[1990] OLRB Rep. August 836
0002-90-R; 3284-89-R Antonio Bertucci, Applicant v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Respondent v. Cedarvale Woodworking Limited, Intervener
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members]. A. Ronson and P. V. Grasso.
APPEARANCES: C. I. Abbass and Anfonio Bertucci for the applicant; Brian Sheehan and Dory Smith for the respondent; Vincent P. Johnston and Pat Bertucci for the intervener.
DECISION OF THE BOARD; August 31, 1990
The name of the respondent is amended to read: "Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America".
This is an application for termination of the respondent's bargaining rights filed under both section 57 and section 60. The relevant bargaining rights derive from a voluntary recognition agreement. No collective agreement has been signed.
As a preliminary matter, the respondent objected to the applicant's bringing an application under section 57 and asked that it be dismissed. Section 57(1) provides as follows:
57.-(1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may. subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
It was argued that section 57 was not applicable to a voluntary recognition situation, since it makes reference only to certification. The respondent relied on The Sigal Shirt Company Limited, [1982] OLRB Rep. Nov. 1720.
The applicants took the position that they should be able to use section 57, although counsel acknowledged it was not the usual situation under section 57. Mr. Abbass argued that Mr. Sheehan's interpretation of the Act as a whole was not accurate. He argued that section 57 was for the purpose of giving the union a year to negotiate without fighting off a termination application but that section 60 was for the different purpose of addressing the legislature's concern over "sweetheart unions". Therefore, the legislature provided a mechanism to, after the fact, prove support. Mr. Abbass asked us to reserve on the preliminary matter until we had heard all the evidence on both applications, which would include the petition filed in support of the application under section 57.
Mr. Sheehan argued in reply that voluntary recognition is only contemplated by the Act in limited circumstances and it does not bestow all the same rights as certification. He thought that this should not be treated as a gap in the legislation but rather as a decision, on balance, that the legislature intended voluntary recognition agreements to be treated in this way.
Mr. Sheehan said that the fact that a union with a voluntary recognition agreement can be "raided" is an incentive for the union with the voluntary recognition agreement to get a collective agreement quickly. He acknowledged that under section 60 the circumstance is usually that of a raid. Further, he said that he could not see the harm done by the different focus of sections 57 and 60. If the union sits on its rights there are essentially no consequences for the employer or the employees. The freeze does not kick in and there is no collective agreement. If the employees want to be represented by another union they can do so. In the meantime they pay no union dues.
The Board ruled orally that certification was a pre-condition to an application under section 57(1) and therefore we would not hear the evidence of the petition supporting the application under section 57(l), but rather would hear the application under section 60.
Mr. Abbass also argued that we should hear the evidence on the petition in the context of the section 60 application, so that we could see that a majority of the present bargaining unit were not in favour of continued representation of the union. He referred to The Sigal Shirt Company Limited, supra for the proposition that we could grant a representation vote where there was uncertainty as to the union's entitlement to represent the employees. He submitted that evidence of membership cards, not accepted and scrutinized in the normal manner as in a certification application, would create uncertainty. Mr. Abbass submitted that the Board could not make a determination today as to whether the cards were valid, that that would have had to have been done in March of 1989. The Board ruled orally that evidence of a petition signed in the spring of 1990 was not of probative value on the issue before us under section 60 which is the union's entitlement to represent the employees in March of 1989.
The union's only witness was Dory Smith, Business Representative and Vice-President of the Carpenters' Local 27, a position he has held for four years. His job is to organize unorganized workplaces. In this capacity he was involved in the organizing campaign at Cedarvale in February of 1989. Since a majority of the employees had become members, a certification application was submitted on February 24, 1989. Membership cards and receipts were submitted for 11 employees, of which 9 were good cards. However, the membership evidence was apparently sent by registered mail after the terminal date fixed for the application. The employer nonetheless filed a list showing ii people in the bargaining unit. The certification application, the cards, the employee list and the voluntary recognition agreement were entered into evidence.
On the day of the hearing, March 31, 1989, the certification application and a related section 89 complaint were resolved by way of a settlement which was filed with the Board. The section 89 complaint was withdrawn and provisions were made for the recall and compensation of certain affected employees. Layoffs were to be by seniority except that Antonio and Sal Bertucci were to be the last laid off. The company voluntarily recognized the union as the exclusive bargaining agent for all employees in the following bargaining unit:
all employees of the respondent at its plant at Concord, Ontario, save and except non-working foremen, persons above the rank of foreman, office clerical and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation.
