Carpenters' District Council of Toronto and Vicinity v. Inducon Development Corporation, 1983 CanLII 824

Ontario Labour Relations Board

[1983] OLRB Rep. July 1038

OO11-82-M; 0041-82-R Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27, 666, 681, 1133, 1747, 1963, 1304, 3227 and 3233, United Brotherhood of Carpenters and Joiners of America, Applicant, v. Inducon Development Corporation, Inducon Construction (Northern) Inc., and Inducon Design/Build Associates, Respondents; Eduino Ribeiro, Applicant, v. Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27, 666, 681, 1133, 1747, 1963 and 1304, 3227 and 3233, United Brotherhood of Carpenters and Joiners of America, Respondent, v. Inducon Development Corporation, Inducon Construction (Northern) Inc. and Inducon Design/Build Associates, Intervener

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members 1. M. Stamp and B. K. Lee.

APPEARANCES: Douglas I. Wray and Frank Rimes for the Carpenters Union. F. A. Du Vernet, Q. C. and Joseph Watson for Inducon Development Corp. D. N. Corbett, R. W. Cosman, Bob Thornton, Tom Pettypiece and Bob MacKay for Inducon Construction (Northern) Inc. and Inducon Design Build Associates: I. A. Menzies, Q. C. and Eduino Ribeiro for the employees.

DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER I. M. STAMP; July 28, 1983

I - THE HISTORY OF THE APPLICATIONS

1. These consolidated matters involve the referral of a grievance to the Board pursuant to the provisions of section 124 of the Labour Relations Act, and an application for a declaration terminating bargaining rights, pursuant to the provisions of section 57)2) of the Act. A related matter, being the referral of a grievance to the Board in File No. 1437-80-M, is presently before the Courts, and it is recognized that a decision in the employer's and group of employees' favour could render the present applications academic. The parties agreed, however, that the Board should proceed to render its final decision on the two matters involved herein, without regard to the status of the other Board File in the Courts. Prior to doing so, however, it is necessary for the Board to review in brief the history of these parties' relationship.

2. At issue are the bargaining rights for the Carpenters' District Council, on behalf of its affiliated Locals, and the Inducon group of companies. Throughout these proceedings the parties referred to the Inducon group simply as "Inducon", and the Board, for ease of reference, will continue to do so. Inducon is an employer based in the Toronto area and historically carried on its business primarily within the area of southern Ontario. It originally had no bargaining relationship with any Local of the United Brotherhood of Carpenters and Joiners of America. A review of the facts set out in the decisions of the Board and of the Divisional Court in proceedings related to Board File No. 1437-80-M indicates that in 1970, Inducon entered into a contract in Northwestern Ontario, outside its usual geographical area of work. The contract was to build a school in the District of Rainy River in the Town of Fort Frances. Inducon employed three local carpenters on that project. In November of that year, Local 1669 of the United Brotherhood of Carpenters and Joiners of America applied for and was refused certification with respect to the three carpenters. On December 24, 1970, however, Inducon agreed to enter into a voluntary collective agreement with Local 1669 that covered the school project then underway. It was that single decision on the part of Inducon which would eventually bring the parties to where they are today. Inducon went on to engage in two other school projects in the District of Rainy River, prior to completing its work and leaving the District in 1974. Since that time, Inducon has performed no construction work in the area of Local 1669. In February of 1973, Inducon had advised Local 1669 that it would not be negotiating a new collective agreement when the initial one expired. Local 1669 did not serve notice to bargain, and on April 30,1973, the collective agreement was allowed to expire according to its terms.

3. In March 1978, consequent upon amendments to the Labour Relations Act introducing province-wide bargaining in the ICI sector of the construction industry, the Carpenters' Union wrote to Inducon indicating an intention to negotiate a new agreement with reference to the geographical area of Local 1669. Neither party followed up on this correspondence. Further amendments to the Act, effective May 1, 1980, extended existing bargaining rights on a province-wide basis, and on July 18, 1980, the Carpenters Union again wrote Inducon and indicated that it was of the view that Inducon was bound by the Carpenters' Provincial Agreement. Inducon did not reply to this correspondence. As a result, the Carpenters' filed a grievance on August 19, 1980, under the terms of the Provincial Agreement. That was the grievance which was referred to the Board (together with a section 1(4) application) in File No. 1437-80-M, and complained of a violation of the subcontracting provisions of the provincial agreement.

4. The Board issued its decision in that file on March Il, 1982. The Board rejected Inducon's argument of "abandonment", found the Inducon group of companies before it to be "related employers" for the purposes of the Act, declined to give any weight to a petition against the Carpenters' Union filed by the incumbent employees of Inducon, and found Inducon, by virtue of section 137(2) of the Act, to be bound province-wide to the Carpenters' collective agreement. Section 137(2) was part of the 1980 round of amendments referred to earlier, and provides:

Where an employer is represented by a designated or accredited employer bargaining agency, the employer shall be deemed to have recognized all of the affiliated bargaining agents represented by a designated or certified employee bargaining agency that bargains with the employer bargaining agency as the bargaining agents for the purpose of collective bargaining in their respective geographic jurisdictions in respect of the employees of the employer employed in the industrial, commercial or institutional sector of the construction industry referred to in clause 117(e), except those employees for whom a trade union other than one of the affiliated bargaining agents holds bargaining rights.

The employer immediately made application for judicial review of the Board's decision. primarily on the ground that the Board had interpreted section 137(2) (as well as section 14)) in a manner which rendered the question of employee support for the trade union irrelevant. The Divisional Court, in reasons for judgment released February 2, 1983. dismissed the employer's application (which had been joined in by the employees) and made these comments concerning section 137(2):

……..The applicants submit that the interpretation given this section by the Board is patently unreasonable in that it, again, violates a fundamental principle of the Act that ensures employers the freedom to be represented by an employers' organization of choice (Section 4). Section 137(2) was enacted by the Labour Relations Amendment Act. 1979, S.O. 1979, c.113. It is part of a legislated scheme of province-wide bargaining in the ICI sector of the construction industry which was first introduced by the Labour Relations Amendment Act, 1977. S.O. 1977, c.31. Section 137(2) is a specific enactment designed to effect a province-wide extension of bargaining rights of all affiliated bargain­ing agents of the carpenters and others in the ICI sector. Its invocation is premised on the existence of local area bargaining rights. In this case the Board has found that such rights originated with the collective agreement between Local 1669 and ICCL which terminated 30 April, 1973. The finding that these rights were not abandoned is the threshold [sic] decision and it is a decision within the Board's exclusive jurisdiction. See Carpenters District Council of Lake Ontario and Hugh Murray (1974) Limited and John Futwistle Construction Limited, 1980 CanLII 1826 (ON HCJ), 33 O.R. (2d) 670 per Southey, J. at 667. This finding was not questioned in this Court. It is a finding based in part on the Board's understanding of the body of jurisprudence that has developed around the collective bargaining system in the construction industry. Absent attack on that finding, the provisions of section 137(2) apply automatically by operation of law, and, the Board is given no discretion in limiting the province-wide application thereof. The interpretation is not patently unreasonable, given the wording of section 137(2). The legislature has provided that "the employer shall be deemed" to have recognized all the affiliated bargaining agents represented by a certified employee bargaining agency. While an employer might well consider this provision an interference with its right to collectively bargain with a freely designated representative of its employees the legislature has seen fit to limit that right in the interests of attempting to make collective bargaining responsive to the needs of the construction industry. This section in effect provides that if an employer is bound by a provincial collective agreement anywhere in the province, that employer is now bound everywhere in the province to that agreement where it employs persons in the trades in the ICI sector of the construction industry. This is an essential part of a scheme of legislation to provide effective province-wide bargaining leading to a provincial agreement in this sector of the industry.

