[1982] OLRB Rep. November 1727
0875-82-R Cornelius Zondag, Applicant, v. Labourers' International Union of North America, Local 1081, Respondent, v. Thomas Construction (Galt) Limited, Intervener
BEFORE: D. E. Franks, Vice-Chairman, and Board Members R. J. Swenor and BK. Lee.
APPEARANCES: Cornelius Zondag for the applicant; B. Fishbein, L. Schertberg and T Connolly for the respondent; W A. Meyer for the intervener.
DECISION OF THE BOARD; November 22, 1982
This is an application for termination under section 57 and section 60 of the Labour Relations Act.
Counsel for the respondent trade union raised two preliminary ~objections to the present application. The first, that it is untimely and the second, concerning the status of the applicant to bring the present application.
The present application was filed on July 29, 1982. The collective agreement in force between the respondent and the intervener is the provincial collective agreement relating to labourers and the agreement covering the period after April 30, 1982 to April 30, 1984 was in effect from June 9, 1982 to April 30, 1984. It would appear, therefore, that the present application not having been made within the last two months before the expiring of the collective agreement is untimely.
The applicant, however, filed with the Board certain correspondence which he had with the Board prior to the making of the instant application. This correspondence begins with a letter dated April 28, 1982 addressed to the Labour Relations Board and reads as follows:
"As I was at your Branch on April 28/82 and did not get any satisfactory answers from your Solicitor Mr. D. Watson I would like to inform the Board that as an employee of Thomas Construction (Galt) Ltd. have never been approached nor have applied to the Labourers' International Union of North America to have myself and/or co-worker Andus Orosz represent us as bargaining agent.
We do not wish to have the Labour Union represent us.
If there has been an agreement drawn up or proposed we hereby with this writing make an application to the Ontario Labour Relations Board for decertification of such an agreement."
The letter is signed by the applicant and the other employee in the bargaining unit. This letter was responded to by a Board solicitor on May 13, 1982:
"Thank you for your recent letter addressed to the Ontario Labour Relations Board, which has been directed to my attention for reply. You requested the decertification of the Labourers' Union as bargaining agent for employees of Thomas Construction. You stated that you are employed by that Company and that you had never been approached by the Union and that you had at no time applied for representation by that Union.
The Board's records indicate that the certification in question of Local 1081 of the Labourers' Union took place back in 1973. You do not state whether you were employed at Thomas Construction at that time. In any event, it is clear that the Union demonstrated the required degree of support of employees in order to be certified at that time.
Once a trade union obtains bargaining rights, it continues to represent the employees in that bargaining unit unless and until such bargaining rights are terminated in accordance with the Labour Relations Act. If the majority of employees decide that they no longer wish to be represented by the trade union, the Act makes provision for termination of bargaining rights as long as it is done in timely fashion and in accordance with the proper procedures. Information about the timeliness and procedures for termination are summarized at pages 47—50 of The Guide to the Labour Relations Act, a copy of which is enclosed herewith.
If after reading those papers you feel that you have the required support for a termination application and that such an application will be timely at this time, you may wish to pursue the matter before the Board by filing a formal application on the appropriate forms available from this Board. The Board cannot entertain a request for termination unless a formal application is filed in the appropriate forms. Under section 57(2) of the Act, to have any chance of success at least forty-five per cent of the employees in the bargaining unit must voluntarily signify in writing that they no longer wish to be represented by a trade union. If such an application is made in timely fashion, the Board conducts a vote to ascertain the wishes of the employees. If a majority of those voting vote against the union, the Board decertifies the trade union. In deciding whether to pursue the matter before the Board you may consider obtaining legal advice from a solicitor.
I trust that this letter has been of some assistance to you.
The letter prompted the following correspondence from the applicant:
"In answer to your letter from May 13, 1982 I would like you to know that I was not aware that we as employees of Thomas Construction (Galt) Ltd. had any connection with the Labourers' Union Local 1081. It was through a grievance filed by the Union that the Company made me aware of it.
I have been employed with Thomas Constr. since 1969 and I am aware that at a certain job in 1973 they did employ Union Labour. After checking this out with Thomas Constr. they did advice me that there never was a signed agreement.
As far as Union Certification this was never posted or mentioned at that time at any other Construction site or at the shop where as a truckdriver and yardman I am mostly employed. As far as I am concerned there is no Union no agreement and no certification if however you feel that there was a proper certification I would like you to forward me the proper forms for Decertification."
