The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 527 v. D. E. Witmer Plumbing and Heating Limited, 1987 CanLII 3113

[1987] OLRB Rep. October 1228

0883-87-R; 1092-87-U The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union 527, Applicant v. D. E. Witmer Plumbing and Heating Limited, Respondent v. Group of Employees, Objectors; Bill Hennink and Bill Bonvanie, Complainant v. The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of The United States and Canada, Local Union 527, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members D. A. MacDonald and H. Kobryn.

APPEARANCES: N. W. Meikle, Jack Porter and Tom Crystal for the applicant/complainant; Ian S. Campbell, Michael Mulroy and Douglas Witmer for the respondents; Terence J. Billo, Bill Hennink and Bill Bonvanie for the objectors.

DECISION OF G. T. SURDYKOWSKI, VICE-CHAIR, AND BOARD MEMBER D. A. MAC­DONALD; September 29, 1987

1. Pursuant to the Board's direction dated July 24, 1987, these two matters came on for hearing together on September 4, 1987.

2. The Board finds that the applicant ("Local 527") is a trade union within the meaning of sections l(l)(p) and 117(f) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under clause (a) of section 139(1) on May 14, 1982, the designated employee bargaining agency is the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada ("UW") and the Ontario Pipe Trades Council of the Plumbing and Pipe Fitting Industry of the United States and Canada ("the Pipe Trades Council").

3. Board File No. 0833-87-R is an application for certification within the meaning of sec­tion 119 of the Labour Relations Act and is an application made pursuant to section 144(1) of the Act which provides that:

An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in clause 117(e) shall be brought by either,

(a) an employee bargaining agency; or

(b) one or more affiliated bargaining agents of the employee bargaining agen­cy,

on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (3) or by voluntary recogni­tion.

4. The bargaining unit of employees of the respondent for which Local 527 seeks to be cer­tified herein is described, in the application, as:

Bargaining Unit No. 1

all plumbers, plumbers' apprentices, steamfitters, steamfitters' apprentices and pipe welders in the employ of the respondent engaged 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.

Bargaining Unit No. 2

all plumbers, plumbers' apprentices, steamfitters, steamfitters' apprentices and pipe welders in the employ of the respondent in Board Geographic Area No. 6, excluding the industrial, commercial and institutional sector of the construction industry, save and except non-working foremen and persons above the rank of non-working foreman.

5. The respondent filed a reply, a list of employees containing twelve names on Schedule A, and specimen signatures for those employees within the time fixed therefore in accordance with the Act and the Board's Rules of Procedure.

6. In paragraph 8 of its reply, the respondent describes the unit of its employees that it claims to be appropriate for collective bargaining as:

Bargaining Unit No. 1

all plumbers and plumbers' apprentices employed by 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 foremen.

Bargaining Unit No. 2

all plumbers and plumbers' apprentices employed by the respondent in Board Geographic Area No. 6, excluding the industrial, commercial and institutional sector of the construction industry, save and except non-work­ing foremen and persons above the rank of non-working foreman.

At paragraph 14(3) of its reply, the respondent requested that the Board schedule a hearing of the application for the following reasons:

A hearing is necessary to determine the appropriate bargaining unit. The applicant has pro­posed bargaining units which would include steamfitters, steamfitter's apprentices and pipe welders. The bargaining units proposed by the respondent do not include steamfitters, steamfit­ter's apprentices and pipe welders.

The facts relied upon by the respondent with respect to this issue are as follows:

i) The respondent has never employed steamfitters, steamfitter's apprentices and pipe welders; and,

ii) The respondent does not foresee ever employing persons within the certified trade of steamfitter or persons within the trade of pipe welders.

The respondent submits that on the basis of the above facts, the appropriate bargain­ing units are as described in paragraph 8 of this reply.

In support of this submission, the respondent relied upon Regulations 52 and 59 R.R.O. 1980 under the Apprenticeship and Tradesmen's Qualification Act which des­ignate the trades of a plumber and steamfitter as distinct and separate certified trades.

Consistent with these assertions, all of the persons on the list of employees filed by the respondent are described as being either plumbers or plumbers' apprentices.

7. At the hearing, counsel for the respondent argued that "plumbing" and "steamfitting" are separate trades and that in order for both to be included in a bargaining unit description, at least one person "representing" each must be employed by a respondent on the date the appli­cation is made. Counsel submitted that such a requirement flows from section 3 of the Act which provides that every person is free to join a trade union of his/her own choice.

