Lumber and Sawmill Workers' Union Local 2995 of the United Brotherhood of Carpenters and Joiners of America v. Sylvor Limitee, 1987 CanLII 2993

[1987] OLRB Rep. January 128

2745-85-R; 2855-85-R; 2856-85-R; 2854-85-U Lumber and Sawmill Workers' Union Local 2995 of the United Brotherhood of Carpenters and Joiners of America, Applicant v. Sylvor Limitee, Synco Timber Limited, Respondents; Lumber and Sawmill Workers' Union, Local 2995 of the United Brotherhood of Carpen­ters and Joiners of America, Complainant v. Synco Timber Limited, Sylvor Limi­tee, Mr. Roger Paquin, Respondents

BEFORE: Ken Petryshen, Vice-Chairman, and Board Members J. A. Ronson and L. C. Collins.

DECISION OF THE BOARD; January 21, 1987

The Board has before it an application for certification along with a section 89 com­plaint. The section 89 complaint against the respondent companies and Roger Paquin is essentially being relied upon by Local 2995 in support of its position that it is entitled to certification without a vote pursuant to section 8 of the Act.

The matters referred to above, as well as section 1(4) and section 63 applications were entertained by the present panel of the Board at a hearing in Timmins in June, 1986. At that time, after entertaining the evidence and the parties' submissions in regard to the section 1(4) matter, the Board ruled orally at the hearing that Sylvor Limitee ("Sylvor") and Synco Timber Limited ("Synco") are related employers within the meaning of section 1(4) of the Labour Relations Act and declared that these two corporations are one employer for the purposes of the Act. Our rea­sons for this ruling are set out in a decision of the Board dated November 28, 1986.

3. At the June hearing, the parties advised the Board of their respective positions with respect to the appropriate bargaining unit description. The applicant proposed the following bar­gaining unit description:

All employees of the respondents engaged in their woodcutting operations in the Districts of Algoma and Cochrane, save and except foremen, those above the rank of foreman, office, sales, garage employees and mechanics.

The respondents were not prepared to agree with the proposed description. The respondents 4rgued that there should be two bargaining units, one unit consisting of all employees of Sylvor Limitee engaged in conventional woodcutting and a second unit consisting of all employees of Synco Timber Limited engaged in woodcutting operations, with both units having the same exclu­sions as those proposed by the applicant. In addition, the respondents argued that the geographic scope set out in the applicant's proposed unit was inappropriate. The Board entertained the par­ties' representations relating to the geographic scope of the bargaining unit and reserved its decision. With respect to the issue of whether one or two bargaining units were appropriate, the parties 4greed that the Board should consider the evidence before it relating to the section 1(4) issue. The union advised the Board that, in addition to the section 1(4) evidence, it wished to call some fur­ther evidence to support its position that there should be only one bargaining unit. The Board advised the parties that it would hear the union's evidence in this regard when it reconvened at some future date to deal with the remaining issues in dispute between the parties.

4. The hearing resumed in early December 1986. At the outset of the hearing, the Board advised the parties of its decision with respect to the geographic scope of the bargaining unit. The Board ruled that it would not give a geographic scope as proposed in the applicant's bargaining unit description. The Board indicated to the parties that it would give them another opportunity to agree on the geographic scope of the unit now that they were aware of the Board's ruling. The rea­sons for our ruling on the geographic scope issue are set out below.

5. Counsel for the applicant argued that the Board should depart from its usual practice when it determines the geographic scope of bargaining units in the lumber industry, given the par­ticular circumstances in this case. Counsel emphasized that these respondents did not operate a lumber mill and that their activities are limited to cutting operations. Therefore, the respondents could move their employees to any location where they were able to obtain contracts to cut wood. It was counsel's contention that the Board's practice has developed in the context of cases where employers had a mill operation and clearly defined timber rights. Counsel advised the Board that after certification, it was the invariable practice of his client to negotiate a recognition clause which

covered an employer at all of its work sites and that this was another reason why the Board should not follow its usual practice in this case.

