[1982] OLRB Rep. September 1375
0668-81-R Labourers' International Union of North America, Local 1081, Applicant, v. Warren Bitulithic Limited, Respondent, v. International Union of Operating Engineers, Local 793, Intervener
BEFORE: Ian Springate, Vice-Chairman and Board Members W. Gibson and C. A. Ballentine.
APPEARANCE: C. M. Mitchell, L. Steinberg and Ernie Bairos for the applicant; S. C.Bernardo, Joe Gurowka and Eric Yonge for the respondent; Maureen Kenny, Lewis Gotthell, Joe Kennedy, Jack Redshaw and H. B. Gillis for the intervener.
DECISION OF THE BOARD; September 14, 1982.
1This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act.
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3By way of this application the applicant, Labourers' International Union of North America, Local 1081 (the "Labourers' Union") is seeking to acquire bargaining rights for construction labourers in the employ of the respondent in the Kitchener area. The Board's practice is to describe the geographic scope of bargaining units in the area so as to encompass all of the Regional Municipality of Waterloo except for that portion lying within the geographic township of Beverly. Both the respondent and International Union of Operating Engineers, Local 793, (the "IUOE") contend that the construction labourers for whom the Labourers' Union seeks to be certified are already represented by the IUOE and are covered by the terms of a subsisting collective agreement entered into between the respondent and the JUGE. If this contention is correct, then pursuant to the provisions of section 5 of the Act, the instant application would be untimely.
4The respondent is a paving contractor that operates in various parts of the province. Until the events set out below, its employees working in the Regional Municipality of Waterloo had not been represented by any trade union. In certain other areas of the province, however, the labourers in its employ were represented by locals of the Labourers' Union and its equipment operators were represented by the IUOE.
5On May 8, 1980 the IUOE applied to the Board to be certified to represent a craft unit of equipment operators in the employ of the respondent in the Regional Municipality of Waterloo. The IUOE claimed that there were nine employees in the applied for bargaining unit, whereas the respondent initially took the position that there were eighteen. After somewhat protracted proceedings, the Board concluded that there had in fact been nine employees in the bargaining unit at the time the application was filed. The IUQE filed acceptable membership evidence on behalf of five of these employees. In that this represented membership evidence on behalf of more than 55 per cent of the employees in the bargaining unit, the Board issued a certificate to the IUOE with respect to equipment operators. The certificate was dated March 10, 1981.
6In February of 1981 the respondent realized that the IUOE was likely to be certified to represent its equipment operators. The respondent was concerned that such a certification might interfere with its practice of at times assigning labourers to operate equipment and equipment operators to do labouring work. In response to this concern, officials of the respondent proposed to Mr. J. Kennedy, the IUOE's business manager, that they enter into an "all employee" collective agreement which would cover not only equipment operators, but also labourers and truck drivers. Mr. Kennedy accepted this proposal; in large measure because he felt that it was one way of ensuring that the respondent would enter into a collective agreement with the union.
7As already indicated, the IUOE was formally certified for a unit of equipment operators on March 10, 1981. On April 3, Mr. Kennedy and Mr. J. Gurowka, the respondent's executive vice-president and general manager, met to discuss a possible collective agreement. At this meeting the two men reached agreement on most of the terms for a proposed collective agreement. One of the terms agreed to was the wording of an "all employee" recognition clause. It should be noted that at the time of the meeting, the respondent had not yet recalled any employees from its annual winter shutdown. On May 20, 1981, after a number of employees had been recalled, Mr. Gillis, an IUOE representative, met with the employees at the respondent's shop in Kitchener. Mr. Gillis advised the employees of what had occurred to date. Some of the employees told Mr. Gillis that they did not wish to be represented by the IUOE, while others asked questions about "how good a deal" the union could get for them.
