[1989] OLRB Rep. February 93
2488-82-R United Brotherhood of Carpenters and Joiners of America, Applicant v. Aero Block and Precast Ltd., Kamet Enterprises Ltd. and 541190 Ontario Inc. Respondents v. The Form Work Council of Ontario, Intervener #1 v. Labourers International Union of North America, Local 493, Intervener #2
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members D. A. MacDonald and H. Kobryn.
APPEARANCES: Michael A. Church and Robert Reid for the applicant; Donald Francis for the respondent; Bernard Fishbein and Rocco Lotito for interveners #1 and #2.
DECISION OF THE BOARD; February 7, 1989
[1]. This is an application for certification made under the construction industry provisions of the Labour Relations Act in which a pre-hearing representation vote was taken, the ballot box sealed and all ballots cast segregated, all as directed by the Board. The need to seal the ballot box and segregate the ballots arose before the vote was directed from a variety of complex issues evident from the pleadings filed with the Board. Those issues and others arising out of the taking of the vote stood in the way of counting the ballots cast. Since the taking of the vote, all but one of those issues had been decided by the Board, settled by the parties or withdrawn. This decision deals with the one remaining issue.
[2]. The outstanding issue is the claim of the interveners that certain persons employed by the respondents, or any of the respondents, were hired contrary to the requirements of the collective agreement between the Ontario Form Work Association and the Form Work Council of Ontario ("the Agreement") which was in force at the time. Therefore, it is alleged, those persons were not lawfully at work in the bargaining unit on the date of making of this application, the date for determining eligibility to vote or the date when the vote was taken. In the result, the interveners contend that those employees should not be included in the bargaining unit for the purpose of deciding whether, pursuant to subsection 9(4) of the Act, the applicant had the requisite membership support for the vote to have the same effect as a vote taken under subsection 7(2) of the Act and/or, the employees should not be included on the list of eligible voters for deciding, pursuant to subsection 7(3), whether a majority of the ballots cast by eligible voters were cast in favour of the applicant.
[3]. The persons challenged by the interveners are:
G. Boissonneault A. Lagassie S. Chiocchio G. Lagassie A. Covre R. Lagassie M. Gravelle K. Lefebvre A. Guillemette S. Scarfone C. Guillemette D. Wall
The interveners rely on the Board's decision in April Waterproofing Limited, [1980] OLRB Rep. Nov. 1577. The decision deals with an application for certification to displace an incumbent trade union. Subsection 7(1) of the Act required the Board to ascertain the number of employees in the unit at the time the application was made and the number of those employees who were members of the applicant trade union at the relevant time. The Board found that three persons whom the employer claimed to be in the bargaining unit had not been hired in accordance with the provisions of a collective agreement between the employer and the incumbent bargaining agent. In the Board's opinion, in order for employees to be in the bargaining unit, they had to be employed under the terms of the collective agreement. Since the three employees had not been so employed, the Board was satisfied that they were not to be counted for purposes of the subsection 7(1) findings.
[4]. Before dealing with the parties' submissions on the April Waterproofing issue, it is useful to review briefly the history of this application. It was made March 4, 1983 and had been preceded by one made November 16, 1982, by a constituent local of the applicant. That first application had been made with respect to the employees of the respondents Kamet Enterprises Ltd. and Aero Block & Precast Ltd. The first applicant had requested the Board to treat the two respondents as constituting one employer pursuant to the provisions of subsection 1(4) of the Act or to declare Aero Block to be the successor employer to Kamet as a result of a sale of a business within the meaning of section 63 of the Act. The interveners herein intervened in that application as well and requested the same declarations as the applicant. Kamet's reply identified intervener #1 as a trade union holding bargaining rights for employees in the proposed unit pursuant to the Agreement which had an expiry date of April 30, 1983. Kamet filed a list of employees in the bargaining unit containing 13 names. Its reply denied that there was any basis for the Board to have authority to issue the declarations requested by the applicant and interveners. Aero Block made the same denial and stated that it was the payroll company for Kamet. The Board, differently constituted, issued a decision dated January 5, 1983 setting out the events of a hearing held on December 23, 1982. At the hearing, Kamet, Aero Block and the interveners agreed that the respondents carried on related activities or businesses under common control or direction and should be treated as constituting one employer for purposes of the Act and, therefore, were bound to the Agreement. The first applicant took no position on their agreement. Consequently, the Board accepted the agreement of the respondents and interveners and declared that the two respondents were to be treated as one employer for purposes of the Act and were bound to the Agreement. The effect of the declaration was to make the first application for certification untimely. In those circumstances the first applicant requested leave to withdraw its application and the Board consented thereto.
