[1986] OLRB Rep. September 1206
0347-86-R Richard Grandy, Applicant, v. The Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 527, Respondent, v. City Plumbing (Kitchener) Limited, Intervener
BEFORE: R. A. Furness, Vice-Chairman, and Board Members B. L. Armstrong and J. Wilson.
APPEARANCES: Ian S. Campbell and Richard Grandy for the applicant; Stanley Simpson and Tom Crystal for the respondent; no one for the intervener.
DECISION OF R. A. FURNESS, VICE-CHAIRMAN, AND BOARD MEMBER J. WILSON;
September 2, 1986
The name of the Intervener is amended to read: "City Plumbing (Kitchener) Limited".
The applicant has applied to the Board under section 57(2) of the Labour Relations Act for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is the bargaining agent.
This application was filed on April 18, 1986. The respondent and the intervener are bound by a provincial collective agreement between The Ontario Pipe Trades Council and the Mechanical Contractors Association of Ontario. This provincial collective agreement became effective on May 14, 1984, and remained in effect until April 30, 1986. Having regard to the provisions of section 57(2) of the Act, the Board finds that this is a timely application to terminate the bargaining rights of the respondent.
At the hearing the parties agreed that the bargaining unit of employees for which the respondent is the bargaining agent is described as:
All plumbers and plumbers' apprentices, steamfitters and steamfitters' apprentices and welders in the employ of the intervener 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.
Richard Grandy gave evidence concerning the origination, preparation and circulation of the statement of desire which was filed in support of this application. The statement of desire contained one signature, the signature of the applicant. The intervener filed a Schedule "A" which contained the name of Richard Grandy and a Schedule "C" which contained the name of an employee who had been laid off on April 18, 1986, and whose date of return was unknown.
The respondent argued that there must be more than one employee in the bargaining unit on the date of the making of the application before the Board could entertain an application to terminate the respondent's bargaining rights. The respondent relied upon the decision of the Board in Stuart Riel Masonry Contractor, [1984] OLRB Rep. Nov. 1630. The respondent also alleged that the application was sponsored by the intervener and should therefore be dismissed. The respondent did not file any particulars of its allegations.
The decision in Stuart Riel Masonry Contractor does not advance the argument of the respondent. It does not address the issue raised by the respondent. However, that decision does state at page 1634:
In the construction industry, because of the short term nature of the employment relationship, it has been the consistent policy of the Board over many years to count as employees only those employees at work on the application date. This applies equally to applications for certification and for termination of bargaining rights.
The Board has entertained applications to terminate bargaining rights where there has been only one employee in the bargaining unit on the date of the application. For example, in A.R. Milne Electric Ltd., [1982] OLRB Rep. June 911, the Board was faced with this situation and after reviewing the provisions of section 57(2) stated at page 912:
In the instant case, there is only one employee in the bargaining unit, and for this reason the respondent union argues that no termination application can be brought. The union points out that on a certification application, the Act prevents the Board from determining an appropriate bargaining unit unless such unit consists of more than one employee; moreover, the term "bargaining unit" is defined in section l(1)(b) to mean a "unit of employees (plural) appropriate for collective bargaining". The union argues, by analogy, that if two employees were required for a bargaining unit to be certified, bargaining rights cannot be extinguished unless there are at least two employees in the unit. The union also questions whether there is a bargaining unit at all in this case, when the definition of that term appears to require a collectivity.
We cannot accept these contentions. In the construction and related industries, the number of employees in a bargaining unit can fluctuate substantially, and from time to time, the bargaining unit may even be vacant. Indeed, section 121 of the Act contemplates that the parties can negotiate a collective agreement even if there are no employees in the bargaining unit at the time the agreement is entered into. It is inconsistent to assert as the union does that there is no "bargaining unit", while at the same time maintaining that it continues to represent the applicant employee; and, we would not lightly embrace an interpretation which could conceivably lock an employee, unwillingly, into a bargaining unit with no possibility of escape, even in the "open period" prescribed in section 57(2)(a). In our view, such submission is entirely inconsistent with the scheme and purpose of the Act. Section 57(2) provides that any of the employees in the bargaining unit may make a timely application to terminate bargaining rights, and we are satisfied that the applicant has properly done so here.
The same reasoning is equally applicable in the instant application and the Board finds that it has jurisdiction to entertain the instant application to terminate the bargaining rights of the respondent.
Mr. Grandy has been employed by the intervener as a plumber for three years. He signed the statement of desire in his lawyer's office after he had absented himself from work with the excuse that he had a dental appointment. He contacted his lawyer through the lawyer referral service in Kitchener. On his lawyer's advice, he became a member of the respondent before he filed the instant application.
After the conclusion of certain other proceedings before the Board, Gary McNeil, a director of the intervener, informed Mr. Grandy that he would have to join the respondent or be replaced by a member of the respondent. Mr. Grandy did not wish to become a member of the respondent and did so only after his lawyer had advised him to do so. Mr. Grandy met Grant Kay, a member of the respondent who worked in his own business, at a plumbing and supply shop prior to the filing of this application. This meeting occurred in the course of a working day as Mr. Grandy obtained supplies. Mr. Kay advised Mr. Grandy that the respondent was going to make an example of Gary McNeil and that the only way to prevent this was to get the intervener out of the industrial, commercial and institutional sector of the construction industry. The respondent argued that this conversation was evidence which affected the voluntariness of the statement of desire. There is no evidence that the intervener was in any way responsible for this conversation. On the other hand, the balance of the evidence established that the idea to file this application was the decision of Mr. Grandy and arose as a result of his antipathy towards the respondent. The Board is satisfied on the balance of probabilities that the statement of desire represents the voluntary wishes of Mr. Grandy.
