Employees of Corecon Construction v. Local 27, United Brotherhood of Carpenters and Joiners of America, 1987 CanLII 3142

Ontario Labour Relations Board

[1987] OLRB Rep. December 1480

0354-86-R Employees of Corecon Construction, Applicant v. Local 27, United Brotherhood of Carpenters and Joiners of America, Respondent v. Corecon Construction Limited, Intervener

BEFORE: R. A. Furness, Vice-Chair, and Board Members R. Montague and J. Trim.

APPEARANCES: Ray Connolly for the applicant; J. David Watson and John Cartwright for the respondent; W. I. McNaughton and D. Burness for the intervener.

DECISION OF THE BOARD; November 27, 1987

Decision

1. The name of the respondent appearing in the style of cause of this application is amended to read "Local 27, United Brotherhood of Carpenters and Joiners of America".

2. The applicant has applied to the Board under section 57 of the Labour Relations Act for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is the bargaining agent.

3. During the course of the hearings in this application; Ms. J. Trim was, on the consent of the parties, substituted in place and stead of Mr. J. Wilson.

4. In a decision dated May 6, 1985, a differently constituted panel of the Board, after a keenly contested application for certification, certified the Carpenters' District Council of Toronto and Vicinity on behalf of Locals 27 and 1304, United Brotherhood of Carpenters and Joiners of America with respect to a bargaining unit of employees of Corecon Developments defined as:

all carpenters and carpenters' 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 carpenters and carpenters' apprentices in the employ of the respondent in all other sectors in the Municipality of Metropolitan Toronto, the Regional Municipalities of Peel and York, the Towns of Oakville and Halton Hills and that portion of the Town of Milton within the geographic Townships of Esquesing and Trafalgar, and the Towns of Ajax and Pickering in the Regional Municipality of Dunham, save and except non-working foremen and persons above the rank of non-working foreman. (See Board File No. 0814-84-R)

5. The instant application was filed on April 28, 1986, and was first listed for hearing on July 29, 1986. In a letter dated July 23, 1986, Corecon Construction Limited, as the successor in the construction industry to Corecon Developments, requested reconsideration of the decision of the Board dated May 6, 1985, in Board File No. 0814-84-R. It was common ground that the Board had not yet entertained the request for reconsideration in Board File No. 0814-84-R. It was on this basis that the parties proceeded with this application and the Board inquired into this application. It was agreed by the parties that Conecon Construction Limited was the successor of Corecon Developments.

6. The intervener filed a list of employees containing the following names and classifications:

Cabral, E. Apprentice Connolly, R. Carpenter Ribeiro, M. Carpenter

The applicant filed a statement of desire which contained three signatures. The respondent challenged the list of employees which had been filed by the intervener. The respondent's position was twofold. Firstly, the three individuals in question could not have performed any bargaining unit work but for the intervener's violation of the union security and other provisions of the collective agreement between The Carpenters Employer Bargaining Agency and The Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America, Ontario Provincial Council, effective from May 1, 1984, to April 30, 1986 (the "collective agreement"). It was therefore the position of the respondent that the three individuals in question were not properly included on the list. Secondly, quite apart from the intervener's alleged violation of the collective agreement, it was the position of the respondent that it had not been satisfactorily established that any of the three individuals in question would be properly considered as employees in the bargaining unit during the relevant time period. It was the position of the respondent that Mr. Connolly was a superintendent and therefore not properly included in the bargaining unit. With respect to Mr. Cabral, it was the respondent's position that he was not performing carpentry work for the majority of the time. It was also the position of the respondent that Mr. Ribeiro was a superintendent and therefore also not properly included in the bargaining unit. After entertaining the representations of the parties the Board ruled orally at the hearing that because the respondent had challenged the list of employees on these two grounds, the respondent was required to proceed and call its evidence.

7. The parties adduced evidence with respect to the second ground relied upon by the respondent in its challenge to the list. The evidence covered aspects of the work performed by Mr. Cabral and Mr. Connolly with limited evidence and the work performed by Mr. Ribeiro during the period from prior to the summer of 1985 until April of 1986. Clearly Mr. Ribeiro and Mr. Connolly performed supervisory work from time to time. It is equally clear that on occasions Mr. Ribeino and Mr. Connolly worked with the tools on carpentry work. Mn. Cabral also worked for period of time performing labouring work and also performed some aspects of carpentry work and the intervener self-styled Mr. Cabral as an "apprentice carpenter". These three persons appear to have moved in and out of performing the work of a carpenter. Unfortunately, the evidence before the Board did not always cleanly indicate even approximately when these three persons performed the work of carpenters. On the evidence before it, the Board is not prepared to delete any of the names from the list of employees on the basis that they were not performing the work of carpenters on the date of the filing of this application.