6. In determining the geographic scope of bargaining units, the Board balances the interests of persons to join a trade union of his or her choice with the objective of providing sufficient stability to a bargaining relationship. In defining the geographic scope of bargaining units in the lumber industry, the Board's practice is to certify an employer for an area covering the township or townships in which the employer is operating as of the date of the application, and the townships immediately adjacent thereto. The Board also issues certificates covering an area specified by Crown licences or permits. See Howard Bienvenue Inc., f 1966] OLRB Rep. June 188. After reviewing all of the circumstances in this case, we were not satisfied that this was an appropriate case for the Board to depart from its usual practice. The Board hereby confirms its oral ruling to this effect.

7. At the hearing on December 2, 1986, counsel for the union advised the Board that he would not be calling further evidence directed to the issue of whether there should be one or two bargaining units. The Board, then, entertained the parties' submissions on that issue. After reviewing the evidence before us and after considering the parties' submissions, the majority of the Board, Board Member J. A. Ronson dissenting, ruled orally at the hearing that the employees of Sylvor and Synco will be in one bargaining unit. The majority's reasons for such a finding are set out below.

8. The facts relevant to our determination of this issue are set out in the Board's decision dated November 28, 1986. A review of the evidence indicates that employees of both corporate respondents are engaged in logging operations. The employees of Sylvor essentially perform con­ventional logging and a number of employees of Synco also essentially perform conventional log­ging. Although the majority of Synco's production emanates from its unconventional logging oper­ation, Sylvor and Synco are integrated to a considerable degree. Some of Synco's equipment, employees and managerial personnel are utilized by Paquin to provide support services to the conventional logging operation. Although the terms of employment differ to some extent between some of the employees of Synco compared to the employees of Sylvor, the two groups of employ­ees do share a community of interest. Placing the two groups in separate bargaining units would cause undue fragmentation. The majority of the Board hereby confirms its oral ruling.

9. Prior to the conclusion of the hearing, the parties advised the Board that they were able to reach agreement on the geographic scope of the bargaining unit in the face of the Board's ruling relating to the geographic scope. Having regard to the partial agreement of the parties and the Board's rulings with respect to the bargaining unit, the Board finds that all employees of the res­pondents in their woods operations in the Townships of Byng, Ericson, Puskuta, Barker, Nassau, Fushimi, Kipling, Dowsley, Langemarck, McCowan, Neely, Owens, Williamson and Idington, Opasatika, Eilber and Devitt, and Fleck and those Townships immediately adjacent thereto, save ana except foremen, those above the rank of foreman, office, sales, garage employees and mechanics, constitute a unit of employees of the respondents appropriate for collective bargaining.

10. The Board disclosed to the parties the applicant's membership support at the relevant period of time and advised the parties that the applicant was in a vote position. The Board, then, entertained evidence relating to the union's claim that the Board should certify it without a vote pursuant to section 8 of the Act. After entertaining the evidence and submissions of the parties pertaining to the section 8 issue, and after recessing to consider the matter, the Board orally ruled at the hearing on December 3, 1986, as follows:

(1) that it found the employer did contravene sections 64 and 70 of the Labour Relations Act;

(2) that it found the applicant had sufficient support for collective bargaining;

(3) that it was not satisfied, however, that the true wishes of the employees would not be revealed by the taking of a representation vote. Therefore, the union's section 8 application was dismissed;

(4) that it would remedy the violations of sections 64 and 70 with the usual notice to employees signed by an employer representative and that it would order the employer to permit the union to meet with employees; and,

(5) that the Board directed the taking of a representation vote. Our reasons for these rulings are set out in the following paragraphs.

11. In support of the assertion that it was entitled to section 8 relief, the union called R. Lacroix, Luc Hebert and P. Dube as witnesses. Counsel for the respondents called Mr. Paquin to testify. After assessing the evidence, including the credibility of the witnesses, the Board made the following findings of fact.

