United Brotherhood of Carpenters and Joiners of America, Local 27 v. Povoa Carpentry Trim o/b 563808 Ontario Inc. et al.

[1988] OLRB Rep. November 1174

3337-87-R; 3338-87-R; 0052-88-U United Brotherhood of Carpenters and Joiners of America, Local 27, Applicant/Complainant v. Povoa Carpentry Trim o/b 563808 Ontario Inc. and Labourers' International Union of North America, Local 183; F. J. Carpentry, Respondents v. Labourers' International Union of North America, Local 183, Intervener

BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and J. Redshaw.

APPEARANCES: David McKee and Luis Camara for the applicant/complainant; no one appearing for the respondent Povoa Carpentry Trim at the October 26, 1988 hearing; no one appearing for the respondent F. J. Carpentry; Michael Mitchell, Tanya Lee and Quinto Ceolin for the intervener.

DECISION OF THE BOARD; November 9, 1988

1. In its June 8, 1988 decision (reported at 11988] OLRB Rep. June 619) in this matter, the Board found that:

2. Board File Nos. 3337-87-R and 3338-87-R are applications for certification by the United Brotherhood of Carpenters and Joiners of America, Local Union 27 ("Local 27"). Local 27 is a trade union within the meaning of section l(l)(p) of the Labour Relations Act and 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 April 10, 1980, the designated employee bargaining agency is the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America.

3. Board File Nos. 3337-87-R and 3338-87-R are applications for certification within the mean­ing of section 119 of the Labour Relations Act and are applications made pursuant to section 144(1) which provides:

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.

3. In Board File No. 3337-87-R, Local 27 seeks to be certified as the exclusive bargaining agent for a unit of employees of Povoa Carpentry Trim, o/b 563808 Ontario Inc. ("Povoa") which it describes, in paragraph 7 of its application, as:

(a) All Carpenters and Carpenters' Apprentices employed by the Employer in the

Industrial, Commercial and Institutional Section of the Construction Industry in the Province of Ontario; and

(b) All Carpenters and Carpenters' Apprentices employed by the Employer in Board Area 8 excluding the Industrial, Commercial and Institutional 5ector, save and except non-working Foreman and persons above the rank of the non-working Foreman.

In the same file, the Labourers' International Union of North America, Local 183 ("Local 183") has applied, by intervention, to be certified as the exclusive bargaining agent for a unit of employees of Povoa which it describes, in paragraph 3 of its intervention, as:

All carpenters and carpenters' apprentices in the employ of the Respondent in Ontario Labour Relations Board Area 8 in all sectors of the construction industry, save and except the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

Local 183 is a trade union within the meaning of section l(l)(p) of Labour Relations Act. Its application for certification is one within the meaning of section 119 of the Act but does not relate to the industrial, commercial and institutional sector of the construction industry referred to section 117(e) of the Act.

4. In Board File No. 3338-87-R, Local 27 is applying to be certified as the exclusive bargaining agent of employees of F. J. Carpentry ("F. J"), in a unit described, in paragraph 7 of the appli­cation, as:

(a) All Carpenters and Carpenters' Apprentices employed by the Employer in the Industrial, Commercial and Institutional Section of the Construction Industry in the Province of Ontario; and

(b) All Carpenters and Carpenters' Apprentices employed by the Employer in Board Area 8 excluding the Industrial, Commercial and Institutional Sector, save and except non-working Foreman and persons above the rank of non-working Foreman.

Local 183 has also applied, by intervention, for certification in that application. It seeks certifi­cation for a unit of employees it describes, at paragraph 3 of its intervention, as:

All carpenters and carpenters' apprentices in the employ of the Respondent in Ontario Labour Relations Board Area 8 in all sectors of the construction industry, save and except the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foremen.

Further, at paragraph 7(3) of its intervention Local 183 states:

The Intervener takes the position that the Respondent herein is actually the business name for two or three piece work carpenters who are employees of Povoa Carpentry Trim o/b 563808 Ontario Inc., which is the Respondent in Board File 3337-87-R. The Intervener herein makes this application in the alternative and only in the event the Respondent herein is found by the Board to be an employer in its own right.

5. Board File No. 0052-88-U is a complaint under section 89 of the Labour Relations Act, by Local 27, alleging that Povoa and Local 183 have dealt with Local 27 in a manner contrary to sections 3, 13, 64, 66, and 70 of the Labour Relations Act. Although it is not clear, on the face of the complaint, what relief Local 27 seeks, it is evident that the complaint is related to the appli­cation in Board File No. 3337-87-R.

