[1989] OLRB Rep. October 1053
3109-88-R; 3120-88-R International Brotherhood of Electrical Workers, Local 353, Applicant v. P & M Electric (1982) Ltd., Northland Electric (Ont.) Limited, Respondent v. Group of Employees, Objectors; I.B.E.W. Construction Council of Ontario, International Brotherhood of Electrical Workers, Local 105, International Brotherhood of Electrical Workers, Local 353, Applicants v. P & M Electric Limited, Pomico Holdings Inc., P & M Electric (1982) Ltd., Northland Electric (Ont.) Limited, Respondents
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
APPEARANCES: S. B. D. Wahl, M. Oram and Robert Parker for the applicant; Stephen A. McArthur, Boyd Pollock and Brian Loewen for the respondents; W. Dermody (on July 20, Sept. 21, 22, 1989 only), Leo DiTomaso and Jason Longworth for the objectors.
DECISION OF THE BOARD; October 17, 1989
Pursuant to the Board's decision dated June 7, 1989, the hearing with respect to these applications continued on June 12, 1989. At the hearing, the group of objecting employees, represented by Leo DiTomaso, sought reconsideration of the Board's finding, at paragraph 16 of the June 7, 1989 decision, that three of the petitions filed in opposition to the application for certification were untimely. They asserted that two of these three petitions had in fact been mailed to the Board by registered mail on April 3, 1989, the terminal date fixed for the application, notwithstanding that neither of the envelopes relating to the two petitions in question bears a postal stamp for a date earlier than April 4, 1989. The group of objecting employees produced one receipt containing a handwritten note to that effect, which note they asserted had been written by a "postal clerk".
The applicant argued that the Board should accept the envelopes on their face and refuse to hear any "extrinsic" evidence suggesting that they, and the petition each contained, had been registered earlier. It submitted that "the time it is mailed", for purposes of section 75(1) of the Board's Rules of Procedure, is the date on which a postal stamp indicates it was mailed.
Section 75(1) of the Board's Rules of Procedure provides that:
75.-(1) Where a document is required to be filed by these Rules, filing shall be deemed to be made,
(a) at the time it is received by the Board; or
(b) where it is mailed by registered mail addressed to the Board at its office at 400 University Avenue, Toronto, Ontario, M7A 1X'4, at the time it is mailed.
It refers to the fact of a document being received by the Board or mailed to it by registered mail. It contains no deeming provision of any kind. (The only deeming provision in the Act with respect to the mailing of material to the Board is in section 113 which does not apply to the circumstances herein except, perhaps, by an analogy.) Consequently, the Board must concern itself, for the purpose of determining the timeliness of any documents (like petitions and membership evidence), with when in fact they were either received by the Board or sent to it by registered mail. In our view, the evidence which the objecting employees sought to adduce in support of their request for reconsideration is extrinsic evidence only in the sense that it is evidence other than that which is contained on the face of the relevant documents. It is is not extrinsic evidence in the sense that it relates to the construction to be given to them. Rather, it relates to the material fact of when the petitions were mailed by registered mail and is, as such, relevant and admissible.
As Board Practice No. 17 indicates, the Board will reconsider a decision if the party requesting it proposes to adduce new evidence which it could not~ with the exercise of due diligence, have obtained previously and that new evidence would be virtually conclusive of an issue of substance; or if a party wishes to make representations it had no previous opportunity to make (see also, for example, The London Soap Company Limited, [1987] OLRB Rep. Feb. 241; Capital Construction Corporation, [1988] OLRB Rep. Aug. 747). In our view, the evidence and representations which the objecting employees sought to present were on an issue of substance which they had not previously had an opportunity to address.
Consequently, the Board ruled (orally) that the objecting employees would be permitted to lead evidence with respect to the mailing of the two petitions in question in support of their request for reconsideration.