12. The union's application for certification was signed on February 5, 1986 and was filed with the Board on February 10, 1986. In accordance with the Board's Rules of Procedure, the Reg­istrar fixed February 21, 1986 as the terminal date. In the presentation of its case for section 8 relief, the union focused on two aspects of alleged employer misconduct. The union relied on a letter dated February 6, 1986 signed by Paquin. In addition, the union relied on statements made 10 employees by Paquin at a meeting held on February 17, 1986 at Hearst.

13. The February 6 letter from Paquin was distributed on February 7 by M. Bliss, a foreman, to approximately twelve skidder operators working in Barker Township on a conventional logging operation. At the top of the letter appeared the name of Sylvor Limitee and a copy of the letter was sent to D. Roy, a union representative. It appears from the evidence that at least a few of the Synco employees saw the letter. The English translation of the letter is as follows:

SYLVOR LTEE (LIMITED)

P.O. Box 2, Val Rita, Ontario

February 6,1986

Dear Employee:

Our company requires from six to eight gangs to go to our work site at Levesque (Puskuta Township) for one more month. We will accommodate those who show the desire to work there, because here in Barker [Township] we will cease operations in a week and we would like to lengthen your period of employment.

In passing, we may have another work site to open immediately, but I have learned that the "Grands Marajahs [sic] of the Union" have started their hypocritical and disloyal marauding. They do not give a damn about putting you out of work so long as they are able to collect their union dues ($27./month) and justify their high salaries. We will decide about wood to be cut as soon as Sylvor finds out about the success or failure of the Union's crass intimidation.

They would like to snare in their trap the faithful employees of Synco at 5dm, employees who are moreover very qualified, but these same employees are distractedly scoffing these divine gentlemen because they believe themselves to be very well treated by Synco.

Do not forget, like I say so often to my employees, that it is their choice (and not the choice of the leaders of the Union to impose upon them) to desire the Union or not, at all times. This depends on their relationship with their employer and their Company.

with respect to Mr. Damien Roy, I wish him the best of luck, since out of four employees he has approached in the evening, by cajoling them, four have called me immediately to inform me of this cunning tactic as well as telling me that they did not want to know anything from this "painter of rosy pictures".

I will therefore be asking you to make arrangements with your foreman, Michael Bliss, in regard to those who can continue at Levesque.

Yours sincerely, "Roger Paquin"

Roger Paquin President

RP:jg

CC. Damien Roy

14. The letter was sent only to the skidder operators in Barker Township since it was the work of this group of employees which was quickly coming to an end. In the letter, Paquin offers to transfer these employees to Puskuta Township. It is the second paragraph which causes the union concern. It is in this paragraph that Paquin refers to the possibility of another work site opening up but that the decision to cut wood on this site will depend on the "union's crass intimidation". By February 9, 1986, the employees working in Barker were advised that they did not have to go to Puskuta and, instead, would be transferred to Fushimi Township which was where the new work site referred to in the second paragraph of Paquin's letter was located. The cutting season for those employees working in Barker did not come to an end prior to the time when one would normally expect it to end.

15. During the few days prior to the meeting on February 17, 1986, Paquin received telephone calls from approximately four Synco employees, who called to advise him of the union's organizing efforts and to question him about their job security. The Synco group of employees work throughout the entire year and generally would have fewer years of service than employees working in the Sylvor group who would work for approximately nine months in a year. Paquin attempted to assure these employees about their immediate future by telling them not to worry about their jobs.

16. The meeting on February 17 was held on the employer's premises at Hearst. We are sat­isfied that Paquin expected to meet with a small number of Synco employees who he felt were con­cerned about some matters and wished to speak to him. As a result of his foreman's efforts, there were approximately twelve to fifteen persons in attendance. The union's concern about this meet­ing relate to comments made by Paquin about seniority and how a seniority system could effect the Synco employees, as well as comments Paquin made about a petition.

