Ontario Labour Relations Board
Parties: Labourers International Union of North America, Local 506, Applicant v. The Atlas Corporation, Responding Party v. Labourers’ International Union of North America, Local 183.
Before: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
Decision of the Board: October 31, 2000
Decision
1This is an application for reconsideration filed by The Atlas Corporation (“Atlas”) of the Board’s decision issued in this matter dated January 29, 1988 by which the Board certified the Labourers International Union of North America, Local 506 (“Local 506”) as the exclusive bargaining agent for all construction labourers employed by Atlas in the industrial, commercial and institutional sector of the construction industry in the province of Ontario.
2Counsel for Atlas, in support of the application for reconsideration, submits that Atlas never employed construction labourers in 1987 or 1988 and that it had no knowledge of any application for certification being filed or of any decision being issued by the Board certifying the applicant. He asserts that the first time Atlas became aware of the certificate was when Local 506 sent him a copy of the certificate on October 23, 2000 to establish that it had bargaining rights for Atlas. Atlas had taken the position in response to a grievance filed by Local 506 that it was not bound by any agreement with Local 506 and required Local 506 to prove the source of its bargaining rights. Counsel for Atlas also asserts that “no responsible representative of the Company ever received notice of any application and did not respond in kind.” Counsel submits that the certificate must therefore have been obtained through fraudulent means. Counsel asks that the Board review the file to determine “who was served with the application for certification and which employees the union claimed to be employed on the day of the application for certification”.
3As this application for reconsideration was filed on October 24, 2000, it is subject to the Board’s Rules of Procedure that are currently in effect. Rule 96 of the Board’s Rules provide:
No request for reconsideration will be considered where it is filed more than twenty (20) days after the date of the Board's decision, except with the permission of the Board.
As Atlas asserts that it was unaware of the Board’s decision certifying Local 506 until counsel received a copy of the certificate from Local 506 on October 23, 2000 and also claims that the certificate was obtained through fraudulent means, the Board is prepared to permit Atlas to seek reconsideration of the Board’s January 29, 1988 decision at this time.
4The Board has reviewed the entire file in this matter. The application was physically received by the Board on October 26, 1987. It had been filed by registered mail on October 23, 1987. The applicant had filed two combination applications for membership and receipts and claimed that there were three employees in the bargaining unit. The application also asserted that the construction labourers employed by Atlas were working at 91 Crockford Blvd. in Scarborough. The Board, by letter dated October 29, 1987 addressed to Atlas Corporation, 111 Ortona Court, Box 266, Concord Ontario, L4K 3M3 forwarded the “certification package”, that is Form 75, Form 77, Form 78, Form 74, Form 81 and schedules to Form 77. The large envelope from the Board containing that material was sent by regular mail in accordance with Board’s usual practice at that time. That large envelope was not returned by the post office. The Board, by letter dated November 12 addressed to Atlas Corporation, 111 Ortona Court, Box 266, Concord Ontario, L4K 3M3 provided a copy of the intervention that had been filed by Labourers’, Local 183. The Board, by letter dated December 18, 1987, addressed to Atlas Corporation, 111 Ortona Court, Box 266, Concord Ontario, L4K 3M3 transmitted a notice of hearing advising that the hearing of the application was to take place on January 20, 1988. Finally, the Board, by letter dated February 3, 1988 addressed to The Atlas Corporation, 111 Ortona Court, Box 266, Concord Ontario, L4K 3M3 forwarded a copy of the Board’s decision together with a certificate. None of the letters sent to Atlas were returned by the post office as having been undelivered. Furthermore, it appears from the application for reconsideration that the current address of Atlas is 111 Ortona Court, L4K 3M3, the same address that was used by the Board in advising Atlas of the certification proceeding some 13 years earlier.
5The application for reconsideration asserts “no responsible representative of the Company ever received notice of any application….” It is true that no reply to the application was filed by Atlas and Atlas did not attend the hearing. It may also be true that no responsible representative of Atlas received notice of the application. Section 113(1) of the Labour Relations Act, R. S. O. 1980, the statute that was in force at the time the application for certification was before the Board provided:
For the purposes of this Act and of any proceedings taken under it, any notice or communication sent through Her Majesty’s mails shall be presumed, unless the contrary is proved, to have been received by the addressee in the ordinary course of mail.
The Board is satisfied based on both its review of the file material and based on the statutory presumption of receipt found in section 113(1) of the Labour Relations Act in force at the relevant time that Atlas received notice of the application. What Atlas did with the communications it received from the Board between October 1987 and February 1988 is not a matter that is relevant to this application. If a responsible representative of Atlas was not given the correspondence the Board had mailed and Atlas had received, then that failure was the responsibility of Atlas and cannot, in our view, prejudice Local 506 almost 13 years after it had made its application for certification.
6Counsel for Atlas submits that because Atlas did not employ labourers in 1987 or 1988, the application was obtained fraudulently. Local 506 filed membership evidence on behalf of two persons who it claimed were employees of Atlas performing the work of construction labourers. Atlas did not dispute that assertion. It is simply too late now, more than 13 years after the date of application, to determine whether those two persons (even if they could be identified now, since the membership evidence filed by Local 506 was returned to Local 506 in March 1988) were employed by Atlas and working as construction labourers on October 23, 1987. The Board made its determination that they were employed by Atlas based on the uncontradicted evidence the Board had before it. There is simply no basis for the Board to find that Local 506 obtained the certificate through fraudulent means.
7Atlas has failed to persuade us that it did not receive notice of the application for certification or that the certificate issued to Local 506 in January 1988 was obtained by fraud. Therefore this application for reconsideration is hereby dismissed.
“Harry Freedman”
for the Board