International Brotherhood of Painters and Allied Trades, Local 1590 v. Jette Pedersen, 1987 CanLII 3034

International Brotherhood of Painters and Allied Trades, Local 1590 v. Jette Pedersen, carrying on business under the firm name and style of Gallant Painting

[1987] OLRB Rep. March 367

1851-86-R International Brotherhood of Painters and Allied Trades, Local 1590, Applicant v. Jette Pedersen, carrying on business under the firm name and style of Gallant Painting, Respondent v. Group of Employees, Objectors

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members F. W. Murray and C. A. Ballentine.

APPEARANCES: A. M. Minsky and R. Last for the applicant; Mark B. Coulston, John D. Gallant and Jette Pedersen for the respondent; Remi Laviolette for the objectors.

DECISION OF THE BOARD; March 4, 1987

1This application for certification has been made pursuant to the construction industry provisions of the Labour Relations Act.

2The applicant seeks to represent a bargaining unit of painters and painters' apprentices, save and except non-working formen and those above that rank, employed by the respondent in the industrial, commercial and institutional ("ICI") sector of the construction industry throughout Ontario and all such employees of the respondent in all other sectors of the construction industry in the County of Lambton (Board Area #2). In its reply, the respondent claims that all painters and painters' apprentices save and except non-working foremen and those above that rank employed by it in the ICI sector in the County of Lambton is the unit of its employees appropriate for collective bargaining. However, the respondent also denies that it is an employer in the construction industry.

3The respondent filed a reply, a list of employees containing 24 names on Schedule A, 3 names on Schedule C, and 1 name on Schedule D, together with specimen signatures for all persons on those lists as required by the Board's Rules of Procedure.

4The applicant filed 13 combination applications for membership and receipts. Twelve of these combination applications for membership contain original signatures of employees of the respondent, and the receipts are countersigned by a witness (the collector) and indicate that a payment of $1.00 has been made with respect to membership within the six month period immediately preceding the terminal date established for this application. The cards and money were collected by one person and the applicant also filed a duly completed Form 80, Declaration Concerning Membership Documents Construction Industry attesting to the sufficiency and regularity of its membership evidence.

5The remaining card is deficient in that it does not disclose any payment in respect of membership by the individual applying for membership in the applicant. Counsel for the applicant argued that the persons signature on the receipt portion of the card indicates that some payment was made and that it would be unduly technical to not permit the applicant to adduce evidence with respect to the amount of that payment. Pursuant to the provisions of the Labour Relations Act, the certification of trade unions in this Province is based primarily upon an assessment of the union's membership support as evidenced by membership records filed in support of an application for certification. Because it is a form of hearsay evidence that the Act directs (in subsection 111(1)) not be disclosed to the employer and which is not subject to cross-examination, the Board holds trade unions to be a high standard of precision and integrity in the quality of the membership evidence submitted. Subsection 1(1)(l) of the Act sets out two essential substantive conditions of membership in a trade union. It defines "member" of a trade union as including a person who has both applied for membership and has paid on his own behalf at least $1.00 in respect of initiation fees or dues. "Membership" is given a corresponding meaning. Subsection 73(2) of the Board's Rules of Procedure stipulates that no oral evidence of membership in a trade union shall be accepted by the Board except to identify and substantiate the documentary evidence filed. The Board requires that a payment of at least $1.00 be made and shown in writing on the union's documentary evidence of membership, and while the Board will accept oral evidence as to the date when the membership evidence was obtained, or by whom it was collected, the Board will not permit a trade union to establish either of the two substantive conditions of membership required by the Act through oral evidence. (See P.R. C. Chemical Corporation of Canada Ltd., [1980] OLRB Rep. May 749). In the result we refused the applicant leave to adduce evidence with respect to payment and rejected the card as evidence of membership in the union.

6Paragraph 14 of Schedule "A" to the respondent's reply reads as follows:

14. The Respondent claims that the Applicant has not conducted itself in accordance with the general rules and procedures governing the organization of a bargaining unit of a trade union.

