[1985] OLRB Rep. January 84
0289-84-R Paul Winter, Applicant, v. Ontario Sheet Metal Workers Conference, Respondent, v. Julian Roofing (Ontario) Limited, Intervener.
BEFORE: R. A. Furness, Vice-Chairman, and Board Members W. H. Wightman and P. J. O'Keeffe.
APPEARANCES: M. G. Horan and Paul Winter for the applicant; L. Steinberg, G. Ward and 0. Pettipas for the respondent; Michael Gordon, J. M. Minialoff WilfKrug and Charles Spiars for the intervener.
DECISION OF R. A. FURNESS, VICE-CHAIRMAN, AND BOARD MEMBER P. J. O'KEEFFE; January 28, 1985
The name of the respondent is amended to read: "Ontario Sheet Metal Workers Conference”.
The applicant has applied for a declaration terminating the bargaining rights of the respondent. Having regard to the representations of the parties, the Board finds that this application for termination of bargaining rights which has been made pursuant to section 57 of the Labour Relations Act is timely.
Having regard to the representations of the parties, the Board further finds that in this application the bargaining unit represented by the respondent is all employees of Julian Roofing (Ontario) Limited engaged in the application of roofing, damp-proofing, waterproofing on all types of structure with all types of materials 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.
Initially the respondent raised an objection with respect to the application of section 1(4) of the Act and alleged that the intervener, PLS Enterprises and Northern Roofing (1972) Limited were associated or related companies under common control and direction which operated businesses in the sheet metal and roofing trades. Having regard to the decision of the Board in Milltronics Limited, [1980] OLRB Rep. Jan. 56; Bramalea Carpentry Associates, [1981] OLRB Rep. July 844; and Jervis B. Webb Company of Canada, Ltd., [1983] OLRB Rep. Sept. 1484, the Board finds that the appropriate employer is the intervener named in this application and that the bargaining unit referred to above consists of employees of the intervener.
The applicant gave evidence that he is a truck driver employed by the intervener and is a member of the bargaining unit. The applicant, in the course of his employment, delivers materials to job sites and also spends varying amounts of time on the roof with the roofers. About ninety per cent of the members of the bargaining unit are Portuguese. The applicant testified that the members of the bargaining unit discussed the shortage of work for them in January and February of 1984, and made comparisons with employees of non-unionized employers in the same line of work as the intervener. The applicant and Manuel Tome, a roofer in the bargaining unit, informed the Board that it was their belief that they worked fewer hours than the employees of non-unionized employers in the same line of work as the intervener.
The applicant decided in April of 1984 that he would find out what steps could be taken in order to terminate the bargaining rights of the respondent. He spoke to his superintendent, Wilf Krug, and asked him whether it would be to the employees' advantage to "get out of the union". The applicant testified that Mr. Krug told him that he did not know whether it would be to the advantage of the employees to get out of the union and that it would be fifty-fifty. The applicant explained that it would mean that the intervener might lose some work and pick up other work. Mr. Krug informed the applicant that he knew very little about the steps to be taken. The applicant suggested to Mr. Krug that he would speak to Joe Minialoff, the president of the intervener. The applicant and Mr. Krug agreed that this would be the route to take because Mr. Krug did not know much about it. The applicant informed three or four members of the bargaining unit what had occurred and told them that Mr. Krug suggested that he see Mr. Minialoff.
Within two days of this meeting with Mr. Krug, the applicant travelled from his base of employment in the Hamilton area to meet Mr. Minialoff in Toronto. The applicant, who does not have regular day-to-day contact with Mr. Minialoff, decided to visit him during working hours. It is not unusual for the applicant to visit Mr. Minialoff's office and he arrived unannounced. The applicant informed the Board that Mr. Minialoff did not seem to be expecting him. He asked Mr. Minialoff about getting out of the union and whether it would be a good thing or a bad thing. Mr. Minialoff gave him basically the same answer that Mr. Krug had given him, namely, it did not make much difference and said that the intervener might gain some work and lose some work. The applicant asked Mr. Minialoff how the employees could get Out of the union. Mr. Minialoff said that he did not know how to get out of the union but that he would find out and assumed the applicant would need a lawyer to get out of the union. The applicant informed the Board that he told Mr. Minialoff that he did not know a lawyer and that Mr. Minialoff had said, in effect, that he should not worry and that he would find one.