[5]. The job site on which the employees were working at the time when the first application was made was dormant during January and February 1983, reopening in the latter part of February or early March. When the applicant herein made this application on March 4, 1983, it found many of the same employees on the job who had been there when the earlier application was made. Kamet and Aero Block were named as respondents to the application. They filed a joint reply and a list of employees containing the names of three persons. The reply identified intervener #1 as an interested trade union pursuant to the Agreement. The interveners filed separate interventions each relying on the Agreement. Approximately two weeks later, the applicant wrote to the Board requesting that 541190 Ontario Inc. be added as a respondent and that the Board declare it and the other two respondents to be treated as constituting one employer for purposes of the Act pursuant to subsection 1(4) or to be the successor in a sale of a business from either of them within the meaning of section 63 of the Act. The interveners and Kamet/Aero Block responded to that request by letters from their respective counsel. Intervener #2 claimed that it had entered into a voluntary recognition agreement on February 28th with 541190 Ontario Inc. and that the agreement made the application untimely. Kamet/Aero Block denied that either of them was related to the numbered company within the meaning of subsection 1(4) of the Act or had been a party to any kind of sale.
[6]. A Board officer held a pre-hearing vote meeting with the parties on May 6th. The parties agreed at the meeting that the Board should declare the three respondents to be treated as constituting one employer for purposes of the Act. As part of that agreement, intervener #2 agreed not to pursue its allegation of a collective agreement bar to the application and the respondent agreed not to pursue allegations of violations of the Act associated with the alleged collective agreement. Counsel for the respondents produced a list of employees on behalf of the numbered company containing the names of eleven persons. Six of the names had been on the list filed by Kamet on the first application. The interveners challenged all eleven names on the grounds that they had not been employed in accordance with the Agreement. This is the April Waterproofing issue.
[7]. The Board, by decision dated May 10, 1983, directed the taking of a pre-hearing representation vote. Two days later, counsel for the interveners filed with the three respondents a grievance alleging that they had employed the twelve persons named above at paragraph 3 contrary to the Agreement. The vote was taken as directed on May 19th and, following the taking of the vote, counsel for the interveners duly requested a hearing on the outstanding issues, including the April Waterproofing issue.
[8]. The hiring provisions in the Agreement relevant to this application which the interveners allege were contravened state as follows:
ARTICLE 3 - UNION SECURITY
3.1 All employees shall, when working in a position within the bargaining unit described in Article 2 hereof, be required, as a condition of employment, to be a member of the Union before commencing employment and shall be required to maintain such membership while working within the bargaining unit for the duration of this Agreement, and all work falling within the scope of this Agreement shall be performed by bargaining unit members only.
B" FOR LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183
iv) It is agreed that upon an Employer performing work covered by this Agreement within the geographical jurisdiction of any other Local of Labourers' International Union of North America, which Local has entered into an understanding with the Union and the Association, then, representatives of the Union, the Employer and the other Local Union shall convene a prejob conference prior to commencing such work, in order to discuss, among other things, the employment of persons at such project.
[9]. The Board did schedule a hearing of the issues which were outstanding at the conclusion of the vote. From that hearing until February 25, 1988, the parties agreed to proceed issue by issue. The Board accepted their agreement and, between or during many consent adjournments, the issues were decided by the Board after hearing, resolved by the parties or withdrawn until this final issue came on for hearing on February 25th. At the hearing on February 25th, it was undisputed that the 12 persons named above had been hired by the respondents without regard for the requirements of the Agreement. It was undisputed also that the interveners did not approach, at any time, any of the 12 employees about becoming members of intervener #2 and, prior to filing the grievance on May 12, 1983, had not asked the respondents to remove them from the project and replace them with persons hired pursuant to the Agreement.
