[1980] OLRB Rep. October 1347
0172-80-R Joseph Foley, Applicant, v. International Brotherhood of Painters and Allied Trades, International Brotherhood of Painters and Allied Trades Local 200, The Ontario Council of the International Brotherhood of Painters and Allied Trades, Respondents, v. A.N. Shaw & Sons (Eastern) Ltd., Intervener.
BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: Paul A. Niebergall for the applicant, S. B. D. Wahl, R. Tier and A. Colafranceschi for International Brotherhood of Painters and Allied Trades Local 200 and The Ontario Council of the International Brotherhood of Painters and Allied Trades; W. G. Phelps, P. M. Rusak and Peter Hart for the intervener.
DECISION OF VICE-CHAIRMAN IAN C. A. SPRINGATE AND BOARD MEMBER H. J. F. ADE; October 23, 1980
This is an application under section 49 of The Labour Relations Act for a declaration terminating bargaining rights.
The application as filed named only the International Brotherhood of Painters and Allied Trades as a respondent. However, reference was made in the application to Local 200 of the same union and the statement of desire filed in support of the application contained the statement that Local 200 was the relevant bargaining agent. On the first day of hearing, counsel appeared on behalf of Local 200 and took the position that the bargaining rights in issue were in fact held by The Ontario Council of the International Brotherhood of Painters and Allied Trades (to which Local 200 and other Ontario locals of the International are affiliated) and that he did not represent the Ontario Council. Counsel for the applicant then requested that the Ontario Council and Local 200 be formally added as respondents to the proceedings, and the Board acceded to this request. The matter was then set down for hearing at a later date. When the matter came back on for hearing the same counsel attended on behalf of Local 200 and indicated that he was now also representing the Ontario Council and all of its affiliated locals.
On a review of the material before us, we are satisfied that bargaining rights for the intervener's employees were originally acquired by Local 200, although subsequently negotiations were conducted and collective agreements entered into by the Ontario Council on behalf of Local 200. We are further satisfied that Local 200 still retains its bargaining rights, although these are now bargained for by a designated employee bargaining agency comprised of the International Union and the Ontario Council. As a result of the enactment of section 125(2) of the Act it would appear that although the intervener currently operates only within the geographic jurisdiction of Local 200, insofar as the industrial, commercial and institutional sector of the construction industry is concerned, it is deemed to have recognized as bargaining agents for its employees other Ontario locals of the International in their respective geographic jurisdictions. As already indicated, counsel who attended at the hearing dealing with the merits of the application indicated that he was representing all of the locals affiliated with the Ontario Council.
This application was originally filed on April 25, 1980, at a time when it was clearly timely. Local 200 and the Ontario Council were formally added as parties to the proceeding at the first day of hearing on May 30, 1980. Counsel for the respondents was of the view that the Board should treat May 30th as the date of the making of the application. It was his further contention that on May 30, 1980 the application would have been untimely. We are satisfied that April 25, 1980, the actual date of filing, should be the date used by the Board as the application date. We do not believe that any undue prejudice would result to the respondents from doing so, but that the applicant might suffer real prejudice if the Board were to take any other approach.
It was the contention of counsel for Local 200 that on April 25, 1980 there were no employees of the intervener employed in the bargaining unit. It is not disputed that two employees of the respondent, including Mr. Foley, the applicant, were at work on the relevant date. It is also not disputed that at the time both of them were members of Local 200 and were being paid pursuant to the provisions of the applicable provincial collective agreement. Nevertheless, it was the contention of counsel for the Union that the work these two employees were engaged in did not come within the "Scope of Work" clause of the collective agreement. On the evidence before us, however, we are satisfied that on April 25th the two employees in question were engaged in caulking work, which is a type of work encompassed by the scope of work clause in the collective agreement. Accordingly, we are satisfied that on the application date there were at least two employees at work in the bargaining unit.
The intervener filed a list indicating that it had seven employees in the bargaining unit. Two of these were the individuals referred to above who were actually at work on April 25th. All of the persons on the list, with the exception of Mr. Foley, the applicant, signed a statement of desire in opposition to continued representation by the respondent. For his part, Mr. Foley signed the application form requesting that the respondent's bargaining rights be terminated. On the basis of this material, we are satisfied that all of the employees in the bargaining unit on the application date (whether the proper number be two or seven) had indicated that they no longer desired to be represented by the union.
This then brings us to the issue of whether the statement of desire can be accepted as a voluntary signification of those who signed it. The Board is always concerned that employees may have signed such a statement of desire out of the belief that it had the support of management and that management might become aware of any refusal on their part to sign it. It is worth noting at the outset that we are fully satisfied that there was no actual managerial involvement in either the preparation or circulation of the statement of desire. Notwithstanding the lack of any evidence indicating actual management involvement, counsel for the union contended that employees would likely have perceived that management was involved with the statement of desire because of the leading role played by Mr. Foley in its origination and circulation and the fact that Mr. Foley is employed as a working foreman.
