Ontario Labour Relations Board

[1982] OLRB Rep. January 49

0868-81-R United Brotherhood of Carpenters and Joiner of America, Local 1190, Applicant, v. Fernway Construction Corp., Respondent, v. Group of Employees, Objectors

BEFORE: Ian Springate, Vice-Chairman, and Board Members L. Hemsworth and A. Hershkovitz.

APPEARANCES: David McKee and Onilio Zanin for the applicant; Alan D. Direnfeld for the respondent; Eamonn Quarney and S. Shmihelsky for the objectors.

DECISION OF THE BOARD; January 19, 1982

1. This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act.

2. This matter originally came before a differently constituted panel of the Board which, without holding a hearing, certified the applicant on August 4, 1981 as the bargaining agent for certain employees of the respondent. The respondent subsequently advised the Board that it had not received notice of the application. The Board, after holding a hearing into the matter, accepted this contention, and on October 27, 1981 it revoked the certificate which had been issued to the applicant. The matter then came on for a hearing before this panel of the Board which dealt with the application de novo.

3. The Board finds that the applicant is a trade union within the meaning of section 1(1 )(p) of the Labour Relations Act.

4. The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act.

5. The Board further finds that this application for certification does not relate to the industrial, commercial and institutional sector of the construction industry referred to in section 117(e) of the Labour Relations Act.

6. The Board further finds that all carpenters and carpenters' apprentices in the employ of the respondent in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Township of Esquesing, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, 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.

7. The respondent filed a list of employees in the bargaining unit as of the application date which contains the names of two individuals. The applicant filed evidence of membership on behalf of both of these individuals. The applicant also filed evidence of membership on behalf of twelve other persons. The respondent's position is that these twelve other persons were not employed in the bargaining unit at the relevant time that they were either independent contractors or not employed as carpenters or carpenters' apprentices. At the hearing the applicant indicated that it was prepared to have the application dealt with on the basis that the respondent's list of employees was correct.

8. The evidence of membership filed by the applicant takes the form of completed sections I and 2 of the following document. In every case, section 2 acknowledges the payment of $1.00 to the union. The third section is meant to be given to an employee as a receipt for money payment:

No. 5252

APPLICATION FOR MEMBERSHIP

Local…………………………Date ………………………………………………...

United Brotherhood of

Carpenter, and Joiner of America

Name …………………………………………………………………………….…..

I, ………………………………………………………………………...,hereby

apply far membership in the above-named Local Union of the United Brotherhood of Carpenters and Joiners of America ("the Union") and hereby of my own free will and accord, authorize the Union or its designate to act for me as collective bargaining agent in all matters pertaining to rates of wages, hours of work and other conditions of employment.

SIGNATURE OP APPLICANT……………………………………...……………

I hereby certify that the amount shown below was paid by me to be applied to initiation fees or monthly dues of the Union, and as evidence of good faith in my application for membership.

Amount…………………………………………………………………/100 Dollars

Signature of Applicant…………………………………………………………...….

SIGNATURE OP RECEIVER

OF ABOVE MONEY……………………………………………………………….

APPLICANT'S RECEIPT No. 5 2 5 2

Local ………………………………………..

United Brotherhood of Carpenters and Joiners of America.

Date……………………………………Amount Paid $.............................................

…………………………………………………………………………. /100 Dollars

Address ……………………………………………………………………………...

Date of Birth …………………………………..Phone No………………………… Employed by ……………………………………………………………………..… Signature of Receiver ………………………………………………………………

10. The respondent challenged the acceptability of the membership evidence filed by the applicant on the grounds that it had been obtained through the use of false statements made to the employees. To this end, the respondent called as witnesses Mr. Eamonn Quarney, who is one of the two employees included on the list of employees and Mr. S. Shmihelsky, a person who signed a card but whom the respondent contended was not at the relevant time an employee in the bargaining unit. The person who acted as the collector of the monetary payment from these two persons acted as the collector for only one other person, an individual who also was not included on the list of employees. It should be noted that the collector was not at the hearing. The applicant contended that the lack of particulars in the respondent's allegations had made it difficult for it to determine prior to the hearing which collector was covered by the respondent's allegations relating to the use of false statements and, indeed, on this basis the applicant sought to have the Board decline to hear any evidence in support of the allegations. The Board, however, ruled that it would hear the respondent's evidence, but that the applicant could request an adjournment at the end of the respondent's case so as to give it an opportunity to call the collector. At the end of the respondent's case, the applicant decided not to request an adjournment, and in consequence the collector was not called as a witness.

