Paul Petrus v. United Brotherhood of Carpenters and Joiners of America, Local 3054, 1987 CanLII 3145

[1987] OLRB Rep. December 1522

0166-87-R Paul Petrus, Applicant v. United Brotherhood of Carpenters and Joiners of America, Local 3054, Respondent v. Huron Steel Fabricators (London) Limited, Intervener

BEFORE: V. Solomatenko, Vice-Chair, and Board Members R. W. Pirrie, and J. Sarra.

APPEARANCES: F. A. Angeletti, P. Petrus for the applicant; N. L. Jesin, S. Salvana for the respondent; and S. D. Gorelle for the intervener.

DECISION OF V. SOLOMATENKO, VICE-CHAIR AND BOARD MEMBER R. W. PIRRIE;

December 11, 1987

1. This is an application pursuant to section 57 of the Labour Relations Act for a declara­tion terminating the bargaining rights of the respondent trade union with respect to a unit of employees employed by the intervener employer in London, Ontario.

2. The application was filed on April 14, 1987. Article 27.01 of the collective agreement provides that it is binding and remains in effect from June 1, 1986 to May 31, 1987. It would thus appear that the application is timely. The union, however, has alleged that this application is untimely. Counsel notes that the collective agreement was signed on October 23rd, 1986 and the title page of the document indicates that the agreement was made and effective the 23rd day of October, 1986. Counsel submits that this results in some ambiguity because, since this is a first col­lective agreement, it cannot be made retroactive to a former expiry date and until the agreement is signed the parties are not bound by any collective agreement. He argues, therefore, that in accor­dance with section 52(1) of the Act the one-year term for this collective agreement should begin with the date of October 23, 1986. He acknowledges there is jurisprudence which holds that a col­lective agreement can be retroactive. Nevertheless, in this instance, he suggests that, in view of the title page, the collective agreement only makes payment of wages retroactive.

3. We confirm our oral ruling at the hearing that Article 27.01 of the collective agreement expressly sets out the duration of the collective agreement. There is nothing in Article 27.01, nor elsewhere in the collective agreement, which restricts the application of Article 27.01 to retroactiv­ity for wages only. Section 52(1) of the Act has no application in these circumstances and the appli­cation is therefore timely in accordance with subsection 2 of section 57 of the Act.

4. Subsection 3 of section 57 of the Act reads as follows:

(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representa­tion vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.

On the basis of the lists of employees filed by the employer, there were sixteen employees in the bargaining unit as of the date of this application. In support of the application, the applicant has filed one document (hereinafter referred to as the "petition"), purporting to evidence the desire of eleven of these employees that they no longer wish to be represented by the respondent union. The petition thus contains in excess of 45 percent written support for a termination application, which is sufficient to cause the Board to order a representation vote to be taken under section 57(3) of the Act if it is satisfied that the individuals signing the petition have done so voluntarily.

5. As well as raising several allegations related to the origination on circulation of the peti­tion, the union requests that the Board also take into account certain events or circumstances which have transpired since it was first certified in October, 1985. Shortly after certification, the company issued notices of indefinite layoff to all its employees such that by December 20, 1985, all had been laid off. Some employees were recalled in early January 1986 and most of the remaining employees were recalled at various stages thereafter. Prior to the layoffs, the company carried on business out of two locations, one of which was closed down during this period. These layoffs were subject of a section 89 complaint filed by the union which alleged that the company had violated sections 64, 66, 70 and 79 of the Act. By decision dated May 1, 1987, a differently constituted panel of the Board dismissed the complaint as it pertained to sections 64 and 66 of the Act. That decision further held that there was no anti-union animus on the part of the company and the lay­offs were the result of unavoidable lack of work.

6. For purposes of the instant application, the union requests the Board to take into ~ccount the effect of those layoffs notwithstanding the Board's decision of May 1, 1987. Counsel totes that this was a substantial layoff of an entire bargaining unit and the first person to be ecalled was Paul Petrus who is also the applicant in the instant application for termination. Coun­el also notes that the Board's finding of no anti-union animus was not made known until May 1, 987, whereas this application was filed on April 14, 1987. The union thus submits that in these cm­:umstances one must still come to a conclusion that there would have been a perception of man­igement involvement with the petition amongst the employees and fear of management reprisal.

