Robert Woelk and Randal Koop v. International Union of Operating Engineers, Local 793

[1980] OLRB Rep. June 824

2465-79-R Robert Woelk and Randal Koop, Applicant, v. International Union of Operating Engineers, Local 793, Respondent, v. Erie Sand & Gravel Limited and Sterling Acre Farms Limited, Interveners.

BEFORE: R. O. MacDowell, Vice-Chairman and Board Members O. Hodges and F. W. Murray.

APPEARANCES: Charles F. Clark, Robert Woelk and Randal Koop for the applicants; S. B. D. Wahl, J. Redshaw and W. Conlin for the respondent; Hugh B. Geddes, Q. C., and Ben Koop for the interveners.

DECISION OF THE BOARD; June 6, 1980

1. This is an application under section 49 of The Labour Relations Act for termination of the respondent union's bargaining rights. This termination application was heard together with a request for reconsideration of an earlier decision of the Board in which, on the consent of the parties and pursuant to section 1(4) of the Act, the Board declared that Erie Sand & Gravel Limited ("Erie"), and Sterling Acre Farms Limited ("Sterling"), constituted one employer for the purposes of the Act. In order to understand the context in which the termination application arose, it is necessary to briefly review the events leading to the earlier decision of the Board under section 1(4).

2. On February 28, 1980, the union made an application under sections 55 and 1(4) of The Labour Relations Act, for a declaration that there had been a sale of business from Erie to Sterling; or, alternatively, that the two companies constituted one employer for the purposes of the Act. Prior to the hearing the parties filed with the Board Minutes of Settlement and a Consent Order requesting the Board to issue certain declarations and orders in accordance with the terms which they had agreed upon. The relevant portions of the agreement (which were incorporated into a Board order) are as follows:

"The parties agree in settlement of the Application under Section 55 and! or 1(4) of The Labour Relations Act, R. S.O. 1970, c. 232, as amended, captioned as O.R.L.B. [sic] File No: 2225-79-R and the grievance dated November 13th, 1979, to request that the Ontario Labour Relations Board endorse its record with the following declarations and orders:

1. A Declaration that Erie Sand and Gravel Limited and Sterling Acre Farms Limited constitute one employer for the purposes of the Act and, at all material times, they were carrying on associated or related activities or businesses under common control or direction within the meaning of Section 1(4) of the Act;

2. A Declaration that Erie Sand and Gravel Limited and Sterling Acre Farms Limited are bound to the collective agreement between Erie Sand & Gravel Co. Ltd. and the International Union of Operating Engineers, Local 793 expressed to be effective from June 1st, 1977 until Aptil 30th, 1980 ("the Collective Agreement");

3. An Order that Erie Sand and Gravel Limited and Sterling Acre Farms Limited apply to full terms and conditions of the Collective Agreement with respect to all employees employed at the gravel pits operated by Erie Sand and Gravel Limited and Sterling Acre Farms Limited in the Counties of Essex and Kent, including but not limited to gravel pits located at R.R. #2, Leamington, Ontario; 5th Concession, Mersea Township; [sic] and Oak Street, Leamington, Ontario, except foremen, and persons above the rank of foreman, office staff, weigh scale personnel, and except drivers who operate licenced vehicles off the gravel pit property.

Without limiting the generality of the foregoing, and solely for the purposes of clarity, William Dick, Robert Woelk, John Kopp and Allan Koop are employees working within the bargaining unit above described and Erie Sand and Gravel Limited and Sterling Acre Farms Limited shall apply the full terms and conditions to the Collective Agreement with respect to their employment as of the date hereof."

3. There is no doubt that Sterling and Erie are engaged in related activities under common control and direction. The two companies are both controlled by Ben Koop, and are jointly engaged in the extraction, processing and sale of gravel. Erie has one employee and Sterling has five. Two of these employees are the sons of the owner. As a consequence of the section 1(4) declaration, John Koop, Allan Koop, William Dick and Robert Woelk, who had been employed by Sterling, were "swept into" the respondent's bargaining unit. These employees, of course, then made up a substantial majority of the members of the unit, and none of them were union members. It is these employees who now seek to terminate the union's bargaining rights. Before turning to the circumstances surrounding the termination application itself, and the voluntariness of the employees' expressed opposition to the union, it will be convenient to deal briefly with certain other allegedly fundamental defects upon which the respondent relies.

4. The respondent contends that the collective agreement allegedly binding the parties was not sufficiently proved; and that accordingly, the application must be dismissed on that ground. The agreement in question, it will be observed, is the very one which the Board had, on the request of the respondent, earlier declared to be binding upon Sterling, pursuant to section 1(4) of the Act. In any event, John Koop identified his father's signature on the document. We are satisfied on the evidence before us that the agreement has been sufficiently proved.