By letter dated November 21,1986, counsel for the applicant demanded particulars of that allegation. Prior to the first day of hearing into this application on November 27, 1986, some information was provided by the respondent, but the applicant maintained that the allegation was still insufficiently particularized to permit it to properly prepare to respond to it. Counsel for the respondent candidly admitted that he had no more particulars to provide, but submitted that the employer could not be expected to have them and that, in any event, the request for particulars had come too late. Mr. Laviolette, on behalf of the group of objecting employees, supported the respondent's position. In the alternative he argued, with support from the company, that he should now be permitted to make and particularize that allegation himself. He stated he was not a lawyer and didn't think that this was a court proceeding. He suggested that the Board should therefore allow him more leeway in presenting his case.

7Section 72 of the Board's Rules of Procedure provides as follows:

72.-(1) Where a person intends to allege, at the hearing of an application or complaint, improper or irregular conduct by any person, he shall,

(a) include in the application or complaint; or (b) file a notice of intention that shall contain,

a concise statement of the material facts, actions and omissions upon which he intends to rely as constituting such improper or irregular conduct, including the time when and the place where the actions or omissions complained of occurred and the names of the persons who engaged in or committed them, but not the evidence by which the material facts, actions or omissions are to be proved, and, where he alleges that the improper or irregular conduct constitutes a violation of any provision of the Act, he shall include a reference to the section or sections of the Act containing such provision.

(2) Where, in the opinion of the Board, a person has not filed notice of intention promptly upon discovering the alleged improper or irregular conduct, he shall not adduce evidence at the hearing of the application of such facts, except with the consent of the Board and, if the Board deems it advisable to give such consent, it may do so upon such terms and conditions as it considers advisable.

(3) Where a statement in an application or complaint or in any document filed under these Rules in respect of the application or complaint is so indefinite or incomplete as to hamper any person in the preparation of his case, the Board may, upon the request of the person made promptly upon receipt of the application, complaint or document, direct that the information stated be made specific or complete and, if the person so directed fails to comply with the direction, the Board may strike the statement from the application, complaint or document.

(4) No person shall adduce evidence at the hearing of an application or complaint of any material fact that has not been included in the application or complaint or in any document filed under these rules of the application or complaint, except with the consent of the Board and, if the Board considers it advisable to give such consent, it may do so upon such terms and conditions as it considers advisable.

In addition Section 8 of the Statutory Powers Procedure Act provides that:

8. Where the good character, propriety of conduct or competence of a party is an issue in any proceedings, the party is entitled to be furnished prior to the hearing with reasonable information of any allegations with respect thereto.

It was evident from the submissions of counsel for the respondent that the impugned pleading relates to complaints made by one or more employees to the respondent. If the respondent was sufficiently concerned that it wanted to bring the matter before the Board, there is no reason why it could not have investigated the matter, within the constraints of the Act, and provided particulars. The objecting employees filed nothing other than a statement of desire purporting to be a voluntary expression of the wishes of the person signing it to not be represented by the applicant. No written intervention or allegations of impropriety were made by them. Further, the objecting employees chose not to retain counsel with respect to this application. Nor, according to Mr. Laviolette, was there any effort made by them to ascertain, either from the Board or otherwise, what would be required of them with respect to any allegations of impropriety that they wished to bring before the Board. We note that they had almost two months to do so and knew enough to be able to deliver their statement of desire in a timely manner.

