Ontario Labour Relations Board
[1990] OLRB Rep. September 935
0246-90-R Klaus Willroider, Applicant v. The International Brotherhood of Electrical Workers, The International Brotherhood of Electrical Workers Construction Council of Ontario; International Brotherhood of Electrical Workers Locals 105, 115, 120, 303, 353, 402, 530, 586, 773, 804, 894, 1687, and 1739, Respondents v. Lorne's Electric - 291360 Ontario Ltd., Intervener
BEFORE: Brain Herlich, Vice-Chair, and Board Members R. M. Sloan and E. G. Theobald.
APPEARANCES: C. J. Abbass, Doug Eastman and Klaus Willroider for the Applicant; S. B. D. Wahl and K. Scott for all Respondents; Terry Churchmuch and Lorne Bretzlaff for the Intervener.
DECISION OF THE BOARD; September 10, 1990
This is an application for a declaration terminating bargaining rights filed to pursuant to section 57 of the Labour Relations Act.
The name of the intervener is amended to read: Lorne's Electric - 291360 Ontario Ltd.
Having regard to the agreement of the parties the following have been added as named respondents in this application: International Brotherhood of Electrical Workers ("IBEW"); The IBEW Construction Council of Ontario; IBEW Locals 105, 115, 120, 303, 353, 402, 530, 773, 804, 894, 1687, and 1739.
The parties met with a Labour Relations Officer on July 10, 1990 in an attempt to resolve or narrow the issues in dispute between them. That meeting resulted in an Officer's Report, signed by the parties and setting out their agreement to the following:
(1) The description of the bargaining unit is as follows:
"All journeymen and apprentice electricians and journeymen and apprentice linemen in the employ of Lorne's Electric - 291360 Ontario Ltd. in the industrial, commercial and institutional sector of the construction industry in the province".
(2) The relevant collective agreement has an expiry date of April 30, 1990 and the present application, having been filed on April 25, 1990, is timely.
(3) On the date of application there was one employee employed by the intervener in the bargaining unit.
The report also reflects the fact that the respondent indicated it wished to challenge the voluntariness of the petition filed in support of the application. The matter was consequently listed for hearing.
In view of the parties' agreement, the Board finds that the bargaining unit is as set out above and that the application is timely.
Upon commencement of the hearing and despite the contents of the Officer's Report adverted to, respondents' counsel advised the Board that there were two issues in dispute. Apart from the issue of the voluntariness of the petition, counsel also advised that he was of the view that there were in fact no employees in the bargaining unit on the date of the application. When the Board expressed its surprise at this issue being raised, Mr. Wahl explained that at the meeting with the Labour Relations Officer the parties had reviewed certain information regarding persons included on the employer's list. While the respondent had agreed that the applicant had been working at an ICI sector job site on the day in question (other employees had been working on residential sites) it now questioned whether the work performed at such site was construction or service and maintenance work. Notwithstanding this assertion, the Officer's Report clearly indicates the parties agreement that there was one employee in the bargaining unit on the date of the application.
Both the applicant and intervener objected to the respondent being allowed to raise the issue in view of the parties' previous agreement as reflected in the Officer's Report. The Board invited the respondent to call any evidence available to explain why the issue now being raised had not been raised earlier; no such evidence was provided.
While the Officer's Report in this case does not constitute a complete resolution of the matter, it is nonetheless in the nature of a settlement document. It is a document signed by the parties which, on its face, narrows the various issues potentially in dispute to one single issue - the voluntariness of the petition.
The value and importance of the settlement process in labour relations cannot be overstated. Settlement documents are not and should not be entered into lightly and as a general rule a party seeking to resile from a settlement document will not be looked upon favourably by an adjudicator.
As the Board observed in Crown Electric, [1978] OLRB Rep. Apr. 344 at para. 17:
"Parties who enter into written settlements have a responsibility to ensure that they are fully aware of the implications of any document to which they attach their signatures. In the absence of any allegation of fraud the Board must assume that parties have agreed to any settlement plainly expressed in a written document, or otherwise no settlement would be immune from a subsequent challenge".
The Board's jurisprudence contains numerous examples of the sentiment expressed in the above quotation being applied to circumstances which may not involve a full settlement of all issues in dispute between the parties (see for example Harnden & King Construction Ltd., [1986] OLRB Rep. May 635 where the respondent, having certified in writing the accuracy of the Officer's Report, was subsequently precluded from resiling from the parties' agreement (as reflected in the report) that a particular individual was not in the bargaining unit; Ivaco Inc., [1987] OLRB Rep. Apr. 511 where the Board declined to entertain an application brought under section 106(2) by a trade union which had several months earlier agreed that the very individuals now the subject of the 106(2) application be excluded from the list of employees for purposes of the count in the certification application; Lady York Food Market Ltd., Board file 1139-88-R, unreported, Jan. 12, 1989 where the respondent had initially raised allegations of intimidation and coercion in regard to the manner in which membership evidence had been obtained but subsequently signed an Officer's Report (and a waiver of hearing form) indicating the applicant was in a "vote position" and was ultimately found by the Board to be precluded from claiming a position - i.e. that the application should be dismissed without a vote on the basis of the allegations - inconsistent with the facts agreed to in the Officer's Report; and Cedarwood Acres Limited, Board File 0189-90-R, as yet unreported, July 20, 1990 where the objectors, having agreed, inter alia, to the voters' list and haying certified that the vote had been fairly conducted, were not subsequently permitted to seek to add persons to the voters' list).