Mr. Minialoff gave evidence that the applicant asked him to find the name of a lawyer. Mr. Minialoff said that he would deal with the Winter (no relation to the applicant) law firm (the law firm which appeared at the hearing before the Board on behalf of the intervener) and contacted that firm. He was given Mr. Horan's name and telephone number. Mr. Minialoff then telephoned the office of the intervener and left a message with the wife of Mr. Krug. The message contained Mr. Horan's name and telephone number. Mrs. Krug apparently noted the message and it was left for the applicant in the location where he usually collects messages. A day or two later on April 18, 1984, the applicant telephoned Mr. Horan.
On Saturday, April 21, 1984, the employees who are in the bargaining unit met at the intervener's shop. They had been advised of this meeting, which was not held during their hours of work, by the applicant. The meeting commenced between ten and eleven o'clock in the morning and lasted between half an hour and an hour. The purpose of the meeting was to discuss the proceedings up to that point and to discuss the progress of the application to "decertify" the respondent. The applicant testified that he decided to call the meeting on April 21 because it seemed like the most convenient time with all of the employees in their homes. He did not ask Mr. Krug if he could use the premises and explained that he had a key to the gate of the premises and a key to the shop. All of the employees attended the meeting and the applicant told them that they had a lawyer and that he was going to get in touch. The applicant suggested a fee and told the employees that they would need about a hundred dollars each. Money did not change hands at the meeting. Questions were asked about how soon it would happen. The applicant was unable to inform the Board of all the questions and concerns aired at the meeting because much of the conversation was in the Portuguese language and the applicant speaks very little Portuguese. While a Portuguese interpreter was not present, the applicant expressed the view that the employees helped each other to understand what was going on at the meeting.
The applicant gave evidence that none of the employees asked if he had permission for the meeting to be held on the intervener's shop on a Saturday, that it was not unusual for him to be there on a Saturday and that in fact he had on the previous Saturday used the shop to fix a tire on his personal car. In the seven years that Mr. Tome has been employed by the intervener, there has never been a meeting at the shop on a Saturday. While the applicant believed that the employees have keys to the premises, he did not know whether they in fact have keys. On April 28, the applicant visited Mr Horan's office and Mr. Horan wrote the heading on the statement of desire. The applicant, after receiving instructions from Mr. Horan, drove his truck containing the intervener's supplies from Toronto to Ottawa where six of the intervener's employees were working on a job. The applicant delivered the supplies to the job in Ottawa and visited the six employees in their motel where he obtained their signatures. In cross-examination, the applicant stated that he had told the employees that Mr. Minialoff had given him the name of the lawyer after they had signed the statement of desire. No reason was advanced as to why the applicant would tell the employees that Mr. Minialoff had given the applicant the name of Mr. Horan after they had signed the statement of desire rather than before they had signed. Notwithstanding the confusion on this point, the applicant testified that during the meeting at the shop on April 21, he told the employees that Mr. Minialoff had given him a lawyer's name. When the employees had signed the statement of desire, the applicant sent it by courier to his wife in Grimsby. The remaining employee, Manuel Tome, who was working in the Hamilton area, collected the statement of desire from the applicant's wife, signed it and delivered it to Mr. Horan.
It is for the Board to determine whether the statement of desire represents the voluntary wishes of the employees who signed it. The critical areas in this regard are the providing of the name of a lawyer by Mr. Minialoff to the knowledge of the employees and the effect of holding an extraordinary meeting of the employees in the intervener's shop on a Saturday morning. In assessing the circumstances under which a statement of desire was originated, prepared and circulated, the Board looks to all of the surrounding circumstances. As the Board stated in Pigott Motors (1961) Ltd., 63 CLLC ¶ 16,264, at page 1129:
The Labour Relations Act contains detailed provisions designed to protect the rights of employees to become members of, and to select or reject a particular or any trade union as their collective bargaining agent and to bargain collectively or individually with their employer. It is an important function and duty of this Board under the legislation to be circumspect and vigilant to see that these rights are preserved and not made illusory.
