Ontario Labour Relations Board
[1986] OLRB Rep. September 1279
2450-85-R Floyed Ryan Deschamps, Applicant, v. United Brotherhood of Carpenters and Joiners of America Local 1030, Respondent, v. Nepean Roof Truss Ltd., Intervener
BEFORE: Thomas S. Kuttner, Vice-Chairman, and Board Members W. G. Donnelly and N. Wilson.
APPEARANCES: Paul A. Niebergall for the applicant; Frank Manoni for the respondent; Russell Zinn, Hubert Steenbakkers and Claude Oulette for the intervener.
DECISION OF THOMAS S. KUTTNER, VICE-CHAIRMAN, AND BOARD MEMBER N. WILSON; September 19, 1986
1On July 11, 1986, some time following the hearing of this case, the parties were orally advised that this application for termination of bargaining rights made pursuant to the provisions of section 57 of the Labour Relations Act had been dismissed by majority decision of the Board. Its reasons for this decision are herein contained. This was the latest of a series of applications made touching on the bargaining relationship between the respondent herein, United Brotherhood of Carpenters and Joiners of America Local 1030 ("Local 1030") and Nepean Roof Truss Ltd. ("Nepean") and the rights of the employees of Nepean for whom Local 1030 holds bargaining rights. (There has since been filed an Application under section 40a of the Act which was granted by decision of the Board dated July 24 1986, [now reported [1986] OLRB Rep. July 1005] but those proceedings were not germane to the determination here previously made.) Local 1030 was certified on November 5, 1984 for a bargaining unit comprised of "all employees of the respondent in the City of Nepean, save and except foremen, persons above the rank of foreman, office and sales staff and students employed during the school vacation period" (Board File No. 1629-84-R). In its decision granting bargaining rights the Board held that a statement of desire in opposition to the applicant filed on October 12, 1984 could not, in light of the circumstances surrounding its origination and circulation, be deemed a voluntary one. In addition, the Board refused to give any weight to a second statement of desire filed October 15, 1984 in light of the fact that no evidence was adduced concerning its origination or circulation.
2In addition, a series of complaints of unfair labour practice have been filed by Local 1030 alleging various breaches of the Act by Nepean. The first of these was filed October 9, 1984 (Board File No. 1864-84-U) and it arose out of the action by Nepean in laying off four employees on that date, all of whom were union members. In it Local 1030 alleged breaches of sections 64, 66 and 70 of the Act. The second of these complaints was filed on November 29, 1984 (Board File No. 2413-84-U) and alleges breach by Nepean of its duty to bargain in good faith contrary to the provisions of section 15 of the Act. These two complaints were consolidated and put down for a single hearing held before the Board on April 23, 1985 at which time the Board, in an oral decision, upheld the earlier complaint and ordered that the employees laid off contrary to the provisions of the Act be recalled to work with full compensation for time lost. A written decision had not yet issued at the hearing of this matter. Because the parties have not been able to agree on the amount of compensation to which the employees are entitled in accordance with the Board's oral decision, Local 1030 has requested that the complaint in Board File 1864-84-U be rescheduled for hearing so that this issue might be addressed. As to the second complaint alleging breach of the duty to bargain in good faith (Board File 2413-84-U) the Board reserved judgement, and a decision had not yet issued, at the time of the hearing of this matter, although that complaint has since been dismissed.
3On May 27, 1985 Local 1030 filed two further matters before the Board: first, a further complaint of unfair labour practice alleging breach of the duty to bargain in good faith contrary to the provisions of section 15 of the Act (Board File No. 0480-85-U); and second, an application for consent to prosecute arising out of the same circumstances giving rise to the complaint (Board File No. 0481-85-U). These matters were consolidated and put down for hearing before the same panel of the Board which was seized of the earlier complaints. Among the remedies sought by the applicant in this second complaint of breach of the duty to bargain in good faith was the imposition of a first collective agreement between the parties. The Board reserved judgement in this matter as well, and the decision which has recently issued dismissing that complaint, was still pending at the hearing of this matter.