8. The first ground advanced by the respondent arises from the terms of the collective agreement which is binding on the panties. It was the position of the intervener that all three individuals performed carpentry work and were carpenters at all material times. It was the uncontradicted evidence of John Cartwright, the business representative of the respondent, that Mr. Connolly signed an application for membership and paid one dollar in connection therewith and that neither Mr. Cabral non Mr. Ribeiro signed applications for membership. In order to understand the evidence which will subsequently be referred to it is necessary to consider the articles of the collective agreement which the respondent claimed were violated by the intervener. These articles are 5.01(a), 5.01(b), 5.01(c), 5.01(d), 5.06, 5.11, 17 and the Carpenters' Appendix with respect to the Board's geographic area number 8. The articles provide as follows:

ARTICLE 5 - UNION SECURITY

5.01(a) The employer agrees to hire and continue to employ employees covered by this Agreement who are members in good standing of the United Brotherhood of Carpenters and Joiners of America as long as the Local Union or the District Council of the United Carpenters and Joiners of America in the Province of Ontario can supply qualified employees in sufficient numbers who are capable of performing the work required.

(b) Except as modified by the provision of sub-section (c) of this Article, all employees covered by this Agreement shall be hired by the employer through the offices of the Local Unions and District Councils having jurisdiction over the geographical area, set out in Schedule "B", where work by the employer is to be performed. Such hiring shall be done by way of a referral slip issued by the Local Union or District Council.

(c) It is understood that, if the Local Union or District Council is unable to provide the required manpower within two (2) working days, the employer is free to hire such manpower as is available, but such manpower shall, as a condition of employment, either be in good standing or apply for membership in the Union within seven (7) days.

(d) As a condition of continuing employment, all employees must maintain membership in good standing in the Union.

5.06 A member, at date of recall, must be in good standing in the Union and be registered as unemployed with the Local Union or District Council in the area where the work is to be performed. Before commencing work the member must be given a referral slip.

5.11 All referral slips issued under the provisions of this Article must be given to the steward before commencing work.

ARTICLE 17- APPRENTICES

17.01 The use of apprentices shall be encouraged and their improvement will be advanced by a properly operated apprenticeship program actively administered by apprenticeship advisory committees of three (3) members from the Union and three (3) members from the EBA. The quorum for the meetings of such committees shall be three (3) members provided that, if both parties are represented, the members of each party shall have equal voting rights.

17.02 The EBA shall actively participate in the formation of a local apprenticeship advisory committee and appoint member delegates to attend committee meetings at all times.

17.03 The Union shall accept as members of the Union apprentices that are indentured to an employer or the local apprenticeship advisory committee. The apprenticeship advisory committee shall have full powers over the training, education and movement of all apprentices.

17.04 Any examination or entry qualifications shall be at the sole discretion of the apprenticeship committee and the method applied to any examination or entry qualification shall be the responsibility of the apprenticeship committee.

17.05 The number of apprentices shall be as established by the Trade Schedule under the Apprenticeship and Tradesmen Qualifications Act, R.S.O., 1970 c. 24 as amended.

The Carpenters' Appendix to the collective agreement with respect to the Board's geographic area number 8 sets forth the wage and related payments for regularly scheduled daytime hours.

9. There was no dispute that none of these three individuals either obtained referral slips from the respondent on were registered as unemployed with the respondent. The Board heard evidence on the various conversations between Mr. Cartwright, Mr. Connolly, Mr. Burness, the former president of Corecon Construction Limited, Al Vellani, an employee of Conecon Construction Limited, and James Smith, a business representative of the respondent. Evidence was adduced concerning the steps which were necessary in order to be a member in good standing, the practice in the construction industry with respect to hiring, the practice of the respondent with respect to its members seeking employment and the effect of the payment, tendering and return of monies paid by the intervener to the administrator of The Carpenters' District Council of Toronto & Vicinity Benefit Trust Fund.

10. In considering the evidence adduced before the Board, it is clean that there are contradictions in the evidence of the witnesses with respect to the conversations which occurred among them. In the opinion of the Board, Mr. Cartwright and Mr. Smith gave their evidence in a forthright manner and appeared to have a better recollection of the events which occurred. While Mr. Burness and Mr. Connolly also gave their evidence in a forthright manner, in the view of the Board their recollection of the events appeared to be less vivid in many aspects. For example, there was never any satisfactory explanation for the discrepancy arising over the commencement of Mr. Connolly in performing carpentry work in December of 1985 and the commencement of the intervener in paying certain deductions to the respondent at an earlier time. In addition, it appeared that the intervener as represented by Mr. Burness was inclined to act in an arbitrary manner without reference to its obligations with respect to the arbitrary assignment of wages to Mr. Cabral. The assignment of wages of a second year apprentices to Mr. Cabral was done despite the fact that he have never been in any manner registered as a carpenters' apprentice. In addition, the Board notes that, with respect to Mr. Connolly, while he gave evidence regarding his dissatisfaction with the conduct of the union in not providing him with any benefits during the period when the intervener was advancing remittances on his behalf, there was no evidence that he, in fact, made any claims on sought to ensure that he was properly registered for his entitlement to benefits. Despite the fact that Mr. Connolly was given a booklet describing the welfare and pension plans for which he would be eligible, he made no attempt to pursue these matters even though he was given the address and the telephone number of Mr. Cartwright. Mr. Connolly never adequately accounted for these inconsistencies in his conduct.