There are certain facts of labour-management relations which this Board has, as a result of experience in such matters, been compelled to take cognizance. One of these facts is that there are still some employers who, through ignorance or design, so conduct themselves as to deny, abridge or interfere in the rights of their employees to join trade unions of their own choice and to bargain collectively with their employer. In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate or impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories.
- The mere knowledge of management that an employee is considering opposing a trade union is not in itself indicative of management support which would cause the Board to find that a resulting statement of desire does not represent the voluntary wishes of the employees who signed it. See, for example, Charles Wilson Limited, [1979] OLRB Rep. Jan. 20. In Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387, the Board stated at page 1408:
- Actions by either the employees opposing the trade union or the employer can adversely affect the reliability of a statement of desire. Direct and open support by an employer will obviously suggest a relationship between the employer and the petitioners that would reasonably cause anxiety in the minds of employees approached by the petitioners. Therefore, in such circumstances, it would be just as reasonable to infer that the employees signed the document to conceal their support for the trade union as it would be to conclude that they signed voluntarily. Where this is the case, the Board usually takes the view that the petitioners have not satisfied the onus on them and the statement of desire is dismissed as an unreliable indicator of the true wishes of the employees. Similarly, actions by the petitioners without support of the employer can equally destroy the reliability of a statement of desire. Circulating a document in the presence of foremen or representations clearly indicating support by the employer can produce the same anxiety in the minds of employees whose signatures are solicited and thus prompt the Board to respond in a similar fashion.
In the instant case the applicant gave evidence that Mr. Minialoff told him he would need a lawyer and that when the applicant replied he did not know a lawyer, Mr. Minialoff told him not to worry and that he would find one. In fact, Mr. Minialoff did provide the applicant with the name and telephone number of Mr. Horan. The applicant testified that he told the employees that he had spoken to Mr. Krug and Mr. Minialoff and that Mr. Minialoff had got them a lawyer. In our opinion, the conveying of this information to the employees would convey to them the involvement and co-operation of Mr.Minialoff and the indication to them would be that Mr. Minialoff was not indifferent to representation by the respondent. Informing the employees of the role which Mr. Minialoff played in connecting the applicant to a lawyer was underscored by making the announcement of the meetings between the applicant and Mr. Krug and Mr. Minialoff at an extraordinary meeting on a Saturday in the intervener's shop. In our view, this choice of venue by the applicant to accommodate a modest group of eight employees highlighted the support of management for the proposed action of taking steps to terminate the bargaining rights of the respondent. In this case, the act by Mr. Minialoff of finding a lawyer to represent employees was conveyed to the employees who signed the statement of desire and we find that the intervener's conduct as conveyed to the employees by the applicant and the conduct of the applicant have abridged or interfered with the rights of the employees other than the applicant to voluntarily express their wishes in this matter.
On the basis of the evidence before the Board, we are satisfied that less than forty-five per cent of the employees of Julian Roofing (Ontario) Limited in the bargaining unit, at the time the application was made, had voluntarily signified in writing that they no longer wish to be represented by the respondent on May 9, 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 the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent under section 57(3) of the said Act.
This application is dismissed.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
The first ten paragraphs of the majority decision accurately reflect the evidence as I heard it from the witnesses Winter and Minialoff. Moreover, I accept their versions of the events based on their credibility as witnesses under direct and cross-examination, and combined with the fact that the union called no evidence. I believe the petitioners simply concluded that the union had priced them out of the market for much of the available work and that they viewed ridding themselves of the union as a means of making their company more competitive. I disagree with the majority in finding that Mr. Minialoff "abridged or interfered with the rights of the employees other than the applicant to voluntarily express their wishes in this matter". (my emphasis).
The Pigott Motors (1961) Ltd. case, supra merits some comment, particularly with respect to the "facts of labour-management relations which this Board has, as a result of experience in such matters, been compelled to take cognizance". (again, my emphasis).