4There was no evidence before us as to the extent or frequency of negotiation meetings between the parties. There was a conciliation officer appointed and on October 11, 1985, a "no board report" was issued by the Minister under the provisions of section 19(b) of the Act. The instant application was filed on December 18, 1985 in accordance with section 57(1) of the Act, the trade union not having made a collective agreement with the employer within one year after its certification. It is timely pursuant to the provisions of section 61(1)(b) of the Act, thirty days having elapsed after the issuance by the Minister of the "no board report".
5However, for Local 1030, it was argued first, that inasmuch as the Board decision in the second complaint of a breach of the duty to bargain in good faith was at the time of hearing still pending, a grant of the principal relief there sought - imposition of a first collective agreement could well render this application untimely. Secondly, and in the alternative, it was argued that even if this application has been filed in a timely fashion, the Board ought to "postpone" considering it on the merits until the issuance of its decisions in the several other section 89 complaints then currently pending, inasmuch as the Board's determination on the allegations contained therein could well have an impact on the voluntary nature of the application for termination of bargaining rights here filed. Reference was made to several Board decisions in support including Rock Haven hotels (Peterborough) Limited, [1980] OLRB Rep. Aug. 1240 and Lesmith Limited, [1981] OLRB Rep. Feb. 190. In an oral ruling made at the hearing the Board held first that the within application for termination of bargaining rights is timely, and second that it would not postpone its consideration on the merits, which it then proceeded to entertain.
6In Rock Haven Motels, the Board refused either to consolidate an application for termination of bargaining rights with a complaint of unfair labour practice subsequently filed, alleging )reach of the duty to bargain in good faith, or to postpone consideration of the earlier filed matter initial the complaint of unfair labour practice had been dealt with. The Board rejected the argument hat consideration of the application for termination of bargaining rights would preclude it from providing an effective remedy in the event the complaint of unfair labour practices was upheld. Here, it was argued that the Board in the exercise of its remedial powers, might have directed the imposition of a first collective agreement between the parties to rectify the alleged breaches by Nepean of its duty to bargain in good faith. Thus, the entertaining by the Board of the present application could well preclude the panel of the Board seized of the unfair labour practice complaint from granting that remedy, thereby irremediably prejudicing the bargaining rights which Local 1030 currently holds.
7The Board found no merit in the argument presented. It could well be that if the Board were vested under section 89 with the remedial authority to impose a collective agreement for breach of the section 15 duty of fair representation that a conflict of the type here claimed between the assertion and preservation of bargaining rights by a trade union faced by employer breaches of the duty to bargain in good faith on the one hand, and the exercise by employees of their statutory right to seek a declaration that a trade union no longer represents them on the other, could well arise. However, the Board has consistently maintained since its decision in DeVilbiss (Canada) Ltd., [1976] OLRB Rep. March 49 that it does not, under the provisions of section 89 of the Act have the power to impose a collective agreement in the exercise of its remedial jurisdiction. See as well the Journal Publishing Company of Ottawa, [1977] OLRB Rep. June 309 and Radio Shack, [1979] OLRB Rep. Dec. 1220, Appl. for jud. rev. dism'd, 1980 CanLII 1738 (ON HCJ), 30 OR. (2d) 29 sub. nom Re Tandy Electronics and United Steelworkers of America (Div. Ct.), leave to appeal to C.A. refused, O.R. loc. cit.
8Although the Board is not bound by the principle of stare decisis, it is simply inconceivable that a consistent and long standing interpretation of the Act as to the limits of its remedial powers would be abandoned by any one panel of the Board in favour of that put forward by Local 1030, and relief of the nature sought in the section 89 complaint actually granted. The Board was buttressed in its view by the fact that legislation which would expressly confer upon the Board the jurisdiction to direct the settlement of a first collective agreement by arbitration in the appropriate circumstances was pending before the Legislature during the currency of these proceedings, and has since been enacted as Bill 65, the Labour Relations Amendment Act, 1986. Such legislation would have been superfluous if the Board in fact enjoyed such remedial authority under the Act as previously framed. The Board not enjoying the remedial authority which Local 1030 seeks in the section 89 complaint proceedings for a breach of the duty to bargain in good faith, it failed to see how the outcome of those earlier proceedings could have had any effect on the timeliness of the application for termination of bargaining rights currently before us. This application having been filed after the expiry of the time period stipulated by the provisions of section 57(1) and 61(1) of the Act as the time period during which an application for a declaration of termination of bargaining rights may not be made or entertained, it is prima facie a timely application in accordance with the terms of the Act.
