Ontario Labour Relations Board
[1980] OLRB Rep. February 242
0186-79-R Christian Labour Association of Canada, Applicant, v. Master Insulation Company Limited, Respondent, v. International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Intervener.
BEFORE: R. A. Furness, Vice-Chairman, and Board Members 0. Hodges and R. W. Redford.
APPEARANCES: Elizabeth J. Forster and Ed Vanderkloet for the applicant; W. G. Posthumus, H. P. Scnuetze andJ. Bittenbinder for the respondent; B. Fishbein andJ. Duffy for the intervener.
DECISION OF THE BOARD; February 1, 1980
1The applicant has applied for certification with respect to a bargaining unit of insulation mechanics and insulation apprentices employed by the respondent in the province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
2The Board finds that the applicant is a trade union within the meaning of section 1(1)(n) of The Labour Relations Act.
3The Board further finds that this is an application for certification within the meaning of section 108 of The Labour Relations Act.
4The intervener has bargaining rights for the employees who are affected by this application by virtue of a collective agreement between the intervener and The Master Insulators' Association of Ontario, Incorporated, effective from July 7, 1975, until April 30, 1979 (the "collective agreement). This application was filed on April 27, 1979, and is therefore a timely application. Due to a stated case which was made to the Divisional Court in a companion case (see Board File No. 1882-78-M) the first day of the hearing in the instant application was riot held until October of 1979.
5The intervener in its amended intervention opposed this application on the following grounds:
"The Respondent either participated in the formation, administration and selection of the Applicant or contributed support to the Applicant with respect to the subject application for certification, contrary to Section 12 of the Act, the particulars of which are as follows:
(i) The employees who are the subject of this application were hired contrary to Article 2 of the Collective Agreement binding on the Respondent on the date of application and, in particular, Article 2.01 which provides:
"2.01 The employers shall employ as employees members of the Union in good standing in performance of all work coming within the scope of this Agreement and shall continue in their employ only employees who are in good standing with the Union. All such employees shall be hired thorugh the Union office…”.
(ii) The said employees were former employees of Frigid Insultation Limited, a company for which the Applicant was certified as bargaining agent by the Board for Board Areas 8 and 12 in decisions dated August 17th, 1977 (O.L.R.B. File No.: 0754‑77‑R) and December 9th, 1977 (O.L.R.B. File No.: 1370‑77‑R) respectively and consequently were known by the Respondent to be supporters or former members of the Applicant.
(iii) The presence of the said employees led to the filing of a grievance by the Intervener upon the Respondent on February 12th, 1979, which was referred to arbitration pursuant to Section 112a of the Act on February 15th, 1979, (O.L.R.B. File No.: 1882-78-M). However, at the hearing of the grievance on March 2nd, 1979, Mr. Josef Bittenbinder, an officer of the Respondent, called by the Intervener as a witness to establish the grievance, refused to take the stand and be sworn, although properly summonsed and directed by the Board to do so. By decisions dated March 7th, 1979 and March 22nd, 1979, the Board found itself unable to proceed and the referral of grievance to arbitration was adjourned to allow the Intervener to pursue its remedies to compel Josef Bittenbinder to testify. Such proceedings have been instituted by the Intervener and are currently pending before the Divisional Court."
6Based upon these allegations the intervener alleged as follows:
"Consequently, the Respondent either,
(a) knew, or ought to have known that the subject employees were supporters or former members of the Applicant and hired them in a deliberate attempt to support the subject Application for Certification and thereby defeat the bargaining rights of the Intervener;
(b) in the alternative, upon hiring its employees, contacted the Applicant and advised the Applicant to organize its employees in an effort to defeat the bargaining rights of the Intervener."
7The intervener subpoenaed two former employees of the respondent, George Radocaj and Arroldo Pividor, together with the president of the respondent, Joseph Bittenbinder, and the secretary-treasurer of the respondent, Helmut Schuetze. It was clearly the thrust of the intervener's position that Messrs. Radocaj and Pividor were the two employees who were referred to by the applicant in paragraphs five and six. The evidence before the Board, however, established that Messrs. Radocaj and Pividor were not employed by the respondent on April 27, 1979, the date of the filing of this application. In fact Mr. Radocaj and Mr. Pividor last worked for the respondent in March of 1979.
8The evidence of Helmut Schuetze established that on April 27, 1979, the respondent had in its employ two insulators, Gary Elliott and David Penn. The evidence further established that Mr. Elliott commenced working for the respondent on April 24, 1979, and that his employment with the respondent was terminated on April 30, 1979. Mr. Penn commenced working for the respondent on April 25, 1979, and his employment with the respondent was terminated on June 8, 1979.
9The intervener argued that Messrs. Elliott and Penn were unlawfully employed by the respondent in contravention of Article 2.01 of the collective agreement. The intervener alleged that the respondent had hired Messrs. Elliott and Penn who were former employees of Frigid Insulation Limited and Messrs. Radocaj and Pividor were known by the respondent to have been members of the applicant. The intervener strenuously argued that the respondent had stalled and derailed a grievance in Board File No. 1882-78-M and that but for that grievance this application might never have taken place. The intervener pointed out that ultimately the grievance in Board File No. 1882-78-M was settled in its favour in that the Board had endorsed the record with a declaration that the respondent had violated the collective agreement. The intervener also pointed out that in Board File No. 1882-78-M the Board had further endorsed the record by directing the respondent to pay four thousand dollars to the intervener.