11. In his examination-in-chief, Mr. Quarney testified that in signing the application for membership and the attached receipt, and paying $1.00 to the union, he did not feel that he was thereby becoming a member of the union, only that he would be receiving more information about the union. Asked why he had reached this conclusion, Mr. Quarney replied that the collector had said that he would be hearing from the union. Mr. Quarney added that he had tried once before to join the applicant trade union, but at that time was told he needed "papers" (presumably tradesman's qualification papers) and $200.00, and accordingly he felt that $1.00 was not sufficient to become a member. Although in his examination-in-chief Mr. Quarney testified that he had not read the application for membership totally before signing it, in cross-examination he acknowledged that prior to signing the document he had read the heading "application for membership" and had also read the second section which certifies the payment of money "as evidence of good faith in my application for membership". Mr. Quarney also agreed that he had been given the third section headed up "applicant's receipt". In cross-examination, Mr. Quarney acknowledged that at the relevant time he knew that he was signing an application for membership, but added that to his knowledge that did not amount to actual membership in the union. When asked by counsel for the applicant what he felt he had been applying for, Mr. Quarney replied, "membership if the union came in". It should be noted that at one point Mr. Quarney testified that the collector stated he needed signatures "to bring in the union

12. There are situations in which the Board will refuse to give any weight to an application for membership signed by an employee, such as when the employee has been threatened or coerced into signing the document. See: Chemtrusion Inc., [1979] OLRB Rep. Dec. 1150. In the instant case, however, it appears that Mr. Quarney signed the application for membership voluntarily. Further, on the basis of Mr. Quarney's own testimony, there is nothing to indicate that the representative of the union sought to mislead Mr. Quarney about what it was he was signing. Mr. Quarney knew it was an application for membership. Where the confusion seems to have arisen is with respect to the effect of an application for membership. In certain trade unions, the signing of an application for membership is but the first step in satisfying the requirements for membership under the union's constitution. However, for the purposes of the Labour Relations Act, section l(l)(l) of the Act defines a member of a trade union as including a person who has applied for membership in the union and has paid at least $1.00 to the union in respect of initiation fees or monthly dues.

13. Mr. Shmihelsky testified that the collector advised him that he was merely applying for an application form on which he could apply for union membership, as opposed to applying for membership itself. Mr. Shmihelsky added that he also felt that this was the case in that at one point he had joined the Canadian Paperworkers Union, which required that he both fill in a lengthy form and also be sworn into membership. For the purpose of these proceedings, we are prepared to assume that no weight should be given to Mr. Shmihelsky's card. However, Mr. Shmihelsky's name was not included on the list of bargaining unit employees, and Mr. Shmihelsky himself took the position that he was not employed as a carpenter. Accordingly, the setting aside of Mr. Shmihelsky's card cannot effect the fact that both of the employees on the respondent's list of employees had signed an application for membership in the applicant trade union.

14. As already indicated, section l(l)(1) of the Act defines a "member" of a trade union for the purposes of the Act as a person who has applied for membership in the union and has paid to the union at least one dollar on account of initiation fees or monthly dues. Having regard to the material before us, the Board finds 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 November 10, 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.

15. Three statements of desire were filed in opposition to the application for certification. Two of these were signed by individuals not included on the respondent's list of employees, and accordingly cannot affect the outcome of the application. (It should be noted that both of the individual's involved claimed in their statements that they were not employees in the bargaining unit.) The third statement of desire was signed by Mr. Quarney. If the Board were to accept this statement of desire as a voluntary expression of Mr. Quarney's views, the Board would likely follow its normal practice and exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote.

