[1988] OLRB Rep. September 859
0579-88-R International Brotherhood of Painters and Allied Trades - Local 1824, Applicant v. 389188 Ontario Ltd. carrying on business as Allied Painting Contractors, Respondent v. Group of Employees, Objectors
BEFORE: Ian C. Springate, Vice-Chair, and Board Members W. N. Fraser and C. A. Ballentine.
APPEARANCES: Craig Flood and George McMenemy for the applicant; Steve Setacci for the respondent; Dan Lachine and Peter Fink for the group of employees.
DECISION OF THE BOARD; September 21, 1988
The name of the respondent appearing in the style of cause of this application is amended to read: "389188 Ontario Ltd. carrying on business as Allied Painting Contractors".
This is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act.
The Board finds that the applicant 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 12, 1978, the designated employee bargaining agency is the International Brotherhood of Painters and Allied Trades and the Ontario Council of the International Brotherhood of Painters and Allied Trades.
The Board further finds that this is an application for 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:
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.
The Board further finds, pursuant to section 144(1) of the Act, that all painters and painters' 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 painters and painters' apprentices in the employ of the respondent in all other sectors in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township) and the County of Wellington, 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 respondent filed a list of its employees as of the date of the making of the application. The list indicates that seven of these employees were classified as painters while the remaining two, namely Dave Roberts and John Osterhout, were both classified as a "labour-helper". At the hearing, no challenge was raised with respect to the status of the seven persons classified as painters. Further, all three parties agreed that Mr. Roberts had been employed as a labourer. The parties disagreed, however, as to the proper classification of Mr. Osterhout. The applicant submitted that Mr. Osterhout had been employed as a painter whereas the respondent and the group of employees objecting to the certification application contended that he had been employed as a labourer. Mr. Steve Setacci, the owner of the respondent, advised the Board that Mr. Osterhout was an unemployed bricklayer whom he had hired to work as a helper. Mr. Setacci stated that Mr. Osterhout had spent most of his time performing preparatory work, namely sanding and taping. He added, however, that on May 26, 1988, the date of the filing of the application, Mr. Osterhout had been staining the exterior boards on a motor inn. Mr. Fink, on behalf of the group of objecting employees, indicated that he did not take issue with Mr. Setacci's comments relating to Mr. Osterhout's duties. In the Board's experience, sanding and taping are tasks more generally performed by painters than by labourers. More importantly, the staining of exterior boards, which is the work Mr. Osterhout was performing on the application date, is clearly painters', as opposed to labourers', work. Accordingly, we are satisfied that on the application date Mr. Osterhout was, in fact, employed as a painter.
Having regard to the foregoing, the Board finds that on the date of the making of the application Mr. Roberts was not an employee in the bargaining unit. The Board further finds that Mr. Osterhout and the seven individuals classified by the respondent as painters were employees in the bargaining unit. The applicant filed acceptable evidence of membership with respect to five of the eight employees in the bargaining unit. In these circumstances, 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 the applicant on June 16, 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 membership under section 7(1) of the said Act.
Prior to the terminal date there was filed a statement in opposition to the application for certification. The statement, frequently referred to at the hearing as a "petition", was executed on June 15, 1988 by the six bargaining unit employees who were still in the respondent's employ. The Board has a practice of exercising its discretion under section 7(2) of the Act to direct the taking of a representation vote on the basis of such a statement when, as here, it is signed by a sufficient number of union members as to indicate that the union no longer enjoys the support of more than fifty-five per cent of the employees in the bargaining unit. Before it will direct the taking of a representation vote on the basis of such a statement, however, the Board must be satisfied that the apparent change of heart on the part of those who had previously become union members was not motivated by a perceived threat to their job security or a concern that a failure to sign the document would be communicated to their employer and result in reprisals. The Board discussed its concerns in this regard in Chatham Concrete Forming, [1986] OLRB Rep. April 426:
The Board must be satisfied, however, that when these union supporters sign the petition indicating an apparent change of heart, they are doing so voluntarily, and are not motivated by a perceived threat to their job security or a concern that their failure to sign would be communicated to their employer, or could result in reprisals. It must be clear that the circulation of the petition is tree from the actual or perceived influence of management. Often, as in the present case, a petition will be signed by employees who have indicated their support for the union only a short time before, and a natural question arises as to what prompted the change of heart. Was it prompted by a reappraisal of the value of collective bargaining, or by a reluctance to identify oneself as a union supporter when presented with the petition document? While an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a petition opposing the union. And lest it be thought that the identification of union supporters and opponents is neutral information, one must remember that the Legislature does not regard it that way. Section 111 of the Act is designed to preserve the secrecy of the employees' choice. The Legislature has recognized the employees' concerns and sensitivities....