8There is no doubt that the applicant has not had sufficient notice of the improprieties that it is alleged to have committed. Section 72 of the Board's Rules of Procedure has a two-fold purpose and is based on both legal and industrial relations considerations. The legal consideration (which is also present in section 8 of the Statutory Powers Procedure Act) is a recognition of the rule of natural justice that anyone charged with wrongdoing should have reasonable notice of the charge made against him. The labour relations consideration is a recognition of the prejudicial effect of delay on a trade union's application for certification. Section 72 seeks to balance natural justice and the avoidance of delay in proceedings before the Board. In an application for certification it is essential that allegations of wrongdoing be made in a timely manner and with sufficient particularity so that an applicant trade union is not prejudiced either by surprise of by being forced to seek an adjournment, thereby delaying its own application (see Trigiani Contracting Ltd., [1979] OLRB Rep. Feb. 141). Persons involved in proceedings before the Board have a right to appear before it with or without counsel. The Board recognizes the difficulties that persons who choose to appear without counsel may encounter and normally affords such persons a somewhat greater latitude in the manner in which they conduct their cases. However, though proceedings before the Board are less formal than those in a court of law, they are nevertheless legal proceedings which are governed by the Board's Rules and Procedures and by the rules of fairness and natural justice. Those who choose to participate in proceedings before the Board without obtaining counsel or other assistance do so at their peril. The law and the rules applicable to proceedings before the Board apply equally to all parties, whether or not they choose to retain counsel. Choosing to neither retain counsel nor otherwise inform oneself does not relieve a party of the obligation to conduct itself in accordance with the rules. Ignorance of the law excuses no one from his obligations under it. We therefore ruled that paragraph 14 of Schedule "A" to the respondent's reply would be struck from it and that we would not conduct any inquiry or admit any evidence relating to allegations of impropriety by the applicant.

9There was one further preliminary matter. Pleading "inadvertence", the respondent sought to amend its reply by having the words "and decorating" deleted wherever those appear in the document as filed. Counsel for the applicant objected on the basis that the amendment was being sought late (some 1 1/2 months after filing) and only after he had advised counsel for the respondent that the applicant intended to rely on that pleading as an admission against interest relating to the threshold issue of "construction employer" raised in the reply. After hearing argument from all parties, the Board ruled that it would allow the amendment, notwithstanding when it was sought, but without prejudice to the applicant relying upon the original pleading and argument (to the extent that doing so would assist the trade union).

10The Board then heard the evidence and representations of the applicant and the respondent with respect to the threshold issue raised by the respondent; that is, whether this application for certification is properly made pursuant to the construction industry provisions of the Act. Though given notice, the group of employee objectors did not attend or participate in the hearing with respect to this issue.

11The evidence reveals that, at the time the application was made, the respondent was engaged in painting various platforms, railway cars, buildings, pipes, tanks and other containers, and other structures at the petrochemical complexes operated by Petrosar Limited and Dupont Canada Inc. in Corunna, near Sarnia. Though some of the painting was within or of enclosed structures, the bulk of it was of exterior structures. All of the painting done by the respondent was of existing operating structures that had been painted before. Further, this painting was part of the ongoing plant "maintenance" programs of Petrosar and Dupont. The purpose of the painting was and is to apply a coating that will preserve and protect the structures from corrosion and thereby extend their useful lives. Colours, though selected by Petrosar and Dupont respectively, are dictated by the concern for protection and by legislation. We find that, contrary to the suggestion of the applicant, aesthetics plays little or no role in the painting and only becomes a consideration, if at all, after the primary goal of protection is achieved and the dictates of the legislation are satisfied. We are also satisfied that there is a difference between the techniques and materials used in the relevant painting done by the respondent and the techniques and materials used in new construction painting.

12Subsection 117(c) of the Act defines an "employer" in the construction industry as follows:

117. (c) "employer" means a person who operates a business in the construction industry, and for purposes of an application for accreditation means an employer for whose employees a trade union or council of trade unions affected by the application has bargaining rights in a particular geographic area and sector or areas or sectors or parts thereof;

To be an employer in the construction industry, one must do work in the "construction industry" which is defined, in subsection 1(1)(f):

(f) "construction industry" means the business that are engaged in constructing, altering, decorating, repairing or demolishing buildings, structures, roads, sewers, water or gas mains, pipe lines, tunnels, bridges, canals or other works at the site thereof;

13Though the words "maintenance" and "maintaining" do not appear in the Act, the distinction between maintenance work and construction work has long been recognized by the Board (see for example, Tops Marina Motor Hotel, 64 CLLC ¶16,004; Dravo of Canada Ltd., [1967] OLRB Rep. June 261; Quinard Limited, [1982] OLRB Rep. July 1054). Unfortunately, there is no sharp line that separates construction work on one hand from maintenance work on the other, and what is referred to as "maintenance" work in the broad sense or for internal corporate purposes is not necessarily maintenance work for labour relations purposes. In argument, both the applicant and the respondent relied on the Board's decision in The Master Insulators' Association of Ontario Inc., [1980]OLRB Rep. Oct. 1477. In addition, counsel for the applicant submitted that the painting done by the respondent at the Petrosar and Dupont facilities was (and is) "decorating" within the meaning of that word as used in section 1(1)(f) of the Act. He argued that the Act uses "decorating" in an industrial or generic sense rather than in any purely aesthetic sense.