9Notwithstanding the timeliness of the application, ought the Board to have postponed considering it on the merits pending its disposition of the several section 89 complaints then outstanding? Assuming that the request to postpone is in effect one to adjourn these proceedings, there can be no doubt that the Board may, as master of its own process (see s. 102(13) of the Act) exercise such a discretion, and indeed its Rules of Procedure expressly so provide, stipulating at s. 82(1) that
The Board may, if it considers it advisable in the interests of justice, adjourn any hearing for such time and to such place and upon such terms as it is considers fit.
To the extent that the decision of the Board in North American Plastics Co. Ltd., [1969] OLRB Rep. Sept. 797 might be said at paragraph S thereof to deny a discretion so to adjourn an application of this nature, we decline to follow it. The discretion being present, ought it to have been exercised in favour of the respondent as requested?
10Unless all parties consent, it is the general practice of the Board to deny a request for an adjournment absent unusual and extraordinary circumstances. In Re Flamboro Downs Holdings Ltd. and Teamsters Local 1879 (1979), 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400 the Divisional Court indicated the relevant considerations to be taken into account by the Board in the exercise of its discretion to adjourn as follows:
It is for the Board to determine whether to adjourn on the basis of the obvious desirability of speedy and expeditious proceedings in labour relations matters, the background of the particular case, the issues involved, the reason for the request and other like factors.
[p. 404]
Here, Mr. Manoni submitted that the determination by the Board to settle complaints of unfair labour practice currently pending before it could have an impact both as to the timeliness and the substance of the current proceedings. The Board had already rejected the submissions made with respect to timeliness. However, Mr. Manoni argued further that inasmuch as the Board must satisfy itself as to the voluntary nature of the statement of desire of the employees filed in support of this application for termination, it is appropriate that it await the outcome of the section 89 complaints as these could well shed light on the question of voluntariness.
11Although a history of past conduct contrary to the provisions of the Act may well be a relevant factor in determining the voluntary nature of a statement of desire such as that here under consideration, it is by no means determinative of the matter. A sufficient nexus must be shown between the earlier conduct in violation of the Act and the circumstances surrounding the original on and circulation of the statement of desire in support of an application for termination in order to establish that the statement has been sufficiently "tainted" so as to bring its status as a true reflection of the voluntary wishes of the employees into question. It is of course helpful in such circumstances to those seeking to discredit a statement of desire to have conclusive evidence of past employer misconduct contrary to the provisions of the Act in the form of a Board determination to us effect. Indeed, there may be circumstances where, because a Board determination on that very sue is pending it might be convenient to adjourn the termination proceedings until the earlier c determination has been made. Much depends on the nature of the alleged breach of the Act by the employer. Thus, where these involve those elements of intimidation and coercion associated with sections 64, 66, 67 and 70 of the Act, it may well be expedient for the Board to adjourn and await tie outcome of the earlier proceedings rather than to put the parties to the inconvenience and expense of leading the same evidence as to the employer's alleged misconduct a second time in the subsequent proceedings before it. On the other hand, the acts of past employer misconduct alleged may be such that those elements of intimidation and coercion which may have an impact upon the voluntariness of a statement of desire subsequently filed, are absent or minimal, as for instance in an alleged breach of the section 15 duty to bargain in good faith. In those circumstances, no useful purpose could be served of sufficiently overriding importance to justify adjournment of the later proceedings pending the outcome of the earlier ones.
