[1986] OLRB Rep. January 137
0298-84-R; 1698-84-M United Brotherhood of Carpenters and Joiners of America, Local 93, Applicant, v. Construction P.H. Grager Inc., Respondent, v. Labourers' International Union of North America, Local 527, Intervener; Labourers' International Union of North America, Local 527, Applicant, v. Pierre A. Gratton Construction Inc. and/or Construction P.H. Grager Inc., Respondent, v. United Brotherhood of Carpenters and Joiners of America, Local 93, Intervener
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and B. L. Armstrong.
DECISION OF THE BOARD; January 27, 1986
- This matter includes an application for certification which was filed on April 27, 1984, with respect to employees of the respondent Construction PH. Grager Inc. No other interested parties were indicated on the application, and the Board, differently constituted, followed its usual practice in the construction industry of certifying the applicant without a hearing. The Board's decision, however, prompted the following letter from the applicant to the Board:
Dear Sir:
Re: United Brotherhood of Carpenters and Joiners of America, Local 93, and Construction P.H. Grager Inc. O.L.R.B. File No. 0298-84-R
On April 27, 1984 the Carpenters. Local 93 applied for certification for the above mentioned Employer and requested to be certified for all Carpenters and Carpenters apprentices on I.C.I. construction and for all employees for other sectors of the construction industry in Board area 15. On May 16, 1984 the Board issued two certificate, one for I.C.I. construction and the other for other sectors of the construction industry in the Board area 15, both covering only carpenters and carpenter apprentices.
We believe the Board omitted to consider the request of the Applicant for all employees unit for sectors other than the ICI. sector of the construction industry.
Due to the above and due to any argument to the contrary we respectfully request reconsideration or an amendment to the certificate for non-I.C.I. construction.
Kind regards.
Yours truly,
"F. Manoni"
Frank Manoni
General Organizer
As well, on May 28, 1984, the intervener Labourers' International Union of North America, Local 527, wrote to the Board through counsel and indicated that it had learned of the certification, and that it already held bargaining rights for both carpenters and labourers engaged in formwork for "Grager", by virtue of a collective agreement that it had with a related or predecessor company, the respondent Pierre A. Gratton Construction Inc. The intervener accordingly requested the Board to reconsider its decision of May 16, 1984 certifying the applicant, and to revoke the certificates issued.
The Board conducted its inquiry into the application of sections 1(4) and 63 to the two companies in question, and, by decision dated February 28, 1985, found that, although there had been no design on the part of the respondents' principals to avoid the collective bargaining obligations of Pierre A. Gratton Construction Inc., in law a "sale" had taken place within the meaning of section 63 of the Act. That decision meant that the Carpenters' application was, either in whole or in part, a displacement application with respect to the bargaining rights held by the Labourers' for Construction P. H. Grager Inc.
As it happened, the present application for certification was timely, having been filed in the "open period" of the Labourers' collective agreement. And as the arguments of the parties had contemplated, the Board, in view of the "sale" finding, directed that a representation vote be held between the Carpenters' and the Labourers' Union, and directed the parties to meet with a labour relations officer in the hope that a voting constituency and voters' list could quickly be worked out. No such resolution, however, was forthcoming.
The Board is advised that there are no longer any employees working for "Grager" in the province of Ontario, and the Board therefore is not presently in a position to conduct a representation vote in this matter in any event. Looking ahead to the possibility of "Grager" obtaining work in Ontario in the future, however, the Board must turn its mind to two issues germane to any possible vote. The first is whether the voting constituency ought to embrace other than 'carpenters' and 'carpenters' apprentices', and the second, more fundamental, is whether the respondent employer can be found to have employed any "employees", as that term is used in section 7(1) of the Labour Relations Act, on the date that the Carpenters' Union filed its application.
Dealing with the second issue first, the Labourers' argue that none of the carpenters and labourers working for "Grager" on the date of this application were hired through the hiring hall provisions of the Labourers' collective agreement, and accordingly are not "employees" for the purposes of section 7(1) and the Board's April Waterproofing line of cases.
