United Brotherhood of Carpenters and Joiners of America Local Union 93 v. DI-AL Construction Limited
[1982] OLRB Rep. December 1822
File No.: 0229-82-R Applicant: United Brotherhood of Carpenters and Joiners of America Local Union 93 Respondent: DI-AL Construction Limited Objectors: Group of Employees
Before: Ian Springate, Vice-Chairman, and Board Members J. A. Ronson and C. A. Ballentine.
Appearances: Denis Power, Wilf Chretien and Wilf Clermont for the applicant; A. Malomet for the respondent; Jean-Pierre Gravel for the group of employees.
Decision of Ian Springate, Vice-Chairman and Board Member C.A. Ballentine; December 2, 1982
Decision
1This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act.
3We find that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on April 10, 1980, the designated employee bargaining agency is the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America.
4We further find that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 117 shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.
5We further find pursuant to section 144(1) of the Act that 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 in the Regional Municipality of Ottawa-Carleton and the United Counties of Prescott and Russell, 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.
6On the date of the filing of the application the respondent employed five employees within the bargaining unit. The applicant filed evidence of membership on behalf of three of these employees. The evidence of membership takes the form of two certificates of membership and one combination application for membership and receipt. The certificates of membership, which relate to two long-time members of the union, are signed by the members and indicate that monthly dues of at least $28.74 have been paid for at least one month within the six month period immediately preceding the terminal date of the application. The documents are checked and certified correct by an officer of the applicant. The combination application for membership is signed by an employee and the receipt is countersigned and indicates that a payment of $1.00 has been made within the six month period immediately preceding the terminal date of the application. The applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry.
7The combination application for membership and receipt filed by the applicant union was signed by Mr. Frank Faubert. At issue is the weight, if any, to be given to this particular document. Mr. Faubert commenced working for the respondent on or about April 5, 1982. On April 8, 1982 he was approached on a job site by Mr. Wilfrid Clermont, the assistant business representative of the applicant trade union. Mr. Clermont had come to the site in connection with Nick Giambardino, a contractor bound to a collective agreement with the union who had employees working on the same site as the respondent. The evidence indicates that although Nick Giambardino is required by the terms of the collective agreement to hire carpenters through the union's hiring hall, at times he has ignored this requirement and instead hired tradesmen "off the street". The evidence of both Mr. Faubert and Mr. Clermont indicates that on April 5th Mr. Clermont approached Mr. Faubert and asked to see his union card, to which Mr. Faubert replied that he was not in the union. Mr. Clermont then asked Mr. Faubert who he was working for. Mr. Faubert was not certain of the name of his employer, and accordingly replied "Herve" a reference to Mr. Herve Ladaceur, the respondent's job superintendent. Mr. Clermont did not know who "Herve" was, and assumed that Mr. Faubert was working for Nick Giambardino. On the basis of this faulty assumption Mr. Clermont advised Mr. Faubert that he was required to be a union member to work on the project.
8Mr. Faubert and Mr. Clermont gave differing versions concerning the remainder of their conversation. Mr. Clermont testified that although he had initially been under the impression that Mr. Faubert was employed by Nick Giambardino, he subsequently concluded that he was in fact working for DI-AL, a non-union firm, and he so advised Mr. Faubert. Mr. Clermont stated that he was certain that he had advised Mr. Faubert that he was working for DI-AL prior to the time that he signed the membership application. For his part, Mr. Faubert testified that when he was advised that he had to be a union member to work on the job, he told Mr. Clermont that he would join the union if he had to. According to Mr. Faubert, Mr. Clermont replied that the matter was not that simple, for although Mr. Faubert could sign an application for membership and pay a dollar, his application would still have to be accepted by the union, and if accepted he would be required to pay an initiation fee of $265.00. Mr. Faubert testified that he then signed an application for membership. According to Mr. Faubert, it was only some time after he had signed that Mr. Clermont advised him that he was in fact employed by DI-AL a non-union firm and not Nick Giambardino. Mr. Faubert testified that the reason he signed for the union was because he had been advised that he was employed by Nick Giambardino, and that Nick Giambardino was required to employ only union members.
9On or about April 11, 1982, Mr. Clermont and Mr. Chretien, the applicant's business representative, attended at the job site. Mr. Faubert advised Mr. Chretien that he had signed for the union because Mr. Clermont had told him that he was required to do so. For his part, Mr. Clermont insisted that Mr. Faubert had signed after he had been told that he was working for DI-AL. Mr. Chretien testified that at the end of the conversation, Mr. Faubert stated that he did not want to join the union, and was certainly not going to pay the union $272.00 if he did not have to. Mr. Chretien's response was that for organizing purposes Mr. Faubert could join the union for $1.00.
