Labourers' International Union of North America, Local 1059 v. Thornton Sand & Gravel Limited
[1987] OLRB Rep. October 1331
1225-87-R Labourers' International Union of North America, Local 1059, Applicant v. Thornton Sand & Gravel Limited, Respondent v. Group of Employees, Objectors
BEFORE: Robert D. Howe, Vice-Chair, and Board Members J. Trim and L. C. Collins.
APPEARANCES: L. A. Richmond, J. MacKinnon, and M. Claro for the applicant; Stuart M. Ducoffe, Edward V. Johnson, and Gordon C. Pullen for the respondent; Robert Taylor for the objectors.
DECISION OF THE BOARD; October 20, 1987
This is an application for certification within the meaning of section 119 of the Labour Relations Act, and is made pursuant to section 144(1) of the Act.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Act, and is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 139(1) of the Act on April 21, 1978, as amended on July 13, 1978, and September 6,1978, the designated employee bargaining agency is The Labourers' International Union of North America and The Labourers' International Union of North America Ontario Provincial District Council.
Having regard to the agreement of the parties, the Board finds, pursuant to section 144(1) of the Act, 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 Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, 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.
In accordance with the Rules of Procedure respecting applications for certification, the respondent (also referred to in this decision as the "Company") has filed a list of employees in the bargaining unit as of July 31, 1987, the date on which this application was filed. That list, as revised at the hearing of this matter, contains five names. The first name on the list is "Manuel Lima". Mr. Lima is classified by the respondent as a foreman. The applicant (also referred to in this decision as the "Union") challenges his inclusion on the list on the grounds that he exercises managerial functions within the meaning of section 1(3)(b) of the Act. The objectors, on the other hand, agree with the respondent's position that Mr. Lima is properly included on the list.
As indicated by the Board at the hearing of this matter, regardless of whether Manuel Lima is included in or excluded from the bargaining unit, the Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on August 14, 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.
The objectors have filed a statement of desire (referred to in this decision as the "petition") in opposition to the applicant being certified. That document, which was filed with the Board in a timely manner, contains thirteen signatures, including the signatures of two employees who earlier signed membership cards. The petition is of potential relevance to the exercise of the Board's discretion under section 7(2) of the Act, because if the petition is voluntary, it would raise sufficient doubt concerning the continued support for certification of the applicant by a sufficient number of employees who also signed membership cards that the Board would generally exercise its discretion under section 7(2) to direct that a representation vote be taken despite the fact that more than fifty-five per cent of the employees in the bargaining unit were members of the applicant at the relevant time. Accordingly, the Board conducted its usual inquiry into the origination and circulation of the petition, and afforded each of the parties an opportunity to adduce evidence and present argument concerning the petition.
The petition was typed by John Davis, who is employed by the respondent as a loader operator. It was his evidence that he obtained the wording of the petition from material posted on the shop bulletin board by Gordon Pullen, the Vice-President of the respondent. It is unclear from the evidence whether that material consisted solely of the Board's (Form 78) Notice to Employees of Application for Certification, Construction Industry, and the Board's "Notice to Employees" which accompanied it, or whether those two documents were supplemented by the respondent. Mr. Davis typed the petition at home on the evening of August 11, following a meeting attended by a number of employees at the shop after working hours.
On the following morning, Mr. Davis brought the petition to the respondent's shop and handed it to Ted Siemiernik, a machine operator, who signed it in the presence of Robert Taylor, a truck driver in the employ of the respondent. Mr. Taylor and six other employees also signed the petition that morning in the shop before starting work. It was then taken by Mr. Siemiernik, who was supposed to be working at a site in Woodstock commencing at seven o'clock that morning. Instead of proceeding directly to that site, Mr. Siemiernik went to a job site in Ingersol for the sole purpose of obtaining additional signatures on the petition. Upon arriving at the Ingersol site, he spoke with Manuel Lima, the aforementioned foreman, and explained to him that he was there to get signatures on a petition against the Union. In his testimony before the Board, Mr. Siemiernik confirmed that Mr. Lima is a foreman who has a crew of labourers working under him. It was also Mr. Siemiernik's evidence that Mr. Lima gives him orders from time to time. Mr. Lima's authority to direct the work force was also confirmed by Mr. Taylor, who testified, "When I'm working on a job, I take my orders from him.'
