Labourers' International Union of North America, Local 183 v. Burl-Oak Paving Ltd.
[1987] OLRB Rep. April 474
2175-86-R Labourers' International Union of North America, Local 183, Applicant v. Burl-Oak Paving Ltd., Respondent v. Group of Employees, Objectors
BEFORE: O. T. Surdykowski, Vice-Chair, and Board Members C. A. Ballentine and D. A. MacDonald.
APPEARANCES: S.B.D. Wahl and J. Dias for the applicant; James G. Knight, Mr. C. Rowe and Mrs. H. Rowe for the respondent; Armindo Cascao and Joao T. Cacador for the objectors.
DECISION OF THE BOARD; April 1, 1987
Decision
1This application for certification pursuant to the construction industry provisions of the Labour Relations Act originally came on for hearing before a differently constituted panel of the Board on December 12, 1986. At that time, the Board determined the unit of employees appropriate for collective bargaining and authorized a Labour Relations Officer to inquire into and report to the Board with respect to the duties and responsibilities of the five persons challenged by the applicant as not being properly included on the list of employees filed by the respondent.
2Subsequently, the parties were able to resolve their differences with respect to the composition of the bargaining unit and the list of employees and the matter came back on for hearing on February 27, 1987.
3In support of its application for certification, the applicant filed documentary evidence pf membership on behalf of seven persons. This documentary evidence is in the form of membership cards, which include a combination application for membership and attached receipt. Each card contains an original signature and the receipts, which are countersigned by a witness (the collector), indicate that a payment of $1.00 has been made in respect of membership fees within the six month period immediately preceding the terminal date for the application. This documentary evidence is supported by a duly completed Form 80, Declaration Concerning Membership Documents, Construction Industry which attests to the regularity and sufficiency thereof. In short, the form and content of the membership evidence are consistent with the requirements of section [(1)(l) of the Act.
4The respondent filed a reply, a list of employees, and specimen signatures for the persons on that list as required by the Board's Rules of Procedure. The list of employees in the bargaining unit, as agreed to by the parties, contains twelve names.
5Standing alone, the applicant's documentary evidence demonstrates that the union has a level of membership support well in excess of that required by section 144(2) of the Act for certification without the taking of a representation vote. However, a group of employees filed a "statement of desire" or "petition" (the terms are synonymous) signed by eight persons and indicating proposition to the certification of the applicant. All eight signatures on the petition are of bargaining unit employees and of these, seven had previously signed membership cards and paid $1.00 in respect of membership in the applicant trade union with respect to this application. It is the signatures of the seven employees who first became members of the applicant and subsequently indicated what purports to be a change of heart by signing the petition which may be relevant to the Board's considerations. The sole issue in dispute between the parties when the matter came on for hearing on February 27, 1987 was the admissibility (the test of admissibility being "voluntariness") of the petition filed.
6In certification proceedings, the object is to determine whether a majority of the employees in the bargaining unit found by the Board to be appropriate for collective bargaining wish to be represented by the applicant trade union in their dealings with their employer. Pursuant to the Labour Relations Act, the certification of trade unions in this province, as in most Canadian jurisdictions, is based primarily upon an assessment of the trade union's support as demonstrated by the documentary evidence filed with respect to an application. The Board does not inquire into employee opinions of the virtues of trade union representation except as demonstrated by that documentary evidence which includes the trade union's membership records and any timely petitions filed in opposition to the application. The representation vote exists as a residual mechanism for ascertaining the wishes of bargaining unit employees in situations where either the applicant union does not have the support of more than fifty-five percent of the bargaining unit employees which is necessary for outright certification under subsection 7(2) of the Act (but does have the support of not less than forty-five percent of them), or where the circumstances are such that the Board sees fit to require such a vote to be held notwithstanding that there is documentary evidence showing membership support in excess of fifty-five percent. The Board's discretion in that respect must be exercised in a manner which is consistent with the legislated primacy of the membership evidence as the means by which employee wishes with respect to certification are determined.
7The realities of labour relations are such that employees can and do change their views as to the desirability of trade union representation. In recognition of this, the Board has developed a procedure which recognizes the validity of union membership cards but retains the flexibility to seek the confirmatory evidence of a representation vote where employees file a timely petition which indicates a voluntary change of heart. Unlike union membership evidence, petitions are not directly or precisely regulated by the Act. There is no statutory definition equivalent to section nor is there any requirement that the act of signing be confirmed either by monetary payment or otherwise. There is also no statutory declaration analogous to Form 9 or Form 80 (which attest to the regularity and sufficiency of the membership evidence). However, the existence of petitions is contemplated by subsections 103(2)(j) and 111(1) of the Act and Rule 73 of the Board's Rules of Procedure. The Board has a long established practice of accepting such petitions and exercising its discretion to order a representation vote where the petitions are voluntary and contain a sufficient number of signatures of persons who had previously signed union membership cards to create a doubt as to the sufficiency of the actual level of support enjoyed by the union. The Board must be satisfied that persons indicating an apparent change of heart did so voluntarily and without being motivated by an actual or perceived threat to their job security, a concern that the employer is involved in the petitions, or that failure to sign could result in reprisals. It is only those employees who first signed union membership cards and subsequently signed petitions whose signatures are relevant to the Board's considerations. This is because employees for whom no membership evidence is filed are treated as being opposed to the application. Consequently, the signature of a non-member on a petition can add nothing to the assessment of the support enjoyed by the union applying for certification.
