Ontario Labour Relations Board
Date: November 2, 1983 File No.: 1516-83-R
Between: Ken Price, on his own behalf and on behalf of a Group of Employees, Applicant
- and - Shopmen's Local Union No. 834 of the International Association of Bridge Structural and Ornamental Iron Workers, Respondent
- and - Empco-Fab Ltd., Intervener
Before: Owen V. Gray, Vice-Chairman and Board Members J. Wilson and C. A. Ballentine.
Appearances: E. Rovet and K. Prince for the applicant Roy B. Sim for the respondent No one appeared for the intervener
Decision of the Board
1This is an application under section 57(2) of the Labour Relations Act for a declaration terminating the bargaining rights of the respondent trade union.
2The application is timely. It is supported by a statement of desire signed by 12 persons. The employer has filed a list of the employees in the bargaining unit. Eleven of the 12 names on the employer's list correspond with names of persons whose signatures appear on the statement of the desire. Thus, not less than forty-five per cent of the employees in the bargaining unit have signified in writing that they no longer wish to be represented by the trade union. Pursuant to subsection (3) of section 57, however, we are obliged to consider whether these significations are voluntary.
3The applicant testified with respect to the origination and circulation of the petition he filed with the Board. We are satisfied from his evidence that there was no management involvement in the origination or circulation of the petition.
4The respondent trade union called no witnesses. Nevertheless, its representative asked the Board to find that the petition presented by the applicant is not a voluntary one. He asked us to take into account the labour relations history of the intervener employer as set out in a decision of this Board, differently constituted, dated August 17, 1982 and reported at [1982] OLRB Rep. Aug. 1162. That decision dealt with an earlier application for termination of bargaining rights of the respondent for the same bargaining unit affected by this application. The applicant was one Joseph Appleman. Appleman had been the sponsor of two previous petitions. In 1980 Mr. Appleman had sponsored a petition against the United Steelworkers of America at the time it attempted to certify this bargaining unit, and had retained a lawyer, Michael Gordon, to represent the petitioners. The petition was accepted by the Board as voluntary. Accordingly, the Board exercised its discretion and ordered a vote. The Steelworkers lost the vote.
5On the basis of the evidence of certain witnesses and inferences drawn from the failure to call others, the Board in the decision of August 17, 1982 concluded that Michael Gordon's bill to Appleman for services in connection with the 1980 petition was paid by the employer, and that this fact had become known to an indeterminate number of employees still in the bargaining unit as of the date of Appleman's 1982 termination petition. The Board noted that Appleman had also sponsored a petition in 1981 at the time of the respondent's certification application. It concluded that Mr. Appleman's failure to obtain any signatures on that petition was perhaps connected with the fact that he had not again retained Mr. Gordon. The petition then before the Board indicated on its face that Mr. Gordon would be representing the petitioners, and the Board concluded that employees who knew of Mr. Gordon's previous payment by the employer might have signed the petition that a failure to sign would come to the knowledge of the employer.
6Mr. Appleman is not the applicant in this case. The applicant admitted being aware of the petition discussed in the Board's decision of August 17, 1982, and said he had signed it. After signing it, he had left the employ of the intervener before termination application for which it had been prepared came before the Board for hearing. When he returned to the employ of the intervener in April or May of 1983, the applicant was surprised to learn that the petition had been unsuccessful. Asked whether he was aware that the dismissal was due to a "legal counsel problem" the applicant said that in his discussions with his fellow employees nothing had been firm about why the petition had been rejected by the Board. All he knew was that two employees who had not signed the petition had "put up a squawk".
7The thrust of the Board's 1982 decision was that a petition which involved Michael Gordon appeared likely, on the evidence then before the Board, to have a coercive effect on employees. It seems implicit in the Board's conclusions that the employer's payment of Mr. Gordon in 1980 did not have a general coercive effect on petitions, such as the one prepared by Appleman in 1981, which were not associated with Mr. Gordon. There is no evidence that the petition before us is in any way associated with Mr. Gordon.
8The existence of past employer unfair practices cannot forever block the statutory right of employees to present timely applications for termination of bargaining rights: J.A.K. Electrical Contractors Ltd., [1977] OLRB Rep. May 275.
9Quite apart from their limited value on the facts of this particular case, there may be some doubt whether inferences drawn from the state of evidence before the Board in a previous case may be asserted against the interest of a freshly constituted group of employees represented by a different applicant. Even if we take the Board's previous decision into account, however, we are find that the statement of desire before us satisfies the requirements of subsection 57(3) of the Labour Relations Act.
10The Board directs that a representation vote be taken of the employees of Empco-Fab Ltd. Those eligible to vote are all employees of Empco-Fab Ltd. at Whitby, Ontario, save and except foremen, persons above the rank of foreman, office and clerical staff, draftsmen, watchmen, guards and persons engaged in field fabrication work on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken.
11Voters will be asked whether or not they wish to be represented by the respondent union in their employment relations with Empco-Fab Ltd.
12The Board hereby appoints a labour relations officer to confer with the parties with respect to the arrangements for and the conduct of the vote.
13The matter is referred to the Registrar.