International Brotherhood of Electrical Workers, Local 353 v. Westlake Electrical Contractors Limited, 1990 CanLII 5762

[1990] OLRB Rep. November 1163

1314-90-R International Brotherhood of Electrical Workers, Local 353, Applicant v. Westlake Electrical Contractors Limited, Respondent v. Group of Employees, Objectors

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members R. W. Pirrie and P. V. Grasso.

APPEARANCES: Bernard Fishbein and Michael Oram for the applicant; Norman R. A. White and A. Saulnier for the respondent; Steve Marshall, Mike Fonseca and Wayne Elliott for the objecting employees.

DECISION OF THE BOARD; November 16, 1990

1. This is an application for certification filed pursuant to the construction industry provision of the Act. At the hearing on October 26, 1990, we rendered the following oral ruling:

On the basis of the evidence we are not prepared to attribute weight to the petition filed.

The evidence of membership filed by the trade union is not affected by the petition. The union has filed membership evidence of more than 55 percent of the employees in the bargaining unit. That 55 percent threshold is met regardless of whether Mr. Massood was or was not an employee in the bargaining unit on the day of application.

We are satisfied on the basis of the evidence before us that more than fifty-five percent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on August 29, 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 purpose of ascertaining membership.

A final certificate will therefore issue to the applicant effective on this date.

Our reasons for not attributing any weight to the petition will follow.

We now provide our reasons.

2. We note that the objecting employees appeared without legal counsel. The Board com­mented that there was no requirement that persons appearing before the Board have legal counsel. The Board not infrequently conducts a hearing where one or more parties are unrepresented. Board hearings are legal proceedings however and persons appearing on their own behalf do bear any risks involved with appearing on their own behalf. We indicated to the objecting employees that the Board's function is to adjudicate and that it would be inconsistent with our role as adjudi­cators to become an advocate for, or advisor to, any party to the proceeding because that party is unrepresented by counsel. In Skelhorns Bus Line Limited, [1986] QLRB Rep. Oct. 1435 at para­graph 12, the Board observed:

3. Persons involved in proceedings before the Labour Relations Board have a right to appear before it with or without counsel. The Board recognizes the difficulties that face those persons who appear without counsel and normally affords such persons a somewhat greater latitude in the manner in which they conduct their cases. However, the law applicable to issues raised in a proceeding before the Board does not depend upon whether or not a party before it chooses to retain counsel. Choosing to neither retain counsel nor otherwise inform itself does not relieve a party of the obligation to prove its case. It has often been said that ignorance of the law will excuse no one from his obligations under it. Consequently~ the considerations of onus~ the rele­vant tests, and the law applicable to the Board's consideration ot petitions are apposite equally to cases where a party appears with counsel and those where a party appears without counsel.

4. As the objecting employees were unrepresented, the Board did however explain the process to be followed to the objecting employees (and the other parties) both initially and throughout the proceeding. We indicated that the issue which was outstanding was the "voluntari­ness" of the petition which had been filed by the objecting employees. We advised the objecting employees that they must call evidence regarding the origination and circulation of the petition. We indicated that the onus was on the objecting employees to present evidence about the petition, how it originated and how signatures on the petition were obtained. We further indicated that wit­nesses would be sworn, would testify under oath and be cross-examined by counsel for the employer and counsel for the union. At various stages of the proceeding the Board reiterated this information.

5. In addition we note that, as is usual, upon receipt of the application for certification the Board advised the respondent of the application and provided the respondent with sufficient copies of Form 78 (Notice to Employees of Application for Certification, Construction Industry), and an appropriate number of the notices entitled "Notice to Employees". The respondent was advised to post Form 78 and the notice. The evidence before the Board indicates that the employees were provided with copies of this documentation. Each of these documents refers to a statement of desire or petition and states, inter alia, that employees objecting to the certification must produce a witness or witnesses who, from personal knowledge and observation, can describe the circum­stances in which a petition was prepared. The notice to employees for example states:

A representative of the signing employees must appear and call witnesses to testify under oath about how the documents opposing the union originated (whose idea it was, who drafted it and where) and about the manner in which each of the signatures was obtained.

5. The burden of proving that, on a balance of probabilities, the petition represents the voluntary expressions of the employees who sign it lies with the objecting employees. The Board's reasoning has been set out in Pigott Motors 63 CLLC 16,264 where it was stated:

In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improp­erly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reason­able assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories.

