[1987] OLRB Rep. March 311
2503-86-R Labourers' International Union of North America, Local 527, Applicant v. Anton Vukovic c.o.b. as A. Vukovic Forming Co., Respondent v. Richard Loop, Objector
BEFORE: J. Harold Brown, Q.C., Vice-Chair, and Board Members J. Wilson and H. Kobryn.
APPEARANCES: David Strang, Manuel Martins and Andy Roy for the applicant; Ronald Petersen and Anton Vukovic for the respondent; Richard Loop and Ronald Petersen for the objector.
DECISION OF J. HAROLD BROWN AND J. WILSON; March 18, 1987
By a decision dated January 23, 1987 another panel of the Board found the instant application for certification to be an application within the meaning of section 119 of the Labour Relations Act and an application made pursuant to section 144(1) of the Act.
In its decision of January 23, 1987, the Board further found that 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 and all construction labourers 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, constitute a unit of employees of the respondent appropriate for collective bargaining.
Paragraphs 6, 7 and 8 of the Board's decision of January 23, 1987 read as follows:
The Board Officer explained to the parties that, in an application for certification made under the construction industry provisions of the Act, the Board counts only those employees who were actually at work in the bargaining unit on the date of making of the application. That is a reference to how the Board usually carries out its mandate under section 7(1) of the Act to ascertain the number of employees in the bargaining unit at the time the application was made. As noted above, the application date was December 4, 1986 in this case. Respondent counsel took the position that the respondent's business was seasonal and, therefore, the Board should count the four employees on 5chedule "C" who had been laid off prior to the application date and who were not at work on the application date and the employee listed on Schedule "D", who was absent on the date of application for reasons other than lay-off, for purposes of ascertaining the number of employees in the bargaining unit at the time the application was made. Section 7(2) also requires the Board to ascertain the number of employees in the unit who are members of the trade union. The Board makes this determination as of the terminal date which has been set for the application, in this case December 16, 1986.
The officer informed the parties that, were the Board to follow its usual policy of counting only those employees who were actually at work on the date of the application, there would be six employees in the unit and, of those six, four were members of the applicant within the meaning of section 1(1)(l) of the Act on December 16th. Thus, as of December 16th, the applicant had more than fifty-five per cent of the employees who were at work in the bargaining unit on December 4th as its members and this would be sufficient for the Board, in ordinary circumstances, to certify the applicant without a representation vote. In this application, however, in addition to the issue raised by the respondent, there has been filed with the Board a timely, written statement from an employee in the bargaining unit who is opposed to the application. Should the Board find this statement to express the voluntary wishes of the employee, it would raise doubt whether the applicant continues to have the support of a sufficient number of the employees who were employed by the respondent on the application date and were members of the applicant on the terminal date for the Board to certify the applicant without a representation vote. That circumstance would cause the Board to exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken. It will be necessary, therefore, for the Board to inquire into the origin and circulation of the statement and a hearing will be held for that purpose.
Having regard to all of the foregoing, the Board directs the Registrar to list this application for hearing before the Board on the earliest available date for the purpose of receiving the evidence and representations of the parties respecting:
(1) whether the Board should include, for purposes of determining who was at work on the making of this application, those employees who were not at work in the bargaining unit on the date of the application; and
(2) the circumstances concerning the origin and signing of the statement filed in opposition to the application.
With respect to the issue set out in paragraph 8(1) above, counsel for the applicant submitted that based on the past jurisprudence of the Board, as it relates to the construction industry, only the employees who were at work on the date of application should be included in the bargaining unit for purposes of the count. In support of his position, counsel relied on the decision of the Board in the Smith Construction Company, Arnprior, Limited case [1984] OLRB Rep. March 521 and the recent decision of the Board dated January 30, 1987 in Gilvesy Enterprises Inc., [1987] OLRB Rep. Feb. 220 which he argued lends support to the earlier decision. Counsel for the respondent agreed that, based on the Board's policy, the four employees shown in Schedule C, who were not at work on December 4, 1986 by reason of lay-off, should not be included in the employees' list for purposes of the count. However, counsel argued that Bruno Pamic, who is shown in Schedule D as not being at work on the date of the application, should be included for purposes of the count. Pamic's last day of work is shown as September 15, 1986, the reason for his absence being injury, and his expected date of return as the spring of 1987. Counsel submitted that since Pamic was being paid workmen's compensation by reason of his injury, he should be regarded as an employee of the respondent on the date of the application even though he was not at work on the date of the application.