Mr. Smith testified that at the time of the settlement which included the voluntary recognition agreement, there was discussion that they could merely re-submit the membership evidence if necessary and since the employer agreed that the union had majority support he decided that he might as well give recognition. Prior to March 31, the date of the voluntary recognition agreement, no petition had been filed against the certification application and no one had contacted Mr. Smith for a retraction of a card. Mr. Smith was not sure what people were at work on the date of the voluntary agreement. In cross-examination, Mr. Smith denied that he knew that half the bargaining unit would be laid off on the Monday after the voluntary recognition agreement. The employer laid off a number of people in April because he had lost his major client. Mr. Smith testified that subsequent to the voluntary recognition agreement he tried to bargain on many occasions with the employer and took him a copy of the provincial collective agreement. The employer told Mr. Smith that there was no business and that he would negotiate when he recalled the employees. The employer went so far as to ask Mr. Smith to refer him whatever business he could and gave him business cards.
The employer called Pat Bertucci, one of Cedarvale's owners, as a witness. He has been a Vice-President of Cedarvale Woodworking for six to seven years and does general management of the company. He and his sister Sarah, who was the office manager, attended at the Board on the hearing date of March 31, 1989. He was of the view that a major motivation for the voluntary recognition agreement was that he had been cautious about laying people off during the freeze period and specifically was bargaining for the ability to lay off people. On April 3, 1989, the Monday morning after the voluntary recognition agreement, he laid off four people by seniority, and one person quit. Since then he has attempted to recall these people and none has returned. He has subsequently hired two additional people. He did not give any evidence which contradicted Mr. Smith's on the question of majority support.
Antonio Bertucci, the applicant and circulator of the petition supporting the section 57 application, also gave evidence. He is not involved in the management of the plant, as are his father and brother, but works there and did so in March of 1989. He had discussions about the union with other people in the shop after the notice of the certification application went up and it was his view that all the employees were convinced about the union: "They didn't want to hear no argument". The only person he had ever seen from the union after that was Dory Smith on a day that he went through the plant. He heard nothing further from the union for a long time. He then heard his brother and father, who run the company, speaking about the union and saying that their hands were tied. That was when he took it on himself to get legal representation and bring the applications under section 57 and 60. His father and brother told him that they could not do or say anything about it. It was his view that until he mentioned it the new employees did not know the union was in the plant. Mr. Bertucci gathered signatures on a petition in March, 1990.
Mr. Sheehan submitted that the evidence before us was sufficient to establish that the union was entitled to represent the employees at the time of the voluntary recognition agreement. He referred to TRS Food Services Limited, [1980] OLRB Rep. Mar. 1360 and Spring Plastering, [1967] OLRB Rep. Dec. 887. He said that the general approach of the Board is to determine whether the union had sufficient support of a majority of employees. The evidence here is that 10 cards were submitted which matched names of the 11 employees in the bargaining unit submitted by the employer. Together with the evidence that no petition had been filed and no request for revocation had been received, the Board was urged to rely on this as evidence for a finding under section 60. In answer to Mr. Abbass' submission that the fact that the Board had not scrutinized the cards in the way it would under a certification application, Mr. Sheehan submitted that this would require a certification application as a necessary pre-condition to an application under section 60. This would be contrary to the Board's jurisprudence in which it has indicated that under section 60 membership evidence is not required. He also asked us to consider the evidence of Pat Bertucci that the men wanted to be certified at the time and also of Antonio Bertucci that when he raised the issue with any of the employees they were solidly convinced in favour of the union.
For the intervener employer, Mr. Johnston argued that the cards by themselves were not enough to prove the majority support required by section 60. In this regard he referred to Eugene Marks, [1987] OLRB Rep. June 872 for the proposition that membership evidence is a rebuttable presumption, which we should find has been rebutted in this case. He does not admit that the cards are membership evidence. He submitted in this regard that there were no questions directed to Mr. Smith as to whether he had seen the employees sign, whether they understood what they were signing and whether they had paid a dollar.
Further, we were asked to find that Mr. Smith was not a credible witness as he said he did not know that the employer was going to lay off half the bargaining unit on Monday. Since he collected most of the cards and he is not believable, we were asked to infer that there is a cloud over his evidence and it should not be accepted. He asked us to draw an inference from the fact that there were layoffs the next business day after the settlement that the union was not entitled to be represented by the union.
