Construction and Allied Workers Local Union 607 v. Hugh Munro Construction Ltd

1165-01-R Construction and Allied Workers Local Union 607, Applicant v. Hugh Munro Construction Ltd, Responding Party.

BEFORE: Harry Freedman, Vice-Chair.

DECISION OF THE BOARD; September 5, 2001

1. The Board, by decision in this matter dated July 24, 2001 dismissed this application for certification because I was not satisfied that 40% of the individuals in the proposed bargaining unit appeared to be members of the applicant. The membership evidence filed by the applicant referred to the Labourers’ International Union of North America, Local 607. There was nothing in that membership evidence making any reference to the applicant. The applicant filed a timely request for reconsideration in which it submitted that the Board’s July 24^th decision ought to be reconsidered because it contains factual errors, is contradictory to an earlier Board decision and because the applicant had no opportunity to make submissions with respect to the circumstances that prompted the Board to dismiss the application for certification.

2. The Board noted at paragraph 2 of its July 24^th decision:

The Board has been unable to locate in a search of its files a Board decision in which the applicant has been found to be a trade union within the meaning of the Act. The Registrar did not find a certificate that had been issued under the Act to the applicant. Thus, it appears that the applicant has not established in a previous Board proceeding that it is a trade union within the meaning of section 1(1) or 126 of the Act.

Although the Registrar’s office was unable to find a certificate that had been issued under the Act to the applicant when it conducted a search of its files in relation to this application, the applicant, in its request for reconsideration, referred to Board File No. 1505-99-R in which the Board (differently constituted), by decision dated August 27, 1999 directed a representation vote in an application for certification filed by the applicant and issued a certificate to the applicant dated December 23, 1999.

3. The applicant, in support of its application for reconsideration, submitted:

In 1998, the applicant amended its Charter to change its name from the Labourers’ International Union of North America, Local 607 to the Construction and Allied Workers Local 607. The applicant informed the Board of this name change in a letter dated September 21, 1998.

A copy of the actual letter to the Registrar dated September 21, 1998 that the applicant appended to its application for reconsideration is on the letterhead of the Laborers’ [sic] International Union of North America Local No. 607. That letter states:

Effective December 10, 1997, the Laborers’ International Union of North America amended the charter of Local 607 to read Construction and Allied Workers Local Union 607, and it is our intention to use this style on all of our collective agreements in future.

The letter goes on to refer to a change of address for Local 607 and concludes by asking to have the Board’s records amended accordingly. The letter of September 21, 1998 did not provide the Board with a copy of the amended charter, a resolution of the Laborers International Union of North America (the “International”) by which the charter of the Labourers' International Union of North America, Local 607 was amended, or any document issued by the International establishing the change in name.

4. There appears to be some differences (albeit minor) between what the applicant in its request for reconsideration submitted took place and what the letter of September 21, 1998 indicates occurred. The applicant submitted in its request for reconsideration that the applicant amended its charter in 1998. The letter of September 21, 1998 states that the International amended the applicant’s charter in December 1997. While those two factual differences between the submission and the document filed by the applicant do not appear to be material to this application, the fact that there are those kinds of differences suggests to me that the Board should have better evidence about a change in a union’s name based on an amendment to a local union’s charter then a letter advising of a change of name before the Board accepts, for purposes of an application for certification that union “A” is now known as union “B” and that union “A” and union “B” are really one and the same organization.

5. The applicant goes on to submit that the application for certification provided numerous references linking the applicant to the Labourers’ International Union of North America, Local 607. It submits that the application was filed by the Labourers' International Union of North America, Ontario Provincial District Council (“LIUNA OPDC”), by its counsel, the covering letter accompanying the application was on LIUNA OPDC letterhead and was signed by its counsel and it indicated that the Labourers' International Union of North America was the applicable employee bargaining agency and that the applicant was an affiliated bargaining agent. The applicant pointed out that the contact person for the application was counsel for LIUNA OPDC and that counsel had also signed both the application and the declaration concerning the membership evidence. The applicant also submitted that the list of affiliated bargaining agents included the Universal Workers Union Local 183 as an affiliated bargaining agent.

6. It appears to me that those submissions related to the Board’s comments at paragraph 6 of its July 24, 2001 decision which stated:

There is absolutely nothing in the material filed by the applicant that connects the applicant with the entity to which the membership applications relate. If the applicant had indicated in its application that it had been formerly known as Labourers' International Union of North America, Local 607 or if the membership evidence had contained some indication that the Construction and Allied Workers Local Union 607 is also a name that had been used from time to time by the Labourers' International Union of North America, Local 607 then perhaps one might be able to say that there is at least an appearance of membership in the applicant.