After reading the petition, Mr. Lima gave it to Jose Mauricio, one of the labourers employed on the Ingersol job site, and told him (in Portuguese) to sign it. Mr. Mauricio had been hired by Mr. Lima, and perceived Mr. Lima to be a "boss" who was in charge of the job. He was also of the view that Mr. Lima had the power to discharge him. Mr. Mauricio signed the petition because he had heard that the Company did not want the Union and was afraid that he would lose his job if he did not sign. After Messrs. Lima and Mauricio signed the petition, Mr. Siemiernik brought it to two other workers on that site (including another of the labourers on the employer's list) and obtained their signatures. Mr. Siemiernik then left that site and drove to a different site to obtain another signature, after which he returned to the shop at approximately 8:15 a.m. and gave the petition to Mr. Taylor. Mr. Siemiernik then proceeded to his job site in Woodstock, and arrived there an hour and a half after his normal 7:00 a.m. starting time. Mr. Siemiernik's job does not normally involve driving from site to site, except when he completes his work at one site and is required to move to another site. He told the Board that if he was going to take some time off work to attend to personal business, he would normally have to let someone know. However, he "didn't feel it was necessary" that day because he was "not particularly [worried]" about management finding out what he was doing.
After the petition had been returned to the shop, Mr. Davis went to the respondent's office to obtain an envelope from Allan Hill, the respondent's estimator. Mr. Davis then telephoned Sandy Thornton, the daughter of the respondent's President, and asked if he could use her typewriter to type the envelope. Ms. Thornton, who in the words of Mr. Davis "kind of knew what it was all about", readily agreed to permit him to do so. Mr. Davis then left the shop and went to Ms. Thornton's residence, where he typed the envelope. Mr. Taylor used that envelope to mail the petition to the Board later that day while he was out picking up parts for the respondent.
In describing the legal basis and effect of petitions, and the Board's practice in respect of them, the Board wrote as follows in Elks Inc., [1985] OLRB Rep. Feb. 244:
The system of certification prescribed in Ontario by the Labour Relations Act rests primarily upon an assessment of the union's membership support based upon an examination of its documentary evidence of membership. Upon showing the requisite membership support, the union is "certified" or granted a licence to bargain on behalf of a group of employees - subject, of course, to their right to file a timely application terminating bargaining rights. The Board does not solicit viva voce opinions about the virtues of trade union representation (see Rule 73(2)), nor, in this jurisdiction, is a representation vote the primary vehicle for achieving the right to represent employees. That right depends upon the solicitation of a sufficient number of membership cards authorizing the union to act as bargaining agent, and to protect employees from possible employer reprisals that anonymity of the union supporters is preserved. That is the way it has been for more than thirty years, and doubts about how the Board should go about its task have frequently been resolved by amending the statute (as, for example, to resolve the question of what is a "union member" and the "question" the Board was to ask itself in this regard which prompted section 1(1)(l)). There is now an elaborate statutory and regulatory framework governing union membership evidence, as the Board has sought to apply sections 1(1)(l) and 103(2)(j) to the special circumstances of particular cases.... Representation votes are a residual mechanism resorted to where the union cannot demonstrate a "clear majority" (i.e., more than fifty-five per cent) or where, in the Board's discretion, a representation vote should be held in the particular circumstances of a case. One of those circumstances is a purported change of heart by employees who have previously signed union membership cards.
On the other hand, neither the Legislature nor the Board has taken a myopic view of the realities of the situation. Employees can and do change their minds. While in some jurisdictions the statute precludes or inhibits such expressions so that certification is based solely on membership cards, and in others they are irrelevant because the preferred method of testing employee wishes is a representation vote, Ontario has evolved a middle position recognizing the validity of union membership cards, but retaining some flexibility to seek the confirmatory evidence of a representation vote where employees have put before the Board a timely "petition" or other document indicating a change of heart. Petitions too have been part of the certification process for decades.
The Board recognizes that "statements of desire" (see Form 6), usually in the form of a 'petition", are not regulated by the Act as directly or precisely as union membership evidence. There is no statutory definition equivalent to section 1(1)(l), nor is there any requirement for a monetary payment, in the nature of consideration confirming the act of signing. There is no statutory declaration similar to Form 9 attesting to the regularity and sufficiency of the membership evidence. There is usually no confirmatory signature of a subscribing witness. Nevertheless, the existence of such statements appears to be contemplated by section 103(2)(j) of the Act and Rule 73 of the Rules of Practice. And, in any event, as we have already noted, the Board has a long-established practice of accepting such petitions and exercising its discretion to order a representation vote where: the petition is voluntary (as evidenced by testimony adduced in accordance with Rule 73 of the Rules of Practice), and the petition contains the signatures of a sufficient number of persons who have previously signed membership cards that there is some doubt whether these "members" (in accordance with section 1(1)(l)) continue to support the union's certification.
The Board must be satisfied, however, that when these union supporters sign the petition indicating an apparent change of heart, they were doing so voluntarily, and were not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their employer, or could result in reprisals. It must be clear that the circulation of the petition is free from the actual or perceived influence of management. Often, as in the present case, a petition will be signed by employees who have indicated their support for the union only a short time before, and a natural question arises as to what prompted the change of heart. Was it prompted by a reappraisal of the value of collective bargaining, or by a reluctance to identify oneself as a union supporter when presented with a petition document? While an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a petition opposing the union.