The Board rejected the argument of counsel for the respondent with respect to Bruno Pamic and accepted that of counsel for the applicant. In doing so, the Board accepts the rationale set out in Gilvesy Enterprises Inc., supra, paragraph 21, which read:
In making our determination, we considered the work performed by the persons whose status was in dispute in these proceedings both on the date of application and during a period prior to that date. However, it appears to us that recourse to a "representative period" has made the certification process in the construction industry less consistent, certain, and expeditious than it might be. The use of any such period is inconsistent with the requirement that a person be both employed by the respondent and at work on the date of application. The very nature of a "representative period" is such that its length will vary according to the circumstances of the particular application and creates uncertainty. Looking to a "representative period" overlooks the fact that once a trade union has been certified as bargaining agent for a bargaining unit of employees of an employer in the construction industry, any collective agreement to which that employer becomes bound, whether a provincial agreement or not, will apply to persons doing the work covered by that agreement. Consequently, whether or not an employee is covered by a particular collective agreement and represented by a particular bargaining agent depends on the work that s/he is doing at the time and is in no way dependent upon the work that s/he performed during any previous period. Further, the use of a "representative period" has tended to result in protracted and expensive proceedings before the Board. Because it is important that the Board's policies and tests be consistent and create, as certain, equitable, and expeditious a means as possible for ascertaining which persons are in a bargaining unit, and having regard to the nature of applications for certification in the construction industry, we take the view that the Board should eliminate its use of a "representative period" and restrict itself to the following criteria:
(a) whether the person was employed by the respondent and at work on the date of application; and
(b) if so, the work that that person spent the majority of his time doing on the date of application; or
(c) where there is no conclusive evidence with respect to the work that the employee performed on the date of application, any other relevant factor, including the primary reason for hire.
The second issue, in respect of which the instant application was set down for hearing, as set out in paragraph 8(2) of the Board's decision of January 23, 1987, is the circumstances concerning the origin and signing of the statement filed in opposition to the application by Richard Loop, the employee objector who filed a statement of desire expressing opposition to the application. The statement was sent by registered mail dated December 15, 1986 and was received by the Board on December 17, 1986. The terminal date set by the Registrar for the application is December 16, 1986. Accordingly, Mr. Loop's statement of desire is timely. His evidence, which was the only evidence adduced relating to the statement, is set out below.
Loop was asked to sign an application for membership in Local 527 by a union representative, Manuel Martins, on December 4, 1986. Loop signed an application on that date and paid a $1.00 initiation fee. (The application for membership was submitted by the applicant in support of its application.) At the end of his working day on December 4, 1986, sometime between noon and 6:00 p.m., he went to the office of the applicant union and asked a secretary who was present for his membership card. She replied that he would have to pay an additional $35.00 in order to get a membership card. Loop felt embarrassed and humiliated by the secretary's response, as he thought that he had joined the union by the payment of the $1.00 initiation fee. It was this incident that triggered Loop's decision to file his statement of desire in opposition to the application on December 15, 1986 some eleven days later.
In cross-examination, Loop admitted that on December 5, 1986, the day following his encounter with the secretary, Martins telephoned him and asked Loop to come into the office and discuss the matter of his membership with him. Loop also conceded in cross-examination that Martins did say on the telephone something about the secretary making a mistake and that the request of $35.00 was made in error. Loop did not accept Martins' invitation and did not see or talk to him prior to filing his statement in opposition to the application.
Loop's explanation for the lapse of time in filing his statement was that he was only aware he could do so when he received by mail a Form 78, Notice to Employees of Application for Certification, Construction Industry. According to the Board's records, three such notices were sent to the respondent and to four individual employees, including Loop, on December 8, 1986. Loop did not know when he received the notice. However, the respondent's Return of Posting card states that Anton Vukovic, the President of the respondent, posted the Notice to Employees at 5:00 p.m. on December 11, 1986. Loop presumably received his notice at approximately the same time. In any event, according to Loop's testimony, it took him a couple of days to understand the contents of the notice, i.e., that he could send a statement to the Board saying that he was opposed to the application. When he came to this realization, he went to a local post office and, using post office paper and envelope, he wrote out his statement opposing the union and sent it to the Board by registered mail. His evidence is that he did not discuss his action in sending the statement with Vukovic at any time prior to or after doing so. Vukovic would appear to be the only manager.
Loop's evidence is that the last day that he worked was on December 5, 1986. In fact, that was the last day of work for the season and all of the six employees including himself were laid-off on that day. They knew in advance that such would be the case. According to Loop, Vukovic was not in the yard on the last day of work and did not hand out the separation slips to Loop or the other employees. Rather, it was given to him by one of the other employees. The form indicated that the respondent would be recalling Loop to work when its operations recommenced in the spring.
Loop testified that he retained the services of the same lawyer who was representing the respondent to act for him at the Board hearing on February 20, 1987 just before the commencement of the hearing. Loop's evidence is that he did so to ensure that his interests were protected and that he discussed his situation with Mr. Petersen at that time.