[10]. Counsel for the interveners argued that, but for the respondents' breach of the hiring provisions, the 12 employees would have not been at work on the dates material to this application. Therefore, pursuant to the principle in the April Waterproofing decision, the 12 employees should neither be considered employees at work in the bargaining unit on the date of making of the application nor employees at work on the date for determining eligibility to vote or the date when the vote was taken. In the first instance, therefore, they would not be employees for purposes of determining the number of employees in the unit when the application was made or the number of employees in the unit who were members of the applicant. In the second instance, they would not be employees who were eligible to vote in the representation vote. Counsel submitted further that the April Waterproofing principle applied whether an employer's violation of the hiring provisions was purposeful or inadvertent. The result is the same; that is, employees who should not have been at work in the bargaining unit when the application was made are there because of the employer's breach of its collective agreement with the incumbent trade union. He argued that the Board decided in April Waterproofing that employees not lawfully at work could not provide the basis for an application for certification which would have the effect, if successful, of displacing the incumbent bargaining agent whose rights under the collective agreement had been contravened by the employer's unlawful act. Counsel traced the Board's application of the April Waterproofing principle up to the date of hearing into the issue herein. In doing so, counsel sought to distinguish on their facts those cases in which the Board declined to apply the April Waterproofing principle.
[11]. Applicant counsel argued that, on two grounds, it would be inappropriate for the Board to apply the April Waterproofing principle in the circumstances of this case. First, because the interveners, after first raising their claim that the respondents' employees were on the project at the material times contrary to the provisions of the Agreement, failed to pursue the claim with reasonable diligence. Second, because the development of the Board's jurisprudence since the April Waterproofing decision shows the Board to have been flexible in applying the principle even where there have been breaches of the hiring conditions in collective agreements. In other words, the Board has not applied the April Waterproofing principle as a strict rule but has adopted a purposive approach. The circumstances of this case, counsel submits, distinguish it from those in which the Board has applied the principle and make it analogous to those cases in which the Board has not applied the principle. That, according to counsel, is because it is implicit in the April Waterproofing decision and the decisions where its principle has been applied, that the employer who has breached his collective agreement obligations has done so to assist the raiding union and, in this case, the facts show the respondent to have sided with the interveners at every stage of both applications for certification. In addition, the interveners and respondents knew from the time of the first application that the applicant was seeking to represent the respondents' employees and they took no action to protect themselves by enforcing compliance with the Agreement. Applicant counsel claimed that the interveners' failure to act or to act promptly was condonation of the alleged breaches of the Agreement and they should not be allowed now to rely on those breaches to found their April Waterproofing argument. In effect, counsel argued, there is no mischief to cure by application of the April Waterproofing principle, therefore no need to apply it in the facts of this case.
[12]. The Board finds no merit in the applicant's first ground. The interveners acted promptly to raise the April Waterproofing issue at the meeting held with the Board officer prior to the taking of the representation vote and later confirmed the issue in writing after the vote, requesting a hearing on it and the other outstanding issues. Absent some direct evidence that the interveners were "laying in the weeds" on the issue, the fact that the issue was the last one to be heard is irrelevant when the parties agreed, and the Board accepted their agreement, to proceed on an issue by issue basis. This is particularly so where, as was the case here, the parties themselves agreed on which issues the Board should deal with and in what order. With respect to the second ground, it will suffice for now to say that the Board does not agree with applicant counsel that the facts show the respondents to have sided with the interveners at every stage of the two applications. The most that the Board would be prepared to infer from the facts is that the respondents were allied more in interest to the interveners than to the applicant because of their obligations under the Agreement.
[13]. The issue for the Board in April Waterproofing, supra, was whether certain persons hired by the employer contrary to the provisions of a collective agreement with an incumbent trade union were employed in the unit of employees covered by that agreement. The Board expressed the view that "... the bargaining unit is comprised of employees employed under the terms of the applicable collective agreement.". The Board went on to find that the "... individuals in dispute were not hired in accordance with the provisions of the collective agreement ..." and, on that finding, was satisfied that they should not be taken into account "... in ascertaining the number of employees in the bargaining unit for the purposes of section 7(1) of the Act,...". The principle of the April Waterproofing decision is succinctly described in the following terms at paragraph 21 of the Board's decision in Culliton Brothers Limited, [1983] OLRB Rep. Mar. 339:
- This approach was subsequently adopted in Cooper Construction, supra. It must be noted it does not require advertent misconduct on the part of the employer. Although in April Waterproofing it was alleged that the employer had intentionally hired the two employees to foster a raid, the Board did not hear evidence on, or determine, that issue. April Waterproofing stands of the proposition that employees illegally hired contrary to the terms of an existing collective agreement should not be considered employees in the bargaining unit even though their hiring was inadvertent and not intended to foster a representation application. The fact that the employer may not have intentionally breached its contractual obligations is no answer to the prejudice which his actions may cause.
