[1983] OLRB Rep. March 356
0229-82-R United Brotherhood of Carpenters and Joiners of America, Local Union 93, Applicant, v. DI-AL Construction Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Ian Springate, Vice-Chairman, and Board Members J. A. Ronson and C. A. Ballentine.
APPEARANCES: Denis Power, Wilf Chretien and Wilf Clermont for the applicant; James B. Chadwick, Sylvia Corthorn and A. Malomet for the respondent; no one appearing for the group of employees.
DECISION OF IAN SPRINGATE, VICE-CHAIRMAN; March 18, 1983
1. This is an application for certification filed pursuant to the construction
industry provisions of the Labour Relations Act. 2. In a decision in this matter dated December 2, 1982 the Board defined an appropriate bargaining unit and concluded that there had been five employees in the unit on the date that the application had been filed. Prior to the terminal date, the applicant trade union filed certificates of membership relating to two of the bargaining unit employees. These certificates indicated that the employees had both been long-time members of the union. The union also filed an application for membership signed by a third employee, Mr. F. Faubert. In its decision of December 2, 1982 the Board concluded that Mr. Faubert had signed the application for union membership after he had been mistakenly advised by a representative of the union that he was employed by another contractor working on the same job site as the respondent, and that this other contractor was required to employ only union members. The Board then went on to reason as follows:
"The evidence, when taken as a whole, raises a real concern in our minds as to whether when he signed the application for membership Mr. Faubert was indicating a desire to be represented by the union regardless of who his employer might be, and in particular whether he would have signed the document had he known that it would be used to support a certification application with respect to the respondent. In these circumstances, and given the fact that without Mr. Faubert the applicant would not have a majority of bargaining unit employees as members, we are of the view (absent consideration of the section 8 issue referred to below) that it would be appropriate for the Board to exercise its discretion under section 7(2) of the Act and obtain confirmatory evidence of employee desires by way of a representation vote."
3. At the initial hearing in this matter, the applicant indicated that if the Board was of the view that a representation vote should be directed, rather than outright certification of the applicant, the applicant would be requesting that it be certified pursuant to the provisions of section 8 of the Labour Relations Act. Following the release of the Board's decision of December 2, 1982 the applicant formally requested that the Board apply section 8 of the Act, and in this regard indicated that it would be relying on both the evidence already put before the Board in these proceedings as well as the finding of a differently constituted panel of the Board in File No. 1036—82—U that the respondent had unlawfully discharged a union supporter. When the matter came back on for hearing on January 6, 1983, the applicant, after giving one day's advance notice to the respondent, alleged that in May or June of 1982 the respondent had dealt with another employee contrary to the Act. The applicant did not advance any reasons as to why it could not have raised this allegation in a more timely fashion. In these circumstances the Board ruled that the new allegations had been raised too late in the proceedings to be considered.
4. Section 8 of the Act provides as follows:
"Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit."
5. As the Board noted in the Ex-Cell-O Wildex, Canada case [1977] OLRB Rep. June 370, certification pursuant to the provisions of section 8 of the Act was designed as both a deterrent to illegal employer interference in union organizational campaigns, as well as a device to provide a meaningful and effective remedy in those cases where an employer's interference has operated to destroy the free selection process guaranteed by section 3 of the Act. The wording of the section makes clear that certification under section 8 can only be granted if three conditions are satisfied, namely:
(i) The Act has been violated.
(ii) The true wishes of employees are not likely to be ascertained in a representation vote, or otherwise.
(iii) In the opinion of the Board, the applicant has membership support adequate for the purposes of collective bargaining.
6. The applicant filed uncontested membership evidence on behalf of forty per cent of the employees in the bargaining unit. This, along with the fact that in the industrial, commercial and institutional sector of the construction industry bargaining is done on a province-wide basis through designated employer and employee bargaining agencies, leads us to the opinion that the applicant has support adequate for collective bargaining. In File No. 1036-82-U the Board found that the respondent had violated the Act. Accordingly, the only outstanding issue is whether, in all of the circumstances, the true wishes of employees are now likely to be ascertained in a representation vote.
7. As indicated above, the applicant is relying on certain evidence put before the Board during the initial hearing. Much of this evidence was summarized by the Board in its decision of December 2, 1982 as follows:
"11. On April 8th, shortly after he had signed the application for membership, Mr. Faubert, on his own initiative, went and explained the circumstances under which he had signed to Mr. Ladaceur, the respondent's job superintendent. On April 13, 1982, the applicant filed a first application for certification (see file no. 0094-82-R). On April 20th, apparently in response to this application, Mr. Faubert approached Mr. Malomet, the respondent's president, to advise him that he did not want to belong to the union and to ask that he write a letter of resignation to the union on his behalf. Mr. Malomet typed out the following letter addressed to Mr. Wilfred Chretien, the business representative of the union:
'Dear Mr. Chretien:
Further to me signing an application for membership in the carpenters union, I have reconsidered and have decided to withdraw my application. Please return the $1.00 fee charged and destroy my application.'