6. These matters were heard together. No one appeared on behalf of F. J. Carpentry at any of the hearings. Povoa Carpentry Trim o/b 563808 Ontario Inc. ("Povoa") participated in the hearings on May 6 and June 20, 1988 when the United Brotherhood of Carpenters and Joiners of America, Local 27 ("Local 27") presented its evidence. It was not represented at the hearing on October 26, 1988 at which time Local 27 elected to call no further evidence, the Labourers' Inter­national Union of North America, Local 183 ("Local 183") elected to call no evidence, and the Board received submissions with respect to these matters.

7. In argument, Local 27 and Local 183 both sought to have the membership evidence filed in the F. J. Carpentry application (Board File No. 3338-87-R) transferred to their respective Povoa applications (Board File No. 3337-87-R) and leave to withdraw the applications with respect to F. J. Carpentry. In the circumstances, the Board found it appropriate to transfer the member­ship evidence as requested and the applications in Board File No. 3338-87-R were withdrawn with leave of the Board.

8. We are satisfied, on the evidence before the Board, that Jose Lopez, the principal of Povoa, told some of Povoa's employees, who, if they were at work on the date of application, would be on the list of employees for the applications for certification in Board File No. 3337-87-R, that it would be better for the company and better for them if they became members of Local 183 rather than of Local 27. We are satisfied that this was an improper interference in the selection of a trade union by Povoa and constitutes a breach of section 64 of the Labour Relations Act. It also constitutes an attempt to coerce those employees to become members of Local 183 and to refrain from becoming members of Local 27. Accordingly, it is a violation of section 70 of the Act as well. We are not satisfied that Lopez's conduct constitutes a breach of section 66.

9. There is support in the evidence for the allegations made in paragraph 2 of Schedule "B" of Local 27's complaint in Board File No. 0052-88-U. Further, as was rightly conceded by counsel for Local 27, there is no suggestion in any of the evidence that Local 183 participated in, or was even aware of, Lopez's improper actions as aforesaid.

10. Section 3 of the Act has been treated by the Board as being a declaration of rights

rather than an unfair labour practice section.

7. Local 27 submitted that the Board should, pursuant to section 13 of the Act, dismiss Local 183's application with respect to Povoa because of the company's improper conduct. In order for section 13 to apply, there must, in our view, be some complicity between an applicant trade union and an employer or employer's organization. In Cabral Foods Inc., [1985] OLRB Rep. Feb. 165, the Board dealt with an assertion that section 13 (and, in that case, section 48) applies even in circumstances where a trade union is unaware that it has received employer support. The Board said, in part:

8. Counsel for the applicant argues that sections 13 and 48 had the effect he contended for even if CURRE had been unaware of the support it had received. With respect to the issue of "em­ployer support", the following cases were referred to in argument by one or more of the parties' counsel: Edwards & Edwards Limited, 52 CLLC ¶17,027; Swift Canadian Co. Limited, 54 CLLC ¶17,071; Navco Food Services Limited (Formerly National Automatic Vending Company Limited), [1971] OLRB Rep. Feb. 80; Metal Textile of Canada, [1971] OLRB Rep. Nov. 694; Sunrise Paving and Construction Co. Ltd., 72 CLLC ¶16,060; Zehr's Markets Limited, [1972] OLRB Rep. June 635; Service Employees' International Union, Local No. 333 v. Nipawin Dis­trict Staff Nurses Association of Nipawin, et al., 1973 CanLII 191 (SCC), 41 D.L.R. (3d) 6 (S.C.C.); Smith Bever­idges Limited, [1975] OLRB rep. Dec. 956; Veres Wire Industry Ltd.. [1976] OLRB Rep. July 337; Canada Crushed Stone, [1977] OLRB Rep. Dec. 806; Municipality of Casimir, [1978] OLRB Rep. Feb. 130; Coons Heating & Sheet Metal Limited, [1978] OLRB Rep. June 525; Japiamco Company Limited, [1979] OLRB Rep. Feb. 106; Addidas Textile (Canada) Ltd., [1980] OLRB Rep. May 639; Tilco Plastics (1976) Limited, [1980] OLRB Rep. July 1096; Frusino Structure Inc., [1981] OLRB Rep. Mar. 271; Tri-Canada Inc., [1981] OLRB Rep. Oct. 1509; and, Primo Importing and Distributing Co. Ltd.. [1982] OLRB Rep. Dec. 1869. None of these cases supports the contention that sections 13 and 48 can apply to support of which the affected union is wholly unaware. Sections 13 and 48 must be interpreted with reference to their obvious purpose, which is:

to prohibit the certification of any trade union which, because of the nature of its relationship with an employer, is not qualified to act on behalf of employees in their relations with their employer.