8. Clause (a) of section 139 of the Act provides that:

139.-(1) The Minister may, upon such terms and conditions as the Minister considers appro­priate,

(a) designate employee bargaining agencies to represent in bargaining provin­cial units of affiliated bargaining agents, and describe those provincial units;

Designation orders issued pursuant to that provision describe the provincial units of employees contemplated by the province-wide collective bargaining scheme established by the Act for the industrial, commercial and institutional ("ICI") sector of the construction industry and designate, for each such unit, an employee bargaining agency. Further, they designate the trades or crafts that, in effect, belong to each employee bargaining agency or affiliated bargaining agent. Employee bargaining agencies and their affiliated bargaining agents can only represent, in the province-wide ICI collective bargaining scheme, those employees who are in a trade they have been designated to represent Ninco Construction Ltd., [1982] OLRB Rep. Nov. 1692; Manacon Construction, [1983] OLRB Rep. March 407; Superior Plumbing and Heating Ltd., [1986] OLRB Rep. Nov. 1589). Consequently, the Board cannot describe a bargaining unit of employees, under section 144(1) of the Act, in a manner which includes trades or crafts not encompassed by the rele­vant designation order. Nor can the Board describe a bargaining unit in a manner which excludes employees, and concomitantly their trades, who would be bound by a provincial collective agree­ment.

9. The UA and Pipe Trades Council are the employee bargaining agency designated by the Minister, pursuant to clause (a) of section 139(1) of the Act, to represent in collective bargain­ing all journeymen and apprentice plumbers and "pipe fitters" represented by the affiliated bar­gaining agents listed in the designation, of which the applicant herein is one. The Board's standard description of bargaining units represented by this employee bargaining agency and its affiliated bargaining agents uses the terms "plumbers", "plumbers' apprentices", "steamfitter", and "steam­fitters apprentices". When requested, the Board also uses a clarity note to specify that welders working in the "plumbing" and "steamfitting" trades are employees in the bargaining unit. The term "pipefitter" is not one used by the Board in describing bargaining units. For purposes of the Labour Relations Act, the terms "steamfitters", and "pipefitters" are synonymous. In our view, the fact that "plumber" and "steamfitter" are separately certified trades under the Apprenticeship and Tradesmen Qualifications Act is not material to the Board's considerations conceming the appropriate bargaining unit description. For purposes of proceedings before the Board, "plumber" and "steamfitter" are no more than different classifications, if they are that, of the same trade or craft. Indeed, it is commonly referred to as "plumbing and steamfitting trade". Except for the manner in which it has included welders, the bargaining unit for which Local 527 seeks to be certi­fied in this proceeding is the "standard" unit granted to the UA and the Pipe Trades Council, or its affiliated bargaining agents. The Board's well established practice, in applications where a con­struction industry trade union seeks certification for its standard trade or craft unit, is to grant the unit sought, whether or not there are present, or contemplated, employees in all the classifications used to describe that standard unit. The right of an individual to join or not join a trade union of his/her own choice, which is not an absolute one in any event, is not material to the Board's consid­erations concerning the appropriate bargaining unit description, except perhaps in the limited cir­cumstances contemplated by sections 6(4) and 6(5) of the Act.

10. Accordingly, pursuant to section 144(1) of the Act, the Board finds that all plumbers, plumbers' apprentices, steamfitters and steamfitters' 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 plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of the respondent in all other sectors of the construction industry in the Regional Munici­pality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township), save and except non-working foremen and persons above the rank of non-working foremen, constitute a unit of employees of the respondent appropriate for collective bar­gaining. For the purposes of clarity, the Board declares that welders working at the plumbing and steamfitting trades are employees included in the bargaining unit.

11. In support of its application for certification, the applicant filed documentary evidence in the form of cards, which consist of combination applications for membership and attached receipts. The trade union filed twelve such cards, eleven of which bear the name of an employee in the bargaining unit. These cards each contain the original signature of an employee, and the receipts, which are countersigned by a witness (the collector), indicate that a payment of $1.00 has been made to the union with respect to membership fees within the six-month period immediately preceding the terminal date in this application. The cards and money were collected by more than one person and the membership 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 the Act.