The objecting employees did not have the evidence in question available at the hearing on June 12, 1989. The applicant opposed any adjournment to permit them to obtain that evidence on the basis that the objecting employees had known that the two petitions in question appeared to be untimely since late April 1989 (having been so advised by the Registrar), and should therefore have come to the hearing prepared to proceed. We note that while the law is the same for everyone, Mr. DiTomaso is not a lawyer and he may not have understood that it was important to raise the question of the timeliness of the two petitions when the matter first came on for hearing on May 25, 1989. We also note that the Board did not deal with the petitions at the May 25, 1989 hearing and Mr. DiTomaso did raise the matter at his first opportunity after receiving the Board's June 7, 1989 decision. Further, the status of the two petitions in question was of primary importance to the application for certification in that if they were found to be timely, the Board would have to inquire into their voluntariness and possibly into the applicant's request for relief under section 8 of the Labour Relations Act. If they were found to be untimely, the applicant would be entitled to be certified subject to the disposition of the application under sections 1(4) and 63 of the Labour Relations Act and the concomitant determination of the name of the respondent in the application. Finally, the delay occasioned by an adjournment was only three days and would not, by itself, cause any significant delay in the proceedings. In all of the circumstances, the Board found it appropriate to adjourn the hearing until June 15, 1989, a date already scheduled therefore, and ruled that it would hear the evidence and representations of the parties with respect to the objecting employees' request for reconsideration, and, if the Board was able to dispose of that matter that day, with respect to the remaining matters in issue in these proceedings.
After hearing the evidence and representations of the parties with respect to the request for reconsideration, the Board ruled (orally), for reasons which follow, that it would allow the request. Accordingly, the Board varied paragraph 16 of its June 7, 1989 decision herein by ruling that five petitions, bearing fifteen signatures in all, had been filed in a timely manner. Of these, eight signatures were of employees in the bargaining unit and three of them were of employees who had previously signed an application for membership, and paid $1.00 with respect thereto, in the applicant. For the reasons previously given in paragraph 16 of the June 7, 1989 decision, the petitions were therefore relevant to the Board's considerations in that if they were proved to be voluntary it would normally (and in this case subject to the request for relief under section 8 of the Act) raise sufficient doubt concerning the continued support enjoyed by the applicant to cause the Board to exercise its discretion under section 7(2) of the Act to direct that a representation vote be taken in this matter.
The Board heard testimony from two employees of mail contractors of Canada Post and who, in effect, act as postal clerks. They testified with respect to the circumstances surrounding the mailing of the two petitions in question: one with respect to each petition. It was clear from their evidence that a postal registration stamp does not necessarily indicate when a document became mail within the possession, power or control of the Canada Post Corporation. This is because it is Canada Post's inflexible policy to require that its mail contractors change the date on registration stamps to the following day after the last pick-up of registered mail is made by Canada Post from the postal sub-station operated by the mail contractor, even though the mail contractor may continue to accept registered mail for some time after the last pick-up on that day. Consequently, if the last daily pick-up for a particular location is 3:15 p.m. but the mail contractor remains open thereafter, registered mail received prior to 3:15 p.m. is stamped with that day's date, but registered mail received after 3:15 p.m. is stamped with the date of the following day. The evidence established that once an envelope is accepted by a post office or postal sub-station, the party who has "mailed" it cannot get it back. It also revealed that the time of the final pick-up from a postal sub-station is determined by Canada Post and that the schedule with respect thereto is changed from time to time. Finally, the evidence clearly established that each of the petitions in question were actually delivered to and received at a postal sub-station on the terminal date fixed for this application after the last Canada Post pick-up of the day for each sub-station. The prescribed registration fee was paid for each and each had a registration stamp applied to it and was entered onto the registered mail list on the terminal date, but the registration stamp bore the following day's date.
Section 2(1) of the Canada Post Corporation Act R.S.C. 1985 ch. c-10 provides that:
"mail" means mailable matter from the time it is posted to the time it is delivered to the addressee thereof;
"mail contractor" means a person who has entered into a contract with the Corporation for the transmission of mail, which contract has not expired or been terminated;
"mailable matter" means any message, information, funds or goods that may be transmitted by post;
"post" means to leave in a post office or with a person authorized by the Corporation to receive mailable matter;
"post office" includes any place, receptacle, device or mail conveyance authorized by the Corporation for the posting, receipt, sorting, handling, transmission or delivery of mail;
"transmit by post" means to transmit through or by means of the Corporation;
In addition, section 2(3) of the legislation provides that:
For the purposes of this Act, a thing is deemed to be in the course of post from the time it is posted to the time it is delivered to the addressee or returned to the sender thereof.
The regulations under the Canada Post Corporation Act provide that mailable matter shall be accepted for registration upon the payment of the prescribed fee therefore.