The Board, in that case, chose not to adopt the April Waterproofing approach because it found that the persons who were alleged to be unlawfully at work were pre-existing employees who had been swept into the bargaining unit by operation of statute.
[14]. The Board also found the April Waterproofing principle not to have application in Pierre A. Gratton Construction Inc., [1986] OLRB Rep. Jan. 137. In that case the employer, P. H. Grager Inc., was a company formed by three partners who included the owner of a dormant company, Pierre A. Gratton Construction Inc. Gratton was bound to a collective agreement with the Labourers union. Grager Inc. did not know that section 63, the sale provisions of the Act, bound it to the same agreement. It proceeded to hire carpenters and labourers, including some labourers who had worked for Gratton as members of the Labourers union, and performed work on a highly visible project in the Ottawa area. The Carpenters union filed an application to be certified as bargaining agent for the employees of Grager Inc. The Labourers union intervened in the application and filed an application under section 63 for a declaration that Grager Inc. was the successor employer to Gratton and bound to the Labourers union agreement. The intervention raised the claim that the persons employed by Grager Inc., whom the Carpenters union were seeking to represent, had been hired contrary to the Labourers' collective agreement and should not be counted as being in the bargaining unit. The Board's reasons for not applying the April Waterproofing principle are found at paragraph 11:
Obviously the potential for mischief in a situation of unlawful hiring is, as the Board has repeatedly pointed out, considerable. Accordingly, the Board, particularly with its knowledge of the construction industry, has not hesitated to presume, in the words of Inducon, supra, that the employer intended the natural consequences of his acts. That presumption is rebuttable, however, in the face of cogent evidence, and the Board on the evidence before it in the "sale" application is unanimously of the view that the principals of Grager were acting in good faith, and did in fact believe that the new, merged undertaking was not the subject of the shelved Pierre Gratton Construction Inc.'s collective agreement. We are satisfied that the principals of Grager made no effort whatever to hide the operations of "Grager" from the intervener Labourers' Union; in fact, they willingly hired individuals whom they knew to have been members of the Labourers' Union through their prior employment with "Gratton". The "Grager" company was in the field bidding on and performing jobs in the high-profile Transitway project for a substantial period of time before the Labourers', through their counsel, began to assert their claims. While the race is not simply to the swiftest, the Board can expect some measure of diligence in the unique world of construction, where unions know they must move quickly to organize or assert bargaining rights before a project is completed. Here the Carpenters' Union expended its resources in a good-faith effort to organize the apparently unrepresented employees of "Grager", and it is the decision of the Board that their application for certification is entitled to proceed, on the basis of the persons "employed" as of the date of the certification. (emphasis added)
[15]. Thus, it may be seen that the April Waterproofing principle does not fit every situation in which employees may be employed in a bargaining unit contrary to the provisions of a collective agreement. The Board has been prepared, in the face of cogent evidence, to look beyond the simple fact that challenged persons were hired contrary to a collective agreement before it decides whether to apply the principle in a particular case. Does the principle have application in the instant case?
[16]. The Board thinks not. While the interveners responded to this and the first application by intervening to assert their bargaining rights under the Agreement, they were content to stop at that. They did nothing to enforce those bargaining rights to the benefit of their members. In particular, between signing a voluntary recognition agreement with the numbered company on February 28th, purportedly binding it to the terms and conditions of the Agreement, and the Board's one-employer declaration respecting the three respondents, the interveners did not seek to have any of the 12 employees become members of intervener #2 or require the numbered company to replace them with the intervener's members. It is obvious that, when intervener #2 signed the agreement with the numbered company, it knew that work had resumed or was about to resume on the project. Yet, a few days later on March 4th, when the applicant made this application, the interveners had done nothing to make sure that the numbered company obtained its employees from intervener #2 in accordance with their agreement. The applicant, on the other hand, knowing what had happened with the first application, thought they were employees of Kamet/Aero Block. It was not unreasonable, then, for the applicant to expect that the employees on the project, particularly the six who had been on it during the first application, had been employed pursuant to the Agreement. Clearly, it was with that expectation in mind that the applicant used its resources to make this application. To apply the April Waterproofing principle would be to frustrate the applicant's application in circumstances where the interveners have made no reasonable effort to make sure that the respondents would comply with the hiring provisions found in the Agreement. It would have the effect of rewarding the interveners for their lack of diligence in enforcing their bargaining rights. To put it colloquially, it would be rewarding them for sitting on their bargaining rights because, by doing nothing, they would have succeeded in frustrating the application. In these circumstances, the Board will not apply the April Waterproofing principle and the application will proceed.
