Evaristo Romero v. United Brotherhood of Carpenters and Joiners of America, Local 27, 1988 CanLII 3651

[1988] OLRB Rep. July 674

3227-87-R Evaristo Romero, Applicant v. United Brotherhood of Carpenters and Joiners of America, Local 27, Respondent v. Ideal Railings Limited, Intervener

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members J. A. Ronson and H. Peacock.

APPEARANCES: Michael Horan and Evaristo Romero for the applicant; Douglas J. Wray and F. D'Abbondanza for the respondent; D. B. Francis and James Church for the intervener.

DECISION OF THE BOARD; August 2, 1988

I

1. This is an application under section 57 of the Labour Relations Act to terminate the bargaining rights which the respondent union currently holds for a bargaining unit described as follows:

[All employees of Ideal Railings Limited working at and out of Metropolitan Toronto, save and except foreman, persons above the rank of foreman, office, sales and clerical employees.

The application raises three issues: whether the proceeding is timely, having regard to section 61(2) of the Act; whether the applicant, Evaristo Romero, was an employee in the bargaining unit at the relevant time and therefore had "status" to bring the application; and, whether the document filed in support of the application represents the voluntary wishes of the individuals who signed it. We shall deal with each of those issues, in turn. The provisions of the Labour Relations Act to which reference will be made are as follows:

57.-(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 it 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.

61.-(2) Where notice has been given under section 53 and the Minister has appointed a conciliation officer or a mediator, no application for certification of a bargaining agent of any of the employees in the bargaining units as defined in the collective agreement and no application for a declaration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit as defined in the agreement shall be made after the date when the agreement ceased to operate or the date when the Minister appointed a conciliation officer or a mediator, whichever is later, unless following the appointment of a conciliation officer or a mediator, if no collective agreement has been made,

(a) at least twelve months have elapsed from the date of the appointment of the conciliation officer or a mediator; or

(b) a conciliation board or a mediator has been appointed and thirty days have elapsed after the report of the conciliation board or the mediator has been released by the Minister to the parties; or

(c) thirty days have elapsed after the Minister has informed the parties that he does not consider it desirable to appoint a conciliation board, whichever is later.

II

2. This application was filed on March 1, 1988. On that same day the Minister of Labour appointed a conciliation officer. The union argues that, in accordance with section 61(2), the appointment of the conciliation officer precludes the current challenge to its status as bargaining agent.

3. We do not agree. The plain words of section 61(2) stipulate that no termination application can be made AFTER March 1st, the date when the Minister appointed a conciliation officer. The section does not use the terms "on or after", and therefore must be construed as prohibiting a challenge to the union's status as bargaining agent only after March 1st; that is from March 2nd onwards. Where, as here, both the termination application and the appointment of a conciliation officer occurred on the same date, it cannot be said that the application was made after the date when the conciliation officer was appointed so as to attract the bar contemplated by section 61(2).

4. We find support for this view in Riverdale Hospital, [1981] OLRB Rep. June 778 where the Board had to consider the effect of what was then section 9(2) of the Hospital Labour Disputes Arbitration Act. That section (modelled on the language of section 61(2)) provided that "an application for certification of a bargaining agent of any of the employees of the hospital in the bargaining unit defined in the collective agreement ... shall not be made after the day upon which the agreement ceases to operate or the day upon which the Minister appointed a conciliation officer, whichever is later ...". The Board considered that language and said this:

The application and copy of the letter appointing the conciliation officer which was filed with the respondent's reply establish, prima fade, that the application was made on the same date as the conciliation officer was appointed. Since the collective agreement expired December 31, 1980, the date of the appointment of the conciliation officer is the date by which timeliness is to be determined pursuant to section 9(2). Since the application was made on the same day as the officer was appointed and not "... after the day upon which ... the Minister appointed a conciliation officer ..." the Board finds the application to be timely within the meaning of subsection (2) of section 9 of the Hospital Labour Disputes Arbitration Act.

There is no material distinction, in our view, between the word "day" found in section section 9(2) of the Hospital Labour Disputes Arbitration Act and the word "date" found in section 61(2) of the Labour Relations Act. We find that this application is timely.