Inducon and the employees thereafter sought, and have received, leave to appeal to the Court of Appeal.

5. During the course of these events, the Carpenters' on February 23, 1982, prior to issuance of the first Board decision, filed with Inducon a second grievance, which is the grievance before the Board in the present matter. That grievance reads:

NATURE OF GRIEVANCE:

Company employing non-members of the union to perform bargaining unit work and not hiring through the union office.

ARTICLE (S) OF AGREEMENT ALLEGED TO HAVE BEEN VIOLATED:

3, 5 and any other relevant Article.

REMEDY SOUGHT:

Declaration that collective agreement has been violated; that non-members and persons not hired through offices of the District Council be terminated; that the company hire through the union office; any other remedy that may be appropriate.

This grievance was lodged with the Board on April 1, 1982.

6. Meanwhile, the employees in question were apparently taking steps of their own. On March 11, 1982, the day the Board was issuing its initial decision in the union's favour, the employees met with their solicitor and signed a "Termination Application" to have the Board declare the bargaining rights of the Carpenters' Union at an end. This application was filed with the Board on April 6, 1982, and in an earlier oral decision was found by the Board to be timely. The application is stated to be in the alternative to the position taken by Inducon and the employees in Board File No. 1437-80-M; that is, that the Carpenters' Union has no bargaining rights to begin with. Similarly, for the purpose of allowing the Board to proceed with both the second union grievance and the employees termination application, Inducon agreed, without prejudice to its position before the Courts, that it was at all material times bound to the Carpenters' Provincial Collective Agreement, and that it has been employing carpenters who perform work covered by the Collective Agreement. The company and the union also agreed to defer for future consideration the issue of what damages, if any, would flow from the company's admitted breach of the Collective Agreement. This left only the evidence concerning the voluntariness of the termination application itself to be heard by the Board, together with the various arguments of the parties.

II - THE STATUS OF THE "EMPLOYEES"

7. The union argues firstly that the employees who have brought the termination application lack the status to do so. in view of the fact that they are being employed in violation of the collective agreement. In support of this position, the union points to April Waterproofing, 119801 OLRB Rep. Nov. 1577; T F. Leroux Contracting, [1982] OLRB Rep. Aug. 1204; Cooper Construction, [1982] OLRB Rep. Aug. 1152; Folgor Construction, 119821 OLRB Rep. Mar. 377; Graphic Centre, 119771 OLRB Rep. June 379; Beef Terminal (1979) Ltd., 119811 OLRB Rep. Mar. 244.

8. The hiring dates for the 19 carpenters employed on the date of the termination application are as follows:

Antonio F. Moniz Antonio P. Amaral Jose Domingos Rafael Carvalho Henrique Maciel Manuel M. Marchao Manuel Maciel Eduino Ribeiro Joe Amaral Norberto DaRosa Manuel F. DaRosa Manuel M. S. Santos Helmut Staudinger Jose M. Neves Manuel Gaspar Antonio Marcos Joseph (Guiseppe) Vespa Joaquim Ribeiro Isidro Mendes

Dec. 1, 1965 Mar. 1, 1966 Nov. 27, 1967 Jan. 1, 1968 April 15, 1971 Nov. 20, 1973 Dec. 15, 1973 Mar. 24, 1977 Aug. 22, 1977 Sept. 19, 1977 Oct. 31, 1977 June 15, 1978 Oct. 6, 1980 Jan. 19, 1981 Jan. 19, 1981 Nov. 23, 1981 Dec. 14, 1981 Dec. 23, 1981 Jan. 28, 1982

As can be seen, 12 of the carpenters were hired prior to the union's assertion of province-wide bargaining rights in July of 1980. The remaining 7 were hired between the date of that claim/grievance and the Board's ruling on the grievance in March of 1982. As it happens, one of the nineteen carpenters, Mr. Carvalho, has been a member of the Carpenters' Union since 1968, and continues to be so today. While a supporter of the petition, Mr. Carvalho testified that he has kept up his union membership as a form of insurance". He was not, however, hired by Inducon through the Union, as required by the terms of the collective agreement. The Board in Eton Construction, Ltd., 119811 OLRB Rep. July 872, made it clear that even a union member hired other than through the channels required by the agreement is nonetheless a person employed in violation of the collective agreement. Probably in recognition of that, no party in the present case took the position before the Board that Mr. Carvalho enjoyed any different status than the other petitioners by virtue of the happenstance that he was a member of the Carpenters Union.

9. The articles of the collective agreement relied upon by the union in its grievance, and as an extension of that, its argument on status vis-a-vis the termination application, are as follows:

3.01 The EBA recognizes the Union as the sole and exclusive bargaining agent for all journeymen and apprentice carpenters, other than millwrights, engaged in the industrial, commercial and institut­ional sector of the construction industry in the Province of Ontario for whom the Union has bargaining rights.

5.01(a) The employer agrees to hire and continue to employ employees covered by this Agreement who are members in good standing of the United Brotherhood of Carpenters and Joiners of America as long as the Local Union or the District Council of the United Brotherhood of Carpenters and Joiners of America in the Province of Ontario can supply qualified employees in sufficient numbers who are capable of performing the work required.

(b) Except as modified by the provision of sub-section (c) of this Article, all employees covered by this Agreement shall be hired by the employer through the offices of the Local Unions and District Councils having jurisdiction over the geographical area, set out in Schedule "B", where work by the employer is to be performed. Such hiring shall be done by way of a referral slip issued by the Local Union or District Council.

(c) It is understood that, if the Local Union or District Council is unable to provide the required manpower within two (2) working days, the employer is free to hire such manpower as is available, but such manpower shall, as a condition of employment, either be in good standing or apply for membership in the Union within seven (7) days.

