Ontario Labour Relations Board
[1988] OLRB Rep. February 162
2484-87-R Labourers' International Union of North America, Ontario Provincial District Council, Applicant v. Masters Construction Ltd., Respondent
BEFORE: Harry Freedman, Vice-Chair, and Board Members W. N. Fraser and C. A. Ballentine.
APPEARANCES: David Strang for the applicant; J. Wigley and M. Lyle for the respondent.
DECISION OF VICE-CHAIR HARRY FREEDMAN AND BOARD MEMBER W. N. FRASER; February 5, 1988
The name of the respondent is amended to read: "Masters Construction Ltd.".
This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act.
The Board finds that Locals 183, 247, 491, 493, 506, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089 are trade unions within the meaning of section l(l)(p) of the Labour Relations Act. The Board further finds that they are constituent trade unions of the applicant.
The Board further finds that the applicant is a council of trade unions within the meaning of section 1(1)(g) of the Labour Relations Act.
The Board is satisfied that the constituent trade unions of the applicant have vested appropriate authority in the applicant to enable it to discharge the responsibilities of a bargaining agent within the meaning of section 10(1) of the Labour Relations Act.
The Board also finds that the applicant 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 September 30, 1983, 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.
The Board further finds that this is an application for the 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:
144.-(1) 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.
Having regard to the agreement of the parties and pursuant to section 144(1) the Board finds 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 of the construction industry 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 Durham, and the Regional Municipality of Durham (except for the Towns of Ajax and Pickering) the geographic Township of Cavan in the County of Peterborough and the geographic Township of Manvers in the County of Victoria, 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.
The parties agreed that there were seven persons working as construction labourers for the respondent on the application date. The applicant filed documentary evidence of membership on behalf of four of those seven persons. Counsel for the respondent submitted that two of those seven persons should not be considered employees of the respondent and any membership evidence filed by the applicant in respect of those two persons should be disregarded. Following the submissions of counsel for the respondent, the Board briefly recessed and returned and gave the following oral ruling:
Counsel for the respondent submits that two persons who were working for the respondent on the application date were not legally employed by reason of section 18 of the Regulations under the Immigration Act. Counsel in essence argues that if the two persons cannot be employed legally in Canada, they ought not to be considered employees of the respondent for purposes of this application and if the applicant filed membership evidence in respect of those two persons, that membership evidence should not be considered by the Board. Counsel agreed that in the absence of any consideration of the Immigration Act or the Regulations under that Act, the two persons in question were at work and were employed by the respondent on the application date.
In our opinion, the Board should not inquire into whether a person who is employed by an employer is a person who was legally employed under the Immigration Act. The Board is not the appropriate place to determine whether someone is lawfully entitled to work in Canada. While we have assumed that these two persons were not lawfully employed, we believe that their status under the Immigration Act is irrelevant to our determinations under the Labour Relations Act. If a person is employed, then whether that employment is lawful is a matter for other forums or agencies and not ours.
Therefore, we are satisfied that the two persons in question were employees of the respondent at the relevant times and if the applicant filed membership evidence on their behalf, then that membership evidence will be relied on by the Board, subject to the other charges that the respondent has filed about the membership evidence filed by the applicant in this case.
The Board subsequently received evidence relating to allegations of misrepresentation and intimidation in the collection of the membership evidence. Only one of the four witnesses called by the respondent in support of its allegations testified that the applicant's organizers told him that if he did not join the applicant he would lose his job. Mr. Rui Gemarais, a construction labourer who is no longer employed by the respondent and who appeared at the hearing to testify pursuant to a summons to witness, said that the two union organizers had spoken to him three times on the same day. They discussed the wage rates that he would be paid and the benefits he would receive through the union. Mr. Gemarais told them that he was not interested in joining the union. The organizers persisted and he was then told that if he did not join the union he would be fired because his employer will only have employees affiliated with the union working for it. Mr. Gemarais then told them that he would speak to his boss about whether he could lose his job if he did not join the union. Mr. Gemarais' evidence was not shaken at all during a rigorous cross-examination by counsel for the applicant.
Edward Ferreira, a representative of Local 506 of the Labourers' International Union of North America, a constituent local of the applicant, testified that he had spoken with Mr. Gemarais four times. When he was asked to relate the conversations he had with Mr. Gemarais, he mentioned only three occasions that he had spoken with Mr. Gemarais. Mr. Ferreira denied threatening Mr. Gemarais. Mr. Ferreira did not testify about the contents of the conversations he had with Mr. Gemarais, other than to say that he asked Mr. Gemarais to join the applicant and that Mr. Gemarais had said no. Mr. Ferreira also testified that Mr. Gemarais said he would speak to his boss about the union, which was consistent with the testimony of Mr. Gemarais.