Frequently, as in the present case, anti-union petitions are openly circulated on or near the employer's premises, or during working hours, by employees who, in their opposition to the union, will be objectively aligned in interest with their employer and may be perceived to be acting on its behalf. In these circumstances, an employee may sign a petition because he fears that a refusal to do so will expose his support for the union and will be made known to his employer. similarly, an employee may be motivated to sign because of conduct which suggests that continued support for the union will result in the loss of his job or other adverse employment consequences. In neither case can one regard his signing the petition as being truly voluntary -although, of course, the mere identity of interest between the employer and the objecting employees is obviously not sufficient in itself to link the petition with management in the minds of reasonable employees, or undermine the reliability of the signatures placed on it. There must be more than that, and each case must be considered on its own merits. On the other hand, in the Board's experience there are enough instances where employers have committed unfair labour practices, or have sponsored or supported anti-union petitions that these employee fears cannot be discounted as being patently unreasonable. Again, that is why the Act preserves the secrecy of union membership.
At the commencement of the hearing, the group of employees objecting to the certification application was represented by both Mr. Dan Lachine and Mr. Peter Fink. Mr. Lachine subsequently took the witness stand to give evidence concerning the origination of the statement in opposition to the certification application, as well as the circumstances under which it was signed by the employees. During this stage of the proceedings, Mr. Fink became increasingly disruptive. He repeatedly interrupted both the questions being put to Mr. Lachine as well as his answers. He did not do so by way of formal objections but rather by way of a series of interjections. These interjections became increasingly more frequent, more coarsely worded and more critical of the other participants at the hearing. On a number of occasions the Board Vice-Chair cautioned Mr. Fink concerning the impropriety of his conduct, but to no avail. Subsequently, Board Member Ballentine sought to reproach Mr. Fink for certain of his comments. Mr. Fink interrupted Mr. Ballentine and invited him to "step outside".
A tribunal such as the Board is empowered by the Statutory Powers Procedure Act to give whatever directions are necessary to prevent abuse of its processes and, in the appropriate case, to exclude from the hearing a non-lawyer who is representing one of the parties. The relevant portions of that Act provide as follows:
23.-(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
(3) A tribunal may exclude from a hearing anyone, other than a barrister and solicitor qualified to practice in Ontario, appearing as an agent on behalf of a party or as an advisor to a witness if it finds that such person is not competent properly to represent or to advise the party or witness or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser.
Having regard to Mr. Fink's conduct at the hearing, the Board was led to conclude that Mr. Fink did not understand, and was not complying with, the duties and responsibilities of an advocate on behalf of the group of objecting employees. The Board further concluded that if the hearing was to continue in an orderly fashion, Mr. Fink would have to be excluded from the hearing room. Accordingly, following Mr. Fink's invitation to Mr. Ballentine to "step outside", the Board announced that it would break for the luncheon recess. Mr. Fink was then directed not to be in attendance when the hearing resumed following the recess. For the remainder of the hearing Mr. Lachine acted as the sole representative of the group of objecting employees.
Mr. Lachine testified that t was his idea to circulate a statement in opposition to the union. Mr. Lachine is classified as a working foreman. He is responsible for allocating work to other employees on the same job site as he. According to Mr. Lachine, prior to actually preparing the statement, he asked Mr. Setacci, the owner of the respondent, for the home phone numbers of the other employees. During this discussion, Mr. Lachine advised Mr. Setacci that he was planning on meeting with the employees to have them sign something. Mr. Setacci replied that this was fine, since he could use the opportunity to provide some paint to two employees who were working on a job site in Fergus.