7. The applicant, Paul Petrus, has been employed by the company since 1975. Mr. Petnus' evidence is that he signed for the union in 1985 more out of friendship for Joe Galena and was personally not happy with the union from the outset. His evidence is that shortly after the union was certified in 1985, he started making enquiries at Ministry of Labour offices with respect to what course of action he could take. He states he was advised that he should contact a lawyer. At this point he contacted a person to whom he referred to as a friend and who was previously employed y the company as a superintendent about six on seven years ago. Although it would seem that he does not see this person frequently he refers to him as a friend because he was the one who origi­nally gave him the job with the company and has assisted him with personal matters in previous years. It is as a result of this contact that Petrus retained counsel who has acted on behalf of the petitioners in these proceedings.

8. The union submits that the Board should infer management involvement or at least a perception of management involvement in the petition from Mr. Petnus' evidence. Beginning with the matter of retaining counsel, counsel for the union notes that although Mr. Petrus refers to the former superintendent as a friend, the last time he spoke with him was in 1985 and he cannot recall hen he visited him prior to that time. However, there was no evidence that this former superin­tendent maintains any contact with the employer or is in any way influenced by the employer sub­ject to these proceedings. The fact the person was a superintendent six on seven years ago by itself cannot be the basis of drawing an inference of management involvement in this petition. Mr. Petrus' evidence is that this person has in the past assisted him with such matters as obtaining a job and purchasing a home. In the circumstances, it is not unreasonable that he would turn to the same person for advice in obtaining a lawyer.

9. Counsel for the union also points out that there are varying stories from the witnesses as to what the arrangements are for payment of legal fees of the applicant's counsel. It would appear that not all employees were told from the outset that they would be asked to contribute towards the legal fees. Petrus' evidence however is that, although he has not collected any contributions from the other employees, he has advised them recently of his expectation. Furthermore, failing any contributions he states he is personally responsible for payment of the legal fees. Another point raised by counsel is that the evidence indicates that at least some employees came to this hearing without formally requesting leave of absence to attend the hearing. In our view, however, neither these matters can be the basis of a perception of management involvement. The fact that Petrus failed to discuss the obligation for legal fees when he initially approached the employees to sign the petition does not by itself result in the conclusion that employees would have inferred management would be paying for such fees. With respect to obtaining leave to attend the hearing, that deals with events after the application has been filed and terminal dates have been set. The fact that one or two employees may have attended the hearing without obtaining proper leave does not lead to the conclusion that the employer either encouraged or gave blanket approval to attend the hearing of this matter.

10. The union also refers to and relies upon certain evidence related to a petition which was started just prior to signing the collective agreement in October 1986. Mr. Petrus initiated that petition as well, but an application for termination was never filed at that time. Counsel for the union suggests that it seems coincidental that Mr. Petrus, although he was dissatisfied or unhappy with the union from the start, did nothing until such time that he by law would be entitled to take action. In our view, however, there is nothing unusual nor inconsistent in that action inasmuch as Mr. Petrus had sought out legal advice even prior to that date. His evidence is that he dropped the first petition on the advice of legal counsel and that in any event there were more persons wanting to sign. The Board also heard evidence, which was not disputed by the union, that the collective agreement signed on October 23, 1986, although signed by the union, had been rejected by the employees. As a result, there was a certain degree of unhappiness or discontent amongst the employees that the same contract they had rejected was in any event signed by the union.

