[1990] OLRB Rep. April 464
1580-89-R International Union of Operating Engineers, Local 793, Applicant v. Russell H. Stewart Construction Company Limited, Respondent v. Group of Employees, Objectors
BEFORE: Ken Petryshen, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
APPEARANCES: Bernard Fishbein, John Monti and Alcino Silveira for the applicant; Henry Dinsdale and Robert Tout for the respondent; James E. Bowden and Randy Parks for the objectors.
DECISION OF THE BOARD; April 3, 1990
1By decision dated October 20, 1989 the Board (differently constituted) certified the applicant as the bargaining agent for all employees of Russell H. Stewart Construction Company Limited (hereinafter referred to as "the Company") in the Township of Manvers, save and except superintendents, persons above the rank of superintendent, and students employed during the school vacation period. The application was scheduled to be heard by the Board on October 20, 1989. On that day the applicant and the Company met with a Labour Relations Officer, reached agreement on all matters in dispute between them and further agreed to waive their right to a formal hearing in the matter. No petition opposing the certification of the applicant was filed in connection with this application prior to October 20, 1989 and no one appeared at the hearing representing the objecting employees.
2Randy Parks is an employee in the bargaining unit. Subsequent to the certification of the applicant, Mr. Parks sought reconsideration of the Board's decision certifying the applicant. After an exchange of correspondence between the parties, the Board scheduled a hearing on January 12, 1990 before the present panel for the purpose of hearing submissions with respect to Mr. Parks' request for reconsideration, as set forth in letters dated October 27 and November 2, 1989 from counsel for Mr. Parks. After entertaining the parties' submissions on January 12, 1990, the Board reserved its decision.
3Mr. Parks' reconsideration request was based on two relatively distinct grounds. He alleged that the applicant utilized improper solicitation techniques in securing its membership evidence. At the hearing on January 12, 1990, counsel for Mr. Parks conceded that Mr. Parks did not exercise due diligence in investigating the matters and in placing these allegations before the Board. In addition, Mr. Parks alleged that the application was tainted by fraud. In support of this latter position, he asserted that Jack Kerr, an employee in the bargaining unit, circulated a petition prior to the terminal date but never intended to file the petition with the Board nor to appear at the October 20, 1989 hearing. Mr. Parks also alleges that Mr. Kerr was acting as "agent" for the applicant with respect to his petition activity.
4In a decision dated January 29, 1990 the Board decided that it would not entertain Mr. Parks' allegations concerning the applicant's conduct in obtaining its membership evidence since the Board was satisfied that these allegations were made in an untimely manner. In this decision, the Board (H. Kobryn dissenting) also determined that a hearing would be held on February 16, 1990 in order to give Mr. Parks the opportunity to call evidence to support the allegations concerning Mr. Kerr's petition conduct. In the majority's view, these allegations suggested a serious abuse of the Board's process, which might constitute fraud.
5At the hearing on February 16, 1990 counsel for Mr. Parks called three witnesses to give evidence, namely Mr. W. McMillan, Mr. R. Bennett and Mr. Parks, all employees within the bargaining unit. The Company did not call any oral evidence. When the applicant was given the opportunity to present evidence, counsel made a non-suit motion and argued that the applicant should not be put to its election. After considering the parties' submissions on this issue, the Board (H. Kobryn dissenting) put the applicant to its election. The applicant elected not to call any evidence and the Board proceeded to hear final submissions. After hearing submissions from counsel for Mr. Parks and counsel for the Company and after recessing to consider the matter, the Board ruled orally at the hearing that the facts did not support the allegations made by Mr. Parks and that accordingly the reconsideration request and the application under section 58 of the Act were dismissed.