Mr. Faubert signed the letter, after which the respondent forwarded copies of it to the union and to the Board.
12. For reasons the Board was not advised of, the applicant withdrew its first application for certification, and filed the instant application on April 27, 1982. In support of the application it submitted Mr. Faubert's application for membership. Mr. Faubert testified that following the filing of the second application he again went to see Mr. Malomet and told him that he did not want the union. Mr. Malomet then wrote out a statement of desire in opposition to the application which Mr. Faubert signed. A copy of the statement was forwarded to the Board by the respondent, along with similarly worded statements signed by the two employees who had not at any point become union members."
It is perhaps also worth noting that the respondent's reply to the instant application, which was signed by Mr. Malomet, stated, in part, as follows:
"Two of my five carpenters are known union members, the other three employees are non-union, as evidenced by their signed statements, copies of which are enclosed with this application."
Accompanying the reply was a list of employees prepared by the respondent. Beside the names of the two long-time union members was written the comment: "known union member".
8. In its decision of December 2, 1982 the Board stated that given the involvement of the respondent in both the "resignation" and "statement of desire" signed by Mr. Faubert, the Board could not be satisfied that they clearly represented Mr. Faubert's true and independent wishes. The applicant is apparently of the view that the Board should go further and conclude that the respondent's involvement with the documents would serve to unduly influence Mr. Faubert's ability to vote in a represenation vote. Given the particular circumstances of this case, however, I am not prepared to reach such a conclusion solely on the basis of the respondent's involvement with the two documents. Important considerations in this regard are the fact that it was Mr. Faubert who went to see Mr. Malomet, and that he did so as a direct consequence of the misrepresentation (innocent as it was) made to him by an official of the trade union. The applicant also relies on the fact that in addition to the documents signed by Mr. Faubert, the respondent forwarded to the Board statements of desire in opposition to the union's application signed by the two employees who had not joined the trade union. The Board does not have any evidence before it concerning the circumstances under which these employees came to sign the statements. However, the fact that they were sent to the Board by the respondent suggests some degree of employer involvement with them. While such employer involvement would likely be fatal to the acceptability of the documents as a voluntary expression of the two employees, I do not view it as being sufficient by itself to trigger the application of section 8. Accordingly, I would not be prepared to certify the applicant under the extraordinary provisions of section 8 of the Act solely on the basis of management's involvement with the various statements of desire and Mr. Faubert's "resignation".
9. As already noted, the applicant is also relying on the finding of the Board in File No. 1036-82-U that the respondent violated the Act. That matter arose out of a section 89 complaint alleging that the respondent had unlawfully terminated Mr. John Holland, one of its employees who was a union member, one week after the first hearing into the certification application. In a decision dated November 12, 1982 the Board concluded that Mr. Holland had in fact been terminated because of his membership in the union. The Board then went on to direct that Mr. Holland be reinstated by the respondent with compensation.
10. A discharge is one of the most flagrant means by which an employer can hope to dissuade his employees from selecting a trade union as their bargaining agent. The respondent's action in discharging Mr. Holland because of his support for the union would have made clear to employees the depth of the respondent's opposition to the union and likely have created concerns among them that if they were also to support the union, it might jeopardize their own employment. In the face of the discharge I doubt that the employees would now be able to freely decide for or against trade union representation. This is particularly so given the small size of the bargaining unit and the respondent's earlier conduct. In these circumstances, I am satisfied that because of the respondent's unlawful conduct, the current true wishes of the employees are not likely to be ascertained in a representation vote. Accordingly I am of the view that the applicant should be certified pursuant to the provisions of section 8 of the Act.
[bargaining unit descriptions omitted — certificates issued: Editor]
DECISION OF BOARD MEMBER C. A. BALLENTINE;
I concur with the ultimate decision of Vice-Chairman, Ian Springate. However, I believe that the union should be certified even without considering the termination of Mr. John Holland, as I believe management involvement with the various statements of desire would justify the application of section 8.
DECISION OF BOARD MEMBER JAMES A. RONSON;
1. I dissented from the decision dated December 2, 1982, and at the continuation of hearing on January 6, 1983 I gave my reasons orally to the parties. In my opinion the applicant union did not obtain its third "card" for its application by any innocent representation made by mistake. Rather, the union attempted to deliberately mislead the Board by filing a card which was fraudulently obtained.
2. The principal owner of the respondent company obviously felt that his company was being organized by fraudulent means. His demeanour at the December 6, 1982 hearing and his actions throughout are ample evidence of his feelings. And because of his anger at, and his reaction to the unlawful methods used by the union to obtain Mr. Faubert's signature, he will find his company forced to deal with a union that, on the clearest of evidence, Mr. Faubert does not want.
3. If ever there was a benefit accorded to a party because of its own illegal action, it is in this case. As I advised the parties in January, I would have dismissed the application forthwith. The very least the majority should do is give the employees a vote wherein they can advise either the union or the employer what they think of their respective behaviour.