Mr. Foley is a member of Local 200 who is paid an hourly rate pursuant to the terms of the collective agreement. He is regarded as a bargaining unit employee and does not exercise any managerial functions. However, as a working foreman, Mr. Foley does perform certain supervisory functions. He is responsible for assigning work to employees in his crew and also for pointing out to them any errors which they may have made. Mr. Foley makes reports to management on the work performance of other employees. Mr. Foley does not become directly involved in discussions relating to the hiring and firing of employees. However, it is reasonable to assume that his reports concerning employee work performance are taken into account by management when it considers its staffing requirements.
Mr. Foley and another employee, Mr. J. Shipperbottom, were the ones who originally decided to seek to terminate the union's bargaining rights. Although they first met as employees of the intervener, Mr. Foley and Mr. Shipperbottom are personal friends outside of the work place. According to Mr. Foley, the reason for the decision to seek to terminate the union's bargaining rights was the feeling that union representation acted to restrict the work opportunities available to the intervener's employees. Mr. Foley made particular reference to a job at Eaton's Bayshore in Ottawa. According to Mr. Foley, he and the intervener's other employees had been working at this job for some period of time when they were laid off for five to six weeks while employees of another firm were brought in to perform some sheet metal work. Mr. Foley indicated that he felt that he and the intervener's other employees could have performed this work themselves, and that to his mind the reason they were not asked to do so was because the work was not covered by their collective agreement. Mr. Foley testified that after he and Mr. Shipperbottom decided to seek to terminate the respondent's bargaining rights, they discussed the matter with the other employees and then retained the services of a lawyer who had recently acted on Mr. Shipperbottom's behalf in a real estate transaction. The lawyer prepared the statement of desire, which was later signed by the employees in the presence of both Mr. Foley and the lawyer.
In assessing the voluntariness of the statement of desire, we are unable to accept the proposition that Mr. Foley stands in the same position as any other employee in the bargaining unit. Because of his supervisory functions, Mr. Foley's active involvement with the statement of desire raises concerns which would not exist if he were other than a working foreman. However, we also do not believe that his involvement with the statement of desire must invariably result in a finding that it cannot be given any weight. Rather, what is required is an examination of all of the surrounding circumstances and an assessment of whether other employees would likely have viewed Mr. Foley as acting on behalf of, or with the support of management, or whether they would likely have perceived him as a bargaining unit employee seeking only to further his own self-interests.
Employees would have been well aware of Mr. Foley's supervisory role, particularly in assigning work. They would also likely have been aware of the fact that he was responsible for making reports to management concerning their work performance. It is also reasonable to assume that the other employees would have known that notwithstanding his status as a working foreman, Mr. Foley, like themselves, was a union member within the bargaining unit. The evidence does not suggest that Mr. Foley did anything to indicate to the employees that he was acting of behalf of management. To the contrary, his case in favour of terminating the respondent's bargaining rights was based upon his view that union representation had acted to restrict the work available to himself and others. Along with the other employees he had been laid off for five or six weeks under circumstances where he felt he need not have been, and he blamed the existence of the collective agreement for this fact. When all of these considerations are taken into account, we feel that the other employees would more likely have regarded Mr. Foley as acting in what he perceived to be in his own interests rather than acting on behalf of management.
Before leaving this matter, we would note that this case differs in certain key respects from certification cases involving anti-union petitions. Here there has been no sudden and apparently inexplicable change of heart relating to union support on the part of employees who only a short time before had become union members. Further, the employees here have been represented by the union for some period of time and presumably they would have been aware of the union's ability to protect employees from being discriminated against for continuing to support the union.
When all these considerations are taken into account, we are satisfied on the balance of probabilities that not less than forty-five per cent of the employees of A. N. Shaw and Sons (Eastern) Ltd. in the bargaining unit, at the time and application was made, had voluntarily signified in writing that they no longer wish to be represented by the respondent union as of May 14, 1980, the terminal date fixed for this application and the date which we determine, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent union under section 49(3) of the Act.
A representation vote will be taken amongst the employees of A. N. Shaw and Sons (Eastern) Ltd. Those eligible to vote are all employees of the intervener covered by the collective agreement between the Ontario Painting Contractors Association, Acoustical Association of Ontario, The Interior Systems Contractors Association - and - The International Brotherhood of Painters and Allied Trades and The Ontario Council of the International Brotherhood of Painters and Allied Trades on the date hereof who do not voluntarily terminate their employment or who are discharged for cause on the date thereof and the date the vote is taken.