When the Board's March II, 1982 decision was handed down, the company moved immediately in the Courts for judicial review. It first sought leave to have its application heard on an "expedited" basis, i.e., by a single Judge sitting in Weekly Court, citing the jeopardy its existing complement of employees had been placed in. The employees, through their own solicitor who had represented them at the Board hearings, joined in the company's application and filed individual employee affidavits in support thereof. The Court denied the company's request for an expedited hearing, but expressed its concern for the possibility of the discharge of the incumbent employees, and, ex proprio motu, granted a stay of any proceedings consequent upon the Board's order under review (decision of Hughes, J., issued orally on March 25, 1982; reasons for judgment issued April 27, 1982). When the company's application for judicial review finally was heard by the Divisional Court on December 15 and 16, 1982, it was dismissed. With respect to the position of the employees, the Court observed:

Turning to the employees' application, it is apparent for the reasons indicated that we are of the view that the Board quite properly did not take into consideration their wishes and desires in applying section 137(2). While we have some concern as to the impact of the Board's decision when viewed from the perspective of consequential results on the employees we recognize that such a concern is one that does not affect the jurisdictional issue herein. We do feel however, that if the Board were to invoke and apply the sanction requested in the grievance, as above indicated, the result may well be considered iniquitous. We recognize, however, that that is a decision for the Board and that although the consequential result to the employees may be regretted it is one which does not raise a jurisdictional issue in this matter.

10. But the concerns expressed by the Court had, by that time, already been considered and acted upon by the Board in the case of Culliton Brothers Limited, [1982] OLRB Rep. Nov. 1602. In that case, the employer, a company located in Stratford, had in 1976 taken on a job located in the City of Cornwall. The local Sheet Metal Workers Union during the course of that job applied for and received certification for the Board's geographic area encompassing Cornwall and vicinity. From that point, both the company and the union had for some time proceeded in ignorance of the effect of an outstanding accreditation order for that geographic area. Following the 1980 amendments to the province-wide bargaining provisions of the Act, the union took the position that the company was automatically bound throughout the province to its collective agreement, and grieved. At that point the only employees of the company were five of the company s "core" employees working in Stratford, who had been hired well before the "deemed recognition" provisions of section 137(2) extended the union's bargaining rights to the area of Stratford. The province-wide collective agreement in that case provided:

ARTICLE 2 - DEFINITIONS

In this Agreement:

2.6 "employee" means a certified journeyman sheet metal worker or registered apprentice, as well as sheeter/decker, welder, sheeter's assistant and material handler engaged in the sheeting and decking segment of the sheet metal industry; recognized by the local union and employed in the shop or on the job site except as otherwise specifically provided in this Collective Agreement.

2.8 "member" means a certified journeyman sheet metal worker; sheeter/decker, welder, sheeter's assistant and material handler in the sheeting and decking segment of the sheet metal industry, recognized by the local union and employed or eligible to be employed by an employer in the shop or on the job site.

ARTICLE 8 - UNION SECURITY

8.1 The employer agrees it shall be a condition of employment for all employees covered by the terms of this Agreement, to be a member of. and to maintain membership in good standing, in one of the local unions.

ARTICLE 21 - HIRING PROCEDURE

21.2 Whenever after reasonable notice, (48 hours) excluding Saturdays, Sundays and Holidays, the local union is unable to furnish a sufficient number of such duly qualified members and registered apprentices recognized by the Union, to meet the requirements of the employer, then the employer may secure such additional sheet metal workers from other sources as may be necessary, it being understood that they shall be eligible and shall comply with the requirements of the Union and thus become covered by the terms of this Agreement.

The Board, in a decision dated March 17, 1982, reported [1982] OLRB Rep. March 357 ("Culliton I", found that section 137(2) of the Act applied to bind Culliton to the provincial collective agreement. With respect to the consequent position of Culliton's existing complement of employees, the Board at that time wrote at paragraph 22:

22. The position of the respondent's present employees who are not members of the applicant raises an important question. In section 137(2), the Legislature extended bargaining rights by means of deemed recognition of affiliated bargaining agents. This section is silent on the wishes of such employees. It was not suggested that the applicant is under any requirement either to offer these employees membership or not to require the termination of their employment with the respondent.

The Board then indicated that the question of the position of the existing employees could be dealt with at a subsequent hearing, at the same time as the issue of damages.

11. Those issues were in fact dealt with in a second decision of the Board, reported [1982] OLRB Rep. Nov. 1602 ("Culliton II"). With respect to the employees, the Board observed the following:

The relief sought by the Conference with respect to the five employees was set out in the following terms in the letter from its solicitors dated January 25, 1982 advising the respondent that the grievance filed in the January 14th letter was being referred to the Board.

"An order that Culliton employ only members in good standing of the affiliated local unions of the Conference to perform work in connection with any of its Projects in accordance with the Provincial Agreement and the Appendices thereto."

"An Order that Culliton cease and desist from employing or continuing to employ persons at any of its Projects who are not members in good standing of any of the affiliated local unions of the Conference.

At the hearing counsel for the Conference asked that the Board direct the respondent to discharge the five employees because they are not members of a constituent local of the Conference as required by Article 8 (see paragraph 16 above).

The Board then continued as follows, at paragraph 38:

38. ... if the respondent is employing employees who are not in compliance with Article 8 of the provincial agreement, Local 473 is within its rights to direct the respondent to discharge the employees and to bring a grievance if it fails to do so....

39. Does this mean that Local 473, had it been aware of its bargaining rights on May 1st, 1980, would have been entitled to have this Board direct the immediate discharge of the four employees for non­compliance with Article 8 if it had filed a timely grievance to this effect? The answer to that question, in the Board's view, would depend on whether Local 473 had given them notice of their obligation and of the fact that it would be seeking their discharge if they did not satisfy the obligation. The entitlement to notice of the obligation and the reasonable opportunity to respond is implicit in the awards of arbitrators who have granted discharge as a relief for violation of union security provisions of a collective agreement. Generally arbitrators grant that relief only after satisfying themselves that the union has acquitted itself properly of any obligation and then they make the discharge conditional upon the employee failing to join the union within a specified time period. In other words discharge takes effect if employees fail to heed the notice that they are obligated to be members of the union and will be discharged if they fail to become members....

40. This approach of arbitrators to violations of the union security provisions in collective agreements has developed largely in the context of industrial unions and with respect to collective agreements negotiated directly between an employer and the bargaining agent for its employees. Thus in that context arbitrators were dealing with union security provisions which had been arrived at by the mutual consent of the contracting parties directly affected by them. The context herein is one in which the parties affected, particularly the employees and their employer, find themselves bound on May 1st, 1980 by force of statute to the provincial agreement, a collective agreement in which they have had no voice in negotiating. The Board cannot accept that these employees would be entitled in such circumstances to any less consideration than arbitrators have given to employees bound by union security provisions arrived at by the mutual consent of their bargaining agent and their employer. Having regard to the overall scheme of the act, it is inconceivable that sections 137(1), 137(2), 145(4) and 147(2) could be seen to operate in a manner which would deny the respondent's employees reasonable notice of their obligation with respect to union membership and the opportunity to act on that notice and join the union if that is their decision. If they were given that opportunity and failed or refused to act on it to join the union, then the union would be entitled to demand that the respondent discharge them and in which case they would have to be dismissed.

The Board then considered the facts which it had found at an earlier point in the decision, namely, at paragraph IS:

15. The respondent has not attempted to hire members of the Conference or its constituent locals since it received the Conference's January 14th letter. Nor has it acted to terminate the employment of the five employees, but following the March 17th decision, it did advise them that they should apply for membership in the Associa­tion. This advice was given after the respondent consulted with its solicitors. The respondent did not pursue the matter any further after it received notice of the application for termination of bargaining rights. The employees were not approached by the Conference or any of its locals with respect to joining the Association or with respect to the requirements of membership contained in Article 8 of the provincial agreement.

