[1984] OLRB Rep. December 1693
0631-84-R International Union of Operating Engineers, Local 793, Applicant, v. Cornwall Gravel Company Limited, Respondent
BEFORE: Ian C. Springate, Vice-Chairman, and Board Members J. Wilson and L. C. Collins.
APPEARANCES: E.A. Ford and B. Bertrand for the applicant; D.N. Corbett, D.J. Lang and L. Grant for the respondent.
DECISION OF THE BOARD; December 3, 1984
This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on July 13, 1978, the designated employee bargaining agency is the International Union of Operating Engineers and Local 793 of the International Union of Operating Engineers.
The Board further finds that this is an application for certification within the meaning of section 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause e of section 117 shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection 3 or by voluntary recognition.
The Board further finds, pursuant to section 144(1) of the Act, that all employees of the respondent engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all employees of the respondent engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same in all other sectors in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non-working foreman, constitute a unit of employees of the respondent appropriate for collective bargaining.
The respondent is a construction company based in the City of Cornwall. The company is active in both the roads and the sewers and watermains sectors of the construction industry. The applicant is a union local with jurisdiction throughout the province, although at present it holds bargaining rights with respect to employees of the respondent only in the Cornwall area. The respondent and the applicant are parties to a collective agreement which covers employees working in the Cornwall area. Pursuant to the terms of this collective agreement, on projects in the Cornwall area the respondent is required to employ only equipment operators who are members of the applicant. In June of 1984 the respondent commenced work on certain road and sewer work in the Ottawa area. Although not required to employ union members in the Ottawa area, the respondent did utilize employees from Cornwall who belonged to the applicant trade union. Initially the respondent employed two members of the applicant on its Ottawa area projects. Two weeks later the number of union members employed in the Ottawa area was up to ten. At the hearing, the respondent indicated that from September onward the number of the applicant's members employed in the Ottawa area would gradually decrease until none were left.
On the date of the filing of the application, only two equipment operators were working for the respondent in the Ottawa area, namely, Mr. Gerald McDonell and Mr. Mansel Spence. Both individuals have been members of the applicant trade union since 1976. In support of its application for certification the applicant filed evidence of membership with respect to both Mr. McDonell and Mr. Spence. Section 7 of the Act provides that where a trade union has filed evidence of membership on behalf of more than fifty-five per cent of the employees in a bargaining unit at the time the application was filed, the Board may certify the applicant outright. However, the section also provides the Board with a discretion to direct the taking of a representation vote. In the instant case, the respondent contends that the Board should exercise its discretion and direct the taking of a vote.
The respondent originally based its submission in favour of the taking of a representation vote on two grounds. The first was that at the time of the filing of the application there had not been a representative number of employees in the bargaining unit. The second ground was based upon a claim that when Mr. McDonell and Mr. Spence signed the membership evidence filed by the applicant, the union did not explain to them that the documents were to be used in support of an application for certification. After both parties had tendered their evidence with respect to these two issues, the respondent raised yet another ground in support of its claim that a vote should be directed. According to the respondent, the evidence indicates that if the union did advise the employees that the documents they were asked to sign would be used to support a certification application, it misled the employees with respect to the consequences of the union being certified.
Outside of the construction industry, the Board's general practice is not to certify a union outright where the employer is planning a major build-up of its work force within a reasonable period of time. In such circumstances, the Board will generally direct that a representation vote be taken at a time when there is substantial and representative number of employees at work. See, F. Lepper & Son Ltd. [1977] OLRB Rep. Dec. 846. With respect to applications for certification in the construction industry, however, the Board has generally not followed this approach. Because of the transitory nature of construction work and the shifting of employees from one job site to another, the Board has a general practice of concerning itself only with employees actually at work on the date of the making of the application. Under this approach, the Board does not take into account either work force build-ups or layoffs after the application date. See, Northern Construction Company [1966] OLRB Rep. July 261. This practice is supported by section 119(2) of the Act which states that with respect to construction industry certification applications "the Board need not have regard to any increase in the number of employees in the bargaining unit after the application was made". In the instant case, the respondent's pattern of employment in the Ottawa area, namely a rapid build-up of employees to a peak and then a gradual reduction, is not particularly unusual for the construction industry and we do do view it as an appropriate basis for departing from the Board's general practice with respect to construction industry certification applications. Accordingly, we do not view the increase in the number of employees subsequent to the date of the filing of the application as an appropriate basis for directing the taking of a representation vote.