16. Before the Board will give effect to a statement of desire, it must be satisfied that the statement is free from the actual, or perceived, influence of management. Often, as in the present case, a statement of desire will be signed by an employee who has indicated his support for the union only a short time before; and while an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a statement opposing the union. An employee may sign a statement because he fears that a refusal to do so will expose his support for the union and will be made known to his employer. Similarly, an employee may be motivated to sign a statement because of employer conduct subsequent to his joining the union which suggests that continued support for the union will result in the loss of his job, or other adverse employment consequences. In neither case can one regard his signing the statement as truly voluntary because in both cases, it results from a perceived threat to his job security. On the other hand, a union supporter may well have reconsidered his position in response to the arguments of his peers, or because of his own reassessment of the relative benefits of collective bargaining. There may be no employer misconduct and no perceived threat to job security. It is for this reason that the Board undertakes the inquiry contemplated by Rule 48(5) in order to satisfy itself from the circumstances of the origination, preparation and circulation of the statement, that the document truly represents the voluntary wishes of the employees who signed it. In the Radio Shack case, [1978] OLRB Rep. Nov. 1043, the Board discussed the nature of this inquiry in a long passage to which we might usefully refer:

"The Board has long held that there is an onus on a party relying on a statement of desire in opposition to an application for certification to establish that the 'sudden change of heart' by those who have signed for the union and shortly thereafter repudiated the union, represents a voluntary change of heart. The Board recognizes the delicate and responsive nature of the employer-employee relationship and having regard to it, is circumspect in its assessment of the voluntariness of any statement of desire which bears the signatures of employees who have also signed cards in support of the union. The Board's approach to these matters is described in the leading Pigott Motors case, 63 CLLC 9116,264 in the following terms:

'In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interest and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories.'

Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in deciding whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its origination, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not management might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd. and Canadian Paperworkers Union [1975] OLRB Rep. Nov. 813 and the cases cited therein.)"

Similar views were expressed in Valley Bottling of Canada Ltd., [1978] OLRB Rep. Aug. 784 where the Board put it this way:

"The Board has held in numerous decisions that a natural suspicion attaches to a statement of desire which follows on the heels of a union organizing campaign. The Board must assure itself that employees who have first indicated support for a trade union and then indicate a desire to withdraw that support have undergone this change of mind by their free choice; that is, free of overt or subtle influences issuing from the employer against the union. The Board, in assuring the rights of employees under the Act to select or reject a trade union as bargaining agent, recognizes the opportunity that employee's dependence on the employer for their job security gives the employer to unduly influence their freedom of choice, intentionally or unintentionally."

17. In the instant case, Mr. Quarney testified that after the initial certification, he was advised by Mr. Peter Ulcar, who he described as the respondent's Vice-President and "top man" on the job site, that Mr. Ulcar did not want the union and that he wanted to keep the union out. According to Mr. Quarney, Mr. Ulcar asked him if he wanted the union representing him, and since Mr. Quarney had not heard from the union subsequent to his having signed an application for membership he replied that he did not. Mr. Quarney and Mr. Ulcar later discussed having Mr. Quarney file a statement of desire in opposition to the application. Mr. Ulcar offered to deliver such a statement to the Board. Mr. Quarney then wrote out his statement of desire and gave it to Mr. Ulcar, who forwarded it to the Board. It is interesting to note that Mr. Ulcar later completed the respondent's reply to the application in which he made the following comment:

Of the seven persons employed by the Respondent, only two of these employees performed work that would qualify them for inclusion in the bargaining unit. Of these two, one could not be contacted prior to the terminal date herein, however, the second has submitted to The Labour Relations Board, his statement to the effect that at no time did he desire to be represented by the Applicant.

18. We are satisfied from Mr. Quarney's testimony that he made the decision to oppose the application for certification only after Mr. Ulcar had made it clear that he was opposed to the trade union and wanted to keep the trade union out. Further, when he wrote out the statement of desire, Mr. Quarney did so on the understanding that it would be given to Mr. Ulcar, as indeed it was. In these circumstances, we are unable to accept the document as being the result of a voluntary change of heart on the part of Mr. Quarney, free from any managerial influence or involvement. Accordingly, the Board declines to order a representation vote on the basis of the statement of desire.

19. A certificate will issue to the applicant.