[1985] OLRB Rep. May 643
1446-84-R International Union of Operating Engineers, Local 793, Applicant, v. Colautti Construction Ltd., Respondent, v. Employees Association of Colautti Construction Ltd., Intervener
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members F. W. Murray and W. F. Rutherford.
APPEARANCES: B. Fishbein and E. A. Ford for the applicant; Raymond G. Colautti and Ronald A. Colautti for the respondent; Jacques A. Emond and Steve Clarmo for the intervener.
DECISION OF THE BOARD; May 14, 1985
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, for the same reasons as are set forth in the Board's decision in Colonist Homes Ltd., [1980] OLRB Rep. Dec. 1729, 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 117(e) 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 applicant has applied for certification with respect to a bargaining unit comprised of operators and maintainers of construction equipment employed by the respondent in the industrial, commercial and institutional (ICI) sector of the construction industry in the whole of the Province of Ontario and in all other sectors in a geographic area known as Board Area #15. The applicant had previously filed an application for certification respecting the respondent's employees in a bargaining unit described in the same terms as in the instant application. A group of employees who were opposed to being represented by the applicant had filed a petition opposing the earlier application. At a hearing into that application, the Board had started but not completed an inquiry into the petition in order to determine whether it expressed the voluntary wishes of the employees who had signed it. Subsequent to the hearing and the appointment of a Board Officer to inquire into the applicant's challenges to the list of employees filed by the respondent, the applicant requested leave of the Board to withdraw the application. The Board issued a decision dated September 5, 1984 dismissing the application in view of the stage of the proceedings at which the request to withdraw had been made. The Board did not impose a bar on the applicant with respect to the filing of a new application for the same employees, a discretion which the Board has under section 103(2)(i) of the Act.
The applicant filed the instant application on September 4, 1984. The Employees Association of Colautti Construction Ltd. sought to intervene in the application by filing an Intervention, Construction Industry and an Application for Certification by Intervener, Construction Industry. A hearing was scheduled to deal with a variety of issues raised by the application, the interventions, and the reply to the application, including amongst others:
(1) whether the Board should exercise its discretion under section 103(2)(i) of the Act to bar the application; and,
(2) the form and sufficiency of the intervener's membership evidence.
- The documentary evidence filed by the intervener in support of its application consisted of signed receipts for an amount of $1.00, presumably paid on account of membership dues or initiation fees. The receipts were not accompanied by applications for membership in the intervener. In the result, there is no documentary evidence before the Board that the persons on whose behalf the receipts were filed had applied to join the intervener. The standards for evidence of membership in a trade union are contained in section 1(1)(l) of the Act and in subsections (1) and (2) of section 73 of the Board's Rules of Procedure. Section l(l)(l) of the Act provides as follows:
l.-(l) In this Act,
(1) 'member', when used with reference to a trade union, includes a person who,
(i) has applied for membership in the trade union, and
(ii) has paid to the trade union on his own behalf an amount of at least $1 in respect of initiation fees or monthly dues of the trade union, and 'membership' has a corresponding meaning.
Subsections (1) and (2) of section 73 of the Board's Rules of Procedure further provide that:
- -(1) Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification or for a declaration terminating bargaining rights unless the evidence is in writing, signed by the employee or each member of a group of employees, as the case may be, and,
(a) is accompanied by,
(i) the return mailing address of the person who files the evidence, objection or signification, and
(ii) the name of the employer; and
(b) is filed not later than the terminal date for the application.
(2) No oral evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall be accepted by the Board except to identify and substantiate the written evidence referred to in subsection (1).
- The Board heard the submissions of the parties at the hearing respecting the request of counsel for the intervener that it be permitted to call oral evidence of the fact that applications for membership in the intervener were received at the time the dollar was paid to the intervener and the receipts which are in evidence were issued. The Board recessed to consider the parties' submissions and issued the following oral ruling:
For reasons which will be issued later in writing, the Board will not hear oral evidence with respect to whether the persons whose receipts were in evidence before the Board had applied to join the intervener, nor will the Board permit the late filing of such evidence. In the result, the intervener has failed to establish that it has representation rights respecting any employees affected by this application. Therefore, the intervener has no status to intervene in the application and it follows that the intervener has no status as a party to these proceedings.
