Ontario Labour Relations Board
[1981] OLRB Rep. March 271
2234-79-R Christian Labour Association of Canada, Applicant, v. Frusino Structure Incorporated, Respondent, v. Labourers' Local 183, Intervener.
BEFORE: Ian C. A. Springate, Vice-Chairman, and Board Members D. B. Archer and J. D. Bell.
APPEARANCES: O. V. Gray, D. McAllister and E. Grootenboer for the applicant; Robert M. Steeves and Aldo Saccucci for the respondent; B. Fishbein and L. Casaldo for the intervener.
DECISION OF THE BOARD; March 10, 1981
Labourers' International Union of North America, Local 183 ("Local 183") has requested that the Board reconsider its decision of March 17, 1980, wherein it certified the Christian Labour Association of Canada ("CLAC") as the bargaining agent for all carpenters, carpenters' apprentices, construction labourers and reinforcing rodmen in the employ of the respondent in the Counties of Essex and Kent (i.e. Board Area #1). Local 183 contends that the applicant obtained its membership evidence with the assistance of the respondent, and that accordingly the Board should revoke CLAC's certificate and declare void a subsequent collective agreement entered into between CLAC and the respondent. It should be noted that in File No. 0757-80-R, Local 183 has itself applied to be certified for construction labourers in the employ of the respondent. If the certificate issued to CLAC and the resulting collective agreement are allowed to stand, Local 183's certification application would be untimely.
In seeking to set aside the certificate issued to CLAC, Local 183 is relying primarily on the provisions of section 12 of the Act, which state as follows:
The Board shall not certify a trade union if any employer or employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin.
CLAC originally filed its application for certification on February 27, 1980. In support of its application, it filed evidence of membership on behalf of all ten employees in the bargaining unit. The respondent made no reply to the application. The Board forwarded to the respondent for posting at the job site a Form 52, "Notice to Employees of Application for Certification, Construction Industry". Subsequently, CLAC advised the Board that the respondent had failed to post the Form 52 on the job site and in response, the Board mailed a Form 52 directly to each of the bargaining unit employees. The Form 52 indicated to the employees that if they desired to make any representations to the Board in opposition to the application, they were required to so notify the Board by the terminal date, namely, March 10, 1980. No such representations were received. In these circumstances, the Board proceeded to certify CLAC without holding a hearing, which the Board is permitted to do in the construction industry by force of section 91(13) of the Act.
Although the job site in question is in Windsor, at the time CLAC applied to the Board to be certified, the respondent employed four individuals whose permanent residences were in Toronto. In support of both its application for certification in File No. 0757-80-R, and the instant request for reconsideration, Local 183, which is a Toronto-based local, filed certificates of membership with respect to three of the four employees from Toronto. These certificates of membership indicate that the three employees were members of Local 183 prior to going to Windsor.
The respondent's job in Windsor involved doing the form work for a new apartment building. The General Contractor on the project was identified as Goldie-Burgess, a firm bound to a collective agreement with CLAC. Prior to the events giving rise to these proceedings, CLAC had been certified with respect to the respondent's employees in Board Area #9 and had entered into a collective agreement with the respondent with respect to that area. Mr. A. Saccucci, the owner of the respondent, had at one time also been involved with a firm called Sacro Forming which had been signatory to a collective agreement with CLAC.
In preparing the respondent's bid for the forming subcontract on the Windsor job, Mr. Saccucci contacted the office of CLAC in Toronto and obtained the wage rates paid to employees under CLAC's collective agreements in the Windsor area. As already noted, the general contractor, Goldie-Burgess, was bound to a collective agreement with CLAC. After the respondent received the forming contract, Mr. Saccucci set about hiring the men who would actually be performing the work. Two employees appear to have either been transferred from other operations of the respondent or hired in Windsor for the project. Mr. Saccucci also contacted a Windsor representative of CLAC and asked if the union could supply him with some men. In response to this request, four CLAC members were sent to the site. (Mr. Grootenboer, a representative of CLAC, testified that five CLAC members were sent. However, from a review of the documentary evidence of membership on file and other evidence with respect to the number of employees on the site, we are satisfied that only four CLAC members were sent.) Mr. Saccucci also hired the four individuals from Toronto. One of these four, Mr. D. Guardiani, had heard from a friend that the respondent might be hiring and had contacted Mr. Saccucci. Later, on or about February 13, 1980, Mr. Saccucci asked Mr. Guardiani to meet him at his home and to bring along any others who might be interested in working in Windsor. At the meeting, Mr. Saccucci advised the four men that he wanted them to work for the respondent in Windsor. Mr. Saccucci indicated that they would be paid the CLAC rate for Windsor and he quoted them the rate. With respect to fringe benefits, Mr. Saccucci indicated they would be the same as those contained in the collective agreement between CLAC and Sacro Forming and he read excerpts from this agreement. All four of the men agreed to work for the respondent in Windsor, and they left for the project some three or four days later.