As the Board set out in its finding-of-a-"sale" decision of February 28, 1985, Mr. Gratton, the guiding hand of "Grager", was unaware that the collective agreement for Pierre A. Gratton Construction Inc. was applicable to the business that he had entered into jointly with Mr. Gervais and Mr. Vandel, and there is no issue in this case that the employees of "Grager" were not hired in accordance with the Labourers' collective agreement. In April Waterproofing, [1980] OLRB Rep. Nov. 1577, the Board wrote:
The displacement of one union's bargaining rights by another is by no means rare in the construction industry. Such cases generally involve situations where the applicant union has won over the allegiance of members of the incumbent union who were hired by the employer in accordance with the provisions of the incumbent's collective agreement. The instant case, however, involves an entirely different situation. Here, the respondent did not hire the three individuals in dispute through the intervening union as required by the terms of the relevant collective agreement, but rather, it hired them "off the street". The applicant in turn seeks to displace the intervener's bargaining rights on the basis of the fact that two of the individuals so hired are its supporters.
There can be little doubt but that at the relevant time there existed a common-law employee-employer relationship between the respondent and the three individuals challenged by the intervener. That by itself, however, is not determinative of their status as bargaining unit employees. See Local 273, International Longshoremen's Association v. Maritime Employer's Association, [1979] 1 5CR. 120. In our view, the bargaining unit is comprised of employees employed under the terms of the applicable collective agreement. To be so employed, an employee must have been hired in accordance with the provisions of the agreement. The three individuals in dispute were not hired in accordance with the provisions of the collective agreement and accordingly, in our view, they do not come within the bargaining unit covered by the collective agreement. This being so, we are satisfied that in ascertaining the number of employees in the bargaining unit for the purposes of section 7(1) of the Act, the three individuals in dispute should not be taken into account.
(emphasis added)
The Board had a similar fact situation before it in Cooper Construction Company Limited, [1982] OLRB Rep. Aug. 1152. The Board wrote:
The Board considers the circumstances in the April Waterproofing decision to be quite analogous to those in the instant application and, therefore, having found that Angelo Lovalente was at work in the bargaining unit on the date of the application contrary to the provisions of the collective agreement to which the intervener and respondent are bound, the Board further finds that he was not an employee in the bargaining unit for purposes of section 7(1) of the Labour Relations Act.
In two more recent decisions, however, the Board was faced with circumstances in which it found it inappropriate to apply the April Waterproofing kind of reasoning. The first, Culliton Brothers Limited, [1983] OLRB Rep. March 339, involved a contractor located in Stratford who, owing to a job it was performing in Cornwall, had the Sheet Metal Workers' Union become certified for its employees in the Cornwall area. Subsequent to that, the Legislature passed amendments to the Labour Relations Act which had the effect of bringing all of Culliton Brothers' employees under the scope of the union's province-wide collective agreement. This result for the company was the subject of a decision by the Board, as was the obligation of the company's already existing employees to then join the union. In between those two Board decisions, some of these existing (non-union) employees of the company applied for termination of the union's bargaining rights. The Board wrote:
The union places primary reliance upon the decision of the Board in April Waterproofing (cited supra). There, the Board had before it a "displacement" certification application, where the support for the raiding union came from two employees who had been recently hired "off the street" contrary to the terms of the incumbent union's collective agreement. That collective agreement required that all new employees should be members of the incumbent union hired through the incumbent union's hiring hall. In April Waterproofing, however, the company had breached this contractual obligation, and, in so doing, had acquired two employees who were adherents of a rival union. The hiring of these two employees was improper from its very inception, yet they purportedly provided the basis for the raiding union's attack upon the incumbent union's bargaining rights.
The Board went on to note:
- This approach was subsequently adopted in Cooper Construction, supra. It must be noted it does not require advertent misconduct on the part of the employer. Although in April Waterproofing it was alleged that the employer had intentionally hired the two employees to foster a raid, the Board did not hear evidence on, or determine, that issue. April Waterproofing stands for the proposition that employees illegally hired contrary to the terms of an existing collective agreement should not be considered employees in the bargaining unit even though their hiring was inadvertent and not intended to foster a representation application. The fact that the employer may not have intentionally breached its contractual obligations is no answer to the prejudice which his actions may cause.
And further, in paragraph 26:
Individuals illegally hired, transferred or retained in the bargaining unit should have no more right to bring a representation application or vote in it, than they would have if they had been properly engaged in accordance with the terms of the applicable collective agreement, or if the Board had postponed a determination of their rights in a representation application until the composition of the bargaining unit is returned to what it should be.