8It is well established that the employees objecting to certification bear the onus of establishing that their petition is voluntary. To do so, they must call witnesses to give evidence, based on personal knowledge and observation, relating to the circumstances of the origination and preparation of the petition, and the manner in which each signature was obtained. The cases are legion in which a failure to give satisfactory firsthand evidence regarding the origination and circulation of a petition has resulted in its rejection. Each and every signature on a petition must be identified and the circumstances under which it was obtained must be recounted by a person having personal knowledge thereof. Where such evidence is not presented, the signature may, and likely will, be discounted. In addition, the circulation of petitions must be free from the actual or perceived influence of management. Consequently, the Board will discount the signature of any employee who is, or is perceived to be, managerial. Similarly, where managerial personnel or persons are perceived as having a greater proximity to management than other employees, are involved in originating or circulating a petition, it is difficult to escape the conclusion that the employees would reasonably have perceived the petition to be supported by the employer and its reliability as a gauge of employee desires will be destroyed (Rule 73(5); Radio Shack, [1978] OLRB Rep. Nov. 1043; Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387; Lo Food Division of Lumsden Brothers Limited, [1983] OLRB Rep. May 676; Skelhorns Bus Line Limited, [1986] OLRB Rep. Oct. 1435).
9Both of the employees who appeared at the hearing on behalf of the group of employee objectors testified with respect to the petition. In assessing their evidence, the Board considered the consistency of their testimony, the apparent quality of their memory, their ability to resist the influence of self-interest, and their demeanour while on the witness stand. We were not impressed with the evidence of Mr. Cacador who testified first and in English. Though it was apparent that English is not his first language, the problems with and inconsistencies in his evidence arose, not from any difficulties in language or from nervousness, but rather from a lack of candour. In general, he was insolent and unresponsive to the questions asked of him. What evidence he did give regarding the origination and circulation of the petition is both internally inconsistent and improbable in the circumstances. We were more favourably impressed with the evidence of Mr. Cascao, but even his evidence was not credible on some material points.
10Although the evidence reveals that there were some discussions about this application among bargaining unit employees prior to November 5, 1986, we know nothing of the nature of those discussions or what, if anything, else occurred prior to that date that might touch upon the origination of the petition. After work on November 5, 1986, however, five of the petitioners, including Messrs. Cacador, Cascao and Antonio Martins, the latter being the "working foreman", left for home together in a company-owned pick-up truck as they usually do. The route home apparently varies from day-to-day but Mr. Cascao is usually the first or second person to be dropped off. That particular evening, the employees stopped at Mr. Cascao's home first. Instead of continuing on their way to their respective homes as they usually do, the other four employees went into Mr. Cascao's home with him. They remained there for between half an hour and one and a half hours. Despite suggestions to the contrary, we find that the purpose of the meeting at Mr. Cascao's home was to discuss the signing of a petition in opposition to this application. It is clear that all five employees eventually agreed that if they could "get the other guys" to sign a petition, they would all sign the next day. Although Messrs. Cacador and Cascao were unable or unwilling to tell the Board what was discussed with respect to the petition prior to that decision being arrived at, we cannot believe that there were no other discussions about it at all and we find that such discussions were in the presence of, if not with the participation of, Antonio Martins. We also cannot accept Mr. Cacador's evidence that he had no idea which of the employees had previously signed applications for membership in the applicant, or Mr. Cascao's suggestion that he had only some idea. It is too much of a coincidence that only the employees who had earlier joined the union and Antonio Martins, the "working foreman" signed the petition and that only those eight and perhaps one other employee were even approached to sign it. Further, when asked why he sought the eight signatures that he obtained on the petition, Mr. Cascao himself stated that "if these eight were good enough to put it [the applicant] in, they were good enough to put it [the applicant] out". We find that Mr. Cacador, Mr. Cascao, and Mr. Martins all knew which employees had previously joined the applicant, and that those employees knew that they knew.