8On May 25, 1981 the IUOE and the respondent signed a Memorandum of Agreement setting out the terms of collective agreement which was to remain in effect until December 31, 1982. The memorandum was made "subject to ratification by the employees involved". On May 25th it was agreed that Mr. Kennedy would be allowed to meet with the respondent's employees on the morning of May 16th at the company's yard in Kitchener. The respondent's foremen were directed to advise the employees of the meeting.
9On the morning of May 26th Mr. Kennedy met with approximately fourteen of the respondent's employees. Both equipment operators and labourers were present at the meeting. Mr. Kennedy opened the meeting by introducing himself to the employees. He then stated that the IUOE had been certified to represent equipment operators, but that the company and the union had agreed to expand the bargaining unit to cover all employees. Mr. Kennedy also explained that the union had negotiated a proposed collective agreement, which he wanted to review with them. There was some marked variations between the testimony of the various witnesses concerning what happened during the remainder of the meeting. Having carefully reviewed the evidence, however, we are satisfied that the following is what occurred.
10After Mr. Kennedy had made his opening statement, a number of labourers indicated to him that they did not want to be represented by the union. However, as the meeting progressed, objections were raised only with respect to certain of the terms of the proposed collective agreement. As a result of these objections Mr. Kennedy on three separate occasions left the meeting to talk with Mr. Gurowka. As a result of these talks Mr. Gurowka agreed to certain wage increases and also to advance the date of one of the wage increases already agreed to. Mr. Gurowka also agreed to having the respondent pay the employees for the time spent at this meeting as well as for the time they had spent meeting with Mr. Gillis on May 20th. Each time after he met with Mr. Gurowka, Mr. Kennedy returned to the meeting and advised the employees as to what had been agreed to. Towards the end of the meeting Mr. Kennedy asked if there was anything more the employees wanted him to do. When no one spoke up Mr. Kennedy assumed that although no formal ratification vote had been taken, he had the approval of the employees for the collective agreement. Mr. Kennedy also assumed that he had the approval of the employees to the expansion of the scope of the bargaining unit. It is clear from the testimony of some of the labourers who attended at the hearing, however, that although they did not speak out at the end of the meeting, at the time they did not want to be represented by the IUOE. It should be stressed that at no point during the meeting were the labourers ever asked to vote on or otherwise indicate whether or not they wanted the IUOE to represent them.
11It is clear that both the IUOE and the respondent understood that the proposed terms of the collective agreement had been ratified by the employees at the meeting on May 26, 1981. Subsequent to May 26th Mr. Kennedy reminded the respondent that the collective agreement provided for mandatory union membership in the IUOE. Subsequent to this, one of the company's foremen drove Mr. Gillis, the union representative, to the various sites where the respondent's employees were working. Mr. Gillis had all of the employees sign IUOE membership cards. It is probably safe to assume that in talking to the employees Mr. Gillis advised them that it was now a condition of continued employment with the respondent that they sign IUOE cards. In these circumstances we do not view these cards as evidence of employee wishes on May 26, 1981. It is to be noted that a few weeks after they signed IUOE cards a number of labourers employed by the respondent signed membership cards in the Labourers' Union, and these cards were filed in support of the Labourers' application for certification.
12The Labourers' Union takes the position that at the time the collective agreement was entered into the IUOE was not entitled to represent labourers, and accordingly the collective agreement should be set aside insofar as it purports to apply to them. In support of this position, the Labourers' Union relies on section 60 of the Act, which provides as follows:
60.-(l) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition agreement as provided for in subsection 16 (3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing an employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation, or, if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.
(2) Before disposing of an application under subsection (1), the Board may make such inquiry, require the production of such evidence and the doing of such things, or hold such representation votes, as it considers appropriate.
(3) On an application under subsection (1), the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement.
(4) Upon the Board making a declaration under subsection (1), the trade union forthwith ceases to represent the employees in the defined bargaining unit in the recognition agreement or collective agreement and any collective agreement in operation between the trade union and the employer ceases to operate forthwith in respect of the employees affected by the application.