11. The Board has consistently drawn a distinction between a petition filed in the context of an application for certification and one which is filed in support of an application for termination of bargaining rights. In Ontario Hospital Association (Blue Cross) [1980] OLRB Rep. Dec. 1759, at para. 31, the Board commented that:

The sole issue before the Board in every case regarding a "petition" is the voluntariness of the acts of signing. The Board has often drawn a distinction between petitions which are filed in connection with an application for certification, and those which accompany an application for termination of bargaining rights. In the former case, the Board has said that it must be sensitive to the role which management influence, devious or otherwise, may have played in causing employees who have only recently signed a card in support of a union to subsequently sign a petition which opposes the union. In the case of a termination application, the Board is not less concerned about influence by the employer, but there may, as a practical matter, be any number of reasons, including the mere passage of time, to readily explain the employees' apparent change of hearts. As the Board commented in N. J. Spivak Limited, [1977] OLRB Rep. July 462:

6. In contrast to a statement filed in opposition to an application for certification a statement of desire filed in support of a termination application under section 49 of the Act does not represent a sudden change of heart by those who sign it. The opera­tion of section 49, a section designed to give vent to employee desires, requires the passage of at least on year from the date of the union's certification before the Board will entertain an application for termination of bargaining rights. Because of the absence of an immediate change of heart, as happens when an employee signs himself into membership in a trade union and shortly thereafter signs a statement in opposi­tion to the certification of the same union, and having regard to the purpose of section 49, the Board is less inclined to draw inferences adverse to the voluntariness of the statement filed in support of an application under section 49 of the Act.

7. Counsel for the union does not dispute the Board's jurisprudence as noted in the Blue Cross case. However, he suggests that in the context of that jurisprudence there should also be some consideration whether one is dealing with a long-term relationship, such as one of 20 years, or one which is relatively short-lived. In his view, the relationship between the parties subject of this applicant is sufficiently short-lived that the Board should view the petition herein as it would in a certification case.

8. As stated in the Blue Cross case, the sole issue before the Board in every case involving a petition is the voluntariness of the acts of signing. In the context of a certification case, the Board more sensitive to the question of why an employee would have had a very recent and sudden change of heart in the relatively short period of time between the filing of the application for cer­tification and the terminal date. That same criterion cannot apply in the circumstances of this case. The union was certified in October 1985 and this application for termination was filed in April, 1987. In our view, there has been sufficient passage of time such as to bring this case out of that category of cases where the Board would be more concerned with sudden changes of heart. As well, the employees' reaction to the union's signing of the collective agreement is evidence that, occurring the period after certification, not only was there the matter of the layoffs but there were also intervening events which could readily explain a change of heart in the previous support for the union. We are satisfied that the facts relating to the origination and circulation of the petition would lead to a conclusion that the petition reflected the voluntary wishes of the signatories. Furthermore, we do not concur with the union's submission that the evidence related to the layoffs leads to the conclusion that there was either a perception of management involvement in the petition or fear of management reprisals.

9. For the foregoing reasons, the Board is satisfied that the petition filed in support of this application is a voluntary expression of the true wishes of the employees signing it. The Board is rather satisfied that not less than 45 percent of the employees of Huron Steel Fabricators (Lond­on) Limited in the bargaining unit represented by the respondent union at the time the applicat­ion was made, had voluntarily signified in writing that they no longer wished to represented by the respondent union as of May 11, 1987, the terminal date fixed for this application and the date 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 union under section 57(3) of the Act. The Board therefore directs that a representation vote be taken of the employees of Huron Steel Fabricators (London) Limited. Those eligible to vote are all employees of the employer employed in London, Ontario save and except foremen, persons above the rank of foreman, office and sales staff and students employed during the school vacation period 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.

10. Voters will be asked to indicate whether or not they wish to be represented by the respondent union in their employment relations with Huron Steel Fabricators (London) Limited.

11. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER JANIS SARRA;

1. I dissent from the majority decision. The test for any application for termination of bar­gaining rights under section 57 of the Act is that the Board must satisfy itself that signatures on a petition for termination are a voluntary expression of employee wishes. I do not believe the Board in this case can satisfy itself of this voluntariness.

2. There are three principle reasons for coming to this conclusion:

(a) The Board's previous findings of violations of sections 70 and 79(1) of the Act indicate that these violations, while found not to be motivated by anti-union animus, produced a chilling effect on this workplace to the point that it is difficult to ascertain the voluntary wishes of the employees.

(b) The history of collective bargaining and sequence of events which charactenize the labour relations in this workplace strongly indicates that this bar­gaining unit has never had sufficient chance to establish a collective bargain­ing relationship with the respondent.