III

5. Section 57(2) of the Act provides, in part, that "any of the employees in the bargaining unit defined in a collective agreement may ... apply for a declaration that the trade union no longer represents the employees in the bargaining unit". In the union's submission Mr. Romero, the applicant, is not an employee in the bargaining unit within the meaning of section 57(2). The union takes this position because Mr. Romero has not paid union dues for some time and it is said that he is therefore not a member in good standing of the union as is required by the collective agreement. Section 6 of that collective agreement reads as follows:

ARTICLE 6- UNION SECURITY

6.01 All present employees as a condition of employment shall remain Union members in good standing, if they are already Union members and if they are not, shall become Union members within 30 days after the signing of this Agreement, and shall remain members in good standing. All new employees shall, as a condition of employment, become and remain members in good standing of the Union within 30 calendar days of employment.

6.02 New employees when hired shall be sent to the Union office to obtain a referral slip.

6.03 Present employees who are not yet members of the Union shall within 30 days be required to pay an initiation fee and to become a Union member. New employees upon completion of their probationary period shall be required to pay an initiation fee to become a Union member.

Students employed during the school vacation period shall only e required to obtain a work permit from the Union.

6.04 In order to maintain membership in good standing in the Union, employees must pay monthly Union dues and assessments as fixed by the Union. Such monies must be paid by the employees at the Union office.

6.05 The Employer shall discharge any employee who fails to comply with any of the provisions of this Article.

The union submits that Mr. Romero is not fulfilling an essential condition of employment and, therefore, should not be treated as an employee in the bargaining unit for purposes of section 57 of the Act.

6. The employer points out that a grievance respecting an alleged violation of Article 6 was filed in November 1987. It resulted in this settlement, dated April 11, 1988 (i.e. more than a month after the filing of this application):

AGREEMENT

BETWEEN: IDEAL RAILINGS LIMITED

(the "Employer")

• and -

UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA LOCAL 27

(the "Union")

Whereas the Union filed a grievance dated November 9, 1987 and referred said grievance to arbitration;

And whereas the parties wish to resolve the grievance;

Now therefore the Union and the Employer agree as follows:

(1) The Employer agrees that it is bound by the collective agreement with the Union.

(2) The Employer shall provide a list of all its current employees setting out their names, date of hire, date of termination (if applicable), Social Insurance Number, address, classification and wage rate. This list shall be provided to the Union by no later than April 20, 1988.

(3) The Union will then have the opportunity to seek voluntary compliance by the employees with their obligation under Article 6 of the collective agreement between the parties. The Union shall advise the employer by no later than May 4, 1988 of the names of any employee who has still not complied with Article 6 of the collective agreement.

(4) The Union and the Employer shall then provide a joint notice to any employee who has not complied with Article 6 that they shall be discharged if they do not comply with Article 6 by no later than May 11, 1988.

(5) The Employer agrees effective from the date hereof to send all new employees when hired to the Union office to obtain a referral slip, as provided for in Article 6.02 of the collective agreement.

(6) The parties agree to adjourn the arbitration scheduled for April 11, 1988. If there is any dispute concerning the interpretation, application or administration of this Agreement, such dispute may be referred back to the arbitrator.

(7) This Agreement is made without prejudice to the position of either party in any other application, complaint, action, grievance or any other proceeding.

Dated at Toronto this 11th day of April 1988

FOR THE EMPLOYER: FOR THE UNION: F. D'ABBONDANZA "J. D. Church" "F. D'Abbondanza"

As of the filing of this termination application, no move had been made by the trade union under Article 6.05 of the agreement to compel the employer to discharge Mr. Romero or any other "employee". It should also be noted that Mr. Romero was an employee of the intervener long before the union acquired its bargaining rights and that he was only one of a large number of employees who had failed to pay union dues. Indeed, it is conceded that at the time this application was made only a small number of the intervener's employees were paying union dues and therefore were union members "in good standing".

7. The difficulty with the union's position is that it is inconsistent with the terms of the collective agreement upon which it is purportedly based. That agreement - and in particular Article 6.05 - makes it perfectly clear that the obligation of employees with respect to union membership and the payment of dues, is distinct from "employment" in the bargaining unit. An employee who fails to comply with the obligations imposed by Article 6 may be subject to discharge, but until such discharge is actually effected s/he remains an employee in the bargaining unit defined above. The applicant and other recalcitrant dues payers continue to work for the employer, for wages, much as they did before, and they continue to meet the literal wording of the recognition clause and what it means, at law, to be an "employee". There is no suggestion here that the employer has somehow manipulated the employee complement so as to avoid its contractual obligations, nor is the employer in this case obliged to resort to the union hiring hall in order to fulfill its employee requirements. There is no evidence that the applicant or anyone else was hired contrary to the terms of the collective agreement, and no issue of the "inchoate" rights of out-of-work union members who should have been hired if the terms of the collective agreement had been followed. At most, one has a failure by certain employees to fulfill obligations imposed upon them personally by the terms of the agreement, and a decision by the union not to require the discharge of such employees as contemplated by Article 6.05. The principles and the concerns expressed in April Waterproofing Limited, [1980] OLRB Rep. Nov. 1577 have no application in the circumstances of this case. We are satisfied that the applicant was an employee in the bargaining unit at the relevant time.