On June 3, 1982 the applicant was sent blank forms and a copy of the Guide to the Labour Relations Act. On June 15, 1982 the applicant sent the following letter to the Board:
"As I have written to your solicitor Nimal Dissanayake on May 31, 1982, that I have been employed with Thomas Construction (Galt) Ltd. since 1969 I have never been approached nor have I contacted the Labour Union Local 1081. It was through a grievance from them against me, that I have been made aware that there is a Union involved.
For this reason alone I cannot understand how the Labour Board can certify a Company, where the employees are not even aware of the situation and not even have a vote. Our basic democratic right!!!
I don't know if form 17 is the proper form to use as I don't believe that we are certified, but it seems to me the only option left under the circumstances.
Subsequently, on June 28, 1982 the Board received an application in Form 17 dated June 22, 1982. That prompted the following letter from the Board's Senior Solicitor:
"Your letter of June 15, 1982, and a termination application which was filed with the Board on June 24th, 1982, has been directed to my attention.
Your letter questions how the Labour Relations Board could certify a trade union, when you, as an employee of the company were never approached, nor have you contacted the union.
In order for the Board to certify the union, it must have been satisfied at the relevant time that the union represented the requisite number of employees in the bargaining unit. The certification of the trade union in 1973 gave the union the right to bargain with the employer on behalf of the employees in the bargaining unit it represented. If the union reached a collective agreement with the employer then the bargaining rights which the union now holds flows, not from the certificate but from the collective agreement between the employer and the trade union.
Your application for termination of bargaining rights is unclear. Paragraph five of your application states "other relevant statements:
No proper certification". It is unclear from your application under what section of the Labour Relations Act you are seeking termination of the trade union's bargaining rights. Furthermore, the bargaining unit description which is required in order to process the application is the description in the bargaining unit in the collective agreement between the union and your employer or if there is no agreement, and never has been an agreement, then it would be the description in the certificate issued by the Labour Relations Board.
The earlier letter to you from Mr. Dissanayake outlines the procedure whereby an application can be made for termination of bargaining rights pursuant to section 57 of the Labour Relations Act. That letter also enclosed a Guide to the Labour Relations Act which referred to other provisions of the Act dealing with termination of bargaining rights which may be relevant to your situation.
Under the circumstances, the Board cannot process your application until you indicate which section or sections of the Labour Relations Act you are relying upon in order to obtain a declaration terminating the union's bargaining rights, and provide the Board with an address for the respondent trade union, together with a bargaining unit description.
I am returning your application to you so that you may file it after supplying the information needed to process it."
After the above letter, the present application was filed by the applicant by registered mail on July 29, 1982.
The foregoing exchange of correspondence is based on the fact that at the time of the first letter by the applicant, Mr. Zondag, to the Labour Relations Board, there was before the Board another proceeding involving the referral of a grievance to arbitration under section 124. Those proceedings were before the Board and the issue in these proceedings at that time was whether or not the respondent trade union had bargaining rights with respect to labourers employed by the intervener. That matter was before another panel of this Board and a decision was not issued until July 9, 1982. Thus, prior to July 9, 1982, Mr. Zondag could not refer to either a collective agreement to which the respondent was party or a certificate by which the respondent obtained bargaining rights since the only certificate dealt with the Counties of Brant and Norfolk.
The respondent argues that this application was not made within the appropriate time limits set out in the Labour Relations Act and that the Board could not consider any of the earlier applications or correspondence as sufficient to constitute an application for termination of bargaining rights. In the circumstances of the present case, we cannot accept this argument by counsel for the respondent. There is no doubt that the present application would have been timely had the letter from Mr. Zondag dated April 28, 1982 been accepted as an application for termination of bargaining rights notwithstanding that it was not filed in Form 17. The Board has in previous cases allowed letters such as the letter of April 28th to be accepted as timely application for termination of bargaining rights. (See, for instance, M. G. Burke Investments Ltd., [1978] OLRB Rep. June 549 at 551). In so doing, the Board examines the document and uses section 84 of the Board's Rules of Procedure which reads as follows:
"No proceeding under these Rules is invalid by reason of any defect in form or any technical irregularity."
Under this provision of this rule the Board has the power to relieve against such circumstances as in the present case. Clearly, the correspondence from Mr. Zondag indicates a desire to apply to the Board for termination of bargaining rights. The fact that at the time he could set out no more than what is in the letter of April 28th is not surprising, since no one knew the status of affairs between the respondent, the intervener and the employees until the Board's decision of July 9, 1982. In these circumstances, therefore, we are prepared to accept the present application as having been filed on April 28, 1982, that is, within the time limits set out in section 57 of the Act.