There is no evidence before the Board from which it reasonably can be inferred that Loop was motivated or influenced by management of the respondent to file his statement of desire expressing opposition to the application. We find this to be the case notwithstanding that Loop retained the respondent's lawyer to act for him at the Board hearing on February 20, 1987. In light of the above finding, the basis for Loop's action in filing his statement is not a relevant consideration. In the result, we are satisfied that the statement of desire represents a voluntary expression of his true wishes.
In these circumstances, normally the Board would have directed the conduct of a representation vote in exercising its discretion under section 7(2) of the Act. However, in the particular circumstances of this case it is impossible to conduct a vote at this time because there are no employees employed in the bargaining unit. The employer is not employing any employees at the present time because operation of its business has been suspended for the winter season.
In the construction industry, it has been the Board's invariable practice in these circumstances to postpone the conducting of a vote until such time when employees are employed in the bargaining unit. See, Clairson Construction Company Limited, [1967] OLRB Rep. Sept. 606 and decisions cited therein.
In accordance with this practice therefore, the Board defers the taking of a representation vote in this matter to a future date. The respondent is directed to notify the Registrar of the Board without delay, when the respondent employs any employees in the bargaining unit. If the existence of employees in the bargaining unit comes to the attention of the applicant, it may also report that fact to the Registrar.
DECISION OF BOARD MEMBER H. KOBRYN;
- I cannot agree with the majority on the voluntariness of this statement of desire because of the recorded evidence at the hearing. When the petitioner was examined by the Board about the statement of desire, one of the questions he was asked was:
"Have you had any communication or conversation with management"?
Petitioner - "You mean Mr. Vukovic"?
Board - "Yes".
Petitioner - "No, but it's kind of funny to refer to him as management".
The above exchange indicates to me that a close relationship exists here. After the Board finished its questions, the petitioner was then questioned by his own counsel who is also here representing the employer. At the outset of his cross-examination, the following questions were asked:
Board - "Were you at work on December 4, 1986"?
Petitioner - "Yes".
Board - "Were you approached to join the union"?
Petitioner - "Yes".
Board - "Who approached you"?
Petitioner - "The two gentlemen here at this hearing".
Board - "What was said to you"?
Petitioner - "Would I like to join the union for $1.00. I said sure".
Board - "What did you do then"?
Petitioner - "I went to the union office to get my union card after the end of the day, and was told by the secretary I would have to pay $35.00 because that's what the Constitution says".
This very occurrence highlighted by his counsel does not seem to me as being a natural sequence, that on the very day you sign an application to become a member of the union you would go down to the union office to get your union card.
Then the incident with the secretary and the request for payment of $35.00 as per Constitution; using this incident as his apparent sole reason for filing of the statement of desire against the union some eleven days later.
When questioned by the union counsel whether he was contacted by the union organizer who signed him up soon after he left the union office and advised him that the attempted charge of $35.00 for union membership was an error on the part of the secretarial staff, the petitioner admitted he was called by the union organizer, but kept denying that the union organizer mentioned the error but finally and reluctantly answered the following question put to him by union counsel:
"Did he indicate that the secretary was not aware you were coming in and there had been a mistake made by the secretary"?
Petitioner - "I believe he said something like that".
This union office incident would not have seemed unnatural to me if the petitioner had gone to the union office on December 5, 1986 when he was laid-off by his employer. This would have been something natural to do because this union office is also the Union Hiring Hall where unemployed members come to register for work.
The additional happening that does not seem to me as being so innocent was the sudden arrangement by the employer's counsel to represent the petitioner at this hearing and to highlight the union office incident.
Also the petitioner's continuous refusal to answer questions put to him by union counsel, whether or not he had discussed the evidence he was going to give to this Board, with his counsel this morning. This very question brought vehement objections from the said counsel, in that the questions asked was client-counsel privileged and that the petitioner did not have to answer it. The Board had to overrule the petitioner's counsel's objections and order the witness to answer the question. The answer was not forthcoming until he was told by his counsel that he had answered some.
I found the witness's continuous denials of questions as to whether he had talked to his employer from the time he signed up with the union on December 4, 1986, followed by his subsequent lay-off on December 5, 1986 and up to the very day of this hearing, even if just to discuss his lay-off and his possible recall in the spring, as being simply not credible. Especially when you consider his first statement when he was asked if he had any communication or conversations with management.
All the happenings referred to above makes me seriously doubt that the petitioner's change of heart was truly voluntary and without employer influence.
I would have dismissed this statement of desire as not being voluntary and certified the union as bargaining agent for all the construction labourers.