Ontario Labour Relations Board

[1983] OLRB Rep. May 716

0259-82-R Gaetan Perreault, Applicant, v. United Brotherhood of Carpenters and Joiners of America, Local 2486, Respondent, v. Roy Construction and Supply Company Limited, Intervener.

BEFORE: D. F. Franks, Vice-Chairman, and Board Members W. H. Wightman and S. Cooke.

APPEARANCES: G. J. Sullivan and Gaetan Perreault for the applicant; H. F Caley, B. W Adams, R. Charette and A. Cooper for the respondent: K. R. Valin and Gerry Boileau for the intervener

DECISION OF VICE-CHAIRMAN, D. E. FRANKS AND BOARD MEMBER S. COOKE; May 19, 1983

1. By a decision dated December 21, 1982 (now reported at 119821 OLRB Rep. Dec. 1904) the Board directed this matter to be listed for continuation of hearing. Subsequently, counsel for the respondent trade union requested the Board to reconsider its decision of December 21, 1982, and in particular that part of the decision that related to the Board's interpretation of section 146(2) of the Act. The request for reconsideration was based largely on the matter that the Board had not heard the representations of the parties on section 146(2). At the hearing in this matter, the Board therefore allowed the respondent to make its representations with respect to section 146(2) as dealt with by the Board in paragraph 12 of its decision of December 21, 1982 in this matter.

2. The concern of the respondent was with paragraph 12 of the Board's decision. That paragraph reads as follows:

"The problem with the argument raised by the respondent in this matter is the proposition that the agreement referred to in paragraph 9 above (setting out the relationship between the employer and the respondent trade union) delineates a bargaining unit in the collective agreement between the intervener and the respondent. The collective agreement referred to in paragraph I of the agreement referred in paragraph 9 refers to the provincial collective agreement between the Carpenters' Employer Bargaining Agency and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America. The effect to be given paragraph 2 which exempts certain jobs has to be read subject to section 146(2) of the Act:

'On and after the 30th day of April, 1978 and subject to sections 139 and 145, no person, employee trade union, council of trades unions, affiliated bargaining agent, employee bargaining agency, employer, employers' organization, group of employers' organiza­tions or employer bargaining agency shall bargain for, attempt to bargain for, or conclude any collective agreement or other arrangement affecting employees represented by affiliated bar­gaining agents other than a provincial agreement as contemplated by subsection (I), and any collective agreement or other arrangement that does not comply with subsection (1) is null and void.'

It would appear, therefore, that section 2 of the agreement dated December 21, 1981, insofar as it attempts to vary the bargaining unit in the provincial collective agreement would be null and void. Now the effective paragraph 2 in the agreement of December 21, 1981 may very well be that neither the intervener nor the respondent can bring proceedings before this Board or any other tribunal, but for the present case, it is sufficient for us to note that vis-a-vis the employees who are not party to that agreement, that attempted amendment of the bargaining unit in the provincial agreement is null and void by virtue of section 146(2) of the Act. It would, thus, appear that notwithstanding the attempt by the respondent and the intervener to amend the bargaining unit in the provincial agreement, the applicant and the employees on the list of employees are employees in the bargaining unit of the provincial agreement in effect between the respondent and the intervener company.

The respondent's position was that such an interpretation of section 146(2) prevented the effective settlement of many types of grievances in the construction industry where the union might in effect be varying the terms and conditions of the provincial agreement. It is our view that the interpretation given to section 146(2) in the above paragraph does not at all affect the settlement of grievances in the construction industry. The interpretation of section 146(2) in that paragraph simply refers to an attempt to amend the bargaining unit in the provincial agreement, and that insofar as it relates to the employees in the application, it is ineffective. Clearly, such a finding says nothing about the settlement of the grievance in the section 124 case, and indeed, it was not our intent to deal with that issue. Clearly, there may very well be settlements of grievances which would violate the spirit and intent of section 146(2) of the Act, while there might very well be other settlements which do not affect section 146(2). Those matters will undoubtedly have to be dealt with in cases where such an issue is raised. Clearly, paragraph 12 of our decision of December 21, 1982 did not deal with the issue of the validity of the settlement of the grievance but merely with a very specific portion of this settlement and its effect on parties not involved in the settlement.

3. In this application for termination by Gaetan Perreault there was filed with the Board a petition containing the names of ten employees circulated by Mr. Perreault. Mr. Perreault consulted his lawyer who in turn typed up the heading at the top of the petition and instructed Mr. Perreault concerning its circulation. The evidence was clear that all of the signatures were obtained at the employees homes or away from the work site. The question which we are required to deal with is whether the petition itself represents the voluntary wishes of the employees.

