John Heeney v. Labourers' International Union of North America, Local 183

[1982] OLRB Rep. September 1

0803-82-R John Heeney, Applicant, v. Labourers' International Union of North America, Local 183, Respondent, v. Apex Services, Division of 226023 Holdings Ltd., Intervener.

BEFORE: M. G. Mitchnick, Vice-Chairman and Board Members J. A. Ronson and C.A.Ballentine.

APPEARANCES: John Heeney for the applicant; B. Fishbein and R. Quinn for the respondent; B. D. Mulroney, Crawford Ewington and Joyce Ewington for the inter­vener.

DECISION OF THE BOARD; September 2, 1982

1. This is an application for a declaration terminating bargaining rights, pursuant to the provisions of section 57 of the Labour Relations Act. Section 57(2) and (3), in particular, provide:

2. • (2) Any of the employees in the bargaining unit in a collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,

(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;

(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the com­mencement of the last two months of its operation, as the case may be:

(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continued to operate or after the commencement of the last two months of its operation, as the case may be.

(3) 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 103(2)(j) 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.

2. The applicant, John Heeney, has been employed by the intervener, Apex Services, for seven years. Apex has both a construction and an irrigation division, and Mr. Heeney works primarily in the irrigation division. He handles the service work in that division, and formerly used a business card which read "Service Manager". He also drives the company vehicle. When he has an irrigation job which requires additional men (which has been rare recently), he "supervises" the other men on the job, making sure that the work is done correctly. Mr. Heeney is a member of the bargaining unit and pays dues to the union.

3. Mr. Heeney testified that he is just not happy with the union in the shop. He complained that he no longer receives statutory holiday pay, that the health and welfare benefits that he had were better before the union came in, and that he was laid off last winter for the first time in seven years. On cross-examination, however, Mr. Heeney admitted that he believed the holiday pay was included with the vacation pay which is paid twice a year, but added that he preferred to see the money each day as it came up. He further admitted that he had not looked at the collective agreement to see what the new health and welfare benefits were, and that he had not bothered to go to the meeting which the union held to explain the contract at the time it was signed. Mr. Heeney testified that he did not want the union in the first place, and had never been approached by the other men to sign a card. Finally, Mr. Heeney acknowledged that the layoff in December was the result of the economy, and that there was nothing to suggest that it arose from the company having the union in.

4. The company is owned and managed by Crawford Ewington and his wife. Asked if there were any managers beside the Ewingtons, Mr. Heeney replied that there was only the foreman, Carl Dorion. He testified that the Ewingtons looked after the hiring and firing for the company, but that "if someone really got out of line, Carl would have the authority to fire". Questioned further by company counsel, Mr. Heeney stated that Carl had not actually fired anyone to date, and that he would generally expect Carl to report incidents to the Ewingtons rather than taking action on his own. Mr. Dorion himself testified that he was simply a "working" foreman, and that he assigns the men to their jobs in the morning at the shop, and then goes out on a job himself, usually with one other employee. Like Mr. Heeney, Mr. Dorion is a member of the bargaining unit and makes all of the usual contributions to the union. Mr. Dorion was also included in the layoff last winter.

5. In the words of Mr. Heeney, it was Mr. Dorion and himself who "started the ball rolling" on this application. Mr. Heeney and Mr. Dorion first discussed the question of getting rid of the union between themselves, and Mr. Dorion suggested the next step was to raise it with the other men in the shop. Mr. Heeney and Mr. Dorion discussed wording for a petition, and Mr. Dorion wrote out the following words on a piece of paper:

WE AT APEX SERVICES LTD., 3344 MAVIS ROAD, MISSIS­SAUGA, ONTARIO L5C 1T8, DO NOT WANT TO BE REPRE­SENTED BY L.I.U.N.A. LOCAL 183 OR TRUST ADMINISTRA­TION, MURRAY G. BOLGER ADMINISTRATION SERVICES LTD., 1136 DUPONT STREET, TORONTO, ONTARIO M6H 2A2, OR ANY OTHER LABOUR UNION.