The Board noted that its determination of the impact of section 137(2) on existing employees had not previously been decided, that the union itself gave no notice to the employees of the options that they faced, and that the first Board decision refrained from dealing definitively with the position of the employees. In the result, the Board found that the first clear notice to the employees of the choice which they had to make was in the form of that decision itself, and accordingly afforded the employees five days from the issuance of the decision to make application to the union for membership (failing which, the union could demand their discharge, pursuant to the collective agreement).

12. The Board in Culliton, II found that at the same time as section 137(2) had the effect of extending the union's bargaining rights (and collective agreement) for the employer Culliton to all areas of the province, all of the existing employees of Culliton “became employees in the bargaining unit of the provincial agreement and were bound by it" (paragraph 37). That conclusion was not reached in the context of a termination application. But in an unrelated case dealing with termination application and considered within days of the Culliton (II) decision, the Board came to the same conclusion, for the purposes of section 57(2) of the Act. See Thomas Construction (Galt) Limited, [1982] OLRB Rep. Nov. 1727. The issue of "employee" status in the termination application filed for Culliton Brothers Limited itself remained to be decided by a third panel of the Board, decision reported [1983] OLRB Rep. March 339 ("Culliton III"). Clearly, therefore, that particular issue at this point in time cannot be treated as one of first impression.

13. The Board in Culliton III carefully considered the line of authority put forward in this case by the Carpenters' Union in support of the submission that the pre-hired employees are not to be treated as "employees" for the purposes of section 57(2) of the Act. In rejecting that argument in the context of section 137(2) of the Act, the Board observed, at paragraph 18:

14. ... None of the employees "swept in" by section 137(2) had ever indicated any desire for trade union representation. Should we conclude that on May 1, 1980 the union not only acquired the right to represent them, but also that they should be denied the fruits of that representation until such time as they sought and were accepted into membership'? On this view, for practical purposes, the province-wide bargaining scheme has not been extended at all. It simply opens the possibility of replacing longstanding employees with members of the union. We do not think that that was the legislative intention and, in this respect, we agree with the result set out in the second decision of the Board in the previous proceeding. (See paragraph 37, where the Board found that the employees were "employees in the bargaining unit of the provincial agreement and were bound by it".).

15. In our view, when the non-union employees of Culliton were swept into the province-wide bargaining scheme, it was intended that they be regarded as employees in the bargaining unit defined in the agreement and possessing all of the rights, privileges, and obligations of any other employee under the Act represented by the union. If they did not join the union they could be terminated, because that is what the agreement required. But as employees in the bargaining unit they could also seek a termination of the union's bargaining rights in accordance with the provisions of section 57.

16. The Board in Culliton III carefully distinguished the case before it from the facts in, e.g., April Waterproofing, [19801 OLRB Rep. Nov. 1577, where the employment of certain individuals was unlawful from the beginning; i.e., the employment relationship could not be formed without a violation of an already existing collective agreement. In April Waterproofing, the employer, just at the onset of the "open period", hired two employees from a rival union in knowing violation of its existing collective agreement. A "displacement" application for certification by the rival union followed immediately. In refusing to find that the two persons illegally hired were "employees" in the bargaining unit for the purposes of the Act, the Board signalled its concern, later articulated further in Thomas Construction (Galt) Limited, supra, at paragraph 9, that such employer conduct creates:

9.... a possible method of easy abuse by employers, particularly in the construction industry in relation to representation matters before this Board. Thus, for example, on a termination case an employer could choose to avoid his obligations under a collective agreement to seek employees from a trade union's hiring hall and employ persons from either another trade union or totally antithetical to construction trade unions at the time when the open period for the collective agreement is approaching. In such circumstances, it would not be surprising if another union were to apply for certification or if the employees were to apply for termination of bargaining rights. The employer would have "fostered" such a representation application by laying the necessary ground work simply by avoiding his collective bargaining obligations with the trade union representing employees in a particular bargaining unit.

Thus the Board has not failed to interpret the Act in a manner which renders such conduct ineffectual, without requiring (it will be noted from April Waterproofing and the obiter dicta of Culliton III) further inquiry into the motive of the employer. Such employer initiatives so obviously place a union's bargaining rights in jeopardy that the employer is presumed to intend the natural consequences of his acts. As the Board noted in Culliton III, at paragraph 25, conduct of this type on the part of an employer would appear to be a fundamental violation of section 64 of the Act as well.

15. From the Board's analysis, particularly in Culliton III, it becomes apparent that the seven employees hired in this case after the 1980 amendments extended the application of the provincial agreement, and after the Carpenters' gave notice to Inducon to that effect, stand in a different position from those employees hired prior. Inducon, in hiring its own employees in the face of that notice, must surely be said to have been acting at its peril. Such employees can be said to have at no time been "properly" or "innocently" hired, and no valid reason exists to cause the Board to treat their status other than as it has, for example, in April Waterproofing, supra, and Beef Terminal (1979) Ltd., [19811 OLRB Rep. March 244. Nor do the arguments in Culliton II apply to provide these employees with an industrial-like opportunity to make application for membership in the union. Like most construction agreements, the present collective agreement contains not only a requirement of membership, but an obligation to hire through the union hall. While the denial now of a reasonable opportunity to join the union clearly is unfortunate for these seven employees, it must be recognized that they were in all likelihood hired in the stead of unemployed members of the union, at a point in time when, as the employer has been put on notice, those employment opportunities were lawfully reserved for members of the union. As the Board noted in Culliton II, at paragraph 18, the right of the union to receive damages for breach of the hiring provisions is dependent upon its right to have required the immediate dismissal and replacement of the non-member employees, and the awarding of damages in such cases as McKenna Bros.. 1975 CanLII 2128 (ON LA), 10 L.A.C. (2d) 273, and, more importantly, Blouin Drywall Contractors Ltd., (1975) 1975 CanLII 707 (ON CA), 8 O.R. (2d) 103 (Ont. C.A.); 1974 CanLII 751 (ON HCJDC), 4 O.R. (2d) 423 (Divisional Court), 4 L.A.C. (2d) 423, implicitly recognizes such a right.

16. Recognizing that Culliton III, and to a lesser extent Culliton II, did deal precisely with this issue, counsel for the Carpenters' Union responded to the Culliton cases in two ways. He argued, firstly, that they are distinguishable, and, in the alternative, that they are wrong. Counsel argues firstly that to be an "employee" under this collective agreement; it is necessary to be a union member. The portions of the collective agreement which he relies upon are, once again:

3.01 The EBA recognizes the Union as the sole and exclusive bargaining agent for all journeymen and apprentice carpenters. other than millwrights, engaged in the industrial, commercial and institut­ional sector of the construction industry in the Province of Ontario for whom the Union has bargaining rights.