14In Master Insulators', (supra at paras. 28 and 29), the Board explained the distinction between construction work and maintenance work as follows:

28. With the exception of the work performed at the premises of Fearman and the work on a new emergency shower and minor work in a change house at Stelco, the work performed by the employers who were named in this complaint was essentially similar in nature. In our view, the work at the premises of Fearman, which involved an addition to an existing facility and involved both relocation of producing units and the expansion of existing capacity, was clearly new construction. Similarly, the work on the emergency shower and change house at Stelco was in an addition for the safety and comfort of Stelco's employees and represented new construction. This work is clearly within the industrial, commercial and institutional sector of the construction industry. The rest of the work referred to in the complaint was, for the most part, clearly work which sustained and maintained an operating facility and enabled that facility either to operate efficiently or to attain its designed or production capacity and is to be regarded as maintenance work. Maintenance work is to be distinguished from construction work which involves the addition to an existing facility or which will increase the designed or production capacity of an existing facility. However, in so far as there was work of new construction, which was purportedly done under the maintenance agreement, it was a violation of section 134a(1) of the Act.

29. Maintenance work performed by the employers who were named in this complaint is in reality part and parcel of the production and maintenance operations of the industrial clients for whom the work is performed. These industrial clients may, and frequently do, perform their own maintenance work with their own employees who are included in their own industrial bargaining units. In the context of the work affected by this complaint "maintenance" is difficulty to distinguish from "repair". In our view, it is a question of the context of any given work and the degree of addition or subtraction of such work to an existing system or part of a system. Where the work assists in preserving the functioning of a system or part of a system, such work is maintenance work. Where the work is necessary to restore a system or part of a system which has ceased to function or function economically, such work is repair work. "Maintenance" and "repair" are not mutually exclusive concepts, and lack of adequate maintenance will surely produce a situation where repair becomes inevitable. In our view, the performance of adequate and timely maintenance forestalls or reduces the requirement for repair.

[emphasis added]

Though it was asserted in this proceeding that the respondent was (and is) engaged in "decorating" (rather than "repairing"), we find this reasoning equally applicable to the issue in this proceeding and we adopt the same. Further, the words used by the legislature must be interpreted within the context in which they are used. However, insofar as it is possible within that context, the words must be given their plain and ordinary meaning. The Legislature chose to use the word "decorating" as opposed to "painting" or some other word. The verb "decorate" is defined by the Concise Oxford Dictionary (6th ed) as meaning to "furnish with adornments". According to that same dictionary, to "adorn" is to "add beauty or lustre to" something; in other words, to improve its appearance. Accepting the submission of the applicant would give an unnatural meaning to the word "decorating" and create a situation where virtually no painting would be maintenance work. On the hand, the respondent's position, which we accept as correct, uses "decorating" in its plain and ordinary sense and leads to an acceptable labour relations result; that is, painting can be either maintenance work or construction work, depending on the circumstances.

15In the result, we find that, insofar as the painting done by the respondent was and is of existing structures done for the primary purpose of sustaining and protecting operating systems, it must be classified as maintenance work. Consequently, this application for certification was not properly made pursuant to the construction industry provisions of the Act.

16This proceeding will continue on March 17 and 18, 1987 as previously scheduled. The purpose of the hearing will be to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to this application and, without limiting the generality of the foregoing, specifically with respect to:

(a) the further processing of this application;

(b) the bargaining unit description;

(c) the list of employees filed by the respondent and the challenges thereto by the applicant;

(d) the statement of desire, filed in opposition to the application;

(e) the applicant's request that it be certified pursuant to the provisions of section 8 of the Act.