The respondent also challenged the list of one employee on Schedule "A" on the ground that Mr. Grandy was not working in the industrial, commercial and institutional sector of the construction industry on the date this application was made. The appropriate and proper time to raise such a challenge is when the list is announced. The respondent raised its challenge during the representations of the parties after the count and the evidence had been presented to the Board. During his testimony, Mr. Grandy stated that only ten per cent of his work was in the commercial field. There was no evidence before the Board that Mr. Grandy was not working in the industrial, commercial and institutional sector of the construction industry and the Board is not prepared to entertain the speculative challenge of the respondent to the list at the time of the proceeding when it was made.
On the basis of the evidence and representations before it, the Board is satisfied that not less than forty-five per cent of the employees of the intervener 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 trade union on May 29, 1986, 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 trade union under section 57(3) of the said Act.
The Board directs that a representation vote be taken of the employees of the intervener. Those eligible to vote are all plumbers and plumbers' apprentices, steamfitters and steamfitters' apprentices and welders in the employ of the intervener 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 on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken.
Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with the intervener.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER B. L. ARMSTRONG;
- I dissent. 2. Subsection 57(2) states, in part:
57.-(2) Any of the employees in the bargaining unit defined in the collective agreement may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit...
In my opinion, the language of the subsection clearly reveals the intention of the Legislature that the Board should not entertain a termination application where, at the time the application is brought, a single employee is, because of the vagaries of the construction industry, in the bargaining unit. I note that the subsection states "any of the employees" [emphasis added] and not "any employee", which should have been the case had the Legislature intended termination of a single person unit. The words "in the bargaining unit" strengthen this conviction: pursuant to subsection (1) of the Act, a bargaining unit is a unit of employees. Subsection 57(2) makes this clear in its reference to "the employees in the bargaining unit" [emphasis added]. I note that subsection 57(3) also implies a plurality of voter in its reference to "employees in the bargaining unit", and that subsection 57(4) refers to "a majority of the ballots cast". The taking of a representation vote would be rendered negatory where a single person who has brought the application has already signified opposition to the union. To give any meaning to subsection 57(4), the vote must be of two or more employees.
Contrary to what the Board stated in A. R. Milne Electric Ltd., [1982] OLRB Rep. 4 June 911, such an interpretation would not "lock an employee, unwilling, into a bargaining unit with no possibility of escape". Collective bargaining is premised on majoritarianism. Where a single employee is not entitled to decide the fate of the relationship under subsection 6(1), why should the same not apply to subsection 57(2)? A single employee in a bargaining unit need not be a permanent state of affairs. To prevent a termination application by a single employee merely postpones the application until a more representative number of employees are present in the unit. Why allow a single employee to determine the fate of the unit where a greater number have originally signified their desire to bargain collectively?
In A. R. Milne Electric Ltd., the Board stated at page 913:
Of course, employer antipathy to trade union representation is neither unusual, nor, in itself, illegal; but, given the power of the employer to influence the wishes of his subordinates, the Board must be especially scrupulous in its concern to protect the right of those subordinates to make their own choice, as distinct from that of their employer, in the matter of trade union representation -- especially in a small bargaining unit where employee wishes (whether on the application itself or in a representation vote) will be clearly identified.
This portion of the Board's decision identifies further areas of concern. A single employee is less likely to be able to withstand the implicit opposition of the employer to collective bargaining, even in the absence of overt interference or involvement in the termination application. The very fact that the Legislature has given sanction to collective bargaining indicates an awareness that the 'bargaining relationship' between a single employee and his or her employer is unlikely to be conducted on the basis of equal strength or bargaining power. To permit a single employee termination is to open the door to employer abuse, especially since the employer through the process of hiring and layoff can determine who the single employee will be.
- Finally, the result advocated by the majority of this panel would make a mockery of an important principle of collective bargaining; the right to freely choose to belong, or not to belong, in a collective bargaining relationship, and that right to freely choose guaranteed by secret ballot. The importance attached to this principle is reflected in subsection 111(1) of the Act, which states:
111.-(I) The records of a trade union relating to membership or any records that may disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a trade union or does or does not desire to be represented by a trade union.
In Daheim Nursing Home Limited, [1980] OLRB Rep. Nov. 1639, the Board stated at page 1640:
Board representation votes are conducted in accordance with strict standards designed to ensure that employees have an opportunity to register a free and untrammelled choice in the selection of a bargaining representative. Employees must be able to cast their ballots under circumstances that are not only free from improper interference, restraint, or coercion, but also from any other elements which might prevent a free and voluntary choice. The secrecy of that choice is of fundamental concern.
[emphasis added]
Form 69, the notice of taking of vote, by the Ontario Labour Relations Board, states on its face that "the vote shall be by secret ballot". It goes without saying that the choice of an employee in a single employee unit is made manifest by the result of the vote itself! I would add in passing that the Board, in deciding whether a representation vote will truly reflect the wishes of employees in a section 8 application for automatic certification, takes into account that the unanimity of the ballot box is unlikely to be present in a small unit: see Sack & Mitchell, p. 223, and the cases cited at footnote 683.
- For these reasons, I dissent with a result which would fly against the clear wording and provisions of the Act, undermine the principle of the secret ballot, and render employee choice vulnerable to employer wishes.