11. The Board finds that in the two conversations between Mr. Cartwright and Mr. Connolly at the latter's home, Mr. Cartwright informed Mr. Connolly that he could become a member in good standing of the union and informed him of the dues that had to be paid in order to accomplish this status. The Board accepts the evidence of Mr. Cartwright that he stated that there would be an initiation fee of two hundred dollars and a first monthly dues payment of thirty-two dollars followed by subsequent monthly dues payment of twenty dollars as over the counter dues which would be recorded in a dues book. There is no dispute that Mr. Connolly did not do this. And there is also no dispute that neither Mr. Cabral nor Mr. Ribeiro ever applied to join the respondent. The Board finds that Mr. Cartwright informed Mr. Connolly of the benefits which were available to members in good standing of the respondent and that Mr. Cartwright expressed concern when he discovered from Mr. Burness that Mr. Connolly would not be included in the bargaining unit after certification and would therefore, to the regret of Mr. Cartwright, not be eligible for any of the benefits under the respondent's collective agreement and health and welfare plans.

12. There is no dispute on the evidence that neither Mr. Connolly nor Mr. Cabral nor Mr. Ribeiro ever obtained referral slips from the respondent before allegedly performing the work of a carpenter in the employ of the intervener. Article S of the collective agreement makes it quite clear that a condition of employment and continued employment is conditional upon an employee in the bargaining unit maintaining membership in good standing in the union. Moreover, it is quite clear in Article 5 that the hiring of an employee shall be done by way of a referral slip issued by either the Local Union on the District Council. It is also clear in Article 5 that a member at the date of recall must be in good standing in the union and be registered as unemployed with the Local Union or District Council in the area where the work is being performed. None of these three persons, namely, Messrs. Connolly, Cabral and Ribeiro ever registered as being unemployed in the manner prescribed in Article 5. In addition, the provisions of Article 17 of the collective agreement respecting apprentices were similarly not complied with in any respect in the case of Mr. Cabral.

13. On the basis of the evidence before it, the Board is not prepared to find that any of these three persons were hired or employed by the intervener in accordance with the provisions of the collective agreement. It was argued before the Board that there ought to be no necessity to comply with the provisions of the articles referred to, particularly, Article 5 in the case of persons who were employees of the intervener and who were transferred in and out of the bargaining unit. The Board does not agree with this argument. The effect of moving a person into the bargaining unit contained in the collective agreement is under the collective agreement the same as hiring a person for the first time. The particular circumstances in this application with respect to the employment of the persons on the list of employees filed by the intervener arose from the fact that the intervener, upon certification, moved the employees out of the bargaining unit. The work was then subcontracted to other employers who were in contractual relations with the respondent. While it would have been possible, according to the evidence before the Board, to have name-hired the persons who are affected by this application, there existed a very clean requirement that these persons had to become and remain members in good standing in order to work for the intervener. On all of the evidence before the Board, there can be no doubt that three persons on the list of employees were hired to perform work in the bargaining unit contrary to the provisions of the collective agreement.

14. While the intervener remitted monies to the administrator with respect to periods of employment for the persons on the list of employees, the Board finds that such monies were returned once the officers of the respondent became aware that the monies had been remitted to the administrator of the various plans. The inadvertent acceptance and subsequent return of these monies does not, in our opinion, in any way regularize the conduct of the intervener and the employees on the list in performing work within the scope of the bargaining unit in the collective agreement. Such monies are properly the property of the employees of the intervener from whom such monies were deducted. In our opinion, such monies ought to be returned to these employees.

15. In representation proceedings a principle laid down by the Board in April Waterproofing Limited, [1980] OLRB Rep. Nov. 1577 applies to the facts in this application. At page 1578 of that decision the Board stated as follows:

There can be little doubt but that at the relevant time there existed a common-law employee-employer relationship between the respondent and the three individuals challenged by the intervener. That by itself, however, is not determinative of their status as bargaining unit employees. See Local 273, International Longshoremen's Association v. Maritime Employer's Association [1978] 1 S.C.R. 120. In our view, the bargaining unit is comprised of employees employed under the terms of the applicable collective agreement. To be so employed, an employee must have been hired in accordance with the provisions of the agreement. The three individuals in dispute were not hired in accordance with the provisions of the collective agreement and accordingly, in our view, they do not come within the bargaining unit covered by the collective agreement. This being so, we are satisfied that in ascertaining the number of employees in the bargaining unit for the purposes of section 7(1) of the Act, the three individuals in dispute should not be taken into account.

In ascertaining the number of employees in the bargaining unit at the time the application was made under section 57(3) of the Act, the Board finds that the three persons referred to in paragraph 6 herein are not properly included on the list of employees.

16. On the basis of the evidence and representations before it, the Board is satisfied that less than forty-five per cent of the employees of Corecon Construction Limited in the bargaining unit, at the time the application was made, had voluntarily signified in writing that they no longer wish to be represented by the respondent trade union on June 26, 1986, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent trade union under section 57(3) of the said Act.

17. In the result, this application is dismissed.