IV

8. In order to determine whether the employee statement opposing the union represents the voluntary wishes of those who signed it, the Board heard considerable evidence, from many witnesses, about its organization, preparation and circulation (see Rule 73). It is fair to say (and conceded by all parties) that the testimony in this regard was far from satisfactory. The various witnesses gave quite contradictory versions of precisely when the petition was signed, where it was signed and whether anything was said, at the time, about the applicant's intention to retain a solicitor to represent the objecting employees' interests or how the costs of this proceeding would be shared. The employee witnesses had different recollections about whether they had signed in the parking lot, or the lunch area, or the washroom, or during a break, or during working hours. Furthermore, much of the evidence was given with the assistance of an interpreter, and the frequent use of nicknames or colloquial references made it necessary for the Board to require the brief presence of some of the excluded witnesses in order that their identity could be confirmed.

9. Some of the inconsistencies and contradictions can no doubt be traced to the usual difficulty encountered by untrained witnesses in recalling events which occurred some months before and were not considered significant at the time. There was also a tendency for partisans (whether consciously or unconsciously) to cast events in the pattern most favourable to their particular positions. Nevertheless, when the evidence is considered as a whole, certain important themes emerge.

10. In the first place, in the weeks and months preceding this application, there was considerable dissatisfaction among employees about the quality of representation they were receiving and the benefits to be gained by continued union representation with its consequent obligation to pay union dues. By the time this application was made, only a minority of employees remained union members in good standing; moreover the concern of the others was heightened by the union~ s threat in November 1987 to obtain the discharge of any employee who did not pay the amounts, including arrears, required by Article 6 of the collective agreement. Under Article 6.04 of the collective agreement each employee in the bargaining unit is required to go, once a month, to the union hall to pay his/her dues (there is no automatic "check-off' by the employer). There is no doubt that at the time of this application a number of employees either found that payment method inconvenient, or otherwise questioned the utility of continued support for the union.

11. There is no evidence of any managerial involvement in the origination, preparation or circulation of the petition opposing the trade union. There is no evidence that the employer has provided any financial or other support to the applicant, or taken a public position in this matter one way or the other. There is no evidence to support the conclusion that the employer was or could reasonably have been believed to be behind the application. None of the several union witnesses who gave evidence suggested that there was actual management involvement or even that management involvement was feared because of the circumstances in which they themselves signed the anti-union petition. These union witnesses, who originally supported this application, changed their minds later, but there was not the slightest suggestion that, at the time they signed the anti-union petition, they were not reflecting the same generalized dissatisfaction which the evidence suggests was shared by many other members of the bargaining unit. The union witnesses contradicted Mr. Romero as to the precise time or place where they had signed the petition, but they did not say that they were influenced or worried by the actual or perceived hand of management when they did so; and they did not register any concern about their job security or fear that their support or opposition to the union would be communicated to their employer and might result in reprisals. Nor would the evidence before us support such apprehension. Yet the union now urges that we find that the anti-union petition is "involuntary".

12. Counsel for the union in his thorough and thoughtful argument carefully reviewed the evidence, pointing out its contradictions and inconsistencies, and drew the Board's attention to all of the relevant jurisprudence. However the basic question remains: did the employees who signed the anti-union petition in late February 1988 do so voluntarily? We are satisfied that they did. Notwithstanding the difficulties with some of the testimony, we are satisfied on the basis of the totality of the evidence before us that forty-five per cent of the employees in the bargaining unit at the time the application was made, have voluntarily signified in writing that they no longer wish to be represented by the respondent trade union on March 22, 1988, 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.

13. The Board directs that a representation vote be taken of the employees of Ideal Railings Limited employed in the bargaining unit described in paragraph 1 above. All those employed in that bargaining unit on the date hereof who are so employed on the date the vote is taken will be eligible to vote.

14. Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Ideal Railings Limited.

15. The matter is referred to the Registrar.