13At the commencement of the hearing it was contended by counsel for the IUOE that section 60 had no application to these proceedings in that the section refers to trade unions which have not been certified, whereas the IUOE had in fact been certified by the Board. The Board orally rejected this contention. The IUOE was certified for a unit comprised only of equipment operators. Had the union and the respondent entered into a collective agreement covering such a bargaining unit, then section 60 could have no application. As it was, however, they entered into a collective agreement for a different and larger bargaining unit. In that with respect to this bargaining unit that the IUOE had not been certified, the Board indicated that the provisions of section 60 did apply. The Board further advised the parties that pursuant to section 60(3) of the Act, the onus of establishing that the IUOE was entitled to represent the employees in the enlarged bargaining unit rested with the respondent and the IUOE.
14Counsel for the respondent contended that the applicable date for determining whether the IUOE had been entitled to represent the employees was April 3, 1981, the date on which the IUOE and the respondent agreed upon the wording of an "all employee" bargaining unit. As of April 3, 1981 the respondent had no employees. It was the submission of respondent's counsel that all the parties had done on April 3rd was to extend the scope of the bargaining unit to cover a vacant classification, and that the Board had approved of such a procedure in J. C. Milne Const. Co. (Canada) Inc., [1979] OLRB Rep. March 220. In the J. C. Mime case the Board concluded that there was nothing improper about an employer voluntarily recognizing a local of the Labourers' Union on an industrial, commercial and institutional sector project not only for construction labourers but also for employees engaged in cement finishing, waterproofing and restoration work, even though at the time no one was actually performing cement finishing, waterproofing or restoration work. In our view the reasoning in the J. C. Milne case has no application to the facts before us. Section 60 makes it clear that the applicable time for ascertaining whether a union was entitled to represent a unit of employees is when the agreement was entered into. This was not on April 3, 1981, as the respondent contends but rather on May 25, or May 26, 1981 at a time when there were in fact labourers in the respondent's employ. We would also note that in the J. C. Milne case the Board based its decision largely on the fact that Ontario Locals of the Labourers' Union represent substantial numbers of employees engaged in cement finishing, waterproofing and restoration work, and that in recognition of this, the employee bargaining agency for the Labourers' Union had been designated to represent in bargaining in the industrial, commercial and institutional sector not only construction labourers, but also employees engaged in cement finishing, waterproofing or restoration work. The IUOE does not have a similarly widespread practice of representing labourers, and its designation makes no reference to labourers.
15In the past the Board has said that for a trade union to establish its entitlement to enter into a voluntary recognition collective agreement, the union must establish that it represented a majority of the employees in the bargaining unit at the time it entered into the agreement. See: TR.S. Food Services Limited [19801 OLRB Rep. March 360. The respondent filed a list of its employees in the Kitchener area on May 26, 1981. The list contained a total of fifteen names. In its application for certification, the IUOE filed membership evidence on behalf of three of these employees. No additional membership evidence was filed in these proceedings. Accordingly, it is clear that at the time the collective agreement in question was entered into, fewer that 50 per cent of the employees in the bargaining unit were members of the IUOE. Accordingly, the IUOE membership evidence does not establish that it was entitled to represent the employees in the bargaining unit.
16It was the contention of counsel for the respondent that as a result of the Board's action in certifying the IUOE on March 10, 1981, the union was automatically entitled to represent all equipment operators, whether union members or not. Counsel further noted that the list of employees filed by the respondent indicated that most of its employees as of May 26, 1981 were classified as full or part-time equipment operators. The viva-voce evidence before us, however, indicates that those classified on the list as part-time operators operated equipment only infrequently and that they were essentially employed as labourers. Further, there is nothing to indicate that any of them actually operated equipment on May 26, 1981. This being the case, we are satisfied that at the relevant time they did not come within the unit of operators covered by the Board's certificate. Having regard to the above, we are satisfied that only six (or seven if a paver screed operator is included) of the fifteen employees employed by the respondent on May 26, 1981 came within the bargaining unit covered by the IUOE's certificate. Accordingly, even if we were to accept the respondent's approach to the issue as correct, even then the IUOE would not have been entitled to represent a majority of the employees covered by the collective agreement.