(Edwards & Edwards, supra).

In Canada Crushed Stone, supra, the Board described the purpose of section 13 (then section 12) this way at paragraph 27:

The broad purpose of the section, simply stated, is to preserve the integrity of the col­lective bargaining process by barring the application of any trade union which, because of employer support, does not owe its sole allegiance to those whom it seeks to represent. A trade union which has accepted the support of any employer whose interests may be affected by its representation places itself in a potential conflict of interest and thereby undermines itself as a union "qualified" to act on behalf of those it seeks to represent. Section 12 catches both the "sweetheart" arrangement between the parties directly affected and also the accepted support of any outside employer whose interests may be affected by the collective representation of those whom the union seeks to represent. In both instances the union's acceptance of employer support activates the Section 12 bar.

[emphasis added]

If a trade union's ability to be certified or to enter into binding collective agreements could be destroyed by unsolicited employer behaviour of which the union was totally unaware, sections 13 and 48 would cease to serve as protections from employer interference in employees' selec­tion of a bargaining agent and, instead, become potent instruments for effecting just such inter­ference.

(See also Canadian Fabricated Products Limited, (Stratford) 54 CLLC ¶17,090; John Lester Drugs Ltd., [1982] OLRB Rep. June 886).

8. We agree, and to the extent that it is inconsistent with the Cabral Foods Inc. approach, we reject the approach taken in Consbec Inc., [1986] OLRB Rep. July 937 upon which by counsel for Local 27 relied. (We note that the other authorities upon which Local 27 relied all involved sit­uations in which there was some apparent complicity between the trade union concerned and an employer.)

9. Further, and in any event, we are satisfied that the breaches of the Act by Povoa can be remedied by the Board in the exercise of its remedial authority under section 89 of the Act and that, accordingly, it is inappropriate to dismiss Local 183's application with respect to Povoa.

10. Local 27's complaint that sections 3, 13, and 66 have been breached, and operate to pre­clude the Board from certifying Local 183 is therefore dismissed.

11. In the result:

(a) the Board declares that Povoa Carpentry Trim oft' 563808 Ontario Inc. has breached sections 64 and 70 of the Labour Relations Act;

(b) directs that Povoa Carpentry Trim o/b 563808 Ontario Inc. sign and post one copy, in each of the English and Portuguese languages, of the attached notice marked "Appendix" in conspicuous places at each of its premises and job sites, and to keep such notices posted for 60 working days, and to take all reasonable steps to ensure that the notices are not altered, defaced or covered up.

12. The Board will remain seized with respect to the implementation of this order.

13. At the first day of hearing in these matters, Povoa indicated, through counsel, that it would file a list of employees with respect to the application in Board File No. 3337-87-R. It was tacitly agreed that the issues in that respect would be deferred. Povoa never did file any list of employees.

14. Although there appears not to be any real dispute with respect to the appropriate bar­gaining unit descriptions, there are still a number of issues, including that one, which must be addressed and resolved before the Board can dispose of this matter. Accordingly, the Registrar is directed to schedule the applications in Board File No. 3337-87-R for hearing for the purpose of hearing the evidence and representations of the parties with respect to all remaining issues arising out of and incidental to them, including, but not limited to:

(a) the bargaining unit description in each application;

(b) the list of employees in the bargaining unit in each application;

(c) whether, in the circumstances of these applications, including the bargaining units applied for, the Board should exercise its discretion under 103(3) of the Act, and if so, in what way it should do so;

(d) the manner in which the voting constituency(s) should be described if a representation vote(s) is to be held.

Appendix

Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOR RELATIONS BOARD ISSUES AFTER A HEARING IN WHICH THE COMPANY AND THE UNION PARTICIPATES AND HAD THE OPPORTUNITY TO PRESENT EVI'DENCE. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT THE COMPANY VIOLATES THE ONTARIO LABOUR RELATIONS ACT AND HAS ORDERED US TO INFORM YOU OF YOUR BIGHTS AND OBLIGATIONS.

THE LABOUR RELATIONS ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES;

To FORM, JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION OF THEIR OWN CHOICE;

To ACT TOGETHER FOR COLLECTIVE BARGAINING;

To REFUSE TO FO ANY PR ALL OF THESE THINGS.

WE ASSURE ALL OF OUR EMPLOYEES THAT:

WE WILL NOT DO ANYTHING THAT INTERFERES WITH THESE RIGHTS.

ROTOR CARPENTRY TRIM O/R

563808 ONTARIO INC.

PER:________________________________

JOSE LOPEZ

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for 60 consecutive working days.

DATED this 9th day of NOVEMBER, 1988.