The evidence adduced through the respondent's other witnesses indicated that the organizers had told other employees that all of the company's employees had joined the applicant and that they should also join the applicant at this time. They also testified that the organizers had told employees that a foreman had joined the applicant. Counsel for the respondent submitted that these were misrepresentations that affected the employees' ability to freely decide whether or not to join the applicant.
The allegations of misrepresentation alone do not cause us to disregard or to have doubts about any of the membership evidence filed. We do not believe that the employees' ability to freely decide whether to join the applicant was in any way affected. The misrepresentations did not relate to the effect or purpose of the membership evidence. The evidence of intimidatory or coercive statements made by the applicant's organizers did not relate to any of the employees except Mr. Gemarais.
While we do not accept the respondent's submissions with respect to the allegations of misrepresentation, the allegation of intimidation is another matter. The Board was faced with conflicting evidence as to whether one employee was told that if he did not join the union he would lose his job. This is a matter of credibility that must be resolved on the balance of probabilities. Having regard to all of the usual factors, and also taking into account that Mr. Gemarais was testifying under a subpoena and was, as of the hearing, no longer employed by the respondent, we prefer the evidence of Mr. Gemarais over the evidence of Mr. Ferreira. It is unlikely, in our opinion, that the conversations with Mr. Gemarais only lasted a minute or two as Mr. Ferreira suggested. Furthermore, we believe it is likely that the wages and benefits available were discussed, yet Mr. Ferreira's testimony did not indicate that. Additionally, there was no apparent reason for Mr. Gemarais to colour his evidence while Mr. Ferreira, being an experienced organizer, was well aware of the consequences should the Board find that a union organizer told an employee that he or she may lose his or her job if he or she does not join the union.
Additionally, it seems to us more probable that Mr. Gemarais would speak to his boss about the union if there was some job related concern that he had about the union. Simply being asked to join the union and saying no would not, in and of itself, likely raise a concern which would cause an employee to speak to his or her employer about the union. There was no evidence to suggest that the respondent had in any way communicated with the employees about the union or what consequences might result from joining the union before Mr. Gemarais spoke with Mr. Ferreira.
It may be that Mr. Ferreira was truthful when he testified that he did not actually threaten Mr. Gemarais with the loss of his job if he did not join the union. Mr. Ferreira may have thought that the statements he made to Mr. Gemarais were not threats. Nevertheless, Mr. Gemarais' evidence was clear as to what Mr. Ferreira told him. In the absence of any evidence from Mr. Ferreira as to what he actually said to Mr. Gemarais, we have found that Mr. Ferreira advised Mr. Gemarais that if he did not join the union he would lose his job.
Counsel for the union argued that Mr. Gemarais never actually signed a union card and thus submitted that there was no evidence that any membership evidence was obtained by threats of job loss. Whether an employee actually resists joining a union notwithstanding that an organizer used the probability of the loss of that employee's job for failing to join or as a reason to join is not determinative of the issue. The Board is concerned with whether, on an objective assessment of the circumstances, an applicant seeking certification solicited membership evidence using improper or intimidatory tactics.
The Board has consistently ruled that a trade union cannot induce employees to support it in an organizing campaign by linking an employee's continued employment with joining the union during an organizing campaign or certification proceeding. In T & F Construction Equipment Rental Limited, [1983] OLRB Rep. Dec. 2116 the Board wrote at 2122:
"Membership evidence is the principal evidence in a certification proceeding. It is in the nature of documentary hearsay and, in order not to disclose the identify of the persons on whose behalf it has been tendered, the evidence is not subjected to cross-examination. Therefore the Board has always required that it be free of any taint. Where taint is alleged because of the conduct and representations made during the course of soliciting the membership evidence, the Board has a two-fold concern with respect to the nature of the conduct and representations. First, the Board must be satisfied that the applicant, through its representations and supporters, has not engaged in conduct which violates the Act, particularly section 70. Second, the Board, must be satisfied that the membership evidence was not obtained by procedural irregularities or misrepresentation. See Alex Henry & Son Ltd., [1977] OLRB Rep. May 288.
In view of that nature of the Board's concern, its practice over many years has been not to give any weight to membership evidence where it has been obtained by threats of loss of employment. It is well-established in the Board's jurisprudence that a threat of loss of job is intimidation contrary to section 70 of the Act. See L. M. Welter Limited, [1965] OLRB Rep. April 34 and intermodal Marine Surveys Ltd., [1979] OLRB Rep. April 321."