5.01(a) The employer agrees to hire and continue to employ employees covered by this Agreement who are members in good standing of the United Brotherhood of Carpenters and Joiners of America as long as the Local Union or the District Council of the United Brotherhood of Carpenters and Joiners of America in the Province of Ontario can supply qualified employees in sufficient numbers who are capable of performing the work required.

(b) Except as modified by the provision of sub-section (c) of this Article, all employees covered by this Agreement shall be hired by the employer through the offices of the Local Unions and District Councils having jurisdiction over the geographical area, set out in Schedule "B", where work by the employer is to be performed. Such hiring shall be done by way of a referral slip issued by the Local Union or District Council.

(c) It is understood that, if the Local Union or District Council is unable to provide the required manpower within two (2) working days, the employer is free to hire such manpower as is available, but such manpower shall, as a condition of employment, either be in good standing or apply for membership in the Union within seven (7) days.

But the language before the Board in Culliton provided, if anything, even stronger grounds for that argument, in that it specifically defined both “members" and "employees". In that respect it reads, once again:

ARTICLE 2 - DEFINITIONS

In this Agreement:

2.6 "employee" means a certified journeyman sheet metal worker or registered apprentice, as well as sheeter/decker, welder, sheeter’s assistant and material handler engaged in the sheeting and decking segment of the sheet metal industry; recognized by the local union and employed in the shop or on the job site except as otherwise specifically provided in this Collective Agreement.

2.8 "member" means a certified journeyman sheet metal worker; sheeter/decker, welder, sheeter's assistant and material handler in the sheeting and decking segment of the sheet metal industry, recognized by the local union and employed or eligible to be employed by an employer in the shop or on the job site.

Yet the Board in Culliton, III, bearing in mind its decision in Culliton II, felt compelled to the conclusion that the petitioners before the Board were "employees" for the purpose of raising the representation issue under section 57(2 of the Act. The Board in Culliton II found that such employees were "employees in the bargaining unit", and entitled to a reasonable and clear opportunity to make the election open to them. This same conclusion as to the legal status of the incumbent employees was carried through. specifically with regard to section 572), in Culliton III.

17. Counsel for the Carpenters' Union argues that the Board erred in Culliton in adopting a requirement of reasonable notice prior to discharge, in that such a requirement emanates from arbitral authority in the industrial context. He argues that the same approach has no basis in the construction industry, with its standard requirement of hiring through the union and its hiring hall. He refers in support of this submission to the acknowledgment by the Court of Appeal in, e.g., Blouin Drywall, supra, of the distinctiveness of the construction industry on matters of employment relations. But the statement of the Court in that case, important as it is, cannot be divorced from the specific facts and issue before it. The employer in Blouin, while admittedly bound by the collective agreement, had wrongfully hired individuals directly as "trainees", and the Court was called upon to confirm the right of the union to claim damages generally, from the point of hiring, on behalf of its unemployed members. The Board has, already in this decision, acknowledged the impact of the Blouin Drywall case on the seven employees hired in “knowing" violation of the collective agreement. But Blouin was not dealing with the case of long-standing and lawfully-hired employees who, by operation of law, had suddenly been faced with a requirement to become members of a bargaining agent, or face discharge. Having regard to the concerns expressed by the Divisional Court in the course of dismissing Inducon's application for judicial review, the Board senses that the Court would find the same distinction to exist between the two categories of employees as the Board has.

18. Counsel next argues, in the alternative, that the present case is distinguishable from Culliton on the question of whether reasonable notice to the employees of their obligations has in fact been given. He argues that both the company and the employees have been on notice since the Board's first decision in March of 1982 of what was required of the employees, yet both have done nothing to comply. Counsel relies in this submission on paragraph 39 of the Board's March decision, which observed:

19. The employees and the respondents object to a declaration issuing to the applicant which would have the effect of making the applicant or one of its locals the bargaining agent with their employer or employers. In enacting section 137(2) of the Act, the Legislature made no reference to any consideration to be given to the unrepresented employees of the employer when the deemed recogni­tion comes into effect. The applicant has not indicated what will be its attitude towards these employees. ... On the one hand, the applicant may offer membership to the employees and, on the other hand, it may require their dismissal pursuant to a union security clause in the current provincial collective agreement. Clearly, it is open to the applicant under union security provisions of the current provincial collective agreement to require the employees to be or become members in good standing of the United Brotherhood of Carpenters and Joiners of America.

Counsel further relies on the affidavit of Robert MacKay, an officer of Inducon, filed in support of the company's request for expedition of its application for judicial review. In that affidavit Mr. MacKay stated in part:

9. The Board, in its decision declared that the Union held bargaining rights for Inducon throughout Ontario and found that Inducon was in breach of the Carpenters' Ontario Provincial Collective Agreement. In particular, the Board found that Inducon was in breach of the Union's security provisions which require the employees of Inducon to be members in good standing of the Union. As a result of the Board's decision, the employees are compelled, without a vote, to become members of the Union, if the Union allows them to be members and allows them to work for Inducon. If not, Inducon must terminate the employees or face a liability of approximately $15,000 per week, which corresponds to the salaries and benefits payable to employees which the Union will require as damages for failure to employ Union employees.

10. Now shown to me and marked as Exhibit "B" is a true copy of a grievance filed by the Union for a declaration that the collective agreement has been violated, that non-members of the Union and persons not hired through the offices of the District Council be terminated, that the company hire through the Union office, and for other unspecified remedies that may be appropriate. None of the carpenters employed by Inducon were hired through the offices of the District Council and would all, therefore, have to be terminated by Inducon.

And in support of the same request, the employees' solicitor filed an affidavit which observed:

8. The effect of the Board's decision is that the applicant companies must discharge the Employees without any guaranty being given that they will be rehired. The Employees have made it clear that they want to keep their jobs, which some of them have held for more than 10 years.

9. The Board does not find the above to be sufficient to distinguish this case from Culliton. The Board in Culliton II recognized (at paragraph 15) that the employees had been advised by their employer, following the Board's initial decision, to apply for membership in the Union. But the Board found that sufficient uncertainty still existed over their options to justify the employees' failure to do so. As the Board also noted in paragraph 15:

The employees were not approached by the conference or any of its locals with respect to joining the Association or with respect to the requirements of membership contained in Article 8 of the provincial agreement.

There has been no approach made to the employees by the union in this case either. In Culliton II it was further noted that the first Board decision itself remained equivocal on the position of the incumbent employees, and the extent of any options which lay open to them. But that first decision did decide that the provincial collective agreement was in effect, and that Culliton's failure to employ union members in accordance with its terms was a clear violation of the agreement. What that decision said about the existing employees was, once again:

The position of the respondent's present employees who are not members of the applicant raises an important question. In section 137(2), the Legislature extended bargaining rights by means of deemed recognition of affiliated bargaining agents. This section is silent on the wishes of such employees. It was not suggested that the applicant is under any requirement either to offer these employees membership or not to require the termination of their employment with the respondent.