5. We are also satisfied on the evidence before us that the applicants are employees in the bargaining unit with status to bring the present application. Robert Woelk's viva voce evidence indicates that he spends at least fifty per cent of his time, on a daily basis, operating a front-end loader. He was specifically named in the Minutes of Settlement and Consent Order, to which we have already referred. If the Board were in any doubt as to the intention of the parties, that doubt is totally dispelled by their own agreement that Mr. Woelk is an employee working within the bargaining unit; and we do not see how the respondent can now maintain any other position. Indeed, apart altogether from the effect of the Board's earlier order, it is arguable that the agreement of the parties, which forms the basis of that decision, operates as an amendment or clarification to the scope of the bargaining unit.

6. Section 1(4) vests in the Board a discretion to "grant such relief by way of declaration or otherwise as it may deem appropriate". Counsel urged that the Board should exercise this discretion to raise a bar to the present termination application, analogous to that contained in section 55(10) of The Labour Relations Act. Section 55(10) can give a declaration of a sale of a business made under section 55(3) or section 55(6), the same effect as a certification thus barring certain applications, including, inter alia, certification or termination. Counsel contended that relief under section 1(4) would be entirely illusory if an employer could set up a related company, and hire a group of non-union employees outside the terms of the established collective agreement; then rely on those employees to undermine any 1(4) declaration by launching a termination application.

7. The Board has carefully considered the respondent's argument and we are not unaware of the problem faced by a union which seeks a section 1(4) declaration in respect of a related employer with an established labour force, immediately prior to the "open period" of the parties' collective agreement. Unless there is evidence of an illegal scheme to undermine the union's bargaining rights (which would be a breach of section 56 and would raise considerable doubts concerning the voluntariness of any subsequent termination application) the union may have acquired the right to bargain on behalf of a number of employees who are unsympathetic to it. Nevertheless, we do not think that the discretion vested in the Board under section 1(4), extends to the creation of a bar similar to that in section 55(10). To adopt counsel's view would imply that by the exercise of a statutory discretion, the Board could significantly modify the timeliness requirements in, inter alia, section 49. The fact that this power was expressly granted in section 55(10), suggests to us that it is not a matter which the Legislature intended to be dealt with through the exercise of a general discretion. We do not think we have the authority to impose the bar which counsel requests.

8. There remains the question of the voluntariness of the employees' expression of opposition to the trade union. Section 49(3) of The Labour Relations Act provides:

"Upon an application under subsection 1 or 2, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause j of subsection 2 of section 92 that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated."

The Board must be satisfied on the basis of the evidence before it, that when the employees signed the petition or other written statement in opposition to the union, they were motivated by a genuine desire to terminate the union's bargaining rights; and were not concerned that a failure to signify their opposition would be communicated to their employer or would result in adverse consequences. Robert Woelk and John (Randal) Koop, gave evidence concerning the origination of the employees' statement in opposition to the union.

9. The hearing date for the union's section 55/ 1(4) application was fixed for April 2, 1980 and Notice of the Application was posted on the employer's premises on or about March 14, 1980. The employees saw and discussed the application on Monday. March 17th, and on the Wednesday thereafter. The employees decided that they would need the assistance of a solicitor. Alan Koop and William Dick chose the name of a solicitor who had advertised himself in the yellow pages of the telephone book as practicing in the field of labour relations. His name was the fourth on the list of solicitors advertising this area of expertise. The employees visited the solicitor on Thursday, March 20th, and, because they were dissatisfied with his response, subsequently contacted Charles F. Clark. Mr. Clark is the fifth solicitor on the list. It was he who drafted the employees' request for reconsideration of the Board's section 1(4) determination, and assisted them to frame their subsequent termination application. When the matter came on before us, the request for reconsideration was abandoned, because it was evident that the grounds advanced by the employees would not have prompted the Board to alter its earlier decision.

10. Both employees were subjected to a searching cross-examination, which revealed some minor inconsistencies in their evidence and certain instances when they could not recall all of the details of the events leading to the present application. However, one cannot expect an untrained witness to recall with precision, past events which might not have seemed significant at the time. We are satisfied with the main thrust of their evidence; namely that; a group of employees, who did not wish to be represented by a union, suddenly found themselves so represented, discussed the matter, consulted a solicitor, and launched a timely application to terminate the union's bargaining rights. This is not a situation in which employees have had a "sudden change of heart", or are seeking, without apparent reason, to displace a long-established bargaining agent. We accept counsel's contention that the Board must exercise considerable caution when dealing with small family businesses in which relatives of the owner are members of the bargaining unit. Nevertheless, the Board has had the opportunity to assess the evidence of the various witnesses and, in the circumstances of this case, we are satisfied that at least forty-five per cent of the employees of Erie and Sterling in the bargaining unit, at the time the application was made, have voluntarily signified in writing that they no longer wish to be represented by the respondent union as of April 18, 1980, 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 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.

11. The Board directs that a representation vote be taken of the employees of Erie and Sterling. Those eligible to vote are all employees employed at the gravel pits of Erie and Sterling in the County of Essex and Kent, save and except foremen, persons above the rank of foreman, office staff, weigh scale personnel, and drivers who operate licensed vehicles off the gravel pit property on the date hereof who do not voluntarily terminated their employment or who are not discharged for cause between the date hereof and the date the vote is taken.

12. Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Erie and Sterling.

13. The matter is referred to the Registrar.