12Here, of the three section 89 complaints filed, two allege breach of the section 15 duty to bargain in good faith, and in neither had a decision as yet issued at the time of hearing. The Board failed to see how the outcome of those proceedings could have had any significant impact upon the matters at issue then currently before us, and in particular the matter of the voluntariness of the statement of desire filed in support of this application. Commenting earlier on the relationship between an alleged breach of the duty to bargain in good faith and an application for termination of bargaining rights, the Board stated in North American Plastics Co. Ltd., supra, at para. 5:
While we recognize that there is a duty to bargain expressed in the Act, there are remedies available to parties if there has been a failure to bargain in good faith. In the present matter bargaining has taken place between the respondent and the intervener, however, an agreement was not reached and the employees have exercised their rights under the Act to engage in a lawful strike prior to this application being made. While the bargaining was between the company and the union and affected the employees, it can hardly be maintained that anything the employees did or did not do contributed to the circumstances which constitute the allegations of the union against the company. Why then should the employees, who otherwise would have an unfettered right within the time limits set out in the Act to bring an application under section 43, [now section 57] be prevented from doing so because of actions, improper or otherwise, of the union or the company? The Board's jurisdiction, once the application has been properly made, is to determine the number of employees in the bargaining unit at the time the application was made and whether fifty per cent of those employees have voluntarily signified in writing that they no longer wish to be represented by a trade union. If the Board is satisfied on those matters, then it must order that a representation vote be taken. We fail to see that there is a discretion given to the Board in this section of the Act to postpone an application or dismiss it for reasons other than those which would fall squarely within its determination of the prerequisites set out in that section for a vote to be held.
We could see no reason to depart from that ruling in the circumstances of this case, and did not do 50.
13The third complaint of unfair labour practice under section 89, that alleging acts of reprisal contrary to the Act taken by Nepean against two employees for activity in support of the respondent (Board File No. 1864-84-U) has been dealt with in an oral decision of the Board issued on April 23, 1985. There, the Board determined first that the Nepean had violated the Act as alleged, and second ordered the employees dismissed to be reinstated with compensation for lost time. The fact that the issue of quantum has not yet been resolved in that matter, has no bearing on the issue here being discussed, namely whether this panel of the Board ought to have postponed consideration of this application pending the outcome of those earlier filed. Inasmuch as the outcome of this third section 89 complaint had in fact been determined, the submission made had no merit. Accordingly, the Board now turns to a consideration of this application for termination of bargaining rights on its merits.
14Only the applicant was called to give evidence on the origination, preparation and circulation of the petition - the statement of desire filed in support of this application for termination of bargaining rights. Deschamps has been employed on and off for Nepean for a total of 5 years, having been initially hired in 1980 but laid off during the winter of 1983 prior to the certification of Local 1030. He returned to work for Nepean in June 1985 and was again laid off in February of this year, subsequent to the filing of the present application for termination. He was most recently employed as a fork lift operator in the yard.
15Deschamps testified that upon his return to Nepean in June 1985 he became aware through talk on the shop floor that Local 1030 had in the interim "come in" although he was not aware of the manner in which its bargaining rights had been obtained. His testimony on the details of the shop talk with respect to Local 1030 was not altogether clear, but what was manifest from it was that there were divisions within the bargaining unit as to the benefits of a unionized work place. According to Deschamps the great bulk of employees were dissatisfied with the level of representation given by Local 1030. "They were talking about it at work. You walk in, that's all they talk about at work. They are always putting down the union, and saying that the union was no good and they wanted it out." Yet Deschamps admitted that he was aware that the two Simmons brothers, who were in fact the employees ordered reinstated by the Board in its earlier proceedings, were members of the union and supportive of it. This he had been told by a fellow employee identified during these proceedings only as T7.
16Indeed much of Deschamps' knowledge of what might be termed the politics of the work place, and the totality of his knowledge of how to proceed in the initiation and processing of an application for termination of bargaining rights was learned from this fellow employee, 17. 17 had been continuously employed at Nepean for a lengthy time period, and certainly throughout the period of the certification and related proceedings, and the subsequent unfair labour practice proceedings which have been outlined above. Sometime late in November or early in December 1985, Deschamps and 17 met for lunch at a restaurant situated close to the work place. There the two spoke of the situation at the shop. It was during that conversation that 17 explained to Deschamps the logistics surrounding an application for termination of bargaining rights. He advised that majority employee support was required and that this must be of a voluntary nature, and thus that it was important not only that the employer not be involved but indeed that no one of management have any knowledge whatsoever about such an application. It was 17 as well who suggested that legal advice be sought and that the cost of such advice be borne by those supporting the application.
17Shortly after that meeting Deschamps commenced the process which led up to this application for termination by seeking legal advice. He was referred to the office of Mr. Niebergall "by other lawyers" whom he telephoned by referring to the Yellow Pages. This was done on a day which Deschamps chose to take off of work claiming sick leave. He did not testify as to why it was he rather than 17 who made the formal arrangements and acted as chief spokesman for those participating in the filing of this application for termination of bargaining rights.