In our view, whether or not a document has been mailed to the Board by registered mail should not depend upon the vagaries of Canada Post's policies or schedules. Consequently, while a postal registration stamp is generally an acceptable indication of the date on which the document has been mailed, and this device is one of great convenience to the Board and to parties before it, it is no more than prima facie evidence of when a document has been sent by registered mail. As such, it can be rebutted by presenting appropriate cogent evidence to the contrary (see 3-L Filters Limited, [1985] OLRB Rep. March 431; Riverside Hospital of Ottawa, [1983] OLRB Rep. Sept. 1562; Hoffman Concrete Products Limited, [1976] OLRB Rep. Feb. 35).
In this case, the two petitions were each actually deposited with persons authorized by Canada Post to accept them as registered mail on its behalf, which persons did actually accept them and the prescribed payment for the registered thereof, and caused them to be "registered" on April 3, 1989, the terminal date fixed for this application. In our view, that constitutes mailing by registered mail within the meaning of the Board's Rules of Procedure. Accordingly, we concluded that the two petitions in question had been filed with the Board in a timely manner and we found it appropriate to reconsider our findings in paragraph 16 of the June 7, 1989 decision herein.
The Board then heard the evidence and representations of the parties with respect to the timely petitions filed in opposition to the application for certification herein and the applicant's request for relief under section 8 of the Act.
We note that the objectors retained counsel, Mr. Dermody, part way through this proceeding. He appeared before the Board on their behalf for the first time on July 20, 1989. At that time, he requested an adjournment for that and the following day because he was unavailable as a result of other commitments. He advised the Board that he had tried to obtain other counsel for the objectors but had been unable to do so. The objectors had not sought counsel at all until some two weeks after the last day of hearing (on June 15, 1989), and two weeks before the July 20, 1989 hearing date when the request was made. They had been aware, as had all the parties, of the dates scheduled for hearing, including July 20 and 21, 1989, since late April 1989. The applicant opposed an adjournment.
It has long been recognized that labour relations delayed are labour relations defeated and denied (see Journal Publishing Co. of Ottawa Ltd. et al, v. Newspapers Guild, Local 205, OLRB et al., March 31, 1977, Ont. C.A., unreported; Teledyne Industries Canada Limited, [1986] OLRB Rep. Oct. 1441). This is especially true in representation proceedings like these. The Board is the master of its own practice and procedure. In that respect, its discretion to grant an adjournment or not is a broad one. It is the well- established and known practice of the Board to grant adjournments only on consent of all parties or where it is satisfied that there are exceptional extenuating circumstances. A party which has had adequate notice of a hearing does not have a right to have it adjourned for the convenience of itself or its representative (Re Flamboro Downs Holdings Ltd. and Teamsters Local 1879 (1979) 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400 (Div. Ct.)).
In the circumstances of this proceeding, the Board determined that it was not appropriate to adjourn the proceedings in the absence of consent from all parties and the objectors' request for one was therefore denied. (We note that as it turned out, Mr. Dermody did participate in the proceedings on behalf of the objectors until late in the day on July 20, 1989, and also on September 21 and 22, 1989. He did not appear at all on July 21, 1989 and Mr. DiTomaso acted as the objectors' representative on that day.)
We wish also to note that after lunch on September 22, 1989, the applicant closed its case, and the respondent and objectors elected to call no reply evidence. Counsel for the respondent and the objectors both indicated that they would prefer not to proceed directly to argument because they wanted time to review the evidence which had been presented to the Board. When the Board expressed some concern with the fact that the next certain available hearing date was December 8, 1989, some two and a half months later, both counsel indicated their willingness to submit written argument. Counsel for the applicant opposed any delay and submitted that the Board should proceed with the case. We agreed. In the absence of any agreement of the parties, the Board will normally expect the parties to proceed to argument immediately upon the completion of the evidence, particularly where, as here, there is a full half day of hearing left, where the matter before is a representation proceeding, and the next hearing date does not follow closely. Consequently, the Board adjourned for half an hour to permit counsel to gather their thoughts and proceeded to argument.