(c) The evidence of the petitioner bringing this application was at times contradictory and vague. This combined with the cumulative effects of the fac­tors cited above makes it difficult to be satisfied that the petition was volun­tary.

For these reasons I would have dismissed the application.

THE CHILLING EFFECT OF THE SECTION 70 AND 79(1) VIOLATIONS:

3. The open period provided for in section 57 for termination applications provides a win­dow for employees who have had the benefit of unionization to assess the merits of representation by their particular bargaining agent. It assumes that there has been at least some period of an established collective bargaining relationship in which to assess. It is true that the sole issue before the Board in assessing a petition for termination is the voluntariness of the acts of signing, but it is equally true that the Board looks to the surrounding events to the extent that they relate to the voluntariness issue and the way in which they have shaped employees perceptions. It is precisely this which the majority in this case has neglected to assess.

4. The Board recently in Michel LeBlanc and Sudbury Mine Mill & Smelter Workers' Union v. Mansour Rockbolting Ltd. [1986] OLRB Rep. Oct. 1346, made some useful comments on termination applications at paragraph 11:

.But actual involvement by management in a petition for decertification or communications, direct or indirect, that failure to sign the petition carries with it negative employment conse­quences or which indicates that rejection of the union will bring forth benefits goes beyond mere opposition [to the union]. Such conduct does not have to be contemporaneous with the organi­zation, preparation or circulation of the petition; it can occur before - but it is required that either contemporaneous or prior conduct can reasonably be said to indicate to the employees that their support or non-support of a petition may influence their working conditions. Furthermore, management influence does not have to actual; it is the perception of the employees which counts. The issue is essentially this: is the climate in the workplace, over which the employer has control, such that the Board has a concern that the employees wilt not be able to express their wishes freely⁹

[my emphasis added]

5. The majority in the case before us dismisses the union's argument that the Board should consider the employer's actions relating to layoff and recall as a message to employees that it was ~ their economic interests not to continue supporting the union. The majority wrote at paragraph

"These layoffs were subject of a section 89 complaint filed by the union which alleged that the company had violated sections 64, 66, 70 and 79 of the Act. By decision dated May 1, 1987, a differently constituted panel of the Board dismissed the complaint as it pertained to sections 64 and 66 of the Act. That decision further held that there was no anti-union animus on the part of the company and the layoffs were the result of unavoidable lack of work."

6. The majority however fails to address the chilling effects of the violations this same panel of the Board did find, specifically violation of sections 70 and 79(1). To quote from the May 1, 1987 decision of the Board:

at paragraph 23:

By transferring some of the maintenance work previously performed by Mr. Stevense to mem­bers of management, and contracting out the balance of such work, the respondent altered the terms and conditions of Mr. Stevense's employment, or altered a privilege previously enjoyed by him, contrary to section 79(1) of the Act."

and at paragraph 24:

However, the Company contravened section 79(1) of the Act when, following the lay-off of Mr. Lyons, the Company contracted out all of its trucking requirements without the consent of the Union."

and at paragraph 26:

The respondent further contravened section 79(1) of the Act by hiring Todd Campbell and rehiring Sean McCardle, without the consent of the Union, while existing employees, capable of performing the work which those two persons were hired to do, remained on lay-off."

and at paragraph 28:

"However, the evidence does establish that foreman Mike Hrib attempted to intimidate or coerce Messrs. Galera and Gaal into refraining from exercising their rights under the Act by telling them that Herman Fratschko was going to take action against them, and that neither the Labour Board nor the union would protect them. During the course of his conversation with Mr. Gaal, Mr. Hrib laughed hysterically and gestured in a manner which was suggestive of a person hang­ing himself. Having regard to all of the evidence, we find that those words and actions by Mr. Hrib in his capacity as a member of management constituted a contravention by the respondent of section 70 of the Act."

7. In this case we have the employer violating section 79(1), shortly after the bargaining unit is certified, specifically taking actions which directly affect the workers' employment status through contracting out of work, and the hiring and recall of new and less senior employees while more senior workers remained on lay-off. Such actions communicate to workers that the union is incapable of protecting on properly representing them and it may negatively affect their employ­ment status if they have continued support for the union. The employer violation of section 70 is particularly relevant because the people negatively affected were known union supporters.