As can be seen from the passage quoted in paragraph 18 of this decision, the Board in the present case went no further in its March decision than to observe that the trade union “may offer membership to the employees", or it "may require their dismissal". That was prior to the Board having had an opportunity to address the matter fully in Culliton II, and appeared to leave the options solely in the hands of the trade union. But, as the Board noted in the same paragraph, the union had not yet "indicated what will be its attitude toward these employees". It was still not clear, in other words, what options in fact lay open to the employees. This is not a matter of abstract distinction: the union, to the very close of the hearing before this panel, had deliberately refrained from adopting a position with respect to accepting these employees into membership. The employees themselves, through their solicitor, wrote to the union on March 3, 1983, subsequent to the release of the Culliton decision, as follows:

Dear Sirs:

RE: Employees of the Inducon group of companies

As you know, I act for the employees of the Inducon group of companies who were made parties in the current proceedings before the Court of Appeal and the Labour Relations Board concerning your union and the Inducon Companies.

These employees have made their position clear by affidavits and a petition filed in those proceedings and wish to continue as long as possible to assert their position.

They are, of course, concerned also about having jobs. Most of them have been long-time employees of Inducon and wish to continue to work for Inducon.

They are aware, however, that if the current proceedings above referred to are all dismissed you may require them to be dismissed and replaced by current members of your union.

They are also aware of the recent decision in the Culliton case where, in a similar situation, the Board gave the employees time to apply for membership so that they would be able to keep their jobs and still preserve some of their other rights.

I am accordingly instructed on behalf of the employees, my clients. to inform you that having regard to the foregoing and without prejudice to the rights that they may be found to have in any of the current proceedings and in the future which they hereby reserve, the employees, if required to do so by the Ontario Labour Relations Board, and in order to keep their jobs, intend to make application to join the union and would ask for the necessary material for completion and return to you.

We expect that there would be no difficulty in their becoming members of the union.

Yours very truly,

The union did not reply to this letter.

20. The reasons for the equivocation of the union on this point were candidly and realistically put forward by their counsel at the close of the hearing: he observed that the union had no desire to see these employees lose their jobs, but on the other hand, the union was not anxious to take them into membership just so they could terminate the unions bargaining rights. The fact remains, however, that the union had refrained from putting forward any offer of membership up to the time Culliton II was decided, and since that time the employees themselves have indicated their willingness to apply for membership if that is what is required.

21. Finally, and perhaps the shorter answer to the union's claim that the company should have acted, pursuant to the grievance, to terminate any non-members of the union following the Board's decision in March of 1982, the company correctly points out that that decision was followed almost immediately by the stay of proceedings ordered by the Court, acting ex proprio motu, and that stopover was still in effect at the time that the termination application was filed.

22. For the same reasons given in Culliton, the Board here finds the individuals who were in the employ of the company even before the time when the amendments to the Act caused the collective agreement to apply, to stand in a different position than those hired subsequently. The Board finds the former group to be "employees" within the bargaining unit for the purposes of section 57(2) of the Act, and to be entitled to a reasonable opportunity to make application for union membership, in order to preserve their employment.

III - THE PETITION

23. As a result of the overt participation of the group of employees in the prior proceedings before the Board and the Court. all parties were well aware who the petitioners were in this case, and the Carpenters' Union summonsed the bulk of them to appear at the Board as witnesses. As matters developed, however, they were called by their own counsel as witnesses instead. Their testimony covered events and what was obviously for them a major topic of conversation over a period approaching two years, and their evidence on specific matters of detail was far from consistent. In spite of that, however, gene rally the following account emerges.

24. In the latter part of 1980, talk arose at the work sites of efforts of the Carpenters' Union to be accepted as bargaining agent for the carpenters employed by Inducon. The existing carpenters, by their account, were concerned about this prospect, and began discussing it amongst themselves, both at their work sites and at the company's shop, as well as by telephone when at home. Only one of Inducon's carpenters was at that time a member of the union, and all had, to that point in time, been working at Inducon ~'non-union". Virtually all of the carpenters were immigrants from mainland Portugal or its affiliate, the Azores Islands, and few spoke English. One who did was Eduino Ribeiro, who has been resident in Canada since 1959. The consensus of the carpenters was that they had best retain a lawyer to advise them, and Mr. Ribeiro volunteered to contact the lawyer who had acted for him in the past on personal matters, including successive purchases of the family home. That lawyer was Alexander Menzies, a general practitioner in the City of Toronto. Mr. Menzies is not Portuguese, but had, prior to this time, obviously gained the confidence of the Portuguese community, as the evidence shows Mr. Menzies to have acted as personal solicitor for a number of the other petitioners as well. It was understood amongst the carpenters that all would contribute to the cost of Mr. Menzies' bill, and the evidence, although varying amongst the witnesses as to specific times, indicates that this has happened.

25. Mr. Ribeiro attended at Mr. Menzies' office to explain the problem, and Mr. Meuzies suggested that all of the carpenters sign a petition indicating their opposition to the union coming in. Mr. Ribeiro obtained from the other carpenters their addresses, and wrote all of the names and addresses on a sheet of paper. He then delivered the sheet to Mr. Menzies, who prepared a "petition" document opposing the union. Mr. Ribeiro then took this document away to be signed by the other employees. The other carpenters were spread around the various jobs that the company had going, and in the course of one day Mr. Ribeiro went from job to job to gather the individual signatures. It appears that Mr. Ribeiro was himself working nights inside an A & P store at the time, but it is clear that many of the carpenters that he visited on the job would have been approached during their working hours. It is also clear that Mr. Ribeiro did not attempt to hide his petitioning activity from either his own superintendent or the superintendents on the other jobs. This petition was then returned to Mr. Menzies and filed with the Board, which was in the course of hearing the union's original section 1(4) application and the subcontracting grievance. That case took 11 days of hearing, and Mr. Ribeiro attended with Mr. Menzies, and en violated; that non-members and persons not hired through offices of the District Council be terminated;

26. The first petition was actually signed and filed with the Board in early February of 1981. In February of 1982, while awaiting the decision of the Board, the union, as noted earlier, filed its second grievance (the present grievance), which specifically complained of Inducon's violation of the "hiring" provisions of the provincial agreement. The remedy sought, once again, was:

Declaration that collective agreement has been violated; that non-members and persons not hired through offices of the District Council be terminated; that the company hire through the union office; any other remedy that may be appropriate.

Mr. Menzies contacted Mr. Ribeiro and suggested that further steps be taken to protect the existing carpenters, in the form of a second petition. Mr. Ribeiro again compiled a list of the carpenters working for Inducon as of the new date, and delivered it to Mr. Menzies. Mr. Menzies then discussed with Mr. Ribeiro a convenient place where he could meet with all of the carpenters at once. The two settled upon the company's carpentry shop, from which tools for special jobs are issued, and to which the carpenters sometimes return at the end of a shift. The keys to the shop are kept by Helmut Staudinger, a former superintendent who now works as a carpenter performing warranty work. The carpenters boss, Alberto Maciel, has an office at the shop (in addition to the one at Head Office) which he often visits for a couple of hours during the day, but he is always gone from the shop by the end of the shift.