The Board, having given its ruling, went on to observe that Mr. Steve Clarmo, who was present at the hearing and purported to be an employee of the respondent, might be entitled to status as an employee who has filed a timely, written statement opposing the application by virtue of the fact that he signed the intervention which was before the Board. Counsel for the applicant opposed Clarmo being granted status as a party to the proceedings on the grounds that he was not an employee of the respondent affected by the application. Accordingly, the Board heard the further submissions of the parties on this issue, recessed to consider the submissions and made the following oral ruling upon resuming the hearing.
(1) Clarmo is not an employee coming within the bargaining unit sought by the applicant and therefore has no direct legal interest in the application.
(2) Since the receipts filed with the Board are not in the nature of individual statements of desire in opposition to the application and since there is no other document before the Board containing any written statement in opposition to the application, the Board does not have the requisite evidence of opposition to the application by employees for whom Clarmo could act as representative.
(3) In the result, there are only two parties to the application and to these proceedings, the applicant and the respondent.
The Board's reasons for not allowing oral evidence to establish that the employees who paid a dollar to the intervener and received a receipt for it had, at the same time, applied for membership in the intervener are set out hereunder.
Section 1(1)(l) of the Act sets out the two statutory requirements for trade union membership. To be a member of a trade union a person must have applied for membership in it and have paid on his own behalf an amount of at least one dollar in respect of initiation fees or monthly dues of the trade union. Thus, evidence which would establish the fact of membership is evidence which shows that a person has applied for membership in the trade union and has paid at least one dollar in respect of membership dues or initiation fees in the union. In the instant case, the Board has before it documentary evidence of persons paying one dollar to the intervener for something; the receipts do not reveal the purpose of the payment. The Board has no documentary evidence of these same persons having applied for membership in the intervener. The oral evidence which counsel for the intervener was seeking to adduce was to establish that applications for membership in the intervener had been made at the time the dollar was paid and the receipt issued.
Subsection (1) and (2) of section 73 of the Rules of Procedure under the Act set certain conditions for the Board's acceptance of evidence of membership in a trade union. Subsection (1) provides that the Board shall not accept evidence of membership in a trade union unless it is in writing and signed by the employee. Subsection (2) provides that the Board shall not accept oral evidence of membership except to identify and substantiate the written evidence of membership.
When section l(l)(l) and subsections (1) and (2) of section 73 of the Rules of Procedure are read together, they make it clear that the Board must have written evidence of two acts by the persons who are claimed to be members of the trade union in question. First, the Board must have written evidence that the persons have applied to become members of the trade union. Second, the Board must have written evidence that the persons have paid at least one dollar on their own behalf in respect of initiation fees or monthly dues of the trade union. The form of receipt in evidence herein is acknowledgement by the intervener of payment of one dollar from someone purported to be a member of the intervener. There is nothing on the face of the receipt to identify the purpose of the payment and, in particular, it does not acknowledge the payment as being in respect of dues or fees of the intervener. Even if the receipt acknowledged that the payment of one dollar was in respect of dues or fees, the Board still would not have before it written evidence that the employees to whom receipts were issued have applied for membership in the intervener. Clearly, the receipts are not sufficient alone to satisfy both requirements of section 1(l)(l) of the Act and section 73(1) of the Rules of Procedure. The Board was faced with similar circumstances in its decision in Canadian Underwriters' Association [1974] OLRB Rep. Feb. 111 wherein the Board had documentary evidence before it in the form of receipts for one dollar paid on account of membership in the trade union, but no evidence that the persons had applied for membership. The Board refused to allow the applicant to adduce at the hearing written evidence because it was too late to admit written evidence. The Board went on to comment in obiter that, even if the applicant had been seeking to have the Board admit oral evidence, section 73(2) of the Rules of Procedure would have prohibited its admission because the purpose of the oral evidence was not to identify or substantiate the documentary evidence, rather it was to supplement it.