On the facts of the case before it, however, the Board in Culliton Brothers came to the following conclusion:
The instant case, however, does not exhibit the "mischief" with which the Board was concerned in April Waterproofing. The employer here has not hired persons contrary to the terms of a collective agreement, improperly transferred individuals into the unit contrary to the agreement, or engaged in other activities which undermine the contractual rights of union members under the agreement by which the employer is bound. Here, the subject employees were not "hired" at all. The individuals affected were pre-existing employees who were swept into the ambit of collective bargaining by operation of law. Nor is this a case where the employer has manipulated its employee list, withheld information from the union or the Board, or sought to mislead the union with respect to its employee complement to gain the advantages of unionization, only to take a different position in a subsequent termination application. There was no positive action by the employer here which would raise any concerns or call into play the reasoning of the Board panel in April Waterproofing. And, given the uncertainty surrounding the rights and status of the individuals affected by this application, we are not prepared to conclude that the fact that Culliton kept them in its employ constitutes improper interference or support which prejudices their right to seek termination of the union's bargaining rights. While there may be cases where the retention of employees, despite a challenge to their status, may warrant careful scrutiny by the Board lest the employer is "padding the list", we are not convinced that this is one of them. Nor are we satisfied that the approach in April Waterproofing should be adopted here.
The situation before the Board in the most recent case, Inducon, [1983] OLRB Rep. July 1038, was similar to that in Culliton Brothers. A Toronto company had performed work in Rainy River, as a result of which the Carpenters' Union had become certified for its employees in that area. The same amendments to the Labour Relations Act in 1980 then brought all of the company's employees under the Carpenters' province-wide agreement. At that point the Carpenters' Union filed a grievance asserting such extension of its collective agreement on a province-wide basis, and to the full Inducon "group" of companies pursuant to the related-employer provisions of section 1(4) of the Act. Those positions were sustained by the Board. Subsequently, a group of Inducon's employees brought an application for a declaration terminating bargaining rights. Of the 19 employees employed in the unit on the date of the application, 12 had been hired prior to the date in 1980 when the union asserted the extension of its bargaining rights, and 7 had been hired after. None were hired pursuant to the hiring hall provision of the Carpenters' province-wide collective agreement. The Board wrote:
The Board in Culliton III carefully distinguished the case before it from the facts in, e.g., April Waterproofing, [1980] OLRB Rep. Nov. 1577, where the employment of certain individuals was unlawful from the beginning; i.e., the employment relationship could not be formed without a violation of an already existing collective agreement. In April Waterproofing, the employer, just at the onset of the "open period", hired two employees from a rival union in knowing violation of its existing collective agreement. A "displacement" application for certification by the rival union followed immediately. In refusing to find that the two persons illegally hired were "employees" in the bargaining unit for the purposes of the Act, the Board signalled its concern, later articulated further in Thomas Construction (Galt) Limited, supra, at paragraph 9, that such employer conduct creates:
... a possible method of easy abuse by employers, particularly in the construction industry in relation to representation matters before this Board. Thus, for example, on a termination case an employer could choose to avoid his obligations under a collective agreement to seek employees from a trade union's hiring hall and employ persons from either another trade union or totally antithetical to construction trade unions at the time when the open period for the collective agreement is approaching. In such circumstances, it would not be surprising if another union were to apply for certification or if the employees were to apply for termination of bargaining rights. The employer would have "fostered" such a representation application by laying the necessary ground work simply by avoiding his collective bargaining obligations with the trade union representing employees in a particular bargaining unit.
Thus the Board has not failed to interpret the Act in a manner which renders such conduct ineffectual, without requiring (it will be noted from April Waterproofing and the obiter dicta of Culliton III) further inquiry into the motive of the employer. Such employer initiatives so obviously place a union's bargaining rights in jeopardy that the employer is presumed to intend the natural consequences of his acts. As the Board noted in Culliton III, at paragraph 25, conduct of this type on the part of an employer would appear to be a fundamental violation of section 64 of the Act as well.