In the course of five days of hearing with respect to the petitions and the applicant's section 8 request, the Board heard testimony from nine witnesses. The objectors called five witnesses with respect to the petitions: Gord Cook, Leo DiTomaso, Jason Longworth, Tom Mac Aleese and Warren Honybun. In the course of their testimony, it was revealed that Cook sent in a petition, DiTomaso sent in a petition, Longworth and Mac Aleese sent in a joint petition, and Honybun and John Lovnicki sent in a petition which contained their and a number of other signatures. The applicant called two witnesses (Ross Mancini and Gavin Dunn) in that respect and with respect to its request for a relief under section 8. The respondent called two witnesses, Sam Dellaventura and Len Boone. The Board heard evidence about Boyd Pollock, a principal of the respondent P & M Electric (1982) Ltd. ("P & M"), and John Lovnicki, a fifth year apprentice about whom we will have more to say later. However, the Board did not have the benefit of the testimony of either of these two gentlemen.
The Board was particularly impressed with the evidence of Ross Mancini. He was clear, candid, and forthright in his testimony. He readily acknowledged when he was unable to recall what had occurred. He was not seriously challenged in cross-examination on those things material to the issues before the Board which he did recall. Accordingly, where there is a conflict between the evidence given by Mancini and that of any other witness, we prefer that of Mancini. At the other extreme, the testimony of Sam Dellaventura, P & M's general supervisor (or non-working foreman) was inconsistent with that of other witnesses and with documentary evidence before the Board. We find ourselves constrained to give no weight to his evidence except where it is corroborated by other cogent evidence.
The evidence reveals that these proceedings are merely the most recent chapter in the history of attempts by the applicant and Local 105 of the International Brotherhood of Electrical Workers ("Local 105") to organize the construction journeymen and electrician apprentices employed by P & M. Most recently, an application for certification by the applicant was dismissed after a representation vote was taken (Board File No. 2975-87-R, decision dated August 23, 1988, unreported). The evidence also reveals that this application was the subject of some discussion among the affected employees on the respondent's job site at a high-rise residential condominium apartment project in Mississauga known as the "Platinum", and that the lines were fairly clearly drawn in terms of the employees who clearly supported the application and the employees who clearly opposed it. Not all employees fell squarely within one or other of these groups however.
DiTomaso was the chief employee spokesperson for the objectors herein. He had been involved with a petition filed in opposition to the application which was dismissed in August 1988 as aforesaid. DiTomaso is a journeyman electrician. He has been employed by P & M for over sixteen years, the last five (approximately) of which he has been a working foreman. As such, he has been, and was at all material times, responsible for directly supervising the work of a crew of three to five men doing electrical work. Notwithstanding the assertions that all working men are equal, however, it is evident that some are more equal than others. For example, not all working foremen were, or are, paid at the same rate. Further, at the time the application was made, DiTomaso was, in effect, the "head (working) foreman" at the Platinum job site. As such, he clearly had greater control and responsibility for that project than other working foremen, like for example, Ross Mancini. DiTomaso exercised some supervisory powers over all of the respondent's employees on the Platinum job site, filled out the time sheets for all such employees (including the other working foremen), and the project was generally known as "Leo's (DiTomaso) job".
DiTomaso testified that after Christmas, 1988 he detected a feeling of discontent among the respondent's employees and that "suddenly" there was "talk of union" on the job. Some time later, the applicant began the organizing campaign which led to the application for certification herein. DiTomaso had opposed the application which had been dismissed in August 1988 as aforesaid. In fact, he signed a petition opposing it. Notwithstanding that, he signed an application for membership in Local 105 (which has submitted in support of an application for certification which is not before us). DiTomaso testified that he thought about what he was doing before he signed that card, but that he then had second thoughts and began to write a petition indicating his opposition to the application. Yet he then proceeded to sign an application for membership in the applicant on March 29, 1989. This second card has been submitted by the applicant in support of its application for certification herein. After signing that second card, DiTomaso completed his petition opposing the application.
DiTomaso testified that he had discussed his concerns about whether he was doing the right thing in joining the union with Cook prior to April 3, 1989. These conversations took place on the job site and in the course of one of them DiTomaso and Cook admitted having signed union cards to each other. Cook also signed two cards. Like DiTomaso, he said that he signed the second one (which has been submitted in this application) after he had decided that he did not want to be a member of a union. In spite of his purported decision in that respect, he did not even begin to write his petition until several days later, on April 3, 1989, after a telephone conversation with DiTomaso on April 1 or 2, 1989 and several conversations with him at work on April 3, 1989. There is no evidence before the Board that DiTomaso had any discussions with any other of the respondent's employees about a petition prior to April 3, 1989.