27. At the request of Mr. Ribeiro, all of the carpenters met after the day shift on March 11, 1982, to discuss with Mr. Menzies the second petition, seeking termination of the union's bargaining rights. Mr. Ribeiro arranged with Mr. Staudinger to remain at the shop and leave the doors unlocked for the purpose of their discussion. Mr. Staudinger concedes that a full meeting of all of the carpenters had never taken place at the shop before, but testified that he did not see anything improper in it. Mr. Ribeiro acted as interpreter for Mr. Menzies and the other carpenters, and the whole meeting lasted approximately an hour. The second petition was then filed with the Board as the instant termination application.

28. Considerable argument was addressed to the Board on the differing tests to be applied to "petitions" depending on the context in which they arise, in particular in comparing an application for certification with an application for termination of bargaining rights. As the Board has made clear, most recently in Westinghouse Canada Ltd., [1982] OLRB Rep. July 1098, there is only one standard to be met, and that is to satisfy the Board that the petition is voluntary. As a. practical matter, however, a particular context may well make it easier for the Board to be satisfied. Reviewing the various statements of the Board in this regard, the Board in Ontario Hospital Association (Blue Cross), [1980] OLRB Rep. Dec. 1759, noted, at paragraph 31:

29. ... In the case of a termination application, the Board is no less concerned about influence by the employer, but there may, as a practical matter, be any number of reasons, including the mere passage of time, to readily explain the employees' apparent change of hearts. As the Board commented in N. J. Spivak Limited, 119771 OLRB Rep. July 462:

30. In contrast to a statement filed in opposition to an application for certification a statement of desire filed in support of a termination application under section 49 of the Act does not represent a sudden change of heart by those who sign it. The operation of section 49, a section designed to give vent to employee desires, requires the passage of at least one year from the date of the union's certification before the Board will entertain an application for termination of bargaining rights. Because of the absence of an immediate change of heart, as happens when an employee signs himself into membership in a trade union and shortly thereafter signs a statement in opposition to the certification of the same union, and having regard to the purpose of section 49, the Board is less inclined to draw inferences adverse to the voluntariness of the statement filed in support of an application under section 49 of the Act.

See also Northern Telecom Canada Limited, 119791 OLRB Rep. April 330.

29. The present context really goes one step beyond that. Not only has there been no sudden change of heart, the carpenters who have always worked for Inducon on a regular basis have never indicated any desire to be represented by the trade union. The last carpenters for Inducon having any affiliation with the Carpenters' Union completed their work in 1973, and that was in Rainy River. As in the Culliton case, the first steps the existing group of employees saw the ascending union take appeared in no way designed to promote the interests of those particular employees. The Board in Culliton III observed:

30. The employees attended all of the hearings in Board File No. 2245-81-M. Initially they were without counsel. Subsequently, they retained their present solicitor who appeared for them at the second hearing and filed this termination application on their behalf. Prom their point of view, it was obvious that their rights, status, and wishes, were not the union's prime concern. In its pleadings, the union sought remedies which could mean their termination and replacement by union members. The employees did not understand the statutory framework and, not surprisingly, were unenthusiastic about union representation, and apprehensive about the consequences of the statutory extension of bargaining rights. Mr. Schade testified that he resented the fact that trade union representation was being thrust upon him, and that his first direct contact with the union was in the section 124 application where it sought to have him discharged.

and ultimately concluded:

28. ... The Board is further satisfied that not less than forty-five per cent of such employees have voluntarily signified in writing that they no longer wish to be represented by the union. It is entirely understandable why these employees would be opposed to trade union representation which was not only thrust upon them unwill­ingly. but also involved an initial effort by their bargaining agent to have them all fired. Their negative reaction is hardly surprising.

A trade union thus acquiring bargaining rights under section 137(2) may in its own interest have to act with some dispatch to counteract this negative reaction, and to provide whatever assurances it thinks fit to the existing employees. But failing such assurances, the Board would need quite cogent evidence of employer domination or interference to conclude that a termination application, in circumstances such as these, would not likely represent the true wishes of the employees themselves.

30. In the present case there have been no overtures or assurances from the trade union at all. All that the trade union did initially was to assert bargaining rights and file a grievance against the company for subcontracting to a non-union company in violation of the provincial agreement. It was not difficult for the non-union carpenters employed at Inducon to divine that their own interests might ultimately be threatened by this line of attack. As Mr. Ribeiro responded to union counsel's questions:

Did you think you were going to be fired when you heard that the Carpenters' were trying to get into the company?

Yes. This is what I, what we all thought, that if the union gets in, we can't work anymore.

Who told you that'?

Well we are not members of the union, you see, SO if the union gets into the company, how can we work then'?

Did anyone tell you you couldn't work then'?

No one told me, but I have already been a member of the union and I know how those things work out.

And referring to this later:

Did you discuss that [the night you signed the termination petition]?

Right from the beginning, when we started [the first petition], the

issue was discussed.

Those fears appeared to be vindicated when the union filed its second grievance in February of 1982, demanding that "all employees not hired pursuant to the collective agreement be terminated". As another petitioner, Mr. Marchao, described the situation as he saw it:

"The union was trying to steal our job".

If employees had that perception, the union by its conduct had gone a long way toward fostering it. And if, as matters ultimately turn out, that was a misperception, the union did nothing to seek to correct it.

31. According to the employees' evidence, there were, in addition, further reasons underlying the employees' opposition to the union coming in. They had always enjoyed flexibility in their employment relationship with Inducon, for example, in being permitted frequent time off to return for visits to Portugal. In addition, until the most recent economic downturn, they had enjoyed steady, year-round work. From, in some cases, their own prior experience as union members, and in others from the experience of friends, they were afraid that going union would mean long waits on the out-of-work list alter a job assignment was completed, or perhaps no job opportunities from the union at all.

32. Given the period of time covered by the employees' testimony, and the fact that two similar petitioning activities were involved, a year apart, the Board does not find the widespread confusion or inconsistencies in the petitioners' evidence to be fatal, bearing in mind as well that many of them would have only a limited grasp of the technicalities of what was going on around them in the first place. It is not surprising that for some, certain incidents and statements may have stood out for them, and for others, different incidents or statements may have done so. Adding to the difficulty in accurately placing statements and events in time is the undoubted fact that this major threat to the employees' security would be the subject of constant and repeated conversation amongst the work force.

33. Beyond this, however, the Board agrees with counsel for the union that many of the petitioners gave their evidence in an "evasive and defensive" manner. Even Mr. Ribeiro tended to be less than forthcoming with all of the facts, unless confronted. And many of the others denied, for example, any knowledge of what the company k position was in regard to the union coming in. In light of all that was going on, both in formal proceedings and in general conversation around the work site, such denials are simply unworthy of belief. As Mr. Antonio Amaral, one of the more candid (and senior) of the petitioners put it:

You knew the company didn't want the union to come in? Yes - many years.

How did you know? Speak to superintendents, bosses?

How many years company been involved in Court cases with the union? God knows.

But how did you know the company didn't want the union?