12. The Board is satisfied, on the basis of all the evidence before it, 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 July 8,1987, 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. Standing alone, the applicant's membership evidence is sufficient to entitle it to be certified without the tak­ing of a representation vote.

13. Also filed with the Board, however, is a statement of desire opposing the certification of the applicant. This contains the names and original signatures of three individuals. All three names appear on the list of employees in the bargaining unit filed by the respondent and two of the individuals who signed the statement of desire had previously signed a membership card which has been filed by the trade union in support of its application. By itself, the statement of desire is not relevant to the Board's considerations because even if proved voluntary, it would not cast sufficient doubt on the continued support for certification of the applicant, by a sufficient number of employ­ees who also signed membership cards, to cause the Board to exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken notwithstanding the level of support indicated by the membership evidence filed by the trade union (see Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138; Custom Foam Specialties Limited, [1986] OLRB Rep. Dec. 1680).

14. The Board must also consider, however, Board File No. 1092-87-U which is a complaint under section 89 of the Act filed by two individuals who are employees in the bargaining unit dur­ing the material times. The complaint alleges that the complainants have been dealt with by Local 527 in a manner contrary to section 70 of the Act and requests, among other things, that the Board direct the taking of a representation vote in the application for certification.

15. There were a number of discrepancies between the evidence of the complainants and the evidence of Local 527's witnesses. Our assessment of the witnesses and their evidence leads us to make the following findings of fact.

16. Bill Hennink is an employee in the bargaining unit. Upon learning of Local 527's appli­cation for certification, he decided to oppose it. In that regard, he sought advice, first from an older brother and then from Mr. Billo, who acted as his counsel throughout. His first appointment with counsel was on Monday, July 6,1987. That was just two days before the terminal date fixed for the application. Consequently, he attempted to make contact with some of his fellow employ­ees prior to his meeting with counsel, even though the aforementioned statement of desire had not yet been prepared. He telephoned three or four employees on Saturday, July 4, 1987, but was able to make direct contact with only Bill Bonvanie, his co-complainant in the section 89 complaint and with whom he had already discussed the matter briefly. Mr. Bonvanie indicated he would join Mr. Hennink in opposing Local 527's application.

17. Brad Loucks, is and was at all material times, an employee of the respondent. There is no suggestion that he played any significant role in Local 527's organizing campaign, but he was a strong supporter of the application. He was excited by the situation in which he found himself. At approximately 8:00 p.m. on Saturday, July 4, 1987, Mr. Loucks learned that Mr. Hennink was try­ing to contact other employees to solicit their support for a statement of desire in opposition to Local 527's application. He became angry and he was concerned enough about the effect Mr. Hen­nink might have on the application to telephone him at home at between 11:00 and 11:20 p.m. His expressed intention in doing so was to dissuade Mr. Hennink from circulating any statement of desire in opposition to Local 527's application. A lengthy discussion, which became heated at times, ensued. In the course of that discussion, Mr. Loucks told Mr. Hennink that he should not be trying to persuade other employees to "oppose the union" and that he should "leave it alone". He told Mr. Hennink that "we" can make up "our" own minds. Although he was given the opportu­nity to do so~ Mr. Loucks did not specifically deny that he wanted to give Mr. Hennink the impres­sion that something would happen to him if he persisted with his statement of desire. Subsequent­ly, Mr. Loucks made a number of further telephone calls to Mr. Hennink's home. The precise number of such telephone calls is not particularly important, but we find it likely that Mr. Hen­nink's estimate that there were 20 such calls is closer to the mark that Mr. Loucks recollection of 5 or 6. On each occasion, Mr. Loucks let the telephone ring until Mr. Hennink answered and then immediately hung up without saying a word. He admitted that the purpose of these telephone calls was to harass Mr. Hennink and to emphasize Mr. Loucks' earlier message; that is, that he should not continue with his statement of desire.

18. Mr. Loucks achieved part of the effect he desired. Mr. Hennink, who was on vacation that week, met with counsel on July 6, 1987 as scheduled. Counsel drafted the aforementioned statement of desire for him and, later that day, he met with Mr. Bonvanie at his (Mr. Hennink's) home. They discussed the situation, including the telephone call from Mr. Loucks, and they decided that Mr. Bonvanie, not Mr. Hennink, would take the statement of desire and try to obtain employees signatures on it. For some reason, Mr. Bonvanie did not take the statement of desire with him that night. Instead, he and Mr. Hennink met again early the next morning at which time he took possession of it.