On April 3, 1989, however, DiTomaso approached a number of employees. In the course of that day, DiTomaso spoke with Cook, Longworth, Mac Aleese, and Dunn, both about his petition and about how they could send a petition in. With the exception of Lovnicki, there is no evidence that DiTomaso spoke to any other employee on that day about a petition.
Lovnicki was not working at the Platinum job site but at another one known as the "Park Mansion" job. However, he appeared at the Platinum site some time during the morning of April 3, 1989. He brought with him a petition and spoke to at least DiTomaso and Cook about it. We know little else of Lovnicki's activities on the Platinum job site that day. However, we do know that DiTomaso, apparently in Cook's presence, suggested to Lovnicki that he take his petition and leave because if he obtained signatures on it, it would be "illegal" and would not be accepted by the Board. This is somewhat curious in light of the discussions which DiTomaso himself pursued on the job site that day.
25, Longworth, Mac Aleese, and Dunn were all on Mancini's crew. It is not clear whose crew Cook was on at the time, but it may have been Mancini's. At it happened, however, DiTomaso was the only working foreman, and the only journeyman electrician, on the Platinum site on April 3, 1989, Mancini and Mark Fearon having been sent elsewhere (of this we would have more to say later). DiTomaso spoke to Cook, Longworth, Mac Aleese and Dunn both individually and in groups of various configurations and by the end of the working day he had spoken to each of them. three or four times. On the evidence, all of these discussions took place in whole or in part during times when the employees were expected to be working. He testified that he wanted to talk to them about his petition because his decision to send it was not irrevocable and he wanted their views on it, and because he wanted to assure them that he wasn't "going against them", just the applicant. We find it significant that each of the four employees responded by asking how he could send in a similar petition. We also find it significant that DiTomaso went beyond his stated purpose in talking to them; far beyond considering what he had said to Lovnicki.
DiTomaso advised each of Cook, Longworth, Mac Aleese, and Dunn to read the "green form" (green being the colour of Board Form 76, Notice to Employees of Application for Certification, Construction Industry). He went on to tell them that a petition had to be in writing, that it had to be sent to the Board by registered mail, and that it had to be sent in that day.
DiTomaso went even further. He told the employees that the respondent would not penalize anyone who signed a petition (or a "retraction" as he referred to it) and that he would put his job on the line for those employees who had signed union cards but changed their minds and sent petitions in in the event that the P & M took any action against them. In addition, we accept Dunn's assertion that DiTomaso suggested that if the application went to a hearing before the Board, Pollock (that is, the respondent) would find out who supported the union and who did not. When asked whether DiTomaso said anything on April 3,1989 to indicate how the respondent would react to employees who sent in a petition, Dunn testified that "I guess that if you signed [with the union] and sent in a Epetition] letter, the company would not punish you as much as if you had not done anything". Upon considering his testimony as a whole, together with Mac Aleese's testimony to the effect that the question of retaliation by the respondent was the "topic of the day" on April 3, 1989, we are satisfied that Dunn used the words "I guess that" as a superfluous figure of speech and that he was not guessing but rather testifying to what he in fact recalled. We note also that he was not cross-examined on that statement.
A possibility of a "house union" as an alternative to the applicant, and the likelihood that the employees would not be able to continue to work for the respondent after the present projects in Board Area 8 were finished if the applicant was certified by the Board were also raised by DiTomaso in his discussions with Cook, Longworth, Mac Aleese and Dunn.
In the course of the day, DiTomaso also directed at least Longworth, Mac Aleese and Dunn to go to the respondent's site trailer where the green form was posted and to read it, again during their regular working hours. They and Cook all did in fact do so. DiTomaso even met with them at the trailer and he read the green form, or parts of it, to the four employees, showed them his own petition, and then left three of them (Cook had left) alone in the heated part of the trailer (which was the only heated facility of the respondent's on the job site) while he stood and waited outside the door. When a number of other employees, who DiTomaso identified as supporters of the applicant, appeared and sought to enter the trailer, DiTomaso prevented them from doing so and peremptorily ordered them back to work.