While the application for certification was transmitted to the Board by LIUNA OPDC and while its counsel signed the application and the declaration concerning membership documents, and was the contact person for the application, those facts do not provide a basis for concluding that the applicant was formerly known as the Labourers' International Union of North America, Local 607, the entity named on the membership evidence filed by the applicant. At best, in my view, the facts asserted by the applicant in is application for reconsideration concerning what was contained in the application for certification establish that LIUNA OPDC and its counsel were acting on behalf of the applicant in this application for certification. The application for certification did not contain any material, as the Board stated in its July 24^th decision, that connected the applicant with the membership evidence clearly indicating that the employees who signed the membership evidence were becoming members of the Labourers’ International Union of North America, Local 607 and more importantly, there was nothing in the membership evidence itself from which the Board could conclude that the employees who signed the applications for membership filed by the applicant were seeking membership in the applicant. They were applying for membership in the Labourers’ International Union of North America, Local 607.

7. The applicant submitted:

The Decision incorrectly states that, according to the Board’s records, the applicant has not been previously certified and does not have status as a trade union within the meaning of sections 1(1) and 126 of the Act.

The Board in its July 24^th decision stated that it had been unable to locate in a search of its files a decision in which the applicant had been found to be a trade union and also stated that “it appears that the applicant has not established in a previous Board proceeding that it is a trade union within the meaning of section 1(1) and 126 of the Act.” [emphasis added] The applicant is correct when it submits that the Board, as noted earlier, had indeed issued a certificate to the applicant. It seems that for some reason the Board’s search of its records overlooked the certificate that had been issued to the applicant in Board File No. 1505-99-R. The applicant therefore had been found by the Board in that earlier proceeding to be a trade union within the meaning of sections 1(1) and 126 of the Act.

8. The applicant also submitted that the Board’s July 24^th decision is inconsistent with the Board’s decision in Board File No. 1505-99-R directing a representation vote as the form of membership evidence relied on by the Board in that earlier proceeding was the same as the form of membership evidence relied on by the applicant in this proceeding. The applicant, in its application for reconsideration, attached copies of the membership evidence it had filed with its application in Board File No. 1505-99-R and which the Board must have relied upon when it directed a representation vote in that proceeding.

9. As a result of this application for reconsideration, I secured and reviewed the actual file in Board File No. 1505-99-R. A review of that file indicates that the Registrar’s Office had placed a certificate of trade union status in that file in which it stated that the Board had found that the applicant (Construction and Allied Workers Local Union 607) was a trade union within the meaning of the Act in an earlier Board proceeding and referred to Board File No. 12060-66-R. The certificate in Board File No. 12060-66-R was issued to the Labourers’ International Union of North America, Local 607, not to the Construction and Allied Workers Local Union 607. Thus it is apparent that when the Board in its August 27, 1999 decision found that the applicant was a trade union, it was relying on the certificate of trade union status placed in the Board’s file by the Registrar’s Office since the decision makes no mention whatsoever about a change in name or a change in the charter of the local union. Clearly, that certificate of trade union status that the Registrar’s office had issued was wrong. The Construction and Allied Workers Local 607 had not established in a previous Board proceeding that it is a trade union within the meaning of the Act. Thus, while the Registrar’s office had erred in respect of Board File No. 1505-99-R resulting in the Board having found that the applicant was a trade union within the meaning of the Act without any basis for doing so, the Registrar’s Office was correct when it advised me that there had not been an earlier decision in which the Board had found the applicant to be a trade union within the meaning of the Act. (I note that the Board recently, by decision dated July 31, 2001 in Board File No. 1255-01-R, an application for certification by the Construction and Allied Workers Local Union 607, directed the applicant to file with the Board all the documentary material it relies on and all of the submissions it wishes to make in respect of its assertion that it is one and the same as the Labourers' International Union of North America, Local 607, but simply with a new name. In that case, the Board noted that the membership evidence filed by the applicant indicates membership in the Construction and Allied Workers Local 607.)

10. The membership evidence that had been filed in Board File No. 1505-99-R had been returned to the applicant. I am, however, prepared to accept that the form of the membership evidence it submits was filed with the Board in that proceeding was the membership evidence it attached to its application for reconsideration. That membership evidence had a printed heading that stated: “Application for Membership in the Labourers' International Union of North America Local” with a blank space after the word “Local”. In writing, the number 607 appeared in that blank space. The body of the membership evidence (after the employee’s name, address and phone number) was a printed form that stated:

I hereby make application to become a member of the Labourers' International Union of North America. I further hereby authorize the Labourers' International Union of North America or its representatives or officers to act for me as Collective Bargaining Agent in all matters pertaining to conditions of employment.