Also of interest in the present facts is the case of We're Econoprint Fast, [1987] OLRB Rep. Mar. 440. A group of objectors sought an extension of the terminal date so that an untimely statement of desire would be accepted by the Board. The petitioner explained that the petition had not been filed earlier as a result of his reliance upon the employer's assertion that he was not to be included in the bargaining unit. The Board declined to extend the terminal date and cautioned that employees who rely on the advice of their employer with respect to this kind of issue do so at their peril.
In the present case the union, admittedly in reliance upon information provided by the employer during the course of the meeting with the Officer, agreed that there was only one employee in the bargaining unit. The union makes no allegation of fraud. If the union asserts that the information relied upon is incomplete or inconclusive, the appropriate time to raise such a concern is before, not after, agreeing to the conclusions which otherwise flow from the information provided. To allow the union to now advance a position inconsistent with its previous agreement as reflected in the Officer's Report would seriously undermine the efficacy and integrity of the Board's processes and the fundamental role of Labour Relations Officers within those processes.
In view of these considerations and having regard to the agreement of the parties, the Board finds that there was one employee in the bargaining unit on the date of the present application.
We now go on to consider the only remaining issue in dispute between the parties, the voluntariness of the petition. The applicant, Mr. Willroider, who was also the only bargaining unit employee on the date of the application gave evidence as to the origination and circulation of the petition filed in support of his application.
As a result of discussions with a fellow (non-ICI bargaining unit) employee the applicant was put in touch with counsel who ultimately represented him in these proceedings. Counsel prepared and delivered a petition form as well as an application to the applicant. On April 17, 1990 the applicant posted a handwritten notice on the bulletin board at the shop indicating there would be a "shop meeting" at 5:00 p.m. at the Lion's Club located about one mile from the workplace. The notice did not indicate the precise purpose of the meeting nor was its invitation limited to employees in the ICI sector.
Six employees attended at the meeting. The applicant explained to those attending that in order to decertify the union they had to sign the petition. He explained that he was seeking the signatures of employees who worked "commercially" (i.e. in the ICI sector). Four of the six employees signed the petition - the other two worked exclusively in the residential sector. The other three employees, apart from the applicant, who signed the petition have worked for the employer in the ICI sector but, as already noted, the applicant was the only employee in the bargaining unit on the date of the application. Having secured the requisite signatures, the applicant then forwarded the petition and application to counsel who, in turn, filed these with the Board.
The applicant also testified that the April 17th meeting was not the first time decertification had been discussed among employees. Indeed, prior to the April 17th meeting discussion had taken place regarding the need and expense of retaining counsel. Employees agreed to share that cost and one employee had furnished $500 to the applicant which was used to pay counsel's initial retainer.
Mr. WahI advanced a number of arguments in support of his position that the petition was not voluntary. First, because the applicant had initial conversations with a fellow employee who made the first contact with counsel, Mr. Wahl argued that we did not have evidence with respect to the "origination of the idea" of the petition. There is no doubt in our minds that the applicant was, in fact, responsible for the origination of the petition. We find Mr. Wahl's formulation of the "origination of the idea" of the petition somewhat troublesome in that in some strict sense the "idea" of a petition would, in all cases, be traced to the statutory provision comtemplating such documents. We are satisfied that, despite his consultation with a fellow employee, the applicant was primarily responsible for the origination of the petition. Further, we find no difficulties in the applicant's evidence which would cause us to question the voluntariness of the petition with respect to its origination.
Second, Mr. Wahl argued that we should decline to find the petition voluntary since we have no direct evidence as to its actual preparation or delivery to the Board. In this respect the uncontradicted evidence is that the applicant received the petition from counsel and returned it to him once the signatures had been obtained. The application and accompanying petition were filed with the Board along with a covering letter from counsel on April 25, 1990. There is no suggestion that counsel was acting on behalf of anyone other than the applicant. In the absence of any challenge to the propriety of Mr. Abbass' conduct or of any suggestion that there was anything untoward involved in his preparation of the petition, his delivery of the petition to the Board, or his custody of the petition, we are unable to accept that the failure of the applicant to call Mr. Abbass to testify has any impact on the issue of the voluntariness of the petition (in this regard see Labatt's Ontario Breweries, [1985] OLRB Rep. Mar. 433).
Finally, Mr. Wahl pointed to certain portions of the evidence in arguing that we should conclude actual or perceived management involvement in the petition. Employees attending the April 17th meeting were told that $500 had been raised to pay the initial retainer but were not told the source of those monies. The evidence before us, however, was that the money came from a fellow employee and, whether or not that specific piece of information was communicated to those attending the meeting, we see no basis in the evidence to conclude that there was, or that any reasonable employee would believe there was, any management involvement in this regard. Mr. Wahl argued that since the notice of the meeting was posted on the company bulletin board, employees might think attendance was being directed by the employer. The evidence, however, was that no management personnel attended the meeting and that the bulletin board in question is not used exclusively for notices posted by management. Finally, Mr. Wahl referred to the mandatory directions the applicant gave to fellow employees attending the April 17th meeting. While the applicant advised fellow employees that "they had to sign the petition in order to get decertified", we find nothing intimidatory, coercive or otherwise improper in his manner of presentation.
For all the above reasons and on the basis of the evidence and representations before it, the Board is satisfied that not less than 45% of the employees of Lorne's Electric - 291360 Ontario Ltd. 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 unions on June 1, 1990, the terminal date fixed for this application and the 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 the intervener employed in paragraph 4 above. All those employed in that bargaining unit on September 10, 1990 who are so employed on the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the respondents in their employment relations with the intervener.
The matter is referred to the Registrar.