Mr. Heeney could not remember where he got the reference to "Murray Bolger and Associates", but said that it must have been when he asked for his vacation pay in July. Mr. Heeney and Mr. Dorion showed the petition to the other men during a coffee break at the Red Wagon restaurant in Mississauga. According to Mr. Heeney, the meeting was led equally by himself and Mr. Dorion, and the complaints cited earlier were discussed, together with the payment of $10 a month to the union. Mr. Dorion then placed the petition on the table and said: "There it is, boys; sign it if you want to". Mr. Dorion signed it first, and Mr. Heeney after him. The other four men in the coffee shop then signed. Mr. Heeney testified that no advance notice was given to the men of the meeting in the restaurant, and that the decision to discuss the petition that day was spontaneous. All of the men were working on different jobs in the area, and Mr. Heeney testified that they all happened to arrive for their break at the same time on the day that the shop steward was absent and Mr. Heeney had the petition in his pocket. One other employee was not in fact at the restaurant because he was assigned to a location elsewhere, and Mr. Dorion pulled him off the highway on the way home and obtained his signature on the petition. The completed petition was then mailed to the Board by a friend of Mr. Dorion.

6. On the basis of the foregoing, the respondent raised a number of arguments against the petition, but the primary one stems from the role played by Mr. Dorion, the foreman. The Board was confronted with a similar dilemma in Joseph Foley, [1980] OLRB Rep. Oct. 1347, and had this to say:

7. This then brings us to the issue of whether the statement of desire can be accepted as voluntary signification of those who signed it. The Board is always concerned that employees may have signed such a statement of desire out of the belief that it had the support of management and that management might become aware of any refusal on their part to sign it. It is worth noting at the outset that we are fully satisfied that there was no actual managerial involvement in either the preparation or circulation of the statement of desire. Notwithstanding the lack of any evidence indicating actual management involvement, counsel for the union contended that employees would likely have perceived that management was involved with the statement of desire because of the leading role played by Mr. Foley in its origination and circulation and the fact that Mr. Foley is employed as a working foreman.

8. Mr. Foley is a member of Local 200 who is paid an hourly rate pursuant to the terms of the collective agreement. He is regarded as a bargaining unit employee and does not exercise any managerial functions. However, as a working foreman, Mr. Foley does perform certain supervisory functions. He is responsible for assigning work to employees in his crew and also for pointing out to them any errors which they may have made. Mr. Foley makes reports to management on the work performance of other employ­ees. Mr. Foley does not become directly involved in discussions relating to the hiring and firing of employees. However, it is reasonable to assume that his reports concerning employee work performance are taken into account by management when it consid­ers its staffing requirements.

9. Mr. Foley and another employee, Mr. J. Shipperbottom, were the ones who originally decided to seek to terminate the union's bargaining rights. Although they first met as employees of the intervener, Mr. Foley and Mr. Shipperbottom are personal friends outside of the work place. According to Mr. Foley, the reason for the decision to seek to terminate the union's bargaining rights was the feeling that union representation acted to restrict the work opportunities available to the intervener's employees. Mr. Foley made particular reference to a job at Eatons' Bayshore in Ottawa. According to Mr. Foley, he and the intervener's other employees had been working at this job for some period of time when they were laid off for five to six weeks while employees of another firm were brought in to perform some sheet metal work. Mr. Foley indicated that he felt that he and the intervener's other employees could have performed this work themselves, and that to his mind the reason they were not asked to do so was because the work was not covered by their collective agreement. Mr. Foley testified that after he and Mr. Shipperbottom decided to seek to terminate the respondent's bargaining rights, they discussed the matter with the other employees and then retained the services of a lawyer who had recently acted on Mr. Shipperbottom's behalf in a real estate transaction. The lawyer prepared the statement of desire, which was later signed by the employees in the presence of both Mr. Foley and the lawyer.