19. The applicant had called a meeting of bargaining unit employees of the respondent on July 6, 1987 as well. Mr. Hennink was not invited. Mr. Bonvanie was invited but did not attend. Tom Crystal, Local 527's business agent, testified that the meeting was called because a number of employees had called him and expressed concern and confusion about Mr. Hennink's statement of desire. We are satisfied that the involvement of Mr. Hennink and Mr. Bonvanie with the statement of desire, and Mr. Loucks July 4, 1987 telephone call to Mr. Hennink, were the subject of some discussion at that meeting, at least among the employees. Mr. Bonvanie had previously driven many of those employees to the meeting at which the majority of the cards filed in support of this application were signed and had himself been among the first to sign a card. Mr. Bonvanie's subse­quent change of heart angered or confused some of these other employees. Although no official of Local 527 advised anyone to take any steps to try to stop the petition, neither did they advise them that Mr. Hennink and Mr. Bonvanie had a right to circulate a statement of desire if they chose to or that they should not be threatened or interfered with in that respect, even though the mood of some of the employees ought to have been evident.

20. The meeting called by Local 527 did little, if anything to calm the situation. That is evi­denced by the cold reception Bill Bonvanie received from some employees when he reported for work at the respondent's shop the next morning. Later that same day, Mr. Bonvanie was working with Nigel Cave, a fellow employee and a supporter of Local 527's application. Mr. Cave conveyed to him what he called a "friendly" warning. Mr. Cave told Mr. Bonvanie that there was "heat" in the shop and that someone might "get him" sometime. He indicated to Mr. Bonvanie that his fam­ily would not be harmed nor his property damaged, but that he could get hurt. Frightened, Mr. Bonvanie almost immediately left the job site and went to Mr. Hennink's home. A few weeks later Mr. Bonvanie left the company. Although he had been contemplating doing so anyway, the events of July 7,1987, clearly precipitated his departure.

21. As a result of the threats, Mr. Hennink and Mr. Bonvanie decided they would not risk trying to circulate the statement of desire further and they did not attempt to do so.

22. The object in certification proceedings is to determine whether a majority of the employees found by the Board to be appropriate for collective bargaining wish to be represented by the applicant trade union in their employment dealings with their employer. The Labour Rela­tions Act provides that the certification of trade unions in this province is based primarily upon an assessment of the trade union's membership support as evidenced by membership records filed in support of an application. The Board does not inquire into opinions about the virtues of union membership except as evidenced by that documentary evidence and any timely statements of desire filed with respect to an application. In Ontario, as in most Canadian jurisdictions, the repre­sentation vote exists as a residual mechanism for ascertaining the wishes of bargaining unit employ­ees in cases where either the applicant union does have the support of more than fifty-five percent of the bargaining unit employees which is necessary for outright certification under section 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 in excess of fifty-five percent. The Board's discretion in that respect must be exercised in a manner that is consistent with the legislated pri­macy of the membership evidence as the means by which employee wishes with respect to certifica­tion are ascertained.

23. The 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 or retains a flexibility to seek the conformity evidence of a representation vote where employee file a timely statement of desire which indicates a change of heart. Similarly, evidence of improper conduct may cast sufficient doubt on the reliability of the documentary evidence filed in support of an application for certifica­tion as an indicator of employee support for the applicant to cause the Board to resort to the fur­ther evidence of a representation vote (see Alderbrook Industries Limited, [1981] OLRB Rep. Oct. 1331; St. Michael's Shops of Canada Limited, [1979] OLRB Rep. Apr. 346; The Kendall Company (Canada) Limited, [1975] OLRB Rep. Aug. 611). In cases where improper conduct is established, the Board must assess the effect of that conduct. In doing so, the Board will not act as a censor of social pressures exerted for or against certification. As the Board noted in Alberbrook Industries Limited., supra:

13. Unfortunate as it may be, it is not uncommon for antagonism to be generated between employees who line up on opposite sides of a campaign for union representation. Statements by any person amounting to intimidation or coercion of an employee, whether they are made for or against a union, are clearly contrary to section 70 of the Labour Relations Act and are grounds for a complaint under section 89 of the Act. They may also form the basis for criminal charges. It does not follow, however, that the indiscretions of employees, whether they favour a union or sympathize with their employer, are to be held against the principal parties to an application for certification. The Board can no more hold against a union a verbal threat made to an employ­ee's job security by an indiscrete employee who is neither a union officer nor a collector of union membership cards than it can hold against an employer similar threats made by a fer­vently anti-union employee acting on his own. Evidence of widespread threats which are made by neither the employer nor the union might, of course, cause the Board to resort to the further evidence of a representation vote.