In the instant case, counsel for the intervener is seeking to call evidence to show that employees applied for membership. In so doing, counsel would be seeking to prove at least one, and in the Board's view both, of the two elements which establish the fact of membership. A review of the Board's decisions will show that the Board has admitted oral evidence to substantiate ambiguous documentary evidence, but it has consistently not admitted oral evidence which goes to establish the fact of membership. It also has consistently interpreted section l(1)(l) of the Act and subsections (1) and (2) of section 73 of the Rules of Procedure to require evidence of the fact of membership to be in writing. The Board's refusal to accept such evidence except in writing, is wholly consistent with the Board's exclusive authority under section 103(2)(j) of the Act,
….. to determine the form in which and the time as of which evidence of membership in a trade union…….shall be presented to the Board on an application for certification……, and to refuse to accept any evidence of membership that is not presented in the form and as of the time so determined;.
In the Board's view, that interpretation and the practices carried out in accordance with it is also consistent with the judgement of the Divisional Court in Re Fisher et al. and Hotels, Clubs, Restaurants, Tavern Employees' Union, Local 261 et al, 1980 CanLII 1882 (ON HCJ), 28 O.R. (2d) 462. The Board had before it in that case a document purporting to be a statement opposing certification of the trade union. The Board had found that document to be ambiguous in that respect and relied on section 73(2) of the Rules of Procedure to exclude oral evidence intending to prove that the document was a statement in opposition to the application for certification. The courts held that the Board had the authority and duty to hear such evidence and to decide on the basis of the documentary and oral evidence whether the documentary evidence as substantiated by the oral evidence, was evidence of opposition to certification. The problem in the instant case is not one of the ambiguity of documentary evidence of membership within the meaning of section l(l)(l) of the Act, it is an absence of any documentary evidence respecting whether employees have applied for membership in the intervener. Therefore, there is an absence of evidence of membership in the intervener within the meaning of section l(l)(l), evidence which section 73(1) of the Rules of Procedure says shall not be accepted by the Board unless it is in writing. Thus, there is no written evidence of membership before the Board which might be substantiated by oral evidence in accordance with the principles underlying the judgement in Re Fullers. For an analysis of the relationship of Re Fullers to the application of section 73(2) of the Rules of Procedure under a fact situation analogous to the one herein, see the Board's decision in P.R. C. Chemical Corporation of Canada Ltd., [1980] OLRB Rep. May 749, at paragraphs 30 and 31.
The reply to the application raised issues respecting the applicant's membership evidence as well as challenging the applicant's right to bring this application on the heels of the earlier one which had been dismissed by the Board. The respondent contends in the reply that the Board should not place any reliance on the applicant's evidence because a majority of employees in the prior application had . . . evidenced their desire not to be represented by the applicant union.. The respondent further contended that the applicant's membership evidence was equivocal and should be rejected by the Board. The Board received the representations of counsel for the respondent and the applicant on these issues and reserved its decision. The Board has now had the opportunity to consider those representations and its findings are as follows.
The petition which was in evidence before the Board in the first application is not in evidence in these proceedings respecting the second application. Therefore, even if the Board accepts respondent counsel's proposition that the petition in the first application was conclusive evidence that a majority of employees did not want the union to represent them, and the Board does not, the Board does not have before it the evidence necessary for making the finding contended by respondent counsel. The contention that the applicant's membership evidence is equivocal is also founded on the petition in the first application. Besides not being in evidence in these proceedings, the Board made no finding in the prior proceedings respecting whether that document expressed the voluntary wishes of the employees who had signed it. Even if it had, it could not import those findings into a new and different proceeding. Therefore, the Board does not have before it evidence which either would cast doubt on whether the applicant continues to enjoy the support of the employees for whom it filed membership documents or which otherwise would cause the Board not to rely on the membership evidence filed by the applicant.