10. In assessing the voluntariness of the statement of desire, we are unable to accept the proposition that Mr. Foley stands in the same position as any other employee in the bargaining unit. Because of his supervisory functions, Mr. Foley's active involvement with the statement of desire raises concerns which would not exist if he were other than a working foreman. However, we also do not believe that his involvement with the statement of desire must invariably result in a finding that it cannot be given any weight. Rather, what is required is an examination of all of the surrounding circumstances and an assessment of whether other employees would likely have viewed Mr. Foley as acting on behalf of, or with the support of management, or whether they would likely have per­ceived him as a bargaining unit employee seeking only to further his own self-interests.

11. Employees would have been well aware of Mr. Foley's supervisory role, particularly in assigning work. They would also likely have been aware of the fact that he was responsible for making reports to management concerning their work performance. It is also reasonable to assume that the other employees would have known that notwithstanding his status as a working foreman, Mr. Foley, like themselves, was a union member within the bargaining unit. The evidence does not suggest that Mr. Foley did anything to indicate to the employees that he was acting on behalf of manage­ment. To the contrary, his case in favour of terminating the respondent's bargaining rights was based upon his view that union representation had acted to restrict the work available to himself and others. Along with the other employees he had been laid off for five or six weeks under circumstances where he felt he need not have been, and he blamed the existence of the collective agreement for this fact. When all of these considerations are taken into account, we feel that the other employees would more likely have regarded Mr. Foley as acting in what he perceived to be in his own interests rather than acting on behalf of management.

(emphasis added)

7. In the present case, the Board has asked itself the same question as in Foley, but is forced to arrive at a different conclusion. To begin with, the grounds set forth by Mr. Heeney before the Board in support of his efforts to rid the company of the union would seem to be less readily apparent to other employees in explaining the motivation of himself and Mr. Dorion than the common incident which took place amongst employees in the Foley case. In this regard, Mr. Heeney conceded that the shop employees do probably continue to receive the full amount of holiday pay, that he was in fact unaware of the benefits provided by the collective agreement, and that no blame could be attached to the union for the layoffs which occurred this last winter. Beyond this, the Board has concerns that Mr. Dorion, on the evidence, is in a position of greater influence over the employment conditions of other employees than was the working foreman in the Foley case. There formerly was a "Head" Foreman at the respondent's shop in addition to Mr. Dorion's predecessor, but that individual is gone now and Mr. Dorion is the only supervisor over the employees apart from the two owners. It is not without significance to the Board that Mr. Heeney himself, a long­service employee with supervisory responsibilities of his own, initially volunteered his expectation that Mr. Dorion would have the authority to fire an employee in an appropriate case.

8. Mr. Dorion was a driving force behind the decertification application from the beginning, and was prominently involved at every stage when employees were being asked to sign the petition. In the Board's view, it was not a credible test for employees to be asked to declare their loyalties by Mr. Dorion as they were. Because of his involvement, the Board finds it impossible to conclude that the expression filed with the Board in support of this application is a voluntary one, notwithstanding the absence of culpable conduct on the part of the employer. As a result, the statutory precondition to the testing of this question of representation has not been established.

9. The application must be dismissed.

ADDENDUM OF BOARD MEMBER JAMES A. RONSON;

1. I agree with the disposition of this matter, but have a few comments in addition. With respect to issues arising from section l (3)(b) of the Act, it has always been my position that persons who can impose discipline upon bargaining unit employees, or who can "effectively recommend" that such discipline be imposed, fall within the exception outlined in that section and cannot be members of the bargaining unit.

2. We heard evidence from Mr. Heeney that Mr. Dorion can discipline in exceptional circumstances and that the owners would back him up if he made a recommendation that someone be disciplined. Given that evidence, the application cannot succeed since an employee exercising managerial functions is one of the instigators of the statement of desire.