[17]. Accordingly, the Board finds that
G. Boissonneault A. Lagassie S. Chiocchio G. Lagassie A. Covre R. Lagassie M. Gravelle K. Lefebvre A. Guillemette S. Scarfone C. Guillemette D. Wall
were employees in the bargaining unit on March 4, 1983, the date of making of this application, on March 15, 1983, the date for determining eligibility to vote and on May 19, 1983, the date on which the representation vote was taken. In the result, they were employees in the bargaining unit for purposes of determining whether the applicant had as its members the requisite number of employees in the bargaining unit in order for the vote to have the same effect as a vote taken pursuant to subsection 7(2) of the Act and were employees who were eligible to vote on May 19th.
[18]. In a decision which issued August 21, 1986, a differently constituted panel of the Board, having regard to an agreement of the parties set out at paragraphs 1 and 2 of the interim report of a Board officer dated September 11, 1985, and a further agreement of the parties made August 12, 1986, the Board found the following bargaining units to be appropriate.
Bargaining Unit #1
All carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters' apprentices in the employ of the respondent in all other sectors within a radius of 33 kilometers (approximately 20 miles) of the North Bay post office, save and except non-working foremen and persons above the rank of non-working foreman.
Bargaining Unit #2
All construction labourers in the employ of the respondent within a radius of 33 kilometers (approximately 20 miles) of the North Bay post office, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.
The Board also made the finding that the following employees of the respondents were in those units:
Bargaining Unit #1
Allard, D. Lagassie, A. Boissonneault, G. Lagassie, G. Gravelle, M. Lagassie, R. Guillemette, A. Lefebvre, K. Guillemette, C.
Bargaining Unit #2
Covre, A.
Scarfone, S.
The parties remain in dispute respecting whether V. Alberico, C. Crimi, G. Masherin and E. Vanin are in bargaining unit #1 or bargaining unit #2.
[19]. Having regard to the foregoing, the Board:
(1) finds that for purposes of the pre-hearing vote, there were two voting constituencies each conforming to the bargaining units described above;
(2) is satisfied that, regardless of which unit the four disputed employees were employed in on the date of making of the application, not less than thirty-five per cent of the employees of the respondents in bargaining unit #1 were members of the applicant at the time the application was made; and
(3) regardless of which unit the four disputed employees were employed in on the date of making of the application, the Board is not satisfied that not less than thirty-five per cent of the employees of the respondents in bargaining unit #2 were members of the applicant at the time the application was made.
In the result, the application respecting bargaining unit #2 is dismissed.
[20]. Having further regard to the findings in paragraphs 18 and 19 and to the agreements of the parties, the Board finds that the following employees of the respondent were eligible to cast ballots in the pre-hearing vote respecting bargaining unit #1:
D. Allard A. Lagassie G. Boissonneault G. Lagassie A. Dasilva R. Lagassie M. Gravelle K. Lefebvre A. Guillemette P. Luchetto C. Guillemette V. Paruzza.
As the Board noted above it is still disputed whether V. Alberico, S. Crimi, E. Vanin or G. Masherin were eligible to vote in that unit. In all of these circumstances, the Registrar is directed to unseal the ballot box and count the segregated ballots of the 12 employees whom the Board has found to be eligible to cast ballots. The segregated ballots of the four employees in dispute are not to be counted pending the further direction of the Board. No other segregated ballots are to be counted, including the ballots cast, if any, by S. Chiocchio, A Covre, S. Scarfone and D. Wall who were employees in bargaining unit #2 at all times material to the vote.
[21]. In summary, with respect to bargaining unit #1, the ballots cast in the pre-hearing vote are to be counted pursuant to the Board's directions in paragraph 20 and, with respect to bargaining unit #2, the application is dismissed.