We return now to Mancini's absence from the Platinum job site on April 3, 1989. We accept Mancini's testimony, which was neither seriously challenged on cross-examination nor contradicted by any other evidence, and find that Pollock telephoned Mancini at home on Sunday, April 2, 1989. Pollock asked Mancini if he knew anything about the applicant's organizing campaign, and said that he couldn't understand how "this" (the applicant's campaign) could get started at the Platinum site with Mancini and DiTomaso there. Pollock asked Mancini if he had signed a union card and when Mancini declined to tell him, Pollock said, in effect, he knew he had. Pollock then advised Mancini of some difficulty with an elevator at the "Consulate", a project which had been completed, and told Mancini to report for work there on April 3, 1989 to attend to the problem.
In fact, Mancini, Fearon and another employee did go to the Consulate on April 3, 1989. They spent the whole morning roughing in a "small site office" while waiting for Dellaventura to arrive with the equipment necessary for them to begin to deal with the problem. They spent the rest of the day pulling wire and trying to locate the source of the problem.
The evidence raises a number of questions. Why did DiTomaso find it necessary to obtain Cook's view of his petition and to explain what he was doing on April 3, 1989, when he had done just that by telephone on April 1 or 2, 1989? Why did he suddenly have the urge to also approach Longworth, Mac Aleese and Dunn on April 13, 1989? There is nothing in the evidence which suggests that DiTomaso was friendly with them either at work or socially, or that he had any other reason to explain himself or seek the counsel of those three employees. And why did DiTomaso select and seek out those employees and no others? Even if there was some reason which the evidence does not reveal, or no reason as such at all, why did DiTomaso find it necessary to approach Cook, Longworth, Mac Aleese, and Dunn three or four times each? Why did DiTomaso specifically tell those four employees, not only to read the green form, but specifically what they had to do to send in a petition? Why did DiTomaso direct them to, and meet with them, in the respondent's site trailer - all of which took place during regular working hours? If all he wanted to do was to explain his actions and seek advice, why did DiTomaso go on to raise the spectre of retaliation by the respondent, the likelihood of the respondent learning which employees supported the applicant and which didn't, and promise to put his own job on the line for employees who signed the petition and thereby put into question their previous support for the applicant? Why did DiTomaso (and Cook) discuss petitions at all on the job site and during regular working hours in view of his (and Cook's) apparent belief that it was "illegal" to do so? Why did Cook, Longworth and Mac Aleese suddenly begin to write petitions after DiTomaso approached them as aforesaid on April 3, 1989? Although Cook testified that he had decided to send in a petition prior to April 3, 1989, there is no evidence that he had taken any steps to do so prior to being spoken to by DiTomaso on April 3, 1989. Indeed, the evidence suggests the contrary. There is no evidence to suggest that Longworth or Mac Aleese had given any consideration to sending in a petition before they were approached by DiTomaso on April 3, 1989.
The general certification process in Ontario is well-established and has been described by the Board in numerous previous decisions (see paragraph 16 of the Board's June 7,1989 decision herein and also The London Soap Company Limited, [1987] OLRB Rep. Feb.. 241 at paragraph 12; Famz Foods Limited, [1985] OLRB Rep. June 857 at paragraphs 10 to 14; Unlimited Textures Company Limited, [1984] OLRB Rep. Jan. 138 at paragraphs 15 to 17). It is well settled that a petition filed in opposition to an application for certification must be voluntary (in the sense of being signed free of any improper influence) expression of the wishes of the employees who signed it before the Board will give any weight to it. The onus is on the employee(s) putting a petition forward to adduce sufficient evidence of its origination and circulation to satisfy the Board that those who signed it were exercising a free choice when they did so.
Because of the manner in which the certification process is structured, it is only those employees who had previously signed a piece of membership evidence filed in support of an application whose signatures on a petition are relevant to the Board's assessment of employees support for the application. Although aware that employees can and do change their views with respect to the desirability of trade union representation, the Board will carefully examine such apparent changes of heart where they follow, as they inevitably do, hard upon the heels of a decision to join a trade union. Before giving any weight to petitions which purport to indicate such changes of heart, the Board must be satisfied that they were voluntary and not motivated or influenced by any actual or perceived threat to job security, a concern that the employer is involved with the petition, or a concern that failure to sign a petition could result in reprisals.