Counsel for the respondent advanced several grounds at the hearing to support the reply's contention that the applicant should be barred from bringing this application: the present application was made by the applicant before the Board had dismissed the first one; the applicant had concluded that it was at risk of being in a position where it would not have been entitled to certification without a representation vote; and the applicant further concluded, from the number of employees who had signed the petition, that it would be unable to win a representation vote. Counsel contended that, by withdrawing the first application and filing the instant one, the applicant had deliberately sought to avoid having the true wishes of the employees being disclosed in a representation vote.
The Board has discretion under section 103(2)(i) of the Act to refuse to entertain a new application for certification by a previously unsuccessful applicant within ten months from the date of dismissal of the unsuccessful application. The same section also gives the Board the discretion to bar an unsuccessful applicant from filing a new application within ten months of the date of dismissal of the unsuccessful application. As noted above, the Board did not apply a bar to a new application when it dismissed the earlier application by its decision which issued September 5, 1984. Where no bargaining rights are already held for employees affected by the application for certification in question, it has been the Board's long standing policy and practice to exercise its discretion under section 103(2)(i) to bar a new application when an earlier one has been dismissed where the employees' wishes have been tested in a representation vote and the applicant has lost the vote. In those cases, the Board automatically applies a six-months time bar when dismissing the application following the taking of the vote. Where the views of the employees in the bargaining unit have not been ascertained, in other words, where no representation vote has been held, the Board will not impose a bar as a general rule. For an example of the circumstance where the Board has imposed a time bar, see the Board's decision in Master Insulation Co. Ltd., [1981] OLRB Rep. Jan. 94 and for an example of the circumstances in which it has not imposed a bar, see the Board's decision in Sonora Cosmetics, [1982] OLRB Rep. June 954.
Where the Board has directed the taking of a representation vote and the applicant requests leave to withdraw its application before the vote is taken, the Board will dismiss the application and direct the applicant's attention to the Board's decision in Mathias Ouellette, 56 CLLC 18,026. If the applicant files a fresh application within six months from the date of the dismissal of the first one, the Board will require the applicant to show cause why the Board should entertain the new application. The underlying rationale for this approach was discussed in the following terms by the Board in its decision in Erie & Huron Beverages Limited, [1979] OLRB Rep. July 640, at paragraph 4:
4.... As well, the Board has consistently taken the position that a union should not be allowed to anticipate defeat in a representation vote and escape a bar by withdrawing its application after a vote has been directed but before it has actually been taken. The Board recognizes, however, that there may be circumstances other than an anticipation of defeat and a desire to avoid a bar motivating a union to withdraw its application between the direction and taking of a vote. Instead of evaluating the circumstances surrounding the withdrawal at the time of the request for withdrawal, the Board in these circumstances normally issues a caution to the applicant that in the event it brings a new application within six months it will bear the onus of establishing that special circumstances existed to warrant the new application being heard.
The Board has made exceptions to its general approach in exercising its discretion to bar fresh applications in circumstances which might be described as special and extreme, such as when there have been numerous unsuccessful applications for certification made within a very short period of time. In this respect see the Board's decision in J. W. Crooks Company, [1972] OLRB Rep. Feb. 126 and the Board's obiter comments in its decision in Sonora Cosmetics, supra.
None of these grounds for refusing to entertain a second application for certification after an earlier, unsuccessful one are present in the instant application. Nor is the fact that the Board had not actually issued its decision dismissing the applicant's first application by the time that it filed the second one of itself grounds for prohibiting the second application. See the Board's decision in The Bristol Place Hotel, [1979] OLRB Rep. June 486.
Counsel for the respondent has argued, however, that the employees and the employer have been prejudiced by the filing of the second application immediately upon the applicant's request for leave to withdraw its first application because, by seeking to withdraw the first one at a stage in the proceedings when the Board had already held a full day of hearing and was in the midst of conducting its customary inquiry into the circumstances surrounding the filing of a petition in opposition to the application, the applicant has tried deliberately to avoid having the true wishes of the employees disclosed by a vote in the first application. Counsel contends that those circumstances provide proper and sufficient reason for the Board to refuse to entertain the application.