11The following morning, Mr. Cascao went to the respondent company's "yard" with the petition, which had been written out the evening before by his girlfriend. In the yard, Mr. Cascao obtained all eight signatures, including his own, on the petition by approaching the employees individually, and after they, and he, had begun work. He approached the four employees who had been present at the meeting at his home the previous evening and three or perhaps four others who had not been there. On his evidence, all that was discussed with those latter employees at that time, and there being no prior conversations with them with respect to the petition, was whether or not the "other guys" had signed. Even if we accept, which we do not, that this was the only discussion that these persons were involved in prior to signing the petition, we are left wondering why these three or perhaps four would sign a petition for the sole reason that "the others", including Antonio Martins, had or intended to sign. There is no indication that Mr. Cascao made any attempt to conceal what he was doing during the minimum twenty minutes that it took him to gather the signatures. After obtaining the signatures, he left the yard in a company truck with Mr. Martins and mailed the petition to the Board.
12Antonio Martins is on the list of bargaining unit employees agreed to by the parties. As already indicated he is a working foreman. On the evidence, he gives the employees on the asphalt crew all of their day-to-day instruction and supervision, and is the direct and virtually only link with management for those employees. For example, he is the one who advises employees that they have been hired, the one who tells them their rate of pay, the one who discusses raises with them, the one to whom they go when seeking employment for acquaintances or relatives, and the one who calls the employees back from layoff. Further, he was identified throughout the evidence as the "foreman" and, when asked by counsel for the respondent if it was his "... understanding that a foreman can get someone in or out [of employment]", Mr. Cascao answered that "Yeah, and tells someone else what to do". Consequently, it is clear that, whether or not Antonio Martins is a managerial employee within the meaning of subsection l(3)(b) of the Act, an issue which is not before us, he is clearly perceived by the other employees as having managerial influence and authority.
13Antonio Martins was present throughout the origination and circulation of the petition. Even if he did not actively participate in its origination and circulation, which he probably did, he signed it and lent, and was seen by the other employees to lend, his support to it. We have no doubt that not only the two employees who signed the petition after he did, but all of the other employees who signed the petition, were aware of Mr. Martins' support for the petition and would reasonably believe that he would know whether or not they signed the document.
14Non-working foremen are usually excluded from a construction industry bargaining unit. On the other hand, working foremen are generally included in such a unit unless they have some overall project responsibility or have the authority to affect a person's employment status. In many ways the positions of a "working foreman" is the construction industry equivalent to the industrial "lead hand". Because such employees generally have a special relationship with management, the Board will look carefully at any participation of a lead hand in the origination or circulation of a petition and has, in the past found petitions not to be voluntary on the basis of such participation (see for example, General Crane Industries Limited, [1974] OLRB Rep. Oct. 662; Leamington Vegetable Growers' Co-operative Limited, Operating as G. Smith Produce Company, [1974] OLRB Monthly Report June 402). As in the case of a lead hand, the involvement of a working foreman with a petition is of great concern to the Board, particularly in applications for certification. In A. N. Shaw & Sons (Eastern) Ltd, [1980] OLRB Rep. Oct. 1347, a working foreman originated and circulated a petition in support of an application to terminate a trade union's bargaining rights. In allowing the application and directing a representation vote, the Board contrasted the significance of the involvement of a working foreman with a petition filed in a termination application with the involvement of a working foreman with a petition in an application for certification as follows:
- Before leaving this matter, we would note that this case differs in certain key respects from certification cases involving anti-union petitions. Here there has been no sudden and apparently inexplicable change of heart relating to union support on the part of employees who only a short time before had become union members. Further, the employees here have been represented by the union for some period of time and presumably they would have been aware of the union's ability to protect employees from being discriminated against for continuing to support the union.
15In the result we are left with gaps in the evidence relating to the origination and circulation of the petition, particularly with respect to the discussions at Mr. Cascao's home on November 5, 1986 and those the following morning with the employees who had not been at that meeting. In addition, we are unable to accept the suggestion that Antonio Martins is in the same position as any other bargaining unit employee. Whether or not he is in fact managerial, his supervisory functions as working foreman caused the other bargaining unit employees to perceive him as being managerial and his actual and perceived involvement with the petition raises concerns which would not exist if he was not a working foreman. It is because of the gaps in the evidence and the overall environment in the workplace due to Antonio Martins' involvement with a petition, that we are not satisfied that the petition is a voluntary expression of the true wishes of the employees who signed it. Accordingly, we find that it is not admissible as evidence relevant to the Board's assessment of the support enjoyed by the applicant during the material times.
16On the basis of the evidence before the Board, we are satisfied that more than fifty-five percent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on November 7, 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 membership under section 7(1) of the Act.
17Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:
the Board shall certify the trade unions as the bargaining agent of all employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.
[emphasis added]
Therefore, pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named in paragraph 2 of the Board's decision dated December 23, 1986 in respect of all construction labourers in the employ of the respondent 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.
18Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all construction labourers in the employ of the respondent in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Durham, excluding the industrial, commercial and institutional sector, save and except non-working foremen and person above the rank of non-working foreman.