6The applicant filed its application for a bargaining unit of the Company's employees on September 26, 1989 and the Registrar fixed October 10, 1989 as the terminal date. The Company operates a quarry. A significant number of employees do not leave the site during the work week. They use sleeping accommodation on site supplied by the Company. Mr. Kerr was the employee who first made contact with the applicant. He talked to some employees concerning their interest in having a union represent them and advised them that a meeting of employees would be arranged to discuss unionization. The applicant held an organizing meeting on September 25, 1989 in a restaurant attended by three officials of the applicant. Mr. Kerr attended the meeting but did not play a role which distinguished him from any other bargaining unit employee. On a day shortly after the organizing meeting, Mr. Kerr woke an employee and took him outside the gate to meet certain union officials. Mr. Kerr did not sign as a collector on any of the membership cards filed by the applicant in support of this application.
7The Company held a meeting in the Recreation Room next to the cook trailer at approximately 6:00 p.m. on October 2, 1989. Mr. R. Tout, general superintendent, was in charge of the meeting which appeared to be called for the purpose of discussing unionization of the Company's workforce. In a five-page letter addressed to the Company's employees and circulated at the meeting, the Company advised: "We are considering NEW SALARY INCREASE AND BENEFIT PACKAGE and will be announcing our decision in the very near future". Shortly after the meeting, employees did receive a wage increase effective October 2, 1989. One of the witnesses called by Mr. Parks testified in cross-examination that a lot of employees began re-thinking the question of unionization after the Company meeting.
8After discussions with counsel, Mr. Parks decided he should not be the one to circulate a petition opposing the applicant. Mr. Parks contacted a fellow employee by telephone who volunteered to find someone to circulate the petition. Mr. Parks was unaware of how or why Mr. Kerr was selected to circulate the petition. Mr. Kerr did advise Mr. Parks the day after the Notice to Employees was posted on October 4, 1989 that he would circulate the petition. It was approximately at this time that Mr. Parks found out that Mr. Kerr had played a role in assisting the applicant in its organizing efforts. Mr. Kerr did obtain names on a petition opposing the certification of the applicant. He also obtained $500.00 from Mr. Parks and pledges of financial support from other employees in order to assist in hiring a lawyer. Mr. Kerr repaid the $500.00 after the hearing. As noted earlier, a petition was not filed with the Board prior to the October 20, 1989 hearing and no one appeared at the hearing on behalf of the objecting employees. Mr. Kerr did not attend work on October 20, 1989.
9Mr. Kerr was not an officer or official of the applicant during the relevant time frame. Nor was he, in our view, an agent of the applicant. Mr. Kerr was an employee in the bargaining unit who played what we would characterize as a relatively minor role in the applicant's organizing campaign. He made the initial contact with the applicant, discussed the matter of unionization with some employees and introduced at least one employee to trade union officials. Mr. Kerr did not act as a collector as disclosed by the membership evidence filed with the Board. Subsequent to the Company meeting of October 2, 1989 and the posting of the Notice to Employees, Mr. Kerr became involved in circulating a petition in opposition to the applicant. The Board's experience is that employees, for various reasons, may change their minds about unionization during the course of an organizing campaign and while an application for certification is being processed by the Board. Employees may initially favour a trade union, oppose it and then support it again within a very short time frame. There is nothing in the evidence which suggests that Mr. Kerr was anything but a supporter, albeit a somewhat active one initially, who changed his mind about supporting the applicant and was prepared to circulate a petition. It appears that after the Company meeting on October 2, 1989 and the wage increase effective that date, a number of employees began to reconsider their support for the applicant. There is no evidence before us concerning why Mr. Kerr did not file the petition with the Board or appear at the hearing. Such conduct is consistent with Mr. Kerr's simply changing his mind again. These are not the circumstances in which we would conclude that an evidentiary onus shifted to the applicant to explain why Mr. Kerr acted the way he did.
10In selecting Mr. Kerr to represent their interests in opposing the trade union, the objecting employees are bound by the actions of their representative. The Board was not satisfied that the evidence before us disclosed an abuse of the Board's process or fraud on the part of Mr. Kerr or the applicant.