18Be that as it may, on the afternoon of Friday, December 13th, Deschamps requested of his foreman permission to leave work early in order to attend to some personal business. In fact he attended at the offices of his solicitor in order to pick up the unsigned petition which had been crafted on his behalf. Earlier that day while in the lunchroom, Deschamps had invited the great bulk of his fellow co-workers to drop over at his place after work. According to his testimony, he did not discuss at that time the reason why they were being so invited nor in fact was he asked. The purpose of course was to have them sign the petition which was to be filed together with the application for termination of bargaining rights. The two Simmons brothers were not present in the lunchroom at that time, nor were they otherwise approached by Deschamps. The great bulk of his co-workers including 17 did in fact attend at his apartment that afternoon as invited. Indeed, they were released early from work that day, the normal working day ending at 4:30 p.m., his co-workers showing up at his apartment at approximately 3:30. There was no evidence as to why his co-workers were released early from work that afternoon, although it is apparently a practice of the employer occasionally to release employees early from work on Friday afternoons. Deschamps further testified that once his fellow workers had shown up at the apartment, he, together with 17, explained the reason for the invitation, circulated the petition and obtained the signature of each person present. The meeting broke up very shortly, as Deschamps had agreed to return the petition to the office of his solicitor that afternoon, and indeed did so at approximately 4:30 p.m. The application for termination of bargaining rights is in fact dated December 13, although it was only filed with the Board on December 18, 1985.
19The provisions of section 57(3) of the Act mandate that the Board in an application for termination of bargaining rights satisfy itself that not less than 45 per cent of the employees in a bargaining unit "[h]ave voluntarily signified in writing at such time as is determined under clause 03(2)(j) that they no longer wish to be represented by the trade union ... . From the earliest limes the Board has stressed that it must "[b]e vigilant and scrupulous in its concern to protect the fundamental rights of employees to make their own choice, as distinct from the choice of their employer, on the matter of selecting or rejecting a bargaining agent". See Peel Block Co. Ltd., 63 CLLC 16,227. This is equally so whether assessing the voluntariness of a statement of desire filed n connection with an application for certification, in which case reference even today is made to 1 he Board's classic statement of the applicable principles articulated in Pigott Motors (1961) Ltd. 3 CLLC 16,264, or one filed in support of an application for termination. The statutory test in the case of each is that of voluntariness, and although the Board has commented in N. J. Spivak Limited, [1977] OLRB Rep. July 462 that it may be less inclined to draw inferences adverse to the voluntariness of a statement filed in support of an application for termination of bargaining rights than it would with respect to one filed in connection with an application for certification, it has nevertheless maintained a stance of vigilance and scrupulousness in assuring that the statutory standard of voluntariness is met in these circumstances as well. See Grove Park Lodge, [1980] Rep. Rep. 235 and Ontario Hospital Association, [1980] OLRB Rep. Dec. 1759.
20This is all the more so where, as here, there is a history of prior statements of desire having been found by the Board to have failed to have met the statutory standard of voluntariness. This is not to say that in all circumstances a prior defective statement of desire will "taint" or "colour" one subsequently filed, but the Board would be remiss in its obligation to ensure that the standard of voluntariness be met if it failed to bear in mind the totality of a collective bargaining relationship which it is sought to terminate. Here that relationship has been marked by actions on the part of the employer violative of the Act which could well create a climate at the work place which would preclude the voluntary expression of employees that they no longer wish to be represented by a trade union. Thus, the Board places an evidentiary burden - and a heavy one, on those who make application for the termination of bargaining rights to establish on evidence that is both cogent and credible that employees who have signified in writing that they no longer wish to be represented by the incumbent trade union have done so voluntarily. This the applicant here has failed to do.