See also VRlWesson Limited, [1968] OLRB Rep. Nov. 811 at 814; Chemical Corporation of Canada Limited, [1980] OLRB Rep. Dec. 1805 at 1808-09; Chemtrusion Inc., [1979] OLRB Rep. Dec. 1150 at 1151; and Aurora Steel Service Limited, [1986] OLRB Rep. March 301 at 303.
In this case, the misrepresentations alleged did not relate to the character or quality of membership in the applicant and did not, in any way, affect an employee's ability to freely decide whether or not to join the applicant. That is not the same situation with respect to the conversations between Mr. Ferreira and Mr. Gemarais which was in our view intimidatory. While the Board would ordinarily not place any weight on the membership evidence collected by an organizer who threatened employees with the loss of employment and who was also a union official, in this case, we only received evidence about such a threat in relation to one employee. Two other employees called by the respondent as its witnesses testified about what was said to them by the union organizer. Neither of them even suggested that the union organizers had told them that their jobs were in jeopardy if they did not immediately join the applicant. Furthermore, Jorge Machado, a site supervisor and assistant superintendent of the respondent also testified that the applicant's organizers had approached him. Nothing was said to him relating a lack of union membership to a loss of employment. In these circumstances, we are not prepared to find that Mr. Ferreira used that suggestion in collecting all or a majority of the membership evidence filed. Nevertheless, the evidence of Mr. Gemarais causes us to have considerable doubt as to whether some of the other employees of the respondent may have joined the applicant after being told that they would lose their jobs if they did not join.
Therefore, having regard to the foregoing, the Board is satisfied 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 one or other of the constituent trade unions of the applicant and therefore, pursuant to section 10(3) of the Labour Relations Act, are deemed to be members of the applicant on December 22, 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 said Act.
In view of the doubt created as to whether the membership evidence filed by the applicant represents the true wishes of the employees with respect to being represented in collective bargaining by the applicant, the Board hereby exercises its discretion under section 7(2) of the Labour Relations Act to direct a representation vote.
A representation vote will be taken of the employees of the respondent in the bargaining unit. All those employed in the bargaining unit on the date hereof who are so employed on the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether they wish to be represented by the applicant in their employment relations with the respondent.
This matter is referred to the Registrar.
DECISION OF BOARD MEMBER C. A. BALLENTINE;
I disagree with the majority in their directing a representation vote, solely on the evidence of one of four company witnesses, all of whom were under subpoena. None of the employees that signed union cards came forward and made any charges against the union's organizers, and there was no statement of desire opposing the union by the employees.
This Board should weigh very carefully allegations or charges made exclusively by employers in certification applications in recognition of employers' interests in blocking the certification of unions.
This employer attempted to have employees excluded for the purpose of the bargaining unit count. These were employees that the employer admitted it had employed illegally under section 18 of the regulations under the Immigration Act. Secondly this employer made a series of charges against the union's membership evidence. The majority answered the alleged misrepresentation charges in paragraph 13 of its decision and states:
The allegations of misrepresentation alone do not cause us to disregard or to have doubts about any of the membership evidence filed. We do not believe that the employees' ability to freely decide whether to join the applicant was in any way affected. The misrepresentations did not relate to the effect or purpose of the membership evidence. The evidence of intimidatory or coercive statements made by the applicant's organizers did not relate to any of the employees except Mr. Gemarais.
Notwithstanding this finding, the majority go on to direct a representation vote.
Because of the admitted illegal acts of the employer, (hiring illegal immigrants and then releasing them when the union came along), I am convinced that the true wishes of the employees who had signed union cards by the application date will not now be ascertained. Out of a total of seven employees determined to be in the bargaining unit, three have left, the two employees who the company had illegally employed and Mr. Gemarais, who voluntarily quit the company. Therefore the employees of this employer who will be eligible to vote will be drastically changed from the employees who had all voluntarily joined the union by the date of the application. Considering also that this is a construction industry application the size of the bargaining unit on the date this decision is released may bear no resemblance to the bargaining unit that existed on the application date. The employer's attempt to rely on his own illegal conduct and the challenging of membership evidence which the majority has found has not affected the expression of the wishes of the employees should not now frustrate that very expression.
When this Board must decide on the balance of probabilities it should place substantial weight on the expressed views of the employees. The concept that an employer should enjoy equal or greater rights over the expressed wishes of employees to join a union of their choice ignores one employer's interest in opposing the application. This Board has a duty under the Preamble of the Act to encourage free collective bargaining not discourage it.
On the membership evidence filed, more than fifty-five per cent of the employees of the respondent in the bargaining unit are deemed to be members of the applicant on the application date and therefore indicate sufficient support for the applicant to have been certified without a vote.