In real life, people do no make decisions in sterile or laboratory conditions. Like it or not, pressure is a part of day-to-day life and most decisions, especially significant ones, are made under pressure, sometimes severe pressure. Peer pressure is naturally present in any union organizing campaign and salesmanship is often engaged in by both those who support and those who oppose an application for certification. However, in considering whether a petition is voluntary, the Board will distinguish between peer pressure and salesmanship, and undue or improper pressure or coercion. Employees are not entitled to decide whether or not to sign a petition entirely free from pressure. However, they do have a right to make such a decision free from any improper direct or indirect pressure, however subtle.
As the Board observed in Markham Hydro-Electric Commission, [1984] OLRB Rep. Oct. 1481, most "non-union" employers prefer to stay that way and their employees know it. Because of this and the nature of the employment relationship itself, the Board tends to view with suspicion any actual or perceived involvement of an employer with a petition.
An employer is entitled to not want its employees to be represented by a particular or any trade union. An employer is entitled to dislike a particular or any trade union. Similarly, an employee is entitled to like or dislike, or want or not want to be represented by a particular or any trade union. However, an employer is not entitled to choose or determine whether any of its employees will be represented by a particular or any trade union. An employer is not entitled to do anything which will directly or indirectly impinge upon the freedom which its employees enjoy under the Labour Relations Act to choose whether or not they, as a group, wish to be represented by a trade union. Nor can an employee act in a manner which suggests that the employer is involved with the petition or will become aware and be displeased with employees who do not oppose an application for certification.
Very often, the Board will not have direct evidence of improper conduct in connection with a petition filed in opposition to a certification application. That may be because there wasn't any. Unfortunately, it may also be for other reasons, including that the material facts may not be within the knowledge of those not directly involved, that such direct evidence is not put before the Board. It is not common for those guilty of improper conduct in certification proceedings to admit to it. Consequently, the Board gives close scrutiny to evidence of the origination and circulation of petitions in order to ascertain whether any inferences which can properly be drawn from the evidence before it suggest that any petition before it is not voluntary. In doing so, the Board employs an objective test.
Non-working foreman are usually excluded from a construction industry bargaining unit. As their title suggests, working foremen work with the tools but also exercise some supervisory responsibilities over other employees. However, working foremen are generally included in the construction industry bargaining unit unless they have some overall project responsibility or have the power to affect the employment of others. In many ways, the position of working foreman is the construction industry equivalent to the industrial leadhand position. Because employees in such positions tend to have a special relationship or proximity to the employer which sets them apart from other employees, the Board will carefully examine the participation of a working foreman in a petition (see Burl-Oak Paving Ltd., [1987] OLRB Rep. Apr. 474; Action Electrical Ltd., [1989] OLRB Rep. Feb. 79). We note that a working foreman is often the only regular employment authority figure on a construction job site and acts as the normal conduit between other employees and the employer.
The Board's concern with working foremen is not with their status as such, but, in light of their position vis-a-vis other employees, whether they have acted in a manner which has affected the voluntariness of any petition. Because of the nature of the employment relationship, in which employees are in a position of economic dependence on their employer, there is a difference, for purposes of assessing the support for and opposition to an application for certification, between a working foreman who participates in a union organizing campaign and a working foreman who participates in the origination and circulation of a petition. This is because the former are generally viewed as acting contrary to an employer's interest, while the latter are generally perceived to be acting in the interests of or even as an extension of the employer.
DiTomaso is a working foreman. It is common ground that he is an employee in the bargaining unit. Consequently, his status as such is not in issue before us. DiTomaso did, however, have overall responsibility for the Platinum job site and was the normal conduit for information between P & M and its employees on that site. In addition, DiTomaso is not a novice when it comes to petitions.
In our view, DiTomaso's approaches to Cook, Longworth, Mac Aleese, and Dunn were a calculated and concerted effort by him to induce those four employees, who he had identified as being marginal supporters of the applicant and who he thought would be susceptible to suggestions that they should alter their position, to send in a petition. The evidence suggests that something prompted DiTomaso to take action on April 3, 1989. The telephone call that Pollock made to Mancini, in which he specifically mentioned DiTomaso, and DiTomaso's flurry of activity the following day lead us to conclude that it more probable than not that Pollock made a similar telephone call to DiTomaso and that this was the "something" which was DiTomaso's incentive to approach Cook, Longworth, Mac Aleese, and Dunn on April 3, 1989. Such a telephone call was more probably than not what led DiTomaso to say that he would put his own job on the line for those employees who did sign a petition. DiTomaso do not strike us as being either imprudent or given to making rash promises. It is likely that he felt comfortable giving such an undertaking because of assurances he had received from Pollock.
