Ubaldo Marcheschi v. International Union of Operating Engineers, Local 793
[1990] OLRB Rep. November 1143
3043-89-R Ubaldo Marcheschi on his own behalf and on behalf of a group of employees, Applicant v. International Union of Operating Engineers, Local 793, Respondent v. Ottawa Greenbelt Construction Limited, Intervener
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members M. Rozenberg and A. Hershkovitz.
APPEARANCES: George Rontiris and Ubaldo Marcheschi for the applicant; Gary Caroline, Len Budge and Rick Kerr for the respondent; W. T. Langley, Natale Giust and B. Ingmundson for the intervener.
DECISION OF THE BOARD; November 19, 1990
Ubaldo Marcheschi, has applied under subsection 57(2) of the Labour Relations Act for a declaration that the respondent trade union (hereafter "the respondent" or "the union") no longer represents the employees of Ottawa Greenbelt Construction Limited (hereafter "the employer") for whom it is the bargaining agent. Generally speaking, these are the employees of the employer engaged in the operation of heavy construction equipment and those engaged primarily in the repairing and maintaining of that equipment. The parties agree that the application is timely and the Board so finds.
The application raises two issues in addition to the usual matters arising out of and incidental to any application made under subsection 57(2) of the Act. One issue was whether a representation vote, if taken amongst employees who were in a bargaining unit which excluded the industrial, commercial and institutional ("ICI") sector of the construction industry, could affect the union's bargaining rights in that sector. The other issue was about an allegation that certain persons were at work on the date of making of the application in contravention of the collective agreement to which the employer and the union were bound and the effect that would have on the application if the allegation were proven true. The issues were raised as preliminary issues, but the Board ruled that it would decide those issues in the appropriate order after receiving the evidence and hearing final argument on all issues arising out of and incidental to the application.
Certificates were issued to the union on December 21, 1987 under subsection 144(2) of the Act for the employer's employees who operated and maintained heavy construction equipment. One certificate was for all such employees in the ICI sector of the construction industry in the Province of Ontario. The other was for all such employees in all other sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell ("Board area #15"). As a result of the certificate for the ICI sector, the union and the employer became bound immediately by operation of subsection 145(4) of the Act to the provincial agreement then in effect between the designated employee bargaining agency for operating engineers and the designated employer bargaining agency for the employers for whose employees the respondent holds bargaining rights in the ICI sector. The certificate with respect to all other sectors of the construction industry in Board area #15 did not have a similar effect. That certificate obligated the employer and the union to bargain in good faith and make every reasonable effort to conclude a collective agreement for those sectors.
The parties agree that the employer became bound to a collective agreement which was in effect from May 1,1988 to April 30, 1990 between the National Capital Road Builders Association ("the Association") and a council of trade unions representing, amongst others, the respondent ("the Agreement"), but the evidence does not reveal precisely when the employer became bound. A business representative of the respondent testified that the union did not have a collective agreement with the employer in 1988. If he knew when the union and employer first became bound to a collective agreement he did not say. The employer was making contributions to the union's health plan and pension plan and deducting union dues from employees at the rates called for by the Agreement in November and December, 1989. There is also evidence which suggests that the employer honoured authorizations for the deduction of union dues from employees' pay and was contributing to the health and welfare plans well prior to November and December 1989. The Association is an accredited employers' organization and has exclusive bargaining rights for employers of employees for whom the union has bargaining rights in the heavy engineering, roads and sewers and watermains sectors of the construction industry in Board area #15. It became accredited for those sectors during the term of the Agreement. That was on January 17, 1989, a little more than two years after the union was certified to represent the employer's operators and maintainers of heavy equipment. If the employer and the union had not yet entered into a collective agreement by January 17, 1989, they would have become bound to the Agreement on that date by operation of subsection 129(2) of the Act. If they had been bound to the predecessor collective agreement to the Agreement they would have become bound by the Agreement on its effective date, May 1, 1988. On the other hand, if they had been bound to some other collective agreement which expired after May 1, 1988, they would have become bound to the Agreement pursuant to subsection 127(2) of the Act upon expiry of the other agreement.
The parties agree that the employees of the employer for whom the union has bargaining rights who were at work on the date of making of this application were not working in the ICI sector of the construction industry on that date. They agree further that the employees who were at work on the date of making of this application were working in the bargaining unit described below:
all employees of the employer engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same in the roads, sewers and watermains and heavy engineering sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell.
In spite of that agreement of the parties, the two issues referred to at paragraph 2 above impact on the respondent's bargaining rights in the ICI sector. With respect to the first issue, counsel for the applicant took the position that, even though it was admitted that none of the employer's employees were at work in the ICI sector of the construction industry on the date of making of this application, should the Board direct that a representation vote be taken and a majority of the employees vote to terminate the union's bargaining rights, the effect of that vote should be to terminate all of the respondent's bargaining rights for the employer's employees. That is, the result should be to terminate the union's bargaining rights under the provincial agreement as well as its bargaining rights in the unit described above. With respect to the second issue, counsel for the union contended that the employees who were at work on the date of making of the application were either hired contrary to the terms of the provincial agreement (for the ICI sector) or were recalled following layoff contrary to the terms of the Agreement and, therefore, should not be treated by the Board as being at work in any unit of employees affected by this application.