4. Mr. Perreault is the working foreman for the carpenters employed by the intervener, Roy Construction and Supply Company Limited (hereinafter referred to as "Roy Construction"). At the time in question there was only one job being performed by the employees of Roy Construction. By Mr. Perreault's own evidence he was the senior employee on that job site. His evidence is that he makes no management decisions, such as for instance, hiring or firing an employee, or deciding whether to work overtime or not. His evidence is clear that in such circumstances he always checked with the office. It is also clear that the person in the office who Mr. Perreault reported to, Mr. Boileau, was only at the job site for limited amounts of time on any given workday. As a working foreman then, Mr. Perreault would not be excluded by virtue of section 1(3)(b) of the Labour Relations Act on the basis of his duties and responsibilities and, indeed, this is in conformity with the general practice in the construction industry, which is that working foremen are employees in the bargaining unit and the management line is drawn at non-working foremen.

5. Since Mr. Perreault is an employee in the bargaining unit, does it therefore follow that the petition circulated by him represents the voluntary wishes of the employees'? That is, is it free of any employer influence such as would cause the Board to reject the petition'? On the evidence, it is clear that there was no one at the construction site above Mr. Perreault to whom he reported. Indeed, not only was he the senior man on site as working foreman, his evidence is that one of the other petitioners who was also a working foreman reported to him. It is also clear from Mr. Perreault's evidence that, for instance, in obtaining one of the names on the petition he left the work site without seeking any permission, since this was something well within his power to do. It is clear then that Mr. Perreault's position vis-a-vis the other employees on the job site was that he was the representative of the employer on that job site, and indeed, the on/v representative of the employer on the job site for most of the time.

6. In such circumstances, we are of the view that the perception of the employees to Mr. Perreault circulating the petition is that they were approached by the representative of the employer to sign the petition, and thus, we cannot accept the petition as being representing the voluntary wishes of the employees in these circumstances. See, for instance, Quality Circuits Manufacturing Limited [1979] OLRB Rep. Aug. 794.

7. For the foregoing reasons the application is therefore dismissed.

DECISION OF BOARD MEMBER, W. H. WIGHTMAN;

1. I associate myself with my colleagues in their disposition of this matter except with regard to the finding that the petition should fail on the grounds that employees would have perceived the applicant, Mr. Perreault, as a "representative of the employer" notwithstanding the fact that he was at some pains to distance himself from the employer as indicated particularly at paragraph 3 of the majority decision.

2 The nature of the construction industry is such that the terminology "working foreman" is appropriate and descriptive of a job function through which work can be assigned and sequenced without requiring that the incumbent bear or exercise managerial or supervisory responsibilities. In some settings the term "pusher" has been used to describe individuals whose responsibilities were rightly comparable to that of "working foreman". Whatever the terminology used, the Ontario Labour Relations Board has concluded that individuals working in such a capacity have a community of interest with the other non-supervisory employees and should properly be included in units the Board determines as being appropriate for collective bargaining.

3. 1 believe the Board, in concluding that working foreman should be included in bargaining units, is attempting to be consistent with the scheme of collective bargaining which the legislation envisages and for which it provides the ground rules.

4. However, I do not believe it is either fair to the individuals concerned or consistent with good labour/management relations that they should be simultaneously regarded as both fish and fowl. As a member of a bargaining unit, and the union representing those employees, there is presumably no bar to a working foreman being elected an officer of the local union. One would presume that election to an officer status within the union could be taken as an indication of how that individual is "perceived" by fellow workers, and indeed, it might be argued that would be stronger evidence of worker perceptions than the inferences the Board chooses to draw from the working relationships described to it in the course of a hearing.

5. I will not speculate as to how the Board might have viewed this petition had the applicant been an officer of the union. Rather, I would argue that a member of the bargaining unit is a member of the bargaining unit and should be permitted to engage in activities he or she considers to be in the interests of bargaining unit members and in self-interest.

6. Presumably Mr. Perreault was engaged in an activity which is protected under the Act such that were he to have been found out and discharged by the employer on the grounds that the company did not want to leave itself open to having to deal with some other union, the employer could have been found guilty of an unfair labour practice to wit: unjust and arbitrary dismissal.

7. By denying the petitions of bargaining unit employees because of the notional grounds of perceptions as between members of the same bargaining unit, it strikes me that the Board is also acting in an arbitrary and unjust manner.

8. I find support for my position in the A. N. Shaw & Sons (Eastern.) Ltd. case 19801 OLRB Rep. Oct. 1347 wherein the Board found that the applicant and originator of the petition exercised supervisory functions and, moreover, that "Employees would have been well aware of (his) supervisory role, particularly assigning work" (paragraph 11). Notwithstanding these findings, which are supported by evidence recounted in a dissenting opinion by Board Member C. A. Ballentine, the Board in that case concluded that this member of supervision would have been perceived by other employees as "acting in his own interests rather than acting on behalf of management

9. Perhaps a solution to the avoidance of these problems would be for the Board not to include working foremen in bargaining units. In any event, I do not feel the Act should be interpreted in such a way as to preclude an individual from acting in what he perceives to be his own interests or of inadvertently prejudicing the interests or wishes of other employees.

10. I would have accepted the petition and directed a vote as requested by the applicant.