[1990] OLRB Rep. May 499
2956-89-R Carpenters & Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, Applicant v. Cuneo Interiors, Respondent
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members R. W. Pirrie and R. R. Montague.
APPEARANCES: Dave Watson, Marisa Pollock and Mike Yorke for the applicant; Walter Thornton and D. Cuneo for the respondent.
DECISION OF THE BOARD; May 23, 1990
This is an application for certification pursuant to the construction industry provisions of the Labour Relations Act.
The Board finds that the applicant is a trade union within the meaning of section 1(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 April 10, 1980, the designated employee bargaining agency is the United Brotherhood of Carpenters and Joiners of America and the Ontario Provincial Council of the United Brotherhood of Carpenters and Joiners of America.
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; or
(b) one or 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 or by voluntary recognition.
The Board further finds, pursuant to section 144(1) of the Act, that all carpenters and carpenters' 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 carpenters and carpenters' 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.
In its reply, the respondent alleged that the membership evidence in support of this application was obtained in violation of the Labour Relations Act. The respondent alleged that the applicant's violation of the Act included, but is not limited to, section 70 of the Act. The applicant's conduct described as "irregular" or "improper" by the respondent involved alleged statements made by the applicant's representative to the effect that if employees did not sign union cards they would be removed from the site. The matter was put on for hearing and the Board heard the evidence of Mike Yorke, the applicant's organizer and business representative, and John Zanette, an employee of the respondent.
John Zanette has been employed by the respondent as a carpenter for the last three years. The respondent installs millwork, custom furniture, kitchens, as well as free-standing items. On the application date, Cuneo was installing counter tops, work stations and credenzas for the Canadian Imperial Bank of Commerce at Lawrence Square. The general contractor C.A.S. is bound to the Carpenters' provincial ICI agreement. The contract with Cuneo violated the sub-contract provisions of C.A.S.'s agreement since Cuneo is not an employer bound by the Carpenters' ICI agreement.
When Yorke first arrived on the site on another union matter, he found John Zanette doing carpentry work and asked him who he was working for and whether he had a union card. Zanette told Yorke he was working for C.A.S. and that he did have a card but it was in his truck. Zanette testified that in order to get rid of the union representative, he deliberately misled him by creating the impression that he worked directly for C.A.S. and that he had a Carpenters Union card, when in fact his card was a Labourers Local 183 card. Yorke was satisfied with the information which Zanette gave him until he came across another carpenter nearby who~ in response to Yorke's questions said that he and Zanette worked for Cuneo and were not members of the applicant. Yorke returned with the second carpenter and confronted Zanette. The evidence conflicts in some aspects at this point. Zanette testified that Yorke told him "if you are not with the union, you will have to get off the site" and that he (Yorke) "would see to it that we would be removed from the site". Zanette on a previous occasion had been physically removed from a union site by a security guard. It was his evidence that he wanted to finish his day and that to avoid being removed from this site, he signed a union card.
Yorke's evidence is somewhat different in the way in which the events occurred on the day in question. Yorke testified that he explained to Zanette and the other carpenter about the sub-contract clause and that he might file a grievance against C.A.S. Because of C.A.S.' having a collective agreement the carpenters could not work there unless they belonged to the union. Zanette agreed in cross-examination that Yorke did mention that C.A.S. had a collective agreement with the Carpenters, but does not recall any talk concerning a sub-contract clause. Zanette agreed in cross-examination that he did not understand about sub-contracts and that it would not have mattered if Yorke had told him about it. According to Zanette, Yorke said "I will have you removed from the site", and he took that as a threat. Zanette does not recall being told about a grievance being filed against C.A.S. but agreed that it was possible. Zanette testified that he did not listen very much to what Yorke was saying other than that he would be removed from the site. At the end of his shift, Zanette told the respondent what had happened and that he signed a card because he was threatened with being removed from the site. Zanette testified that he was "forced to sign and did not have the right to make his own choice". Zanette saw the notice to employees posted on the job site and read it but took no further action. Yorke's evidence was that he explained about the sub-contract provision and that C.A.S. could have the respondent's employees removed, that C.A.S. has that right under its collective agreement and that he (Yorke) wanted the collective agreement enforced.
Zanette understood that unless he became a member of the Carpenters' Union and in effect, unless Cuneo became certified, he (Zanette) would no longer be able to work at that site. The enforcement of the sub-contract clause of the collective agreement between the Carpenters and C.A.S. will result in Cuneo having to either become signatory to the agreement or leave the site, unless C.A.S. is prepared to accept the consequences of a continued violation of its agreement.
The respondent urged the Board to favour Zanette's evidence to that of Yorke's where they differed. The respondent submits that even on Yorke's own evidence there is sufficient irregular conduct to cause the Board not to count any of the membership evidence obtained by Yorke and in the alternative, at the very least a vote should be ordered. The respondent cited a number of cases to the Board in support of its submissions.
The applicant submits that unless there is a section 70 violation, there is no basis for the rejection of membership evidence. The applicant cited a number of cases in support of its position that the enforcement of a union's sub-contract clause is not a violation of section 70 of the Act.
Both Zanette and Yorke gave substantially the same evidence with respect to the events that led up to the signing of Zanette's card. The differences in their evidence are not sufficient to require us to deal with any possible credibility issue. We are satisfied that Zanette understood the implications of a non-union contractor working on a unionized construction project. Yorke was doing his job in trying to enforce the union's rights under their collective agreement's sub-contract provisions with the general contractor. Even on Zanette's evidence, we do not find that Yorke's conduct was such that it violates section 70 of the Act or is of a nature that would cause the Board to disregard the union's membership evidence obtained by Yorke. Section 70 of the Labour Relations Act reads:
No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
Having regard to the above, the submissions of the parties and the cases cited, we find that the applicant~ in the course of attempting to enforce its collective agreement with the general contractor by requiring the employees of the respondent to sign a union card or face the consequences of the enforcement of the collective agreement, did not engage in any improper conduct under the Act.
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 unity at the time the application was made, were members of the applicant on March 20, 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.
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 2 above in respect of all carpenters and carpenters' 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.
- Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all carpenters and carpenters' 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.