8. It is not enough for the majority in this case to say that the previous Board panel did not find anti-union animus in dismissing the section 64 and 66 complaints. That Board decision also usefully articulated the importance of section 79. It quoted AES Data Limited, [1979] OLRB Rep. May 368 as summarizing the purpose and effect of the "freeze" imposed by provisions of section 79:

"10. The purpose of section 70 [now section 79] is to maintain the prior pattern of the employ­ment relationship, in its entirety, while the parties are negotiating for a collective agreement. This ensures that they will have a fixed basis from which to begin negotiations, and prevents unilateral alterations in the status quo which might give one party an unfair advantage either from the point of view of bargaining or of propaganda. The status quo includes not only the existing terms and conditions of employment but also any other established benefits which the employ­ees are accustomed to receive, and which can therefore be considered to be "privileges"."

and Spar Aerospace Products Limited [1978] OLRB Rep. Sept. 859 which describes the effects of section 79:

"What it does mean is, simply, that an employer must continue to run the operation according to the pattern established before the circumstances giving rise to the freeze have occurred, providing a clearly identifiable point of departure for bargaining and eliminating the chilling effect that a withdrawal of expected benefits would have upon the representation of the employees by a trade union. The right to manage is maintained, qualified only by the condition that the opera­tion be managed as before."

9. The employer in this case accomplished exactly what the freeze provisions are designed to prevent. By negatively affecting the employment status of several employees in a small work­place, it produced a chilling effect to the point that employees would perceive that continued sup­port for the union would alter their employment status. Protections under the freeze provision are even more crucial in a newly certified workplace where employee perceptions are more vulnerable to employer propaganda and actions which signal the union cannot effectively represent the work­ers.

10. It is unfortunate that the decision by the Board on the unfair labour practice complaints came 18 months after the fact. This time lag may well have contributed to employee perceptions that the union was unable to properly protect them in a wake of employer actions which had affected their employment status. The Board directed an extensive list of remedies in its May 1st decision including cease and desist orders, the reinstatement with lost wages and benefits of Jan Stevense and William Lyons and the posting of the Board's finding of employer violations, but these remedies were directed after the petition was circulated.

THE UNION HAS NEVER HAD SUFFICIENT CHANCE TO ESTABLISH A COLLECTIVE BARGAINING RELATIONSHIP.

11. In the majority decision the Board correctly draws a distinction between a petition filed in the context of a certification application, and one filed in an application for termination. The majority relies on a decision of the Board, Ontario Hospital Association (Blue Cross), [1980] OLRB Rep. Dec. 1759 which says at paragraph 31:

"The sole issue before the Board in every case regarding a "petition" is the voluntariness of the acts of signing. The Board has often drawn a distinction between petitions which are filed in connection with an application for certification, and those which accompany an application for termination of bargaining rights. In the former case, the Board has said that it must be sensitive to the role which management influence, devious or otherwise, may have played in causing employees who have only recently signed a card in support of a union to subsequently sign a petition which opposes the union. In the case of a termination application, the Board is not less concerned about influence by the employer, but there may, as a practical matter, be any number of reasons, including the mere passage of time, to readily explain the employees' apparent change of hearts.

The majority of this panel then goes on to conclude at paragraph 13:

"The union was certified in October 1985 and this application for termination was filed in April, 1987. In our view, there has been sufficient passage of time such as to bring this case out of that category of cases where the Board would be more concerned with sudden changes of heart."

12. In any normal circumstances I would concur that an 18 month period is sufficient to move this case out of the category suggested by the majority. However, the sequence of events in this bargaining unit is such that it casts doubts upon the voluntariness of the petition. The same Blue Cross decision (supra) of the Board goes on to further characterize the issues before the Board in a termination application. At paragraph 32 and 33 the Board says:

The Board still has upon it the statutory obligation to ascertain from all the surrounding evidence whether their actions in signing can be taken to have been voluntary..."

"The Board, therefore, must go on to consider the evidence of the manner in which this peti­tion was circulated by its sponsors, and whether, based on that evidence, the Board has some reasonable assurance that the other employees who signed did so voluntarily. In doing so the Board must not lose sight, as indicated before, of the history of the present bargaining relationship and the time at which this application has arisen".

