[1982] OLRB Rep. July 1037
2571-81-R Gilles Mathon and Other Employees of Northland Glass and Metal Limited, Applicants, v. The International Brotherhood of Painters and Allied Trades Local 1904, Respondent
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members I. Wilson and M. J. Fenwick.
APPEARANCES: William A. Brunton and Gilles Mathon for the applicants; Armando Cola franceschi and J. Bergfret for the respondent.
DECISION OF VICE-CHAIRMAN, N. B. SATTERFIELD AND BOARD MEMBER J. WILSON; July 13, 1982
- The applicant has applied under section 57 of the Labour Relations Act for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is the bargaining agent. The application as filed named as respondents The International Brotherhood of Painters and Allied Trades, Local 1904, The International Brotherhood of Painters and Allied Trades and The Ontario Council of the International Brotherhood of Painters and Allied Trades, hereafter referred to respectively as Local 1904; the Brotherhood and the Council. The application described, in paragraph 3 thereof, the unit of employees for which the respondents are alleged to be the bargaining agents in the following terms:
All employees (Journeymen Glazier Metal Mechanics, Working Foremen, Lead Hands, Apprentices, Glaziers, Installers or Glass Cutters) employed in the Province of Ontario by Northland Glass and Metal Limited in the Industrial, Commercial and Institutional sector of the Construction Industry for whom the respondents has [sic] bargaining rights.
The statement of desire filed in support of the application purports to describe in the following terms the wishes of the employees who signed it:
We, the undersigned employees of Northland Glass and Metal Limited (North Bay, Ontario), hereby signify and record that we, individually and collectively, no longer wish to be represented by The International Brotherhood of Painters and Allied Trades, The Ontario Council of the International Brotherhood of Painters and Allied Trades, or any other trade union. Our signatures to this document are in support of an application for a declaration by the Ontario Labour Relations Board that the International Brotherhood of Painters and Allied Trades no longer represents the employees of Northland Glass and Metal Limited and for an order of the Board terminating the bargaining rights of that Union as they apply to the undersigned.
In the course of dealing with certain preliminary issues, counsel for the applicant advised the Board that it was the applicant's intent to seek a declaration terminating all of the bargaining rights held by the respondents on the date when the application was made and he requested leave of the Board to amend the application to make that clear, notwithstanding the fact that the application describes the unit of employees in terms of the industrial, commercial and institutional sector of the construction industry in the Province of Ontario. The Board heard the representations of the parties on this request. Having regard for their representations and for the fact that the statement of desire is without reference to sectors of the construction industry, the Board was satisfied that it was the intent of the applicant to seek a declaration terminating all bargaining rights held by the respondents with respect to the employees of the employer Northland Glass and Metal Limited. Accordingly, the Board consented to the amendment of the application to cover all bargaining rights held by the respondents with respect to the employees of the employer on the date when the application was made.
The parties were agreed that, as of the application date, they were bound to a collective agreement signed August 15, 1979 between the employer and Local 1904 for a term of May 1st, 1978 to April 30th, 1980, which has continued in effect from year to year since April 30th, 1980 pursuant to Article XXI - Termination of the agreement. The recognition clause of that agreement describes Local 1904's bargaining rights in the following terms:
2.01 The company recognizes the Union as the sole collective bargaining agency for all its employees working at and out of (North Bay Branch) save and except supervisors, office and sales staff.
The parties were also agreed, to the extent that the respondents hold bargaining rights for the employees of the employer, it was with respect to a unit of employees described in the above terms. They were not agreed, however, whether that bargaining unit included bargaining rights in the industrial, commercial and institutional sector of the construction industry. Counsel for the applicant took the position that it did. The respondents not only claimed that they held no bargaining rights for that sector, they claimed that the collective agreement between the employer and Local 1904 could not cover the industrial, commercial and institutional sector by force of statute.
- In this respect, section 146 of the Act provides in part as follows:
146.-(1) An employee bargaining agency and an employer bargaining agency shall make only one provincial agreement for each provincial unit that it represents.
(2) On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee, trade union, council of trade unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organizations or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bargaining agents other than a provincial agreement as contemplated by subsection (1), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.
(emphasis added)
Clause (e) of s. 137(1) of the Act defines a provincial agreement in the following terms;
(e) "provincial agreement" means an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that represents affiliated bargaining agents, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer bargaining agency, the employers represented by the employer bargaining agency and for whose employees the affiliated bargaining agents hold bargaining rights, the affiliated bargaining agents represented by the employee bargaining agency, or the employees represented by the affiliated bargaining agents and employed in the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e). 1977, c. 31, s. 3, part.
The Brotherhood and the Council together comprise a designated employee bargaining agency under the province-wide bargaining provisions of the Act. Local 1904 is an affiliated bargaining agent within the meaning of clause (a) of section 137(1) of the Act represented in collective bargaining with respect to the industrial, commercial and institutional sector of the construction industry by the employee bargaining agency. It is Local 1904 which entered into the collective agreement in August 1979 with the employer. That agreement clearly does not satisfy the definition above of a provincial agreement and the Board finds accordingly that it is not a provincial agreement. It follows, therefore, to the extent that the agreement might purport to be an agreement or other arrangement which relates to the industrial, commercial and institutional sector, it would be null and void pursuant to s. 146(2) of the Act. Thus the Board finds that it is not an agreement which pertains to that sector.