6. We find that the objecting employees have not met this burden of proof. In view of our conclusion in this matter, it is not necessary for us to review in detail all of the evidence tendered during the course of this hearing. Nor is it necessary to deal with all of the submissions of the union.

7. As indicated, at the commencement of the hearing the Board explained to the objecting employees the necessity to call first hand evidence regarding the origination of the petition. This the objecting employees failed to do.

8. We heard the evidence of S. Marshall and M. Fonseca. They were able to testify, based on personal knowledge and observation about the manner in which the last three of the four signa­tures on the petition were obtained. They were unable to testify and did not know how the first sig­nature on the petition was obtained. Neither could they adduce evidence based on personal knowl­edge about the circumstances surrounding the origination of the petition. The originator of the petition, the person who drafted the petition and who apparently "thought" of the idea first' was not called to testify. For this reason alone the objecting employees have not met the burden of proof cast upon them.

9. There is ample and consistent Board authority for the proposition that failure by an objecting employee to call first hand evidence regarding the origination and preparation of the petition is fatal to a finding of voluntariness. In Phillips Electronics Industries Limited, [1974] OLRB Rep. Nov. 758 the Board stated that:

Failure by the objector to adduce first hand evidence of the origination and circulation will cause the Board to conclude that the petition may not be a true and voluntary expression of employee desires on, in other words, the voluntariness of the document has not been proven.

(See also Drummond Business Forms Limited, [1972] OLRB Rep. Aug. 782, Formosa Spring Brewery, [1974] OLRB Rep. Oct. 696, Intercity News Company Ltd., [1981] OLRB Rep. Feb. 171, Upper Canada Glass, [1981] OLRB Rep. Aug. 1181, Markham Hydro Electric Commission, [1984] OLRB Rep. Oct. 1494, Dynasty Inn, [1986] OLRB Rep. March 326, Hully Gully London Limited, [1990] OLRB Rep. Feb. 160, Remmington Rand Limited, [1963] OLRB Rep. March 535, Trench Electric Limited, [1976] OLRB Rep. March 163.

10. In addition there is a significant gap in the evidence with regards to the custody of the petition which is an equally fatal impediment to any finding on our part that the petition represents the voluntary wishes of the employees. Indeed the evidence which we do have about the petition does not persuade us that the change of heart by the employees with respect to union representa­tion was voluntary.

11. That evidence discloses that the petition document first surfaced at an employee meet­ing held on company premises after working hours one Friday afternoon. There is no clear evi­dence about who called the meeting or why it was called. It was clear from the evidence however that such a meeting was unusual. The owners of the company were present at that meeting and from the evidence we conclude that all attendees at the meeting (including the owners of the com­pany) were aware of the petition. The signatures of P2, P3. and P4 were not placed on the petition on that day but on Tuesday of the following week. We do not know when P1 signed the petition nor do we have any evidence about what happened to the petition between Friday afternoon and Tuesday afternoon when the last three signatories signed the petition.

12. The only evidence we have indicates that the last three signatories met together at the company premises during working hours on the following Tuesday. There, one of the signatories obtained the petition from the office area. The three went to the back of the office/warehouse area, signed the petition and apparently subsequently returned it to the front office. We have no evidence what happened to the petition after that or how it arrived at the Board.

13. In all of the circumstances of the case we cannot be satisfied that the persons whose sig­natures appear on the petition voluntarily signed the petition free from actual or perceived man­agement involvement. The lack of evidence in this case does not necessarily indicate that the peti­tion was influenced by management, it simply indicates that the objectors have not met the burden of proof cast upon them.

14. The Board therefore 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 December 12, 1977, the designated employee bargaining agency is the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario.

15. 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; on

(b) one on 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 on by voluntary recogni­tion.

16. The Board further finds, pursuant to section 144(1) of the Act, that all electricians and electricians' 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 electricians and electri­cians' apprentices in the employ of the respondent in all other sectors 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, constitute a unit of employees of the respondent appropriate for collective bargaining.

17. The Board is satisfied on the basis of all the evidence before it 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 August 29, 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 membership under section 7(1) of the said Act.

18. 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 14 above in respect of all electricians and electri­cians' 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.

19. Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all electricians and electricians' apprentices in the employ of the respon­dent in all sectors of the construction industry 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, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

20. In accordance with our oral decision of October 26, 1990, the certificates granted to the applicant are to be dated and are effective as of October 26, 1990.