21There is much in the evidence given which the Board finds unsatisfactory. First, there is the insistence on the part of Deschamps that he was totally unaware of the many section 89 proceedings which were pending before the Board from the time of his hire through to the time of the filing of this application. This seems highly unlikely when juxtaposed against his further testimony that there was constant talk on the shop floor about the union, generally of a derogatory nature and indicating dissatisfaction for the level of representation which it was providing. Moreover, Deschamps insists that at no time did he discuss with members of the bargaining unit other than 17 his intention of filing an application for termination of bargaining rights - so that even the invitation extended to bargaining unit members to attend at his apartment was purportedly done without giving any indication whatsoever of the purpose of that meeting. It seems more than passing strange that not only did all of the members of the bargaining unit to whom he spoke accept his invitation on such short notice, but moreover they were released early from work that day - a factor which certainly facilitated in the meeting of the timetable which Deschamps had set, namely to ensure that the petition was signed and filed with his solicitor prior to the close of the business day. Deschamps himself was of course released from work even earlier than his co-workers. We are further told that within the short space of less than an hour, (i.e. between the hours of 3:30 and 4:30) Deschamps' co-workers gathered at his apartment, were advised of the intention to file an application for termination of bargaining rights, were instructed on the necessity of signing a petition to accompany the application and did so, and further discussed the matter sufficiently to decide and agree among themselves to share the legal expenses associated with the application. All of this was done, leaving enough leeway for Deschamps himself to return to the office of his solicitor with the completed petition and in time to sign the necessary application forms at approximately 4:30 that afternoon. It simply strains the credulity of the Board to accept that so much could have been accomplished within such a short period of time.
22Even without its concerns arising from the testimony of Deschamps, the Board finds the evidence as to voluntariness fundamentally flawed, and for this reason. It is clear from his testimony, that Deschamps was not the originator of this petition nor of the underlying application for termination of bargaining rights. From his testimony it is evident that behind him stood a fellow worker of longstanding employment with Nepean, namely 17. It was 17 who, in the late November/early December meeting at the restaurant advised Deschamps of the possibility of filing such an application and warned him of the many strictures which the Board places on those who make such application to ensure that it represents the voluntary expression of desire of the employees affected. It was 17 who told him who of the employees would be supportive of such an application and who would oppose it. His knowledge would stem from his longstanding tenure of employment at Nepean, a term of employment which, it is to be recalled, extended throughout the entire period of the original application for certification of Local 1030 and the subsequent section 89 unfair labour practice proceedings. It was 17 who counselled the retaining of a solicitor and 17 who assured that the legal costs would be borne equally by all who supported the application. The Board can only deduce from the evidence given that T7 had, previous to this meeting, laid the groundwork for the filing of an application for termination of bargaining rights. He was in a real and actual sense the originator of this application, and it is from him only that the Board can properly assess the circumstances surrounding its preparation and origination. It was open for the applicant to lead this evidence and all the more important that he do so in light of the history of this bargaining relationship, punctuated as it has been by findings of the Board that an earlier expression of opposition to the applicant indicated in a statement of desire filed at the time of certification proceedings was not voluntary, and by a later finding that Nepean has engaged in conduct contrary to the provisions of the Act.
23But, the applicant has chosen not to lead such evidence, and this at his own peril. For the Board finds that in failing to call such evidence the applicant has failed to satisfy it that the requisite number of employees in the bargaining unit have voluntarily signified in writing that they no longer wish to be represented by the incumbent trade union as mandated by the Act. The Board not being satisfied that the statutory requirement has been met, this application must be and is hereby dismissed.
DECISION OF BOARD MEMBER W. G. DONNELLY;
Two main grounds for the rejection of the petition are put forward in the majority decision.
First, Deschamps identified the person with whom he discussed employee discontent, prior to the circulation of the petition, as "17". He stated that "T7" was a fellow worker (labourer). He was not called as a witness.
It is significant that the Board, in conducting its usual rigorous examination of the petitioner, failed to inquire about 17's relationship to management or lack of it.
It is of even greater significance that the union, in argument, did not make an issue of the fact that T7 did not testify but merely urged dismissal on the grounds of credibility and past employer practices.
Second, the majority said that no evidence was adduced as to why employees were allowed to leave early on a particular Friday (paragraph 19 of the majority decision). However, that paragraph does record " ... it is apparently a practice to release employees from work occasionally on Friday afternoons." My notes say "On Fridays, if there is not much work, employees are allowed to leave early."
For these reasons and the fact that Deschamps appeared to be a credible witness to me, I would not have rejected the petition.