24. In this case, there is no doubt that the actions of Loucks and Cave exceeded the bounds of acceptable social pressure and amounted to intimidation and coercion which, as a result, stop­ped the circulation of the statement of desire originated by Mr. Hennink and effectively deprived employees of the opportunity to express their wishes through it. Further, the applicant was fully aware of at least the general situation, if not the details, of the improper conduct, yet it did nothing to try to deal with what should have been an obvious problem, even though it called a meeting of employees for the purported purpose of doing so. The manner in which the applicant dealt with the issue of the statement of desire at the meeting did nothing to dissipate, and may have increased, the "heat" surrounding it.

25. In the result, we are not satisfied that the documentary evidence of membership filed by the applicant is a sufficiently reliable indicator of the wishes of the employees in the bargaining unit to entitle the applicant to be certified without the taking of a representation vote. According­ly, pursuant to the Board's discretion under section 7(2) of the Labour Relations Act we direct that a representation vote be taken of the employees of the respondent in the bargaining unit as found by the Board. All employees of the respondent in the bargaining unit on the date hereof, who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.

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

27. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER H. KOBRYN;

1. Let us look at the real facts in this case and the situation as it developed, and the sequence of dates relevant to this case.

2. It was a Wednesday night in June, Mr. Bonvanie took six or seven employees in his van to a union meeting. There were ten employees at the meeting and everyone signed union cards.

3. The union made an application for certification on Friday June 26, 1987 with a terminal date of Wednesday July 8, 1987.

4. Certification documents were posted on Thursday July 2, 1987. Mr. Hennink saw some at 5:30 p.m., contacted his brother, who is a carpentry contractor for a lawyer referral service in Toronto. He got a lawyer's name, and contacted the lawyer. This all happened the same evening, Thursday July 2, 1987. Until this date he had no prior knowledge of the union organizing drive and no one approached him to sign a card. Saturday, July 4, 1987 he started to telephone the employ­ees of the company asking them to sign the petition in opposition to the union. The only employee reached directly was Bill Bonvanie. Saturday July 4, he had a phone call from Loucks, a lengthy conversation about the union and the petition, which got heated at times. That is when the alleged threats were made. These alleged threats did not prevent Mr. Hennink with continuing with the petition. On Monday July 6, 1987 he met with his lawyers at 9:00 a.m. where the petition was drafted and also the covering letter to the Board. The week beginning Monday July 6, Hennink was on vacation. He called Mr. Bill Bonvanie after work to come to his house and sign the peti­tion. The following morning Bonvanie met Hennink at a coffee shop, he picked up the petition because he knew one more person who would sign it, and took the petition at 8:45 a.m.

5. Mr. Bonvanie had been a member of the union before, for four years from 1980 to 1984. He found out that Hennink was circulating a petition when Hennink called him and they dis­cussed it for the first time, which was Thursday, the same evening Hennink picks up his payche­que. After he spoke to Hennink, he did nothing until he met him on Saturday morning and agreed to help him. Monday evening when he went to sign the petition, Hennink told him he made it up and he could sign it. When they talked about it Bonvanie found out Hennink was threatened so he decided to take over the petition. The following morning he met Hennink at a restaurant at 7:45 a.m. and proceeded to talk to the employee on the job site where he was working at 8:45 a.m., he is petitioner #3. Bonvanie told him Hennink and himself were circulating the petition and that management does not know about it. He talked to three others at job sites as well, and they did not want to sign.

6. Some of the questions in chief to Bonvanie were:

What about the Monday night union meeting?

I was told of the meeting on July 6, 1987.

Why did you not go?

I chose not to support the union and saw no need to be there.

Did you feel endangered at work?

Yes, the next morning (Tuesday July 7, 1987) at the shop as I walked in, everybody looked at me funny (Caves told me later that if Doug (Witmer) had not been in they would have got me.

How many do you believe signed up with the union?