The Board will deal first with the issue of what bargaining rights would be terminated in the event that the Board directs the taking of a representation vote and a majority of the eligible voters who cast ballots vote to terminate the union's bargaining rights. The thrust of applicant counsel's argument that a successful vote should result in the termination of the union's bargaining rights in the ICI sector of the construction industry in the Province of Ontario, as well as in all other sectors in Board area #15, is related to how a trade union gets certified under section 144(2) of the Act. When, as with the union herein, a union is certified under section 144(2), it receives two certificates, one for the ICI sector and another for all other sectors, regardless of which sector employees were actually working in on the date of application. In other words, for a certificate to issue to a trade union for the ICI sector it is unnecessary that the employees actually be working in that sector on the date of application. The reasons why this is so are explained in the Board's decision in Colonist Homes Limited, [1980] OLRB Rep. Dec. 1729. Applicant counsel argues that, if a trade union can get certified in the ICI sector even though the employer has no employees working in that sector at the time the application for certification is made, the same principle should apply when it comes to terminating bargaining rights in the construction industry. That is, counsel argues, the Board should follow the same process for the acquisition and termination of bargaining rights, and the process for terminating bargaining rights should not be dependent upon the sector or sectors in which the employees were working at the time the termination application was made.
This same argument was canvassed at length in the Board's decision in Fred Jantz Masonry Construction Company Limited, [1986] OLRB Rep. Aug. 1083. In that case, an application for termination of bargaining rights was made at a time when employees of the employer were working in sectors other than the ICI sector. The trade union held bargaining rights in the ICI sector under a provincial agreement, but there was no agreement covering employees of the employer working outside of that sector. The Board concluded that an application could be brought by those employees only for the bargaining rights outside of the ICI sector and they were not entitled to bring an application to terminate the ICI bargaining rights. The employer's argument is set out at paragraph 24 of the decision and the Board's reasons for its conclusions are set out in paragraphs 25 and 26. Those reasons are wholly applicable to the circumstances of this application and the Board herein adopts them as its own. Accordingly, the Board finds that there were no employees who were entitled to bring an application for termination of bargaining rights in the ICI sector of the construction industry on the date of making of this application, but that it was properly brought on behalf of employees who were entitled to bring an application for termination of bargaining rights in respect of all other sectors of the construction industry in Board area #15. Only those latter bargaining rights can be affected by a representation vote if one is taken.
The Board turns now to the issue of the effect on the application of the allegation that employees affected by it had been hired or recalled from lay-off contrary to the collective agreements binding on the employer. In view of the Board's conclusion that this application cannot affect the bargaining rights in the ICI sector and, further, since the employees who were at work on the date of making of this application were not working in that sector, the question of whether any employees were hired contrary to the provincial agreement is not relevant to this application. Therefore, the only issue is whether the employees who were at work on the application date were recalled to work following a lay-off contrary to the provisions of the Agreement. Clause 3.5 of the Agreement provides that an employer shall refer present employees to the union office before recalling them to work after a seasonal lay-off. Clause 11.1(b) provides that, amongst other things, in lay-offs and recalls from lay-off, the length of continuous service with the employer shall prevail if capability, competence and performance are otherwise approximately equal.
The parties to this application agree that there were five employees at work for the employer on the date of making of the application. It is the position of union counsel that only one of the five employees was recalled in compliance with the Agreement and that was Glen Stephens who was the last of the five employees to be recalled and the most junior of them in terms of continuous service with the employer. Union counsel claims that he was the only one of the five who was cleared through the union office before being recalled. It is admitted that the other four were not referred to the union office before being recalled to work. One of the four, a son of the owner of the employer, continued to work from time to time during the term of the lay-off, although it is unclear whether he was working in the bargaining unit. He has less continuous service than the other three employees and, if he was working in the bargaining unit while they were on lay-off, the employer was in breach of clause 11.1(b) of the Agreement. If he was not working in the bargaining unit, he was on a de facto lay-off and was not referred to the union office before he resumed working in the bargaining unit. He also resumed work before the other three employees even though he had less continuous service than them.
The applicant was one of the four employees and union counsel argues that he was not eligible to bring this application because he was not lawfully at work in the bargaining unit on the date of making of the application because the employer did not comply with clause 3.5 of the Agreement when he was recalled to work. Union counsel argues that Stephens was the only person who could have brought it and clearly he is not the applicant. Furthermore, counsel argues that the applicant could not rely on the support of any of the other employees who were unlawfully at work on the date of making of the application. In this respect, counsel relies on the Board's decision in April Waterproofing Limited, [1980] OLRB Rep. Nov. 1577.