In the alternative, counsel argues that on policy grounds we should grant the application. In a general plea for avoiding an overly technical approach, we were invited to fashion an appropriate remedy for these facts. In this regard he cited Gena ire Ltd. v. International Association of Machinist, 1958 CanLII 130 (ON HCJ), 14 D.L.R. (2d) 201 and DeVuono and Gallucci, [1965] OLRB Rep. April 59. Mr. Johnston asked us to take the preamble of the Act and section 3, the freedom to join or not to join a trade union, as our starting point. The basic thrust of the scheme of the Act is to protect the employees' ability to make their own choice and therefore we should find a way to allow these employees to express their choice. He relied on paragraph 3 of A. R. Milne Electric, [1982] OLRB Rep. June 911 for the proposition that employees should not be locked into a bargaining relationship. He referred to the amount of turnover in this bargaining unit and asserted that all of the people who signed cards were now gone. We are asked to read sections 57 and 60 together to find that a voluntary agreement is null and void after one year. We were invited to infer this from an overall reading of sections 56 to 60 which always grant the possibility of relief. If you miss one kind of application you can come back again. Counsel argues that if section 60 is read as granting no relief after one year, the employees are locked in and cannot rid themselves of their bargaining agent.
Employer counsel submits that under section 5(3), if another union can come in, the implication is that no voluntary agreement would still be in place. It was argued that policy allows us to fashion a similar remedy under section 60(1). Counsel submits that the employees' rights are so inextricably bound up with the union's rights under section 5(3) that the Board must have such a power.
We were asked to look at the application as a member of the bargaining unit, one of the people whom section 3 is aimed at. From this point of view, the union did nothing for a year on behalf of the employee. Counsel queried whether section 60 was designed to let the union get rights and indefinitely sit on them. He submitted that that would be the very harmful result to the people the Act is designed to protect. Further, he argued that since the general legislation is remedial, we should interpret it in favour of the individual rather than the state and that any doubt should be resolved in favour of the employee.
In the further alternative we were asked to hold a vote under section 60(2). In the employer's view a vote would resolve uncertainty in the evidence of membership, which it regards as doubtful. Further, a year has gone by, and the current employees are different. Given the problem these employees have bringing an application under section 57, we should order a vote in any event.
In reply, Mr. Sheehan said that Mr. Johnston's argument was equivalent to saying that the union had abandoned its rights but had not challenged Mr. Smith on his attempts to bargain with Mr. Bertucci. (Neither the applicant nor the employer asked the Board to find that the union had abandoned its rights and therefore we do not see abandonment as an issue in this case). Mr. Sheehan submitted that Mr. Smith was attempting to take cognizance of Mr. Bertucci's financial situation. He did not think it appropriate that a union should have its cooperation with the employer used against him. He relied on Eugene Marks, supra as well and said that the membership evidence was a rebuttable presumption but in this case it had not been rebutted. The facts here are very different from that case. In that case there had been a petition on the original certification application and the question before the Board was whether or not it should be considered under a subsequent section 60 application. The Board saw no reason why it should not. Those are not similar to the facts of this case.
As to Mr. Johnston's policy argument, Mr. Sheehan argues that the Board has no jurisdiction to rewrite the statute in that manner.
As to the broad policy concern raised by employer counsel, Mr. Sheehan submits that there is no mischief to be remedied. The employees can be certified by someone else if they think they've been abandoned. In the meantime there are no consequences. Antonio Bertucci said there was no effect on him. The only way he realized there was any problem was when his brother and father were talking about the union. Mr. Sheehan finds it difficult to see the great need for relief that Mr. Johnston's creative drafting would suggest there was. In any event, he submits, this would mean that an employer could simply stretch things out for a year and succeed automatically after having a voluntary recognition agreement.
Mr. Abbass adopted Mr. Johnston's submissions and said that the onus was on the union to show that they were entitled to represent, not just that they had cards. Here where there was no collective agreement, no conciliation, no first collective agreement application, no meetings with the employees and no notice to the employees after March 1989, we are entitled to take that conduct into account and look at the recognition agreement and the conditions under which it was entered into. The membership evidence was not sent in on time. The onus is on the union, not on the applicant.
The question before the Board concerns the proper interpretation of section 60. Subsections (I) and (3) of section 60 provide as follows:
- Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition agreement as provided for in subsection 16(3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation or. if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.
(2) Before disposing of an application under subsection (I), the Board may make such inquiry, require the production of such evidence and the doing of such things, or hold such representation votes, as it considers appropriate.
(3) On an application under subsection (I), the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement.