Ten at the meeting and one later.

What period of time did it take you to change your mind from that Wednesday in June? Two weeks.

During that period of two weeks did you discuss things about the union certification with the employees?

Yes, we discussed things about the union with them.

Other than the three people mentioned did you speak to any other employees of Witmer?

No. 7. Some of the questions in chief to Caves were:

Where were you working on Tuesday July 7, 1987?

Kortes Steel.

What time did you arrive there?

7:20 a.m.

Did you go to the shop first?

Yes.

Anyone else with you at Kortes Steel?

Yes, Fred Wright.

Anyone else come to Kortes?

Yes, Bonvame.

When did he arrive?

About 10:30 a.m.

How do you recall that time?

I just finished my coffee break.

Did Bonvanie say why he was there?

He said he came out to help me and when Fred Wright went to call Ron

Hathaway to come to the site he said we were making a big mistake to put

Witmer in the union, and that he had a petition and wanted me to sign it. He

wanted me to change my mind as John Palister and Fred Wright did.

How long did the conversation last?

Maybe 30 minutes.

Did either of you get angry at any point in the conversation?

No.

Did he stay and help you?

No, he said I made up his mind and he was going to quit the company.

8. How can one argue as in this case that the various conversations between employees, granted one was a heated conversation, which is referred to as threats that kept the two petitioners from signing more employees. Monday evening July 6, ~987 when Mr. Bonvanie arrived at Mr. Hennink's home to sign the petition, he told Hennink he would take the petition because he knew one more person who wanted to sign the petition. The next day, he met Hennink in the coffee shop, whether it was at 8:45 a.m., as Hennink said, or 7:45 as Bonvanie said. Anyway, when he arrived at the shop to start loading his truck before going out to the job site, all the employees stopped and looked funny at him. Later when he spoke to three other employees other than peti­tioner #3, who was on the same job site as Mr. Nigel Caves, they refused to sign the petition. This was Tuesday July 7, 1987. Also, he told his counsel that he felt endangered at work when on Tues­day morning he came into the shop and everyone looked funny at him. I am not convinced that the alleged threats stopped the petitioners from getting more names, even where he is trying to sign these employees on the various job sites, on company time, and seemed to be doing it without any apparent fear from management for doing this, instead of his regular duties.

9. It is understandable that fellow employees, especially the apprentices, were somewhat disappointed and angry with Mr. Bill Bonvanie when they were looking to him as a former mem­ber of this local union, and the fact that he used his van to transport six or seven of them over to the union hall, the night they all signed union membership cards. Then finding out that Mr. Bonva­nie has switched sides and deserted them at this crucial time.

10. What is significant to me, from Hennink's evidence in chief, is he did not find out about the union's organizing campaign until Thursday July 2, 1987 at 5:30 p.m. when he comes into the shop to get his pay, he sees the notice posted that the union applied for certification of his employ­er. During the whole period from the time the employees decided to go and join the union and to the posting of the Ontario Labour Relations Board green sheets, no one talked to Mr. Hennink about this, not even Mr. Bonvanie his co-author. It must be assumed that all the other employees considered Mr. Hennink as being anti-union or too close to management to be trusted to keep their secret from the powers that he, because there is no other reasonable explanation for this lack of communication with Mr. Hennink. How is this person that no one trusts going to convince these employees that his anti-union stand is the correct one? So he has to recruit someone else to take the petition around because he is on holidays. So who does he recruit but Mr. Bill Bonvanie, who through his own evidence has a chip on his shoulder about the union, and he too gets the cold shoulder from the vast majority of the employees.

11. Even if you could characterize the various conversations as threats to the petitioners, the petitioners did not have the support of the other employees. Case in point, no one would speak to him about the union or the organizing drive, not even Bonvanie, who only spoke to him about same after the notice was posted. As for Bonvanie, he also lost the confidence of his fellow employees, in his own words that they all looked funny at him on the morning after the union meeting, when the only one not present at the meeting of the group that signed with the union was Bonvanie.

12. The true wishes of the employees are set out in two documents, the membership evi­dence and the petition, which has only two names that overlap, still leaving the union with a healthy majority of 9 union membership cards out of a total of 12 employees. Further, none of the people involved in these conversations with the petitioners were the union organizers.

13. For all the above reasons I disagree with the majority in ordering a vote in this case. I would have certified the union outright.