There is some dispute as to what, if anything, was said at the meeting about the men having to join CLAC. Mr. Saccucci testified that while he told the men they would receive the CLAC wage rates for Windsor and read from the fringe benefit articles in the CLAC-Sacro Forming collective agreement, he did not tell the men they would have to join CLAC. Counsel for Local 183 called two of the four employees who were at the meeting to testify, namely, Mr. Guardiani and Mr. Girgenti. Mr. Guardiani testified that Mr. Saccucci had made a reference to CLAC when explaining what the men would be paid and had also indicated that the respondent had a collective agreement with CLAC. According to Mr Guardiani, from these comments on the part of Mr. Saccucci he concluded that he would have to join CLAC to work on the project. The other employee, Mr. Girgenti, testified that he could recall no mention of CLAC at the meeting at Mr. Saccucci's house. From this evidence, we are led to conclude that Mr. Saccucci did not advise the four employees from Toronto that they would have to join CLAC, although on the basis of his references to CLAC the employees may well have gained the impression that the respondent expected that they would become members of CLAC.
Some fifteen days after the respondent's employees commenced working on the Windsor job site, they were approached by Mr. E. Grootenboer, a representative of CLAC. Mr. Grootenboer knew that certain CLAC members were working on the job site. Mr. Grootenboer approached the employees who were already members of CLAC and had them sign certificates of membership. Mr. Grootenboer then approached the other employees to get them to sign membership applications for CLAC. We are satisfied that Mr. Grootenboer said nothing improper to any of the employees to get them to sign. All ten of the respondent's employees on the site signed either a certificate of membership or an application for membership. Of the ten, four had been at the meeting at Mr. Saccucci's house.
As already indicated, Mr. Grootenboer said nothing improper to the employees to get them to sign. However, Mr. Guardiani, one of the employees from Toronto, testified that he had signed a membership application for CLAC because he felt that since it was the union on the job, he had to sign if he was to keep working there. The evidence of another Toronto employee, Mr. Girgenti, as to why he signed was unclear, although Mr. Girgenti did twice state that he signed for CLAC "automatically".
Local 183 contends that, notwithstanding the lateness of its entry into the proceedings, the Board should reconsider its decision of March 17, 1980 and revoke the certificate issued to CLAC since at the time it was issued CLAC had been barred from being certified by force of section 12 of the Act. Having reviewed all the evidence, however, we are satisfied that CLAC neither sought out management support, nor was it a knowing beneficiary of any such support. Further, while Mr. Saccucci did refer to CLAC when speaking to the four employees at his home, as already indicated, we are satisfied that he did not tell the employees that to be employed in Windsor they had to join CLAC. In our view, there was not present here the type of employer-trade union relationship which section 12 was meant to protect against, and that accordingly section 12 did not bar CLAC's certification.
Although this is not a case where section 12 is applicable, because of Mr. Saccucci's comments to them, the four employees who were at Mr. Saccucci's home may have gained the impression that the respondent expected that they would become members of CLAC. This in turn may have influenced these employees into signing for CLAC. In these circumstances, had the matter been raised during the initial certification proceeding, the Board would likely have been concerned about the weight to be given to the membership evidence of the employees spoken to by Mr. Saccucci. However, even if the Board had decided to put no weight at all on the membership evidence relating to these four employees, CLAC would still have filed acceptable evidence of membership relating to six other employees, membership evidence which has not in any way been attacked or challenged by Local 183. At the time, these six employees represented over fifty-five per cent of the employees in the bargaining unit. Accordingly, it appears that the Board would have certified CLAC in any event. This being the case, we are of the view that the Board should not now reconsider and vary its decision of March 17, 1980.
In the result, the request for reconsideration is denied.