In that case, a trade union had applied for certification to represent certain employees of an employer for whom a rival trade union was the bargaining agent. Immediately before the application was made, the employer had hired the persons on whose membership support the applicant relied for certification. They had been hired contrary to the hiring provisions of the collective agreement to which the employer and the incumbent trade union were bound. The Board reasoned that the applicant should not be permitted to benefit and the incumbent should not be prejudiced as a result of the fact that the employees were in the bargaining unit because of the employer's violation of the collective agreement. Therefore, the Board concluded that the employees hired contrary to the collective agreement should not be treated as being employed in the bargaining unit for purposes of the certification provisions of the Act. Counsel for the union in the instant case takes the same position with respect to section 57 of the Act and the four employees who were recalled, or in the case of one of them retained, contrary to the Agreement.
Three of the four employees challenged by union counsel, including the applicant, have been employees of the employer since approximately 1980 and 1981, well before the employer became unionized. Two of them are long time union members. The fourth one was the son of the owner. He first began working full-time for the employer in February or March of 1988, although he had worked during school vacations prior to that. The four were laid off at the end of the 1989 construction season and recalled at the start of the 1990 season in the same manner as they had been at the end of the 1988 season and the start of the 1989 season with the employer. For the three employees with longer continuous service than the son of the employer, there was no difference in the way in which they were laid off and recalled in other seasons whether before or after the employer became unionized. Stephens was hired only in September, 1989 so this was his first construction season with the employer.
The employer clearly did not alter its procedure for laying off employees at the end of the construction season and recalling them at the start of the next season after it became unionized, although by continuing its practice, the employer might have breached clause 3.5 by not referring employees to the union office before recalling them, and clause 11.1(b) by retaining or recalling the owner's son out of order. The Board notes that the union's business representative was unaware of the union ever having brought a grievance against an employer who had failed to refer employees to the union's office before recalling them from lay-off. Even if the employer has breached the agreement, on the evidence before the Board, it cannot reasonably be said that the employer manipulated its recall and/or retention of employees in 1990 in order to assist an application for termination of bargaining rights. What is more significant is that the same five employees would have been at work on the date of making of the application whether the employer was in breach of the Agreement or in strict compliance with it. At worst, strict compliance would have altered the order in which the employer's son was recalled relative to one of the other three employees. There is no evidence, nor is it alleged, that any of the four employees were recalled ahead of others who were entitled to recall before them. All four of those employees were recalled to work well before the making of the application and well before the applicant began to solicit support for the application. Therefore, this application has not enjoyed any advantage from the manner in which the five employees who were at work on the date of making of the application came to be at work. These circumstances simply do not raise any of the concerns which attracted the Board's attention in April Waterpoofing and, in the view of this panel of the Board, they do not warrant adopting the approach of the Board in that case.
When an application has been made under subsection 57(2) of the Act, before the Board can direct the taking of a representation vote (in this case a vote of the employees in the bargaining unit described at paragraph S above) subsection 57(3) requires the Board to ascertain the number of employees in the unit at the time the application was made and whether or not less than forty-five per cent of them have voluntarily signified that they no longer wish to be represented by the union. It states:
57.-(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as it determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
Ubaldo Marcheschi testified as to the origin, preparation and circulation of the petition filed in support of this application. His evidence was uncontradicted and the Board found him to be a credible witness. There is nothing in the manner in which the petition was prepared, circulated and filed with the Board which would cause the Board to believe that it was likely to have come to the attention of the employer before it was signed or that the employees might have signed the petition because they believed that the employer would learn whether they had signed it. The union called evidence which it argued should cause the Board to conclude that the employer was behind the petition and was known to the employees to be behind it. Having assessed that evidence along with all of the evidence about the origin, preparation and circulation of the petition and considered the submissions of the parties thereon, the Board's view of that evidence is quite different than that of union counsel. The Board would not be prepared to infer that the employer even had knowledge of the petition prior to the making of this application. Therefore, having regard to all of the evidence before it, the Board is satisfied that the employees who signed the petition are expressing their voluntary wishes not to be represented any longer by the union.
In the result, the Board is further satisfied that not less than forty-five per cent of the employees of Ottawa Greenbelt Construction Limited in the bargaining unit at the time the application was made, had voluntarily signified in writing that they no longer wish to be represented by the respondent trade union on May 8, 1990, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent trade union under section 57(3) of the said Act.
The Board directs that a representation vote be taken of the employees of Ottawa Greenbelt Construction Limited in the following bargaining unit:
all employees of the employer engaged in the operation of cranes, shovels, bulldozers and similar equipment, and those primarily engaged in the repairing and maintaining of same in the roads, sewers and watermains and heavy engineering sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell.
All those employed in that bargaining unit on the date hereof who are so employed on the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether they wish to be represented by the International Union of Operating Engineers, Local 793 in their employment relations with Ottawa Greenbelt Construction Limited.
The matter is referred to the Registrar.