17. For the most part, the comments Paquin made at the meeting were directed to concerns that were raised by Synco employees. Paquin was asked whether or not certain Synco employees could be bumped by more senior Sylvor employees. In the circumstances, we find it was reasonable for Synco employees to have such a concern. Paquin was asked whether or not the Synco operation would be closed. Paquin advised the employees that the union was not a "great big beast", but rather was something positive. He explained that they should not fear the union people and that he has had a good relationship with the union representative over the years. The decision as to whether they wanted a union had to be made by each individual on his own and that they should continue to work as if nothing happened. Paquin indicated that the Synco operation would continue on as before. Paquin advised the employees that he was unaware of the union's rules, but if they intended to operate on a seniority basis, this could affect junior employees at Synco. He indicated he would try to see if the union would agree to two seniority groupings. With respect to a petition, Paquin told the employees that if they did not want the union they should read the green sheet and that he understood someone would be circulating a petition. He told employees that if they did not want the union they should sign the petition. He advised employees not to sign the petition if they already signed a card. The evidence Paquin gave about the meeting essentially was not disputed by the evidence of the Synco employees called to testify by the union.

18. We are satisfied that the comments in the second paragraph of the February 6 letter, in addition to some of the comments of Paquin concerning the petition, constitute conduct which con­travenes sections 64 and 70 of the Labour Relations Act. But as the Board has indicated on a num­ber of occasions, it is not every contravention of the Act which will provide a basis for certification under section 8. In Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848, the Board made the following comments regarding the purpose of section 8 at page 1858:

…The purpose of section 8 is aimed at redressing the rights of employees and their trade union when an employer has committed breaches of the Act so flagrant as to inhibit the ability of the employees to freely choose whether or not they wish to be represented by a trade union, be it by way of signing cards or by way of casting a ballot in a representation vote. (See District of Algoma Home for the Aged (Algoma Manor), 119791 OLRB Rep. April 269; Viceroy Construction Company Limited, [1977] OLRB Rep. Sept. 562; Lorain Products (Canada) Ltd., [1977] OLRB Rep. Nov. 734). Normally a violation inhibiting employees' ability to choose is where the job security of employees is threatened (see Dylex Limited, [1977] OLRB Rep. June 357; Sommerville Belkin, [1980] OLRB Rep. May 796; A. Stork and Sons Ltd., [1981] OLRB Rep. Apr. 419; Straton Knitting Mills Limited [1979] OLRB Rep. Aug. 801; Riverdale Frozen Foods Limited, [1979] OLRB Rep. April 338). Section 8 was designed to eliminate a respondent's "reward" for breaches of the Act which have resulted in a depressed membership evidence such as that so few cards were signed either that certification without a vote cannot occur or that a vote never could have been ordered in the first place (see Skyline Hotel Limited, supra, at paragraphs 61 and 62). Section 8 is not intended to be a "punishment" for the respondent (see Radio Shack, [1974] OLRB Rep. Dec. 1220), nor intended to allow an applicant to advance a campaign for members beyond its normal course (see District of Algoma Home for the Aged, supra).

19. We are not satisfied that the respondents have committed breaches of the Act so flagrant as to inhibit the ability of the employees to freely choose whether or not they wish to be rep­resented by a trade union by casting a ballot in a representation vote. We agree with counsel for t e respondents when he argued that Synco employees, acting reasonably, would not view the comments in the February 6th letter as having any application to them. The February 6th letter was directed to Sylvor employees and related to circumstances which in no way could apply to working in the pulpwood operation. The letter was distributed to a very small percent­age of the Sylvor employees. Shortly after receiving the letter, these employees would have real­ized that Paquin did not intend to carry out the threat contained in the second paragraph of the let­ter since they were provided work to the end of the season at a new work site.

20. The comments Paquin made at the meeting on February 17 were in response, for the most part, to concerns raised by the employees. In examining all of Paquin's comments at the meeting, in light of what he said about the union, we are satisfied that he did not make threats to employees concerning their job security. In fact, Paquin attempted to reassure them that their jobs would be protected and that he would attempt to ensure that a seniority system would not work to their disadvantage. Although Paquin did advise employees to sign the petition if they did not sup­port the union, one must view this statement in the context of what he said about the union and that he advised employees not to sign the petition if they had signed a card.