It is apparent to me that there is nothing in that membership evidence (as there was nothing in the membership evidence filed by the applicant in this application for certification) that indicated it was membership evidence in the applicant. Yet, as the applicant submits, the Board in its August 27, 1999 decision stated:

It appears to the Board on an examination of the evidence before it, that not less than forty per cent of the individuals in the bargaining unit proposed in the application for certification were members of the union at the time the application was made.

That was all the Board said about the membership evidence that it had before it. It made no mention of the form of the evidence, did not indicate why membership evidence that referred to the Labourers' International Union of North America, Local 607 and to the Labourers' International Union of North America could by relied on by the Board to find an appearance of membership in an entity known as the Construction and Allied Workers Local Union 607. The Board in that decision gave no reasons for its conclusion.

11. In my view, the Act places the Board in a special position with respect to membership evidence filed in support of an application for certification. The Board is given the responsibility to examine the membership evidence and the parties affected by an application must rely on and accept the Board’s inspection of that evidence. Only the Board sees and reviews the membership evidence a union files in support of an application for certification. Section 119(1) of the Act provides:

The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union.

The other parties affected by the application do not have a right to review the membership evidence. Furthermore, sections 7(13) and 8(9) of the Act provide:

7(13) The application for certification shall be accompanied by a list of the names of the union members in the proposed bargaining unit and evidence of their status as union members, but the trade union shall not give this information to the employer.

8(9) When disposing of an application for certification, the Board shall not consider any challenge to the information provided under subsection 7 (13).

Those two provisions, when taken together with section 119(1) of the Act require the Board to be both vigilant and scrupulous when examining the membership evidence filed in support of an application for certification because the parties who have no access to that membership evidence must trust that the Board has examined the membership evidence. For those reasons, if there are any irregularities in the membership evidence, it is incumbent, in my opinion, on the Board to disclose the nature of those irregularities and specifically indicate, if those irregularities are not material to the decision the Board makes, why those irregularities do not affect the result.

12. In Board File No. 1505-99-R the Board said nothing at all about the form of the membership evidence that the applicant had filed. In my view, it is simply not sufficient to be silent about the membership evidence when there is something unusual or irregular about it. The absence of any comment about the form of the membership evidence or why the Board was satisfied that membership evidence referring to the Labourers' International Union of North America, Local 607 established an appearance of membership in the applicant gives rise to some concern about the degree of scrutiny applied to the Board’s review of the membership evidence in that case.

13. The applicant relied on the fact that a different panel of the Board in Board File No. 1505-99-R accepted membership evidence relating to the Labourers' International Union of North America, Local 607 as providing a basis for finding an appearance of membership in the applicant when it filed the instant application. I reviewed the evidence of membership the applicant filed in this case and held for the reasons set out in my July 24, 2001 decision that such membership evidence did not allow me to conclude that there was an appearance of membership in the applicant. There was no material difference between the form of membership evidence filed by the applicant in Board File No. 1505-99-R and by the applicant in the application before me. Thus, the fact that another panel of the Board came to a different result, without providing any reasons for that conclusion and more importantly, without even adverting to the nature of the membership evidence does not persuade me to reconsider my decision. To the contrary, the decision of August 27, 1999, which contained neither a mention of the discrepancy between the name of the applicant and the name on the membership evidence nor reasons for finding that the membership evidence before that panel of the Board provided a basis for being satisfied about an appearance of membership in the applicant, has, in my view, little, if any value as a precedent and certainly does not raise a concern that the decision in this matter dated July 24, 2001 was wrong.

14. The applicant made detailed and careful submissions as to why I should reconsider my decision. I have considered the submissions it has made on the merits of it request for reconsideration. For reasons set out above, I am satisfied that the Board did not make any factual errors in its decision of July 24, 2001 that were material to the result; that is, the Board’s inability to locate an earlier decision in which the Board had issued a certificate to the applicant did not affect the Board’s conclusion that the membership evidence filed by the applicant did not provide a basis for the Board to find an appearance of membership in the applicant. Furthermore, while the Board’s July 24, 2001 decision is contradictory to an earlier Board decision, I am satisfied for the reasons set out above that the Board’s earlier decision relied on by the applicant was wrong. Finally, the applicant has made full submissions to the Board about the circumstances that gave rise to the Board’s dismissal of the application. I have considered those submissions and do not find them persuasive.

15. This application for reconsideration of the Board’s decision in this matter dated July 24, 2001 is dismissed.

“Harry Freedman”

for the Board