On either the evening of June 13th or 14th, 1988 Mr. Lachine telephoned the other employees. He advised them that they should meet him at the Lau Products factory job site in Kitchener on the morning of June 15th. It appears that only one of the six employees who signed the statement was actually employed at this job site. Mr. Lachine was not assigned to the Lau Products site, but he had to stop off there to pick up some equipment to take to another site. Mr. Fink was assigned to the same job site as was Mr. Lachine, but because they travelled to work together he also would be at the Lau Products site. The respondent's employees generally start work at about 8:00 a.m. At 8:00 a.m. on June 15th Mr. Lachine met with all but one of the respondent's employees inside the Lau Products factory. Mr. Lachine showed the other employees a statement which he and his wife had prepared and asked if they would sign it. At the time, Mr. Setacci was some thirty feet away in view of the employees. Mr. Lachirte initially testified that all of the employees signed the statement in the factory. Subsequently, however, he identified two individuals whom, he said, had signed outside the factory on a truck. Mr. Dwayne Manley, an employee called as a witness by the union, testified that he also had signed the document outside the factory on the tail gate of a truck. Mr. Manley added that Mr. Setacci was standing about ten feet away from him when he signed.
It will be recalled that two employees had been working in Fergus. In response to Mr. Lachine's phone call to them, they reported on June 15th to the Lau Products site. They signed the statement and then set off for Fergus with some paint provided to them by Mr. Setacci.
One employee did not report to the Lau Products job site. Instead, he reported to a Bell Canada site where he had been working. Mr. Lachine testified that this was because the employee lacked transportation. Mr. Lachine drove out to the Bell Canada site at about 9:00 a.m. on June 15th to obtain the employee's signature.
Mr. Lachine testified that subsequent to June 15th he advised Mr. Setacci that the employees had signed a petition. He stated that he believed this occurred on the same day that he mailed the document to the Board. The document was mailed by registered mail on June 16, 1986. Mr. Lachine testified that he took time off from work to mail the document. He added that it was not unusual for him to leave a job site. Mr. Lachine, accompanied by all of the respondent's current employees, attended at the Board hearing in a rented car paid for by Mr. Setacci.
The employees were initially contacted about signing a statement in opposition to the certification application by Mr. Lachine, a working foreman with supervisory responsibilities. Mr. Lachine advised the employees that they were to attend at the Lau Products site. This includes two employees who were working in Fergus. The two employees from Fergus would have travelled back to Fergus after the time that they normally would have started working. Once at the Lau Products site, the employees were asked to sign the statement within view of Mr. Setacci. Two of them did so. Subsequently, some of the employees signed the document outside the factory. Mr. Setacci was standing nearby when at least one of them signed. The one employee not at the Lau Products site was visited during working hours by Mr. Lachine to get him to sign the document. These circumstances would have led the employees to reasonably conclude that Mr. Lachine was acting with Mr. Setacci's approval. It would also have been reasonable for the employees to assume that Mr. Lachine would subsequently discuss the statement with Mr. Setacci, as in fact he did. In these circumstances, it is just as probable that union members signed the document to avoid singling themselves out as union supporters, as to evidence a change of heart about the union. Accordingly, we are unable to accept the statement as evidence of a clearly voluntary signification on the part of the union members who signed it that they no longer support the union. In the circumstances, we are not prepared to direct the taking of a representation vote.
Section 144(2) of the Act, which states in part as follows, provides for the issuance of more than one certificate if the applicant has the requisite membership support:
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.
[emphasis added]
Therefore, pursuant to section 144(2) of the Act, 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 employee bargaining agency named in paragraph 3 above in respect of all painters and painters' 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.
- Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all painters and painters' apprentices in the employ of the respondent in the Regional Municipality of Waterloo (except that portion of the geographic Township of Beverly annexed by North Dumfries Township) and the County of Wellington, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.