Voters will be asked to indicate whether or not they wish to be represented by Local 200 or any other local of the International Brotherhood of Painters and Allied Trades in their employment relations with A. N. Shaw and Sons (Eastern) Ltd.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER C. A. BALLENTINE:
I dissent in this case on the grounds that the voluntariness of the statement of desire is suspect and I am not satisfied that it represents the true wishes of the employees who signed it.
The petition was initiated and circulated by the company's construction foreman Joseph Foley, the only "on-site" foreman.
As the majority states in paragraph 8, Mr. Foley performs "certain supervisory functions. He is responsible for assigning work to employees in his crew and also for pointing out to them any errors which they may have made. Mr. Foley makes reports to management on the work performance of other employees". I agree with the majority finding that "it is reasonable to assume that they [the employees] would also have been aware of the fact that he was responsible for making reports to management concerning their work performance". Mr. Foley admitted as much on cross-examination:
Question: On the job site in the field are you the boss of the crew?
Answer: Yes.
Question: Is everyone aware of that?
Answer: Yes.
Question: Who tells Mr. Blame, the supervisor, if a particular man could or couldn't do the work?
Answer: I would – but I wouldn't do any hiring or firing though.
Frankly, it is difficult to accept Mr. Foley's volunteered evidence that he does not hire and fire as that is a general practice of a foreman in the construction industry.
- Although I accept the above-quoted findings of the majority I take issue with paragraph 11 in which they assume how the employees would perceive Mr. Foley's status as a working foreman. According to the majority, the employees,
''would have known that notwithstanding his status as a working foreman, Mr. Foley, like themselves, was a union member within the bargaining unit."
From my experience in the construction industry, this statement does not accurately represent the status of a foreman in the construction industry. The foreman represents management's interests – his main responsibility is to produce. It is an accepted fact, and a tradition, that while a fellow tradesman is acting in the capacity of a foreman, he is representing the company and not the union. In the construction industry a foreman, such as Mr. Foley, commands far more authority than a "lead hand", or even a foreman, in a manufacturing plant. In the manufacturing setting there is a higher chain of management constantly on the premises. The presence of these upper-level management persons could decrease the apparent authority of the "lead hand" or foreman in the eyes of his fellow workers. Conversely, on a construction site the foreman could be the only management person that a tradesman may come in contact with. This is so because the construction industry is a transient industry where many of the workers depend on the hiring hall process for their employment.
Where the Board is uncertain as to the voluntariness of the petition there will remain "legitimate doubts concerning the reliability of the document as an expression of the true wishes of the employees" which must cause the petition to be dismissed. (See Leamington Vegetable Growers' Co-operative Limited, [1974] OLRB Rep. June 402.)
The critical issue is whether the petition was signed voluntarily by the employees concerned. The test for voluntariness in such circumstances was set down by the Board in Kilgoran Hotels Ltd. c.o.b. as Ye Olde Brunswick Tavern, [1975] OLRB Rep. Mar. 240 at para. 10:
"The essential factors weighed by the Board are the concerns of employees who have been approached to sign the petition in relation to the potential threat of their job security should they refuse to accede to the request."
I am satisfied that had this been a certification application the petition would have been set aside. It is obvious the majority has differentiated between certification and termination applications, see paragraph 12 of the majority decision. While this Board is less likely to find that a petition is involuntary in a termination case than in a certification case because there has been no sudden and inexplicable change of heart that makes the expression of non-support suspicious, (see N.J. Spivak Ltd., [1977] OLRB Rep. July 462 and Northern Telecom Canada Ltd., [1979] OLRB Rep. Apr. 330.) I feel that the same standard must be applied in determining the voluntariness of a petition whether it is in support of a termination application or in opposition to a certification application. There is a line of cases relating to the circulation of a petition by a person in a supervisory capacity being set aside by the Board. (See General Industries Limited, [1974] OLRB Rep. Oct. 662; Atlantic & Pacific Tea Company Limited, [1969] OLRB Rep. Nov. 948; Becker Milk Company Limited, [1966] OLRB Rep. April 37 and Leamington Vegetable Growers' Co-operative Limited, supra.) The absence of a sudden change of heart is only one consideration in the determination of voluntariness. What must also be weighed is the extent of actual or apparent supervisory authority exercised by the originator of the petition. Where the extent of supervisory authority held by the originator of the petition is so significant as to make it reasonable for an employee to perceive a potential threat to his job security should he refuse to sign, then the petition should be found to be involuntary.
In this case it was found that Mr. Foley, the originator of the petition, exercised considerable managerial authority including the assignment of work; the assessment of work performance; and the overall day-to-day supervision of the site. Mr. Foley was perceived by his fellow workers as "the boss". In these circumstances I find that it would have been reasonable for an employee to perceive a potential threat to his job security if he had refused to sign. Therefore, I find the petition to be involuntary and not representative of the true wishes of the employees concerned.
For these reasons, I would dismiss the application.