43, In addition, the removal of Mancini from the Platinum job site was designed to make it easier for DiTomaso to obtain petitions. Mancini, who was, as we have already noted, the working foreman for at least three, if not all four, of the employees who DiTomaso approached on April 3, 1989, had been identified as a supporter of the applicant as a result of his conduct in the course of the applicant's organizing campaign (for example, an organizing meeting was held at his home, he participated in discussions about the merits of trade unionism on the job site, and he was present in at least one when at least Cook signed one of his cards). His removal from the Platinum site cleared the way for DiTomaso's approaches to Cook, Longworth, Mac Aleese, and Dunn. In this regard, we observe that Mancini's involvement with the applicant seemed more important to Pollock than the elevator problem at the Consulate when he telephoned Mancini on April 2, 1989. In addition, while there is no disputing that there was an elevator problem at the Consulate which had to be remedied, it is less than obvious why two journeymen (Mancini and Fearon) had to be sent there a full morning before any work directly related to the elevator problem could be done and given the type of work which then had to be done.
The evidence reveals that the employees perceived the respondent as being opposed to unionization. In our view, when DiTomaso, effectively the "boss" on the Platinum job site, approached Cook, Longworth, Mac Aleese, and Dunn on April 3, 1989, he was perceived to be delivering a message to them from P & M., their employer. That this message, which in essence was that "we know you support the union and if you don't send in a petition you will be in trouble" was received by those four employees is evidenced by their sudden interest in petitions. In the result, we have a working foremen, prompted by the employer, approaching employees during regular working hours to send in a petition and making threats relating to their job security. In these circumstances, we are not satisfied that any of the DiTomaso, Cook, or LongworthlMac Aleese's petitions were voluntary and we give them no weight.
And what of the Honybunf Lovnicki petition? The evidence establishes that Honybun, the only person who testified with respect to the origination and circulation of that petition, did not actually see anyone else sign it. The evidence reveals that there was a previous petition, which Honybun testified was identical to the one before the Board, the signatures on which Honybun did witness, but that petition is not before the Board. It appears that Lovnicki, for reasons which are not in the evidence before the Board, determined that that first petition was improper and took it upon himself to circulate the second one. The evidence also suggests that Lovnicki had a relationship with P & M which set him apart from other employees. In the result, the Board has no direct evidence of the origination or circulation of the HonybunlLovnicki petition other than for the signature of Honybun himself. For that reason, we are unable to give any of the signatures on it other than Honybun's any weight (see Custom Foam Specialities Limited, [1986] OLRB Rep. Dec. 1680; Skelhorns Bus Line Limited, [1986] OLRB Rep. Oct. 1435). Further, what evidence there is before the Board with respect to Lovnicki's position with P & M and his activities on April 3, 1989, leaves us unable to conclude even that Honybun's signature was voluntary.
There has therefore been insufficient doubt raised concerning the support enjoyed by the applicant to cause the Board to exercise its discretion under section 7(2) of the Labour Relations Act to direct that a representation vote be held. Having regard to the Board's findings in its June 7, 1989 decision and herein, the applicant is entitled to be certified. The only remaining issue is whether P & M and Northland Electric (Out.) Limited should be treated as constituting one employer for purposes of the Act. On the material before the Board, however, the disposition of this issue cannot, affect the applicant's right to certification with respect to P & M. Consequently, pursuant to section 6(2) of the Act and pending the final disposition of the application for relief under sections 1(4) and 63, the Board finds it appropriate to certify the applicant with respect to all journeymen and apprentice electricians in the employ of P & M Electric (1982) Ltd. in all sectors of the construction industry, excluding the industrial, commercial and institutional sector, 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, save and except non-working foremen and persons above the rank of non-working foreman. A formal certificate must await the disposition of the section 1(4) and section 63 matters. There is of course no need to deal with the applicant's request for relief under section 8.
The Registrar is directed to scheduled these matters for hearing for the purpose of hearing the evidence and representations of the parties with respect to the applicant's request for relief under sections 1(4) and 63 of the Act and any other matters arising out of or incidental to them.