See also Conference Cup. Co. Ltd., [1986] OLRB Rep. Jan. 2; Ontario Hospital Association, [1980] OLRB Rep. Dec. 1759; Lyman Tube, [1980] OLRB Rep. Oct. 1472; and I.M. Pastushak Ltd., [1980] OLRB Rep. July 979.
- In the instant case, the only signatures which are pertinent to the exercise of the Board's discretion are those obtained by Mr. Siemiernik at the Ingersol job site which he visited on the morning of August 12. The persons who signed the petition in the shop earlier that morning, including Mr. Taylor, Mr. Davis, and Mr. Siemiernik himself, were not labourers. Thus, they are not included on the employer's list and will not be in the bargaining unit if this application is granted (unless they come to be employed as labourers by the respondent at some point in the future). Having regard to all of the evidence and the submissions of the parties, we have concluded that it has not been established on the balance of probabilities that any of the labourers who signed the petition did so voluntarily. As indicated above, Mr. Siemiernik, who was supposed to be working at a job site in Woodstock, went to the Ingersol job site for the sole purpose of obtaining signatures on the petition. Upon arriving at the job site, he spoke with Mr. Lima and explained to him that he was there to get signatures on a petition against the Union. As noted above, Mr. Lima is a foreman who has a crew of labourers working under him. He gives orders to them and to other employees on the site. Mr. Mauricio, who signed the petition at Mr. Lima's direction out of fear that he would lose his job if he did not sign, was hired by Mr. Lima and was of the view that Mr. Lima, whom he referred to (in his testimony before the Board) as his "boss", had the power to discharge him. As noted by the Board in Leamington Vegetable Growers' Co-operative Limited, [1974] OLRB Rep. June 402, in paragraph 9 "[i]n the work place, the word 'boss' surely connotes, in the clearest and most unequivocal way, superior authority." In the circumstances of this case, it is reasonable to infer that the other persons who worked under Mr. Lima, including the other labourer who signed the petition, had a similar perception regarding his authority over them. In signing that document, which already bore his foreman's signature and which was presented to him by an employee who had come during working hours to the Ingersol job site solely to obtain signatures on the petition, that labourer would reasonably have perceived the petition to be supported by the Company, and may well have signed it because he feared that management would become aware of his decision to sign it or not to sign it. As noted by the Board in Radio Shack, [1978] OLRB Rep. Nov. 1043, at paragraph 24:
Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in deciding whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its origination, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not management might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd., [1975] OLRB Rep. Nov. 813 and the cases cited therein.)
For the foregoing reasons, the Board is not satisfied on the balance of probabilities that the petition is a voluntary statement of desire in respect of the wishes of any of the labourers who were in the employ of the respondent at the relevant time. In view of that conclusion, it is unnecessary to deal with Union counsel's alternative submission that the petitioners did not tell the Board the truth about the origination of the petition. It is also unnecessary to consider the effect, if any, of Sandy Thornton's involvement in the matter.
As indicated earlier in this decision, there is a dispute among the parties regarding whether or not Mr. Lima exercises managerial functions within the meaning of section 1(3)(b) of the Act. In considering the validity of the petition, we have found it unnecessary to determine that issue, as the fact that employees reasonably perceived Mr. Lima to be their "boss", and to have the power to hire and fire them, was sufficient for the purposes of that aspect of the case. Counsel for the respondent suggested that a Board Officer should be appointed to inquire into and report to the Board concerning Mr. Lima's duties and responsibilities, so that the matter of his status could be resolved. However, neither the bargaining unit description nor the applicant's entitlement to certification is affected by that issue. As noted by the Board in Robin Hood Multifoods Inc., [1985] OLRB Rep. July 1159, "where, as here, the description of the appropriate bargaining unit has been settled and the Board can say with certainty that more than 55 per cent of the employees in that unit on the application date were members of the applicant at the relevant time, the Board [has] the jurisdiction to grant the applicant a final certificate, notwithstanding the existence of questions which could be dealt with under subsection 106(2)." We are satisfied that we should exercise that jurisdiction in the instant case. In the event that the applicant and the respondent are unable to resolve the matter of Mr. Lima's status, they may refer that question to the Board, at an appropriate time, for decision under section 106(2).
As indicated above, the Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on August 14, 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.
Pursuant to section 144(2) of the Act, a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency named above in respect of all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant in respect of all construction labourers in the employ of the respondent in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, excluding the industrial, commercial and institutional sector, save and except non-working foremen, and persons above the rank of non-working foreman.