10The intervener also argued that two rather than one employee were hired briefly by the respondent during the open period provided for in section 5 of the Act and that neither had been hired through the intervener. The intervener referred to the hiring of Messrs. Elliott and Penn and characterized it as a series of coincidences. The intervener also referred to and questioned the telephone call from a Mr. Adema of the applicant to the respondent during the end of April of 1979. In the intervener's view the entire certification proceeding had been circumvented by the manoeuvring of the respondent. The intervener asked the Board to draw an inference that in all the circumstances and coincidences there had been support by an employer for the applicant. The intervener urged the Board not to certify the applicant because of the respondent's conduct under section 12 of the Act.
11There is no evidence before the Board which establishes that either Mr. Elliott or Mr. Penn previously worked for Frigid Insultation Limited. While Mr. Radocaj and Mr. Pividor worked For Frigid Insulation Limited before they worked for the respondent, they are not employee who are affected by this application. It was the uncontradicted evidence of Mr. Schuetze that Mr. Elliott came to the respondent's door and asked for a job. The respondent had a job in a school in Scarborough and hired him. It is also the uncontradicted evidence of Mr. Schuetze that Mr. Elliott then asked for a job for his friend Mr. Penn and that the respondent hired Mr. Penn. The intervener has not challenged Mr. Schuetze's evidence that he did not know either Mr. Elliott or Mr. Penn when the respondent hired them.
12The intervener endeavoured to make a connection between the alleged employment of Messrs. Radocaj and Pividor on April 27, 1979, and two earlier certificates which had been issued to the applicant with respect to Frigid Insulation Limited on August 17 and December 9, 1977 (see Board Files No. 0754-77-R and 1370-77-R - unreported decisions). However, the evidence establishes that Messrs. Radocaj and Pividor were not employed by the respondent on April 27, 1979. In addition, it was the unchallenged evidence of Mr. Bittenbinder that he had ceased to have any involvement in Frigid Insulation Limited prior to the making of the applications and the issuance of these two certificates in Board Files No. 0754-77-R and 1370-77-R.
13While it is true that certain relief was granted to the intervener in Board File No. 1882‑78‑M, the violations of the collective agreement by the respondent do not in themselves affect the rights of either the respondent's employees or the applicant. Mr. Bittenbiner's conduct in Board File No. 1882-78-M led to the Board stating a case to the Divisional Court. While the Divisional Court made no order as to costs, the application was dismissed. The Divisional Court and the Board recognized the validity of the complaints made by Mr. Bittenbinder about the all-encompassing nature of the description of documents in the summons and the danger of him and his company being submitted to a fishing expedition. The Divisional Court also stated that in the light of the Board's approach to the proceeding in Board File No. 1882-78-M it could only assume that Mr. Bittenbinder's objections were raised for the purpose of delay. However, in the absence of a collusive arrangement between the respondent and the applicant, the Board finds no reason to deny certification to the applicant.
14The intervener argued that a telephone call between a Mr. Adema of the applicant and the respondent was evidence of support by the respondent. The evidence with respect to this incident establishes that towards the end of April of 1979 one of the respondent's employees told Mr. Schuetze about the applicant after Mr. Adema had telephoned Mr. Schuetze and confirmed where Messrs. Elliott and Penn were working. It was the uncontradicted evidence of Mr. Schuetze that he did not contact the applicant. In addition, there is no indication that this telephone call was made before Messrs. Elliott and Penn became members of the applicant. Mr. Adema's telephone call is consistent, for example, with a check on the location of the work so that the Board may be advised whether the Board's Form 52, Notice to Employees of Application for Certification, Construction Industry, has been posted.
15Finally, the intervener argued that the hiring of two employees by the respondent, the minimum needed for certification, for a brief period of time, was just too much of a coincidence. The pattern of hiring in the construction industry, both with respect to numbers and duration is usually unlike the situation with respect to industrial or commercial undertakings. In the construction industry the employment of a work force of two employees for a brief duration is not at all uncommon. Employees are hired according to the size and duration of the work which their employer has been able to obtain. The Board is not prepared to find on the evidence before it that there was anything untoward in the employment of Messrs. Elliott and Penn by the respondent.
16The intervener asks the Board to make certain inferences in the light of all the coincidences or circumstances of this application. The Board is of the opinion that inferences may be made in this application. However, the inferences to be drawn in this application on the balance of robabilities do not support the allegations of the intervener with respect to section 12. The intervener's allegations with respect to section 12 were based upon incorrect information. The respondent came prepared to meet the intervener's allegations with respect to section 12 and in our view the balance of the evidence does not support the intervener's allegations with respect to section 12. The intervener's allegations with respect to section 12 are therefore dismissed.
17The applicant is seeking certification with respect to employees in the province of Ontario. The collective agreement is effective throughout the province of Ontario. This is a displacement application and the appropriate bargaining unit is therefore the bargaining unit in the collective agreement. The Board therefore finds that all insulation mechanics and insulation mechanics' apprentices in the employ of the respondent in the province of Ontario, save and except non-working foreman and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
18The Board is satisfied on the basis of all the evidence before it that not less than forty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on May 7, 1979, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
19A representation vote will be taken of the employees of the respondent in the bargaining unit. All employees of the respondent in the bargaining unit on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.
20Voters will be asked to indicate whether or not they wish to be represented by the applicant or the intervener in their employment relations with the respondent.
21The matter is referred to the Registrar.