[my emphasis added]

13. The evidence in this case is of a workplace that has continually been under siege since the certification, and indicates that the union has never in the 18 month period been able to estab­lish a healthy collective bargaining relationship with the employer. The chronology of events is not insignificant. The union is certified on October 11, 1985. The employees are given indefinite lay-off notices on October 25, 1985. In November, 1985 notice to bargain is given and some lay-offs occur. On December 20, 1985 the entire bargaining unit is laid-off. On January 7, 1986 the first recalls occur including the recall of Paul Petrus who is the termination applicant now before us; Petrus and others with less seniority are recalled first and unfair labour practices are filed by the union alleging violations of section 64, 66, 70 and 79. The hearings by the Board into the unfair labour practice span the time period to January 26, 1987 the last day of hearing. Meantime on October 14, 1936 Petrus circulates the first termination petition which is subsequently not filed on advice of his counsel. The union applies for the direction of first contract arbitration under section 40(a) of the Act and after settlement talk withdraws the application and signs a collective agreement on Octo­ber23, 1986. In early April, 1986 the majority of the bargaining unit is recalled and in this week an₉ a half period the second termination petition is circulated, again at Petrus' initiation. On May 1, 1987 the Howe panel of the Board issues a decision on the unfair labour practices. On May 19, 19~7 this panel of the Board convenes the hearing on this termination application.

14 So the history of the bargaining relationship, as the Blue Cross decision (supra) directs us not to lose sight of, is a history of lay-offs, contracting out, shutdown of one plant, the filing and litigation of unfair labour practice complaints, employer violations of section 70 where the Board ruled that the foreman sought to intimidate or coerce some employees into refraining from exercis­ing their rights under the Act. It is difficult to believe that in light of this history, in the short eight­een months since certification that the union has had sufficient time to establish a healthy collective bargaining relationship, the merits of which the employees can freely assess in terms of representa­tion of their interests. That surely is the purpose of section 57 and our tests of voluntariness.

15. It is a matter of public record that labour relations have still not been constructively established in the workplace. On August 31, 1987 after the hearing of our panel on the termination application, the Howe panel was reconstituted because the compensation for section 79(1) violations of the May 1, 1987 decision had not yet been settled or paid and the Board made a further ruling on this compensation.

16. I am not satisfied, given the cumulative effect of the history of the bargaining relation­ship that any petition circulated in the environment created by these employer actions could have reflected the voluntary wishes of the employees. To quote the Board in Otto's Deli, [1980] OLRB Rep. Nov. 1673 at paragraph 22:

"None of these factors operate independently and in our view their cumulative effect would be sufficient to suggest to the average employee that their employer actively wished them to reject their union and that they might suffer adverse employment consequences if they chose not to do so.

EVIDENCE OF THE APPLICATION PETITIONER

17. I see no particular need to discuss at length the evidence of the Mr. Petrus, the appli­cant in this case because the above cited reasons have already led me to conclude the petition is involuntary. However, I wish to note that it is not his evidence of legal fees on arrangement of counsel (which is the focus of the majority comments) which concerned me. Rather, I was left doubting the credibility of the applicant given his inconsistent evidence. To give just one example as illustration, Mr. Petrus' evidence in cross examination was that there were no first "papers" against the union on petition; then he stated he circulated that petition but off company property; and finally his evidence was that at least in one case he solicited and received a signature on com­pany time and premises. This contrasts with the credible testimony of Brian Judge hired after the union was certified and not involved in any campaign for or against the union. Judge's evidence was that he was requested by Petrus on two occasions in October 1986 and signed two different documents both on company time and property and that he assumed he'd be unemployed if he didn't sign. I also found Petrus' evidence on recruitment of employees to sign this petition extremely vague.

18. It is unnecessary to comment on whether these factors in themselves would cause the Board to decide the petition was involuntary~ because it is clean that the cumulative effects of all the factors in the bargaining relationship are sufficient to cast serious doubt on the voluntariness of the petition.

19. For these reasons, I would have dismissed the application.