10Having carefully reviewed all of the evidence, we are of the view that Mr. Faubert's version of what occurred on April 8th is probably correct, and that he in fact signed the application for union membership prior to being advised that he did not work for a unionized firm. We have reached this conclusion in part on the basis of the reference to an initiation fee of either $265.00 or $272.00. Although a new member of the Carpenters Union is generally required to pay a substantial initiation fee, when a local is engaged in organizing a firm it generally waives the initiation fee except for $1.00. This is reflected in Mr. Chretien's comment to Mr. Faubert on or about April 11th, that for organizing purposes he could join the union for $1.00. Mr. Faubert testified that on April 8th he was advised by Mr. Clermont shortly before he signed the application form that if accepted by the union he would have to pay $265.00. Mr. Clermont did not deny having made the comment. Further, from Mr. Chretien's evidence it is clear that Mr. Faubert was concerned about having to pay a substantial initiation fee to the union. From these facts we conclude that Mr. Clermont did in fact refer to an initiation fee shortly prior to when Mr. Faubert signed the application for membership. This reference to an initiation fee indicates that at the relevant time Mr. Clermont was still under the impression that Mr. Faubert was a non-member working for an already organized firm, and that only later did he realize that Mr. Faubert was employed by DI-AL. We would note that although we have accepted Mr. Faubert's version of what occurred on April 8th as being correct, we are satisfied that Mr. Clermont was not trying to mislead the Board. Instead, we believe that Mr. Clermont simply did not accurately recall at what point during the conversation he realized that Mr. Faubert was employed by DI-AL rather than by Nick Giambardino.
11On April 8th, shortly after he had signed the application for membership, Mr. Faubert, on his own initiative, went and explained the circumstances under which he had signed to Mr. Ladaceur, the respondent's job superintendent. On April 13, 1982, the applicant filed a first application for certification (see file no. 0094-82-R). On April 20th, apparently in response to this application, Mr. Faubert approached Mr. Malomet, the respondent's president, to advise him that he did not want to belong to the union and to ask that he write a letter of resignation to the union on his behalf. Mr. Malomet typed out the following letter addressed to Mr. Wilfrid Chretien, the business representative of the union:
"Dear Mr. Chretien:
Further to me signing an application for membership in the carpenters union, I have reconsidered and have decided to withdraw my application. Please return the $1.00 fee charged and destroy my application."
Mr. Faubert signed the letter, after which the respondent forwarded copies of it to the union and to the Board.
12For reasons the Board was not advised of, the applicant withdrew its first application for certification, and filed the instant application on April 27, 1982. In support of the application it submitted Mr. Faubert's application for membership. Mr. Faubert testified that following the filing of the second application he again went to see Mr. Malomet and told him that he did not want the union. Mr. Malomet then wrote out a statement of desire in opposition to the application which Mr. Faubert signed. A copy of the statement was forwarded to the Board by the respondent, along with similarly worded statements signed by the two employees who had not at any point become union members.