The Board does not agree with counsel that the effect of the applicant filing the instant application following upon dismissal of the prior one frustrates the determination of the true wishes of the employees. The membership evidence filed by the applicant is evidence which supports an inference that the employees who applied for membership in the applicant wished at that time to have the applicant represent them in collective bargaining with the respondent. Absent any evidence which rebuts that inference or raises a doubt that, at the terminal date of the application, the employees still wished to have the applicant represent them, the Board will act upon the evidence. The Board will certify the applicant without a representation vote if it is satisfied that more than fifty-five per cent of the employees in the bargaining unit are members of the applicant. The Board will direct that a representation vote be taken if not less than forty-five per cent and not more than fifty-five per cent of the employees in the bargaining unit are members. If more than fifty per cent of the ballots cast are cast in favour of the union, section 7(3) of the Act mandates the Board to certify the applicant. If less than forty-five per cent of the employees are members of the applicant, the application will be dismissed. No matter which result prevails, the Board will have ascertained the true wishes of a majority of the employees pursuant to the statutory majoritarian standards. It cannot be said in those circumstances that the Board's failure to give account to a document which is not before it is failing in its duty to ascertain the true wishes of the employees with respect to the application. Furthermore, when this application was made, any employees who were opposed to it could have expressed their opposition in writing, by filing a petition or, as they appear to have attempted to do, put their support behind a competing trade union. Since the intervener's application was dismissed for the reasons given above and since there was no other statement in opposition to the application for certification which would raise doubt as to whether the applicant continued to enjoy the support of the employees for whom it has filed membership evidence, that evidence must be accepted as proof of the true wishes of the employees who are members of the applicant.
In these circumstances and for the foregoing reasons, the Board will not exercise its discretion under section 103(2)(i) of the Act to refuse to entertain this application.
It was necessary for the Board to adjourn the hearing into the application before it could deal with the issue of the appropriate bargaining unit. However, as the Board found in paragraph 3 above, this is an application made pursuant to section 144(1) of the Act which is set out in that paragraph. The wording of section 144(1) mandates that the appropriate bargaining unit be one which shall . . . include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area In this respect, the applicant has proposed a bargaining unit described in terms of the trade which it customarily represents in the construction industry as follows:
All employees of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman; and, all employees of the respondent in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sector, engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman.
The reply to the application proposes a bargaining unit described in the following terms:
All employees engaged in the operation of cranes, shovels, bulldozers and similar equipment and those engaged in the repairing and maintaining of same in the Regional Municipality of Ottawa-Carleton and the United Counties of Prescott and Russell.
A provincial agreement as defined in section 137(l)(e) of the Act is . . . an agreement in writing covering the whole of the Province of Ontario between a designated or accredited employer bargaining agency that represents employers, on the one hand, and a designated or certified employee bargaining agency that represents affiliated bargaining agents, on the other hand The collective agreement between the designated employee bargaining agency named in paragraph 2 of this decision and the operating engineers employers' agency, which is the designated employer bargaining agency, is a provincial agreement as defined by section 1 37( l)(e) of the Act, insofar as the agreement pertains to the ICI sector of the construction industry. Should the Board certify the applicant for a unit of employees which includes the ICI sector, by operation of section 145(3) of the Act, the applicant and the respondent would immediately be bound to the operating engineers provincial agreement. Since that agreement is one which, by statute, must describe a provincial unit of employees and since section 144(1) mandates that the appropriate bargaining unit be described in terms of all employees who would be included in the provincial agreement, the appropriate unit in this application would have to be described in terms compatible with those requirements. The applicant's description satisfies this requirement, the respondent's does not.
Therefore, the Board finds that all employees of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same, and all employees of the respondent in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same, 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.
Counsel for the applicant claims that Elio Bolzanello, Danny Kennedy, James McKinley, Giuliano Pluviatti and William Scorgie were not employed in the bargaining unit for a representative period of time prior to the making of the application. Furthermore, counsel contends that Eric Montague exercises managerial functions within the meaning of section l(3)(b) of the Act. Therefore, a Board Officer is authorized to inquire into and report to the Board on the list and composition of the bargaining unit described above and on the duties and responsibilities of Eric Montague.
This application is referred to the Registrar for the appointment of the Board Officer.