[1988] OLRB Rep. June 546
2359-87-R Local 47 Sheet Metal Workers' International Association, Applicant v. 99538 Canada Inc., carrying on business as B.C. Meck, Respondent v. René Piché on his own behalf and on behalf of a group of employees of B.C. Meck, Intervener
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. N. Fraser and I. Redshaw.
APPEARANCES: David Jewitt, Bob Belleville and Ross Mitchell for the applicant; Jacques A. Emond and Bernard Carbonneau for the respondent; Walter T. Langley and René Piché for the intervener.
DECISION OF THE BOARD; June 16, 1988
1The Board issued a decision dated March 3, 1988, in this application for certification made under the construction industry provisions of the Labour Relations Act in which the Board found the following unit of employees of the respondent to constitute a unit of employees appropriate for collective bargaining:
All journeymen sheet metal workers and registered sheet metal 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 journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in all other sectors in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, save and except non-working foremen and persons above the rank of non-working foreman.
The Board was unable to dispose of the application for certification because of a disagreement of the parties about the persons who were at work in the bargaining unit on the date of making of the application. The employer had filed a list of seven persons, three of whom the applicant claimed were not lawfully at work in the unit described above on the application date and, therefore, should not be included in the unit. They were Gabrielle Brisson, David Lavergne and Ben Marenger. Furthermore, a petition in opposition to the application had been filed with the Board which might be relevant in determining whether the applicant ought to be certified without need of a representation vote.
2Prior to the application coming back on for hearing before the Board on April 14, 1988, with respect to the remaining issues, the parties agreed that Brisson was a registered sheet metal worker at work in the unit on the date of making of this application. At the hearing on April 14, 1988, the Board found that Lavergne and Marenger were not employees in the bargaining unit. The reasons for the Board's decisions were to be issued in writing at a later date. The Board also received the evidence and representations of the parties respecting the origin and circulation of the petition and reserved its decision as to whether the petition represented the voluntary wishes of the employees who signed it. By decision dated April 22, 1988, for reasons which were to be given later in writing, the Board issued certificates to the applicant pursuant to section 144(2) of the Act.
3These are the Board's reasons for issuing certificates to the applicant and for its decision given orally in the hearing on April 14th.
4The question of whether Lavergne and Marenger should be included in or excluded from the bargaining unit described above revolves around whether they are either a journeyman or a registered apprentice in the sheet metal trade within the meaning of the Apprenticeship and Tradesmen's Qualification Act, R.S.O. 1980 Chapter 24. The applicant says they are not and should be excluded from the bargaining unit and the respondent takes the position that they satisfy the requirements of that Act. The trade of sheet metal worker has been designated a certified trade (O.R. 298/73) and is a trade for which an apprenticeship training program is established. Therefore, except for certain exemptions not here relevant, it is an offence under section 11 of the Apprenticeship and Tradesmen's Qualification Act for any person to be employed in the trade unless the person holds a subsisting certificate of qualification or is an apprentice in the trade. When the Board is faced with this kind of issue in an application for certification under section 144(1) of the Labour Relations Act it has found it appropriate to include in a bargaining unit, such as the one described above, only employees who either hold a certificate of qualification in the trade or are apprentices in the trade. In the case of the unit described herein, the Board would include in the unit only employees who are either journeymen sheet metal workers or registered sheet metal apprentices (Irvcon Roofing & Sheet Metal (Pembroke) Ltd., [1981] OLRB Rep. Nov. 1594).
5Prior to the date of making of this application, the respondent had written to the Ministry of Skills Development expressing the wish "...to register Mr. Lavergne for his Ontario licence and Mr. Marenger in the Ontario apprenticeship program." and requesting advice "…as to the procedure that we must follow.". Respondent counsel submitted that Lavergne and Marenger were registered in the Province of Québec as, respectively, a journeyman and an apprentice in the sheet metal trade. The respondent had done everything possible to qualify them under the Apprenticeship and Tradesmen's Qualification Act and their subsequent registration under that Act would only be a continuation of the process commenced by the respondent. Therefore, counsel argues that they were properly at work in the bargaining unit on the date of making of this application.
6There is no evidence before the Board that either Lavergne or Marenger held a subsisting certificate of qualification in the sheet metal trade or was a registered apprentice in the trade within the meaning of the Apprenticeship and Tradesmen's Qualification Act, or fell within any of the exceptions in sections 9 and 11 of that Act. Therefore, we have no evidence that they were lawfully engaged in the trade on the date of making of this application. The focus of the Board's concern expressed in Irvcon Roofing, supra, and other Board decisions which have followed it, is that persons who are employed in a compulsory certified trade be lawfully so engaged in order to be considered employed in a bargaining unit described in compliance with section 144(1) of the Labour Relations Act. Since Lavergne and Marenger were not lawfully so engaged on the date of making of this application, the Board finds that they are not employees in the bargaining unit. It was for these reasons that the Board gave its oral decision at the hearing on June 14, 1988.