21. The Board hereby confirms the oral rulings it made at the hearing on December 3, 1986. The Board is satisfied on the basis of all the evidence before it that not less than forty-five per cent of the employees of the respondents in the bargaining unit, at the time the application was made, were members of the applicant on February 21, 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.

22. A representation vote will be taken of the employees of the respondents in the bargaining unit. All employees of the respondents in the bargaining unit on December 3, 1986 who do not voluntarily terminate their employment or who are not discharged for cause between December 3, 1986 and the date the vote is taken will be eligible to vote.

23. Voters will be asked to indicate whether or not they wish to be represented by the appli­cant in their employment relations with the respondents.

24. Having found the respondents in breach of sections 64 and 70 of the Act, the Board orders:

(1) that the respondents deliver to each employee prior to the representa­tion vote a copy of the attached notice signed by Mr. Paquin marked "Appendix" in both English and French as supplied by the Board;

(2) that representatives of the union be given an opportunity to hold a meet­ing or meetings which are to be held prior to the representation vote at a location satisfactory to the union. We will leave it to the parties to determine the details of such meeting or meetings, i.e. the timing of the meet­ing and the manner in which employees will be compensated. If the parties are unable to agree on these details, the Board will make the necessary directions. Such meetings will take place without the presence of any member of management; and,

(3) that the respondents cease and desist from engaging in conduct which contravenes sections 64 and 70 of the Act.

25. When the Board advised the parties of its oral rulings relating to the section 8 issue, counsel for the union indicated his client would like some time to consider its position. By letter dated December 29, 1986, counsel for the union advised the Board that the parties desired the assistance of a Board Officer to assist the parties in making voting arrangements and to assist the parties in implementing the remedies ordered in the section 89 complaint. For these purposes, the Board hereby appoints a Board Officer to assist the parties and report back to the Board.

26. This matter is referred to the Registrar.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

DELIVERED BY ORDER OF THE ONTARIO LABOUR RELATIONS BOARD

WE HAVE ISSUED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE

ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH BOTH THE COMPANY

AND THE UNION HAD THE OPPORTUNITY TO PRESENT EVIDENCE. THE ONTARIO LABOUR

RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT AND HAS

ORDERED US TO INFORM OUR EMPLOYEES OF THEIR RIGHTS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES;

TO FORM, JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION;

TO ACT TOGETHER FOR COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY AND ALL OF THESE THINGS.

WE ASSURE ALL OF YOU THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH

THESE RIGHTS.

WE WILL NOT INTIMIDATE OR EXERT UNDUE INFLUENCE

UPON YOU, WHETHER THROUGH MEETINGS, INDIVIDUAL

CONVERSATIONS OR OTHERWISE, TO PREVENT YOU FROM

EXERCISING YOUR RIGHT TO ASSOCIATE ANDPARTICIPATE IN THE LAWFUL ACTIVITIES OF A UNION.

WE WILL NOT LAY OFF, DISCHARGE OR THREATEN TO

LAY OFF OR DISCHARGE ANY EMPLOYEE BECAUSE OF

THAT EMPLOYEE'S UNION ACTIVITY OR SYMPATHIES.

WE WILL NOT IN ANY OTHER MANNER INTERFERE WITH

OR RESTRAIN OR COERCE OUR EMPLOYEES IN THE

EXERCISE OF THEIR RIGHTS UNDER THE ACT.

WE WILL COMPLY WITH ALL DIRECTIONS OF THE

ONTARIO LABOUR RELATIONS BOARD.

Sylvor Limitee

SYNCO TIMBER LIMITED

PER:_____________________

ROGER PAQUIN

PRES I DENT

THIS IS AN OFFICIAL NOTICE OF THE BOARD AND MUST NOT BE DEFACED

DATED this 21ST dav of JANUARY 1987