From the Board's analysis, particularly in Culliton III, it becomes apparent that the seven employees hired in this case after the 1980 amendments extended the application of the provincial agreement, and after the Carpenters' gave notice to Inducon to that effect, stand in a different position from those employees hired prior. Inducon, in hiring its own employees in the face of that notice, must surely be said to have been acting at its peril. Such employees can be said to have at no time been "properly" or "innocently" hired, and no valid reason exists to cause the Board to treat their status other than as it has, for example, in April Waterproofing, supra, and Beef Terminal (1979) Ltd., [1981] OLRB Rep. March 244.
We agree with all of the foregoing statements of the law. The "trigger" incident for the employer to be acting at his peril in Inducon, however, was not the mere operation of law (in that case, the May 1980 amendment to the statute), but as well the assertion of the claim by the Carpenters' Union in its letter to Inducon in July of that year. It was after that point that any hiring outside the terms of the Carpenters' collective agreement became what the Board referred to in paragraph 14 of Inducon as a "knowing violation".
The present case lies somewhere in between the situations in Culliton and April Waterproofing; as the Board ultimately found, there has been an extension of bargaining rights "by operation of law", but all of the employees in question were hired after that extension took place. And, unlike the cases of Culliton and Inducon, there was here an overt act on the part of the respondents which gave rise to that operation of law. At the same time, however, the Board, in assessing the impact of any delay on the part of the Labourers' in this case, has to contend with the fact of an innocent third party, the Carpenters' Union, having expended efforts to organize the employees of Grager. See Al Smith Plastering, [1981] OLRB Rep. Feb. 129, and the cases cited therein.
Obviously the potential for mischief in a situation of unlawful hiring is~ as the Board has repeatedly pointed out, considerable. Accordingly, the Board, particularly with its knowledge of the construction industry, has not hesitated to presume, in the words of Inducon, supra, that the employer intended the natural consequences of his acts. That presumption is rebuttable, however, in the face of cogent evidence, and the Board on the evidence before it in the "sale" application is unanimously of the view that the principals of Grager were acting in good faith, and did in fact believe that the new, merged undertaking was not the subject of the shelved Pierre Gratton Construction Inc.'s collective agreement. We are satisfied that the principals of Grager made no effort whatever to hide the operations of "Grager" from the intervener Labourers' Union; in fact, they willingly hired individuals whom they knew to have been members of the Labourers' Union through their prior employment with "Gratton". The "Grager" company was in the field bidding on and performing jobs in the high-profile Transitway project for a substantial period of time before the Labourers', through their counsel, began to assert their claims. While the race is not simply to the swiftest, the Board can expect some measure of diligence in the unique world of construction, where unions know they must move quickly to organize or assert bargaining rights before a project is completed. Here the Carpenters' Union expended its resources in a good-faith effort to organize the apparently unrepresented employees of "Grager", and it is the decision of the Board that their application for certification is entitled to proceed, on the basis of the persons "employed" as of the date of the certification.
The Board finds that the 5 persons employed by the respondent Construction P. H. Grager Inc. on the date of this application were "employees" for the purposes of section 7(1) of the Act. Even if the additional 3 names raised by the intervener were added to the list of 5, the applicant would still have filed membership evidence on behalf of more than 45 per cent of the unit. Since the best that the applicant can do in the circumstance of a displacement application is a vote in any event, the issue of the 3 additional names is, as the intervener noted, not germane to these proceedings. The Board accordingly directs that this application for certification be determined by way of a representation vote between the applicant and the intervener.
Having regard to the form of bargaining units initially sought by the applicant in this matter, that is, those not having been confined to carpenters and carpenters' apprentices, and to the fact that the respondent employed both carpenters and labourers on the date of the application, the Board is prepared to describe the voting constituencies in the terms of both a 144(1) application and a 144(3) application, in accordance with the decision of the Board in the Aero Block case, reported [1984] OLRB Rep. Sept. 1166, namely:
(1) all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters' apprentices in the employ of the respondent in all other sectors in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non-working foreman; and
(2) all construction labourers in the employ of the respondent in other than the industrial, commercial and institutional sector in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non-working foreman.
The respondent Construction P. H. Grager Inc. is directed to notify the Board forthwith when it obtains a job which involves the hiring of employees in either of the above-described voting constituencies.
The certificates issued with the Board's decision of May 16, 1984 are hereby revoked, and the applicant and respondent are directed to return their copies of the certificates to the Board forthwith.