If I work in the company, I'm not deaf. How I not know what going on'? With all those cases

Yet many of the employee witnesses (all of whom were excluded while not testifying) asserted they were unaware of the company s position. There is no question, therefore, that many of the petitioners were being "defensive". It cannot be ignored, however, that from their perspective their jobs were on the line, for reasons not traceable to the posture of the company. While a lack of total candour may jeopardize any petition, the Board in this case does not find that the employees' defensiveness on this point raises inferences fatal to the issue of voluntariness. As the Board observed, once again in the Blue Cross case, supra, at paragraph 36:

36. ... the Board declines to draw a negative inference from the mere fact that the employer was clearly aware of the petition's existence, or that the employees would reasonably assume that such a develop­ment would be welcomed. As the Board commented in Parke’s Dye Works and Cleaners Limited, supra, at paragraph 36:

We have no misgiving in finding that [management] knew of the organizing by employees to terminate the respondent's bargaining rights. Nor do we hesitate to hold that the intervener would welcome the prospect of a successful termination applica­tion by the employees in the bargaining unit.

and beyond this in Cooper-Weeks Limited, [1967] OLRB Rep. Aug. 455, at paragraph 5:

It may be that, at the time they affixed their signatures to the petition, the employees were aware of, and took into account, the apparent facts of their employer's dislike for the officials of the respondent trade union. It does not follow from this, however, that the petition itself might not constitute a voluntary expression of the employees wishes.

34. There is in fact some further evidence from Antonio Amaral that the Board should comment upon. Mr. Amaral was asked by his counsel what the petition meant, and Mr. Amaral responded:

"To help the company. The company has been good to us for all these years.

Asked further about this by counsel for the union, Mr. Amaral referred, as others had, to the company's accommodation of vacation plans, and the steady work. He was then asked if Mr. Ribeiro told him that it would help the company if the employees signed this, and Mr. Amaral answered: "Of course". Once again, the Board finds, Mr. Amaral was not afraid to state the obvious. Quite apart from the particular history of this case, employees generally perceive their employers as preferring to remain non-union, and it would be a rare employee who did not recognize that, in signing a petition against the union, he was acting in a way which would assist the company. The representation question itself is, rightly or wrongly, often cast as a test of loyalty between the employer and the trade union, and the focus of a campaign is often whether or not the employer by its track record has earned the employees' continued "loyalty". In this case Mr. Amaral obviously felt that the employer by its track record had done so. And, he affirmed in his evidence, he took his action without regard to whether the company would know that he had done so or not. There is nothing, therefore, in Mr. Amaral's evidence to suggest that he was doing anything other than, on rational grounds, exercising his own freedom of choice. On the contrary, his evidence, like so many of the others', reflected a basic satisfaction with conditions as they were, and a concern that the introduction of the union might change them. In this sense the way Mr. Amaral perceived his own interest and his reasons for supporting the company effectively merge.

35. None of this is to say that the same kind of openness and close co-operation with the company demonstrated on the first petition would not stand in the way of a finding of voluntariness if the issue had arisen in the context of a certification application. Indeed, as the Board noted obiter on even the limited evidence before it in the first grievance referral (Board File No. 1437-80-M, at paragraph 39):

39.... The petition, which was filed before the Board, would not have persuaded the Board, had this been an application for certification, to lend any weight to the objections of the employees. Quite clearly, there was too much knowledge and participation and assistance by the supervisory staff of the employees for the Board to give any weight to such a document.

In a certification application, as noted above, those same employees (if the petition is material) have just signed union cards, and it is difficult to satisfy the Board that an apparent change of heart which takes place with the co-operation of management is voluntary.

36. But this is not an application for certification. It is not even a normal termination application. The claim of the union was as much a threat to the existing employees as it was to the employer, and everyone knew it. The Board does not in these circumstances find Mr. Ribeiro's freedom to visit the other job sites while off shift himself (on the first petition), nor the use of the regular carpenters' shop (on the second petition) after working hours, and after any members of management have gone home, cause it to fear that employees would have signed the petition because they perceived it as a company-sponsored document. Counsel for the employees submits that in the circum­stances of this case:

"the Board would have seen a termination application if the employees had simply been left on their own in a 50-acre field: they don't want the union!"

On the basis of the evidence that the Board has heard, and the absence of any overtures made to the employees by the union, the Board, at this point at least, would have to agree.

37. The Board accordingly is satisfied that not less than 45 per cent of the 12 employees in the bargaining unit as of the date of the application have voluntarily signified in writing as of the "terminal date" that they no longer wish to be represented by the trade union. The 12 employees are, once again, those employees hired prior to the time that the Carpenters' Union put the company on notice of its view that the 1980 amendments to the Act caused the union's province-wide agreement to apply. These are the individuals the Board finds to be "employees" for the purposes of the Act and section 57(2), and to be employed "in the bargaining unit" at the material time. These are also the individuals entitled to a reasonable opportunity to make application for union membership, and the union must be mindful of the comments of the Board in paragraph 45 of Culliton II as to its responsibilities in that regard.

38. The Board accordingly directs that a representation vote be taken amongst the employees in the bargaining unit, which is described as:

All journeymen and apprentice carpenters, other than millwrights, engaged in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario.

All employees in the bargaining unit as of the date hereof who make application to join the union as specified hereunder and who do not voluntarily terminate their employment or are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote. Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Inducon Development Corporation, Inducon Construction (Northern) Inc. and Inducon Design/Build Associates.

39. With respect to the grievance referral also before the Board, the parties have, as previously noted, agreed for that purpose that the provincial collective agreement is binding upon Inducon, and that Inducon has been employing on its own persons to perform carpentry work covered by that agreement. The Board accordingly finds that Inducon is employing carpenters in violation of the Carpenters' collective agreement, and directs, having regard to the dates of hire set out in paragraph 8 of this decision, and subject to any stay order now in effect:

(a) that Inducon cease to employ on bargaining-unit work those carpenters whom it directly hired prior to July 18,1980, who fail to make application to become members of the Union within ten clear days, Saturdays, Sundays and holidays excluded, from the date of issue of this decision or who fail to become members in the Union's normal way within the time limits reasonably determined by the Union's constitution; and

(b) that Inducon forthwith cease to employ on bargaining-unit work those carpenters whom it directly hired subsequent to July 18, 1980.

40. For the purpose of clarity, the Board notes that Rafael Carvalho is already a member in good standing in the union, and nothing more need be done by him to preserve his employment status. The Board notes the further agreement of the parties that the Board remains seized of the grievance referral on all issues relating to damages.

41. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER B. K. LEE;

1. I dissent.

2. I am not in disagreement with the facts as they appear in the majority decision.

3. Since the majority in paragraph 39 finds Inducon in violation of the Carpenters' collective agreement in their hiring practices, this accords support to the union's argument that the carpenters who brought the termination application lacked the status to do so.

4. Should benefits flowing from union membership and the provincial agreement provisions be awarded illegally-employed persons, and shortly thereafter a termination vote take place'?

5. To allow the termination application to stand is, in my opinion, as much a violation of the intent and purpose of the Carpenters' collective agreement as was the hiring practices of Inducon.

6. I would dismiss the application for termination.