispute between the parties that the four persons listed by the applicant as eligible voters in that case were, in fact, employees of the employer. That is, the dispute in that case appears to have centred over the question of whether the employer ought to be entitled to add the names of six employees to the list of eligible voters, in circumstances where the applicant had been unaware of one or more sites where employees of the employer had worked on the certification application date. The Board concluded that the four employees on the applicant's list of voters would constitute the group of eligible voters given the employer's failure to respond in an appropriate manner.
Here, though, the situation is different, and in a significant way. The responding party asserts that the two persons which the applicant listed as eligible voters are not even its employees. On the basis of materials filed with the Board (though, we caution, not yet identified or attested to, or cross-examined upon), there appears to be, at the very least, a legitimate prima facie question as to whether Messrs. Hoskins and Augot were actually employed by the responding party on the certification application date. We are troubled by the prospect of applying the Board's Rules in such a manner as to potentially permit for the determination of this application for certification as against the responding party by persons who may not be employed by it. Although it is offensive for a responding party to an application for certification to place a trade union in a difficult position by failing to file a timely and complete response to that application, it is no less offensive to apply the Board's Rules in such a way as to permit two strangers to decide whether or not a trade union ought to receive a certificate to represent employees of an employer.
In these circumstances, we are unable to accede to the preliminary motion brought by Local 183. We are of the view that it is necessary to litigate the status issues raised by the responding party in this proceeding. This includes the question of whether Mr. Sihyurek is properly on the list of eligible voters.
Accordingly, this proceeding is referred to the Registrar, who is to schedule further days of hearing after consultation with counsel for the parties. This panel is not seized of this proceeding.