17The position taken by the IUOE is that the involvement of the employees at the meeting with Mr. Kennedy on May 26, 1981 indicated that they desired to be represented by the IUOE, and that this was sufficient to establish that the IUOE was entitled to represent them. In support of this position the respondent relied on the Board's decision in Gilbarco Canada Ltd. [1971] OLRB Rep. March 155. In that case an independent union had been certified to represent the employees of a company in Toronto. Subsequently the company moved its operations to Brockville, and a few of the Toronto employees moved with the company. Under the leadership of one of the employees from Toronto a new independent union was formed bearing the same name as had the union in Toronto. The formation of the new union was done at a meeting where a majority of the Brockville employees were in attendance. Later a majority of the employees also attended at meetings where they discussed negotiations with the company and ratified a proposed collective agreement. In these circumstances, the Board concluded that the union represented the employees in Brockville. The Board also went on to comment as follows:
There is a further ground for rejecting this application which flows from equity. The function of section 45a (now section 60) is to protect employees by enabling this Board to set aside collective agreements entered into by a trade union and an employer in a situation where the trade union does not represent the employees. The section envisions protecting the rights of employees to join a trade union of their own choice and to have their chosen trade union represent them in collective bargaining. In this case the employees freely and actively selected a trade union to represent them and participated in the procedures leading to the signing of a collective agreement. In our view section 45a is not intended to protect the employees in this type of situation. There is no evidence of any misrepresentation or fraud which induced these employees to set up the Gilbarco Employees' Union and to ratify the collective agreement.
18In our view the facts before us are so different from those in the Gilbarco case, as to make the reasoning in that case inapplicable. Whereas the Gilbarco case involved employees voluntarily grouping themselves together to form an independent trade union, here there was no comparable "grass roots" movement on the part of the labourers to bring in the IUOE. Instead the IUOE and the respondent agreed to expand the bargaining unit without any consultation with the affected employees. Employees were told by their foremen to be at the May 26th meeting, and at no point during the meeting were they asked to give their views about being represented by the IUOE. In our view, what occurred on the 26th fell far short of demonstrating that the employees "freely and actively selected a trade union to represent them" as was the situation in the Gilbarco case. We are accordingly not satisfied on the basis of the events at the meeting on May 26, 1982 that the IUOE was entitled to represent the employees in the bargaining unit.
19Having regard to the above, we are of the view that the respondent and the IUOE have failed to establish that the IUOE was entitled to represent the employees in the bargaining unit at the time the collective agreement was entered into, and pursuant to section 60(1) we do so declare. In accordance with the provisions of section 60(4) of the Act, the collective agreement between the respondent and the IUGE no longer applies to employees not covered by the Board's certificate of March 10, 1981.
20The Board now turns to consider the application for certification filed by the Labourers' Union.
21On the basis of the material before it, the Board finds that Labourers' International Union of North America, Local 1081, is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
22The Board further finds that all construction labourers in the employ of the respondent in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township), excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
23The respondent filed a list of employees indicating that there were six employees in the bargaining unit at the time the application was filed. The applicant filed evidence of membership on behalf of all of these employees. The evidence of membership takes the form of one certificate of membership and five combination applications for membership and receipts. The certificate is signed by the member and indicates that monthly dues of $8.00 have been paid for at least one month within the six month period immediately preceding the terminal date of the application. The certificate is checked and certified correct by an officer of the applicant. The combination applications for membership are signed by the employees and the receipts are countersigned and indicate that a payment of at least $1.00 has been made within the six month period immediately preceding the terminal date of the application. The money was collected by more than one person. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
24The Board is satisfied on the basis of all the evidence before it that more than fifty-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 July 3, 1981, the terminal date fixed for this application and the date which the Board determines, under section 103(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.
25A certificate will issue to the Labourers' International Union of North America, Local 1081.