7In the result, the Board finds that there were four persons employed in the bargaining unit described above on November 19, 1987, the date of making of this application. Three of those four employees were members of the applicant, within the meaning of section 1(1)(l) of the Act, as at December 9, 1987, the terminal date of the application. The Board is satisfied, therefore, that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on December 9, 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 purposes of ascertaining membership under section 7(1) of the said Act.
8As the Board has noted, however, a petition opposing this application has been filed. Two of the three employees who are members of the applicant signed the petition. The petition raises the question of whether, on the terminal date, the applicant continued to enjoy sufficient support amongst its members in order to be certified without the taking of a representation vote. Should the Board find that the petition represents the voluntary wishes of the employees who signed it, the Board would exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote in order to resolve that question. It was for that purpose that the Board inquired into the origin of the petition and the manner in which each signature on it was obtained.
9René Piché personally prepared the petition and obtained all of the signatures on it. He filed it with the Board through his solicitor, who also filed an intervention. Nothing in the manner in which Piché prepared the petition, obtained the signatures and filed the petition with the Board would cause the Board to conclude that the respondent either knew about or was involved with Piché’s activities. Nor is there any evidence from which the Board is prepared to infer that the respondent was involved with the petition. When it comes to assess whether the petition expresses the voluntary wishes of the employees who signed it soon after having applied to be members of the applicant, the Board is concerned, however, about certain statements which Piché made to employees when he approached them to sign the petition. He told them that he knew that the owner of the respondent did not want a union and would "close up shop" if a union came in. Piché also told the employees that he did not want a union either because he thought the owner would close the business, putting him out of work.
10Although Piché is an employee in the bargaining unit, his remarks are not those of just any other bargaining unit employee. Piché is a working foreman and was the only working foreman with responsibility for the respondent's site employees at the times material to the petition. On the evidence before the Board, he does not exercise managerial functions, but he was responsible for checking the jobs on which the site employees were working and for relaying instructions to them from the two managers to whom he reported. These were Rene Caya, manager of the respondent's operations and Marc Robart, the respondent's senior estimator. They relied on Piché to relay their instructions to the site crews and when Piché did so, he made sure that the employees knew the instructions were from either Caya or Robart and were not his instructions. He also conveyed job-related messages from the site crews to Caya and Robart. Piché was the only person who directly supervised the site crews. Clearly, this gives Piché a different role in the respondent's operations than the other bargaining unit employees and one which would give fellow employees reasonable cause to believe that he was expressing the owner's intentions when he told them that the owner did not want a union and would close up shop if one came in. His role might also give them reasonable cause to be concerned that a refusal to sign the petition might be made known to the respondent and being taken as support for the union, for which they might suffer reprisals.
11In these circumstances, employees who initially had supported the applicant by signing membership documents are as likely to have signed the petition either out of concern that their job security was at risk if the applicant was certified, or that the respondent would become aware, to their detriment, of their refusal to sign the petition, as to have signed it because they had reassessed the advantages and disadvantages of union representation and they decided against it. Therefore, the Board is not prepared to give the petition any weight in assessing whether, as at the terminal date, the applicant continued to have the support of sufficient employees in the bargaining unit who were its members within the meaning of the Act. The Board instead, will rely on the membership documents filed by the applicant in support of its application.
12It was on that documentary evidence that the Board made the finding at paragraph 7 that more than fifty-five per cent of the employees in the bargaining unit on the date of making of this application were members of the applicant on the terminal date of this application. Where that finding is made in an application brought under section 144(1) of the Act, section 144(2) requires that the Board ". - .shall certify the trade unions as the bargaining agent of the employees in the bargaining unit and in so doing shall issue a certificate confined to the industrial, commercial and institutional sector and issue another certificate in relation to all other sectors in the appropriate geographic area or areas.".
13It was for all of the foregoing reasons that the Board's decision dated April 22, 1988 directed the issuing of the following certificates:
(1) a certificate will issue to the applicant affiliated bargaining agent on its own behalf and on behalf of all other affiliated bargaining agents of the Sheet Metal Workers' International Association and The Ontario Sheet Metal Workers' Conference consisting of Locals 30, 47, 235, 392, 397, 473, 504, 537, 539, 562 and 629 of the Sheet Metal Workers' International Association in respect of all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman.
(2) a certificate will issue to the applicant trade union in respect of all journeymen sheet metal workers and registered sheet metal apprentices in the employ of the respondent in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.