13The respondent contends that since Mr. Faubert signed a resignation from membership in the union, the Board cannot regard him as a union member for the purpose of determining the number of employees who are members of the union under section 6 of the Act. We do not agree. In determining who is a union member for the purposes of the Act, we are bound to apply the definition set out in section 1(1)(l). This section states that a member of a union includes someone who has signed an application for membership and paid a dollar to the union. Mr. Faubert performed both of these steps, and in our view the mere fact that he signed a purported resignation does not detract from this fact. This is not to say, however, that the Board will simply ignore a purported resignation from union membership. The Board's longstanding practice is to treat a purported resignation in the same manner as a statement of desire in opposition to a union's certification signed by a union member, namely, as an indication that the member has had a "change of heart" about union representation. On the basis of such a change of heart the Board may direct the taking of a representation vote, notwithstanding the fact that the union would otherwise be entitled to automatic certification. The Board's approach to these matters was explained as follows in the recent Baltimore Aircoil Interamerican Corporation case, [1982] OLRB Rep. Oct. 1387:
"However, even where the Board is satisfied that more than fifty-five per cent of the employees in the bargaining unit are members of an applicant trade union the Board may direct that a representation vote be taken pursuant to section 7(2). It is in the exercise of this discretion that the Board considers "evidence of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union", filed with the Board in compliance with Rule 73 of the Board's Rules of Procedure. Stated another way, evidence of objection by employees to certification or of signification by employees that they no longer wish to be represented by a trade union is not, having regard to the scheme of the Act, evidence relating to membership in a trade union for the purposes of an application for certification and for this reason a statement of desire, no matter what the actual wording, does not cancel out or revoke membership evidence submitted by an applicant trade union in the form prescribed by section 1(1)(l) of the Labour Relations Act. See Caldwell Linen Mills Limited, [1967] OLRB Rep. March 948 at paragraph 10; Diebold Company of Canada Limited, [1976] OLRB Rep. May 237 at paragraph 10; and Re Royal Canadian Yacht Club and Hotel, Restaurant and Cafeteria Employees' Union, Local 75 et al., 1981 CanLII 2935 (ON HCJDC), 129 D.L.R. (3d) 554 at 558. Rather, relevant "overlapping" evidence of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union, filed not later than the terminal date for the application, and where accepted by the Board as a voluntary expression of the wishes of the employee signatories, will generally cast a doubt on the evidence of membership filed by an applicant, (to use the words of the explanatory note found in Form 6) such as to cause the Board to exercise its discretion under section 7(2) and direct the taking of a representation vote. It would be somewhat anomalous if evidence of membership which must withstand the requirements laid down in the Act together with its related rules and forms, could be "revoked" by a much less formal and essentially unregulated course of conduct which usually follows on the heels of an employee having joined a trade union. By making a representation vote the maximum effect of an opposing petition the legislation both accommodates the resiling nature of petition evidence and recognizes that trade union organizing campaigns often require considerable investment of time and monies. Once an employee has signed a membership application form and submitted to the cautionary test of the payment of $1.00, a trade union is entitled to rely on that commitment for the purposes of an application for certification to the extent that it is assured its application will not be dismissed on the basis of insufficient threshold membership support (i.e. forty-five per cent) by the mere filing of "second thoughts" prior to the terminal date. If this was not the approach taken, a trade union would never know when to cease organizing. It is this relationship between membership and petition evidence which constitutes part of the policy behind permitting this Board to direct a representation vote even when the trade union files membership evidence on behalf of more than fifty-five per cent in the bargaining unit. It is also the reason why the statute distinguishes between an application date and a terminal date."
14We have before us both a purported resignation from membership and a statement of desire in opposition to the application signed by Mr. Faubert. Having regard to the responsive nature of the employer-employee relationship and the natural desire of an employee to want to at least appear to be identifying with the interests of his employer, the Board's practice is not to regard these types of documents as indicating a voluntary change of heart about union representation where the evidence indicates that management has played any role in their origination. In the instant case, Mr. Malomet's involvement with the origination of the two documents was so great as to cause us to conclude that neither the "resignation" nor the "statement of desire" can be accepted as clearly representing Mr. Faubert's true and independent wishes. Accordingly, neither document would cause us to exercise our discretion to direct the taking of a representation vote.
15A completely separate issue, however, relates to the reliability of Mr. Faubert's application for membership given the fact that he signed after being mistakenly advised by a union representative that he was working for Nick Giambardino, a firm obliged to employ only union members. The evidence when taken as a whole, raises a real concern in our minds as to whether when he signed the application for membership Mr. Faubert was indicating a desire to be represented by the union regardless of who his employer might be, and in particular whether he would have signed the document had he known that it would be used to support a certification application with respect to the respondent. In these circumstances, and given the fact that without Mr. Faubert the applicant would not have a majority of bargaining unit employees as members, we are of the view (absent consideration of the section 8 issue referred to below) that it would be appropriate for the Board to exercise its discretion under section 7(2) of the Act and obtain confirmatory evidence of employee desires by way of a representation vote.
16At the hearing, counsel for the applicant indicated that if the Board was of the view that a representation vote should be directed, the applicant would request that it be certified pursuant to the provisions of section 8 of the Act. In a letter dated November 24, 1982 the applicant formally requested that the Board apply section 8 of the Act, and in this regard indicated that it will be relying on both the evidence already put before the Board in these proceedings as well as a finding of the Board in file no. 1036-82-U that the respondent discharged an employee contrary to several provisions of the Act. In these circumstances, the matter will be relisted for hearing to hear any additional evidence as well as the representations of the parties with respect to the applicant's request that it be certified pursuant to section 8 of the Act.
17The decision of Board Member J. A. Ronson will be forthcoming at a later date.