We turn now to deal with the respondent's claim that the employees were not advised that the membership evidence they were asked to sign would be used to support an application for certification. The membership evidence filed by the applicant is in the form of two documents headed up "proof of membership document". The document filed with respect to Mr. McDonell is set out below. The document filed with respect to Mr. Spence is identical in form.
International Union of Operating Engineers
Local 793
205 Church Street, Toronto, Ontario MSB 1V9
PROOF OF MEMBERSHIP DOCUMENT
(*l)TO WHOM IT MAY CONCERN:
I, Gerald McDonell REGISTER #1688284 have been a member of the International Union of Operating Engineers, Local 793, since May 1976,Month Year and I am at present a member in good standing and wish the International Union of Operating Engineers, Local 793 to represent me for the purpose of collective bargaining. My monthly dues of $16.50 are paid for June, 1984.
Cornwall Gravel Company Limited (*2)
(Employer)
419-157-854
(Social Insurance Number)
Dozer — loader
(Classification of Work)
("G. McDonell")
Signature)
June 1, 1984
(Date)
(*3) FOR TORONTO OFFICE USE ONLY
This is to certify that Brother Gerald McDonell has been a member in good standing of Local 793, International Union of Operating Engineers, since 5/31/76 and is a member in good standing at the present time.
("E. A. Ford")
(Signature)
Amended — June 6th, 1984
Aug. 28/78 (Date)
- 1 — Must be filled in completely by Union Office or Business Representative before member signs.
*2 — Member to sign and date only after #1 filled in
*3 — to be filled in by Toronto Office only after #1 & #2 completed.
Mr. McDonell and Mr. Spence both signed the proof of membership documents at the request of Mr. Phil Bertrand, a business representative of the applicant well known to both employees. Mr. Bertrand testified that he had advised both employees that the documents would be used to support a certification application. Both Mr. McDonell and Mr. Spence, however, denied that such was the case. Both employees testified that Mr. Bertrand had advised them that the documents indicated that they were members in good standing of the union and that their union dues were paid up to date. Both employees acknowledged that they had not paid close attention to the wording of the documents. According to Mr. Spence, he assumed that he was being asked to sign a form similar to the one he signed every year authorizing his employer to deduct union dues from his wages. Both Mr. Spence and Mr. McDonell testified that they were surprised when they later learned that the applicant had filed an application for certification. Both employees indicated that subsequent to the filing of the application they were telephoned by the respondent's job superintendent who indicated that he was displeased with what had occurred. It is of interest that the Board mailed a copy of Form 78 to both employees, advising them of the application and noting the procedure by which an employee could file a statement of desire in opposition to the application. However, neither employee filed a statement in opposition to the application or in any way indicated that they desired to oppose the application. Both employees testified at the Board hearing pursuant to summonses issued to them by the respondent.
Pursuant to section 7 of the Act, the procedure by which a union demonstrates its entitlement to be certified is by demonstrating that employees in that bargaining unit are members of the union. It is not disputed that at the relevant time both Mr. Spence and Mr. McDonell were members of the applicant trade union, and had been since 1976. The documents they were asked to sign reflected this fact. Although it was not necessary that they do so, the documents also contained the statement that "I ... wish the International Union of Operating Engineers, Local 793 to represent me for the purpose of collective bargaining". Although neither Mr. McDonell nor Mr. Spence paid close attention to the wording of the document, it is not alleged that they were prevented from doing so. Further, had it been the case that the two employees did not wish to be represented by the applicant in the Ottawa area, they could have filed a timely statement of desire in opposition to the application. Had even one of the employees voluntarily done so, then in accordance with the Board's established practice in such matters, we would be prepared to direct the taking of a representation vote. Neither employee, however, filed such a statement. In these circumstances, and even accepting the evidence of the two employees that Mr. Bertrand did not tell them the use to which the proof of membership documents would be put, we are not prepared on this basis to exercise our discretion to direct the taking of a vote.