One effect of the agreement between the employer and Local 1904 at the time it was entered into, was a granting by the employer of voluntary recognition of Local 1904 as bargaining agent of the employer's employees coming within the bargaining unit described in the recognition clause. That clause is certainly broad enough to encompass employees employed in the industrial, commercial and institutional sector. Local 1904, however, asserts no claim for bargaining rights in that sector. The agreement contains no specific undertaking either of a grant of bargaining rights for that sector or to be bound by the terms of the applicable provincial agreement. Nor is there any evidence before the Board that the parties to the agreement have conducted their relationship as though Local 1904 held such rights. The Board finds, therefore, that the agreement did not confer on Local 1904 bargaining rights in the industrial, commercial and institutional sector. Since that agreement is the only evidence before the Board of the bargaining rights held by any of the respondents and since those rights are held by Local 1904 alone, the Brotherhood and the Council do not hold bargaining rights for the employees of the employer affected by this application and are not respondents to the application. It is for these reasons that the style of cause of the application was amended to name as the respondent The International Brotherhood of Painters and Allied Trades Local 1904.
The applicant, Gilles Mathon, testified at the hearing as to the origin, preparation and circulation of the statement of desire filed in support of the application. He was the originator of the statement, had it prepared by his solicitor and solicited and witnessed the signatures, other than his own, on the statement. He signed the statement in his solicitor's office and his signature was witnessed by the secretary in the office. The document was in Mathon's possession at all times between the time he picked up it from his solicitor and returned it to him for filing with the Board. At the time he returned the petition to his solicitor he also signed the application which had been previously prepared for him by his solicitor and filled in the place and day of the month of filing.
The application was filed March 8th, 1982. It came on for hearing June 28th, 1982 after having been scheduled for hearing on earlier dates and adjourned by agreement of the parties. While Mathon experienced some difficulty with recalling precise dates and times and the sequence in which certain events occurred, the Board is satisfied from his testimony with the manner in which the statement was circulated and the signatures thereon were obtained. The only area of concern with the document is whether it originated as a result of the voluntary wishes of those employees who signed it.
Mathon told the Board that he had made an earlier inquiry at the request of fellow employees about applying for termination of the bargaining rights held by Local 1904. Those inquiries led them to believe that it was untimely to make the application and no further action was taken. Further discussions amongst the employees led to the filing of the application at hand. They also talked about the need to have a lawyer represent them in making the application. Mathon, who works in the shop and, as a result, has regular contact with the employer about work matters, mentioned to him on one such occasion that the employees were going to seek to decertify Local 1904 and asked him if he knew a lawyer who could represent them. The employer gave the name of counsel for the applicant and told him that he could find his telephone number in the directory. There was no further discussion then or later between the applicant and the employer. Mathon contacted counsel and arranged with him to prepare the statement of desire which was ultimately filed in support of this application. Mathon testified that he did not at any time after obtaining the name of counsel from his employer through until this application was made have any discussions with his employer about the application. Nor is there any evidence that such discussions took place, notwithstanding the fact that Local 1904 in its reply stated its belief that the company had instigated the application.
While Mathon's request of the employer for the name of a lawyer to assist the employees with their application raises concerns about the voluntariness of the statement, standing alone it is not sufficient to indicate that the statement of desire was inspired, fostered or instigated by management influence. This is not a situation in which there has been some sudden, unexplained change in the intent of the employees which may happen in an application for certification when employees who have recently signed application cards in support of a trade union, shortly thereafter sign a petition against representation by that union. These employees have been represented by Local 1904 since August 1979 and, according to the evidence before the Board, had earlier thoughts about seeking to terminate its bargaining rights only to believe that such an application would have been untimely. In these circumstances, the Board finds that the origin of the statement of desire in support of the application is free of any management influence. Therefore, the Board finds the statement of desire to be a voluntary statement of the wishes of those employees who signed it.
The Board is satisfied, therefore, that not less than forty-five per cent of the employees of Northland Glass and Metal Limited in the bargaining unit, at the time the application was made, had voluntarily signified in writing that they no longer wish to be represented by the respondent union on March 24, 1982, the terminal date fixed for this application and the date which the Board determines, under section 103(2)0) of the Labour Relations Act, to be the time for the purpose of ascertaining the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent union under section 57(3) of the said Act.
The Board directs that a representation vote be taken of the employees of Northland Glass and Metal Limited. Those eligible to vote are all employees working at and out of the employer's North Bay Branch, save and except supervisors, office and sales staff, on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken.
Voters will be asked to indicate whether they wish to be represented by The International Brotherhood of Painters and Allied Trades, Local 1904 in their employment relations with Northland Glass and Metal Limited.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER M. J. FEN WICK;
I dissent. This application for termination of bargaining rights is not free from employer involvement.
Gilles Mathon, a seven-year employee in the company's service maintenance department and sponsor of the application for termination of bargaining rights testified that he went to see his boss, a Mr. Carr. He told him the employees wanted to decertify the union. Mathon asked his boss for the name of a lawyer who could act on behalf of the bargaining unit employees in the termination proceedings.
Carr gave Mathon the name of William A. Brunton and told him he could find his telephone number in the telephone directory.
Consequently, Mathon saw Brunton who drafted the petition for Mathon's use in the shop.
Mathon was a union steward in the shop. He also indicated he had called the Ontario Labour Relations Board office in 1980 seeking information on termination procedures. He claimed that someone at the Ontario Labour Relations Board informed him that such a move would be untimely at that time.
As such Mathon could not be said to be uninformed about Board procedures. In spite of this he felt obliged to inform his employer about his decertification plans and asked for the name of a lawyer who could handle the termination application.
In view of the employer involvement in this case I would have dismissed the application for termination of bargaining rights.