- We turn now to the second preliminary objection raised by counsel for the respondent, that is, that section 57 contemplates an application which can only be made by an employee in the bargaining unit. The respondent goes on to argue that Mr. Zondag is an employee of the intervener whose employment is contrary to the union security provisions of the collective agreement in force between the respondent and the intervener. (Indeed, enforcement of the union's security provision is one of the issues before the panel of the Board dealing with the section 124 grievance referral referred to above). Counsel for the respondent argues that section 57 of the Act should be interpreted in a manner such that only those employees lawfully employed in the bargaining unit are entitled to make an application for termination. In support of this proposition he cites the Board's decision in April Waterproofing Limited [1981] OLRB Rep. Nov. 1577. That case was a displacement application in which one union was seeking to displace another union as bargaining agent. In that decision the Board found as follows:
"7. The displacement of one union's bargaining rights by another is by no means rare in the construction industry. Such cases generally involve situations where the applicant union has won over the allegiance of members of the incumbent union who were hired by the employer in accordance with the provisions of the incumbent's collective agreement. The instant case, however, involves an entirely different situation. Here, the respondent did not hire the three individuals in dispute through the intervening union as required by the terms of the relevant collective agreement, but rather, it hired them "off the street". The applicant in turn seeks to displace the intervener's bargaining rights on the basis of the fact that two of the individuals so hired are its supporters.
There can be little doubt but that at the relevant time there existed a common-law employee-employer relationship between the respondent and the three individuals challenged by the intervener. That by itself, however, is not determinative of their status as bargaining unit employees. See Local 273. International Longshoremen's Association v. Maritime Employer's Association, 1978 CanLII 158 (SCC), [1979] 1 S.C.R. 120. In our view, the bargaining unit is comprised of employees employed under the terms of the applicable collective agreement. To be so employed, an employee must have been hired in accordance with the provisions of the agreement. The three individuals in dispute were not hired in accordance with the provisions of the collective agreement and accordingly, in our view, they do not come within the bargaining unit covered by the collective agreement. This being so, we are satisfied that in ascertaining the number of employees in the bargaining unit for the purposes of section 7(1) of the Act, the three individuals in dispute should not be taken into account."
Thus, the respondent argues in the present case that Mr. Zondag and the other employee not having been properly hired through the hiring hall should not be viewed as employees in the bargaining unit for the purposes of section 57(2) of the Act.
The Board's decision in April Waterproofing Limited clearly deals with a situation where the employer in hiring the employees questioned, intended to avoid the incidence of his collective bargaining obligations and, indeed, the Board's reasoning in the April Waterproofing Limited case strikes at a possible method of easy abuse by employers, particularly in the construction industry in relation to representation matters before this Board. Thus, for example, on a termination case an employer could choose to avoid his obligations under a collective agreement to seek employees from a trade union's hiring hall and employ persons from either another trade union or totally antithetical to construction trade unions at the time when the open period for the collective agreement is approaching. In such circumstances, it would not be surprising if another union were to apply for certification or if the employees were to apply for termination of bargaining rights. The employer would have "fostered" such a representation application by laying the necessary ground work simply by avoiding his collective bargaining obligations with the trade union representing employees in a particular bargaining unit. In such circumstances, the Board would rely on the April Waterproofing Limited decision to find that the employees in question were not lawfully or not properly employees in the bargaining unit in a subsequent representation matter.
It is difficult, however, in the present case to suggest that Mr. Zondag and the other employee involved in this application fall within the concern of the Board expressed in the April Waterproofing Limited decision. Here Mr. Zondag was an employee of the intervener in the Kitchener-Galt area before the time when the respondent trade union obtained bargaining rights for the Counties of Brant and Norfolk (upon which the present bargaining rights of the respondent are ultimately based). Mr. Zondag and Mr. Orosz are longstanding employees of the intervener. Indeed, one cannot help but note that the argument that they have been employed contrary to the union security provisions of the respondent's collective agreement is based on their being in a bargaining unit of construction labourers. Otherwise, if they were not in a bargaining unit of construction labourers, the respondent could not claim a violation of any union security provision.
In the present circumstances, therefore, we will not interpret the April Waterproofing Limited case as suggested by counsel for the respondent, and we are, therefore, prepared to find that Mr. Zondag was an employee in the bargaining unit at the time the present application for termination of bargaining rights was made.
In view of the foregoing, the preliminary objections by counsel for the respondent to the present application are dismissed.
The Registrar is directed to list the matter for continuation of hearing at which point the Board will inquire into the origination, preparation and circulation of the documents relied on by the applicant in support of its application for termination in the present matter.