As the Board states: "One of these facts is that there are still some employers who, through ignorance or design, so conduct themselves as to deny, abridge or interfere in the rights of their employees to join trade unions of their own choice and to bargain collectively with this employer" is equally startling as were the Board to announce that there are still some Buddhists who, for whatever reason, have not yet attained nirvana! Surely the very existence of labour legislation suggests that our elected representatives are at least dimly aware of this revealed truth and have hence concluded there is a continuing need for these laws which establish ground rules for the employer/employee relationship even in those situations where the Government itself is the employer! The laws attempt to meet this need to protect the rights of employees in their freedom of choice by taking the matter out of the hands of the employer and placing it before this Board with its not inconsiderable powers to deal forcefully with any employer who might be so unwise as to penalize employees for exercising their rights.
Consider for a moment the circumspection and vigilance, alluded to in the opening paragraph of the Pigott quotation, vis-a-vis the "detailed provisions (of the Labour Relations Act) designed to protect the rights of employees to become members of, and to select or reject a particular or any trade union as their collective bargaining agent and to bargain collectively or individually with their employer". Do these provisions seem real or illusory to employees of union-free company "A" who, without having a say in the matter, learn they must now pay dues to and be represented by a trade union representing employees of company "B" because of common ownership or control (section 1(4)) about which the employers of company "A" know nothing? Do the provisions seem real or illusory to employees of many years standing in a construction company who learn they must now join and pay dues to a trade union, or lose their jobs, because their employer undertook work in another area and under circumstances which brought the company under the terms of a provincial union agreement (section 144)? Do the provisions seem real or illusory to employees who accept employment with a company engaged in a new approach to marketing only to find later that they are represented by a union because their company purchased or leased property from a company which had failed in a similar type of enterprise (section 63)?
In each of the foregoing cases it is at least arguable that the individual employees would fail to see their rights of freedom of choice and freedom of association as having been afforded real protection. There is a rationale, based in part on the perceived desirability of stability in labour relations, for each of the above. The price for achieving this stability, unstated in the Pigott quotation, is an unwarranted and improper assumption that individual rights and union rights are identical. (This is written at a time when one Arthur Scargill of the National Mine Workers Union seems intent on proving to the United Kingdom, if not the world at large, that both the rights and interests of individual workers and their union can be mutually exclusive.)
Nowhere in the overall scheme of labour-management relations is the primacy of the institutional interest of unions over those of the individual so evident as in the processes of certification and decertification. The Board can and, in most cases, does grant outright certification or deny outright an application for decertification. In contrast, the prayer of petitioners, even if heeded, can only result in a vote regardless of their numbers. Stated simply, if six out of ten employees submit an application and union membership cards, the union will be certified outright. If the same six individuals change their minds and submit written retractions in the form of a petition, the most they can hope for is a Government-supervised secret ballot vote to determine "the true wishes of the majority" and then only after having successfully withstood a searching examination of their petition leaving the Board no room to speculate, as in the instant case, as to what was in the minds of those who signed hut, for obvious reasons, rarely appear to testify.
The primary expertise of the Board is in the areas of interpretation and articulation of labour law. Its tri-partite composition reflects a desire on the part of the legislators to incorporate in Board decisions the practical knowledge of labour relations which members with either or trade union or management background can bring to it. But the Board possesses no built-in capacity for research of a nature which would permit it to do "tracking studies" for purposes of assessing the true consequences of its decision. It is not for me to say whether such research should be done or, if so, by whom. In the absence of such research, however, it is not for us as a corporate Board to presume what those consequences have been or may be. With or without research no doubt the public makes its own judgement as to whether the path we have been following has been one of improvement or of deterioration.
I take strongest issue with the assertion in Pigott that "the Board has discovered in a not inconsiderable number of cases that management has interfered with the free exercise by employees of their rights under the Act" (my emphasis). The "not inconsiderable number" is considerable only because of the numbers of cases wherein by post hoc fallacy the Board has concluded that working people cannot be relied upon to speak for themselves even in the privacy of a secret ballot. Such a perception is not only patronizing and condescending to the individuals involved, it also denigrates the institutional cornerstone of democracies, free and secret ballot voting.
These petitioners are unlikely to have the money required to appeal their case to the courts. Even if they did, the discretionary powers given to us under the Act would likely prompt the court to dismiss the appeal on the grounds, as it has in a number of instances, that the tribunal has a "right to be wrong".
For what little comfort it will give him, I cannot deny the applicant's assurance that I see in this decision a denial of natural justice and that I would have ordered a vote as requested.