This brings us to the final basis for the respondent's request that the Board direct the taking of a representation vote. As noted above, part of the respondent's argument in favour of a representation vote was that Mr. Bertrand did not advise the employees that the documents he asked them to sign were to be used to support an application for certification. Notwithstanding this argument, the respondent contends that if Mr. Bertrand did, in fact, advise the employees of the union's intent to file an application for certification, he went further and misrepresented to them the effect of certification. The existing Cornwall area collective agreement between the respondent and the applicant makes no provision for employee welfare or pension plans. In the Ottawa area, however, the applicant is party to a collective agreement binding on a number of employers which requires the employers to make contributions to both an employee welfare fund and an employee pension fund. The Ottawa area agreement also provides for higher wage rates than are paid in the Cornwall area. According to Mr. Bertrand, when he approached Mr. McDonell about signing a proof of membership document, Mr. McDonell asked if he would become entitled to the Ottawa area benefits. Mr. Bertrand testified that he advised Mr. McDonell that after the union got a collective agreement, he would be entitled to receive the Ottawa area benefits and a pension. It was Mr. Bertrand's further evidence that Mr. Spence asked him about the Ottawa wage rate, to which he replied that when a collective agreement was signed employees would receive the Ottawa rate. Mr. Bertrand's evidence was supported in part by Mr. Len Budge, another representative of the applicant. According to Mr. Budge, he overheard Mr. McDonell and Mr. Bertrand discussing benefits as well as travel time and that he heard Mr. Bertrand explain that these would "take place" after the union was certified. Mr. Budge also testified that after Mr. Bertrand had finished talking, he advised Mr. McDonell that once the union was certified, the union would then have to negotiate travel time and employee benefits. From Mr. Budge's testimony, it appears that any comments he may have made to Mr. McDonell were made after Mr. McDonell had already signed a proof of membership document.
Mr. McDonell and Mr. Spence testified that in his discussions with them, Mr. Bertrand did not refer to the Ottawa area benefits or wage rates or what would happen if the applicant were certified. However, if Mr. Bertrand's evidence is accepted, the question arises as to whether he misled the employees as to the effects of certification. Legally, certification of the applicant would only entitle it to negotiate with the respondent with a view to making a collective agreement covering the Ottawa area. (For the purposes of this discussion, we leave aside the industrial, commercial and institutional sector of the construction industry which is governed by a special set of statutory provisions.) The evidence of Mr. Bertrand indicates that if certified the applicant will seek to enter into an agreement with the respondent containing identical terms as the agreement binding on other Ottawa area contractors. We believe we can take note of the fact that in the construction industry trade unions are generally reluctant to enter into a collective agreement with a single employer that provides for terms of employment less favourable for employees (and more favourable to the employer) than those which apply to similar firms in the local area. For a union to enter into such an agreement with one employer would tend to undermine established local conditions as other unionized contractors pressed for concessions which would allow them to compete on an equal basis with the favoured employer. Accordingly, it is quite possible (although not a certainty) that if certified the applicant will, in fact, negotiate a collective agreement with the respondent that contains the same terms as the existing Ottawa area agreement.
When dealing with comments made to employees by union representatives seeking to get the employees to sign union membership evidence, the Board draws a line between "salesmanship" which it does not seek to regulate and conduct such as coercion, intimidation and fundamental misrepresentation which may prompt the Board to conclude that the union's membership evidence should not be given any weight. See: Chemtrusion Inc. [1979] OLRB Rep. Dec. 1150. In the instant case, if we accept the evidence of Mr. Bertrand, he indicated to the employees that if the applicant were certified it would enter into a collective agreement with the respondent containing the terms of employment found in its agreement with other Ottawa area employers. While there is no guarantee that this would occur, there is at least a reasonable possibility that it might. Further, Mr. Bertrand did not tell the employees that certification of the union would by itself result in improved benefits. At most he indicated that this would occur upon the signing of a collective agreement. Although neither party put the question to the employees, given the fact that both Mr. Spence and Mr. McDonell have worked in the construction industry for many years as union members, we feel it reasonable to assume that both of them are aware that collective agreements must be negotiated with an employer, and that inherent in the negotiation process is the possibility that a union may not get the terms it desires. Above and beyond this, it must be kept in mind that neither Mr. McDonell or Mr. Spence could recall Mr. Bertrand stating that they would receive the Ottawa area benefits. Accordingly, if Mr. Bertrand did make the statements complained of, they apparently made no impression on the employees. Given these considerations, and keeping in mind that the two employees did not oppose the application for certification, we are not prepared to exercise our discretion to direct the taking of a representation vote.
The Board is satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on June 15, 1984, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act. We are not prepared to exercise our discretion to direct the taking of a representation vote. The applicant is, accordingly, in a certifiable position.
Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:
the Board shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
(emphasis added)
Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 2 above in respect of all employees of the respondent engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
- Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all employees of the respondent engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.