- The Board's jurisprudence under section 60 is not extensive. Eugene Marks, supra, contains a discussion of the role of membership evidence as follows:
The Act does not expressly prescribe the circumstances in which a union which has not been certified as exclusive bargaining agent for a unit of employees can nevertheless be said to be "entitled" to represent them. It is obvious that the situations in which such an entitlement can be found are not limited to those in which bargaining rights arise by operation of subsection 1(4), section 62 or section 63, since the Act contained the equivalent of section 60 before the predecessors of those provisions were added to it. The general scheme of the Act is that a union will be entitled to represent a unit of employees in collective bargaining with their employer if a majority of employees in the unit wish to be so represented by that union. The Board has interpreted the words 'entitled to represent the employees in the bargaining unit" in a manner consistent with that general scheme.
In Spring Plastering Limited, [1967] OLRB Rep. Dec. 887, the Board observed that:
... on an application for termination of bargaining rights under section 60, all the parties to the collective agreement must do is establish that the union was entitled to represent employees" at the time the collective agreement was entered into. Evidence that the trade union was entitled to represent the employees may well take a different form from the evidence of membership required on an application for certification. It must be remembered that any documentary evidence of the right of a trade union to represent employees was not necessarily prepared with a view of applying for certification and accordingly could reflect the desire of the employees to have the union represent them without complying with the Board's stringent tests of membership.
[emphasis added]
In Gilbarco Canada Ltd.,[1971] OLRB Rep. Mar. 155, the Board said:
16... the requirements of section 45a [now 60] of the Labour Relations Act, do not require membership. Section 45a speaks of representation as opposed to section 7 of the Act which refers to membership ... Accordingly, in assessing applications under section 45a the requirements of membership which obtain in applications for certification do not obtain although membership may be some evidence of representation.
[emphasis added]
In Gilbarco, the Board found that the union was entitled to represent a unit of employees because a majority of them had ratified a proposed collective agreement between it and their employer. In York County Quality Foods Ltd., [1984] OLRB Rep. Sept. 1340, the Board found that the onus imposed by subsection 60(3) had been satisfied by evidence that the collective agreements under attack had been ratified at a meeting of employees called and held in such a manner that the Board concluded that the ratification reflected the will of the majority. It is clear from these cases that, for the purpose of section 60, the union's entitlement to represent employees at a particular time turns on whether at that time a majority of them wished to be represented by it in collective bargaining with their employer. The question whether or not the employees were members of the union at the relevant time (in fact or by statutory definition) is only relevant because an employee's membership (or application for membership) in a trade union is evidence of the employee's wishes with respect to representation by that trade union.
Neither these nor any of the other cases cited by counsel for the union support the proposition that evidence that a majority of employees in the unit were members of the respondent union at that time the employer granted it recognition is conclusive of the question whether at that time the union was entitled to represent the employees in the bargaining unit" for the purposes of section 60. we are not aware of any decision which supports that proposition. The analysis in Trent Metals Limited, [1979] OLRB Rep. Aug. 827, seems inconsistent with it. In any event, the proposition is inconsistent with the general scheme of the Act, and we reject it. Evidence of their membership in a trade union is rebuttable, not conclusive, evidence of the desire of employees to be represented by that trade union in collective bargaining with their employer.
Thus, unless there is adequate evidence to rebut the presumption, membership cards are sufficient evidence of entitlement to representation. The evidence before us did not rebut that presumption; it indicated it was warranted.
Other cases where cards were accepted as membership evidence include Spring Plastering Limited, [1967] OLRB Rep. Dec. 887. However, evidence of membership may be sufficient but is not necessary to prove entitlement to represent employees. See Gilbarco Canada Ltd., [1971] OLRB Rep. March 155, decided under section 45a(1), a predecessor to section 60. There the allegation was that there were deficiencies in the membership evidence. The Board held at paragraph 16 that the requirements of membership which obtain in applications for certification do not obtain although membership may be some evidence of representation. The Board found that the employees had freely selected a trade union and participated in the processes leading to the signing of a collective agreement and that this was a situation which was not of the kind against which the section protects employees.
In the facts before us, there is no evidence of any factor which would lead us to doubt that the membership cards submitted indicate that the employees signing them were freely selecting a trade union to represent them. Indeed, the evidence of the applicant, as noted above, supports the idea that the employees were firmly in favour of union representation at the time.
Section 60(2) gives us the discretion to hold a vote where we consider it appropriate but we decline to do so. In this case, the evidence is sufficiently cogent that we are able to make a finding that the union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into. The evidence of the membership cards, together with the evidence of the two Mr. Bertucci's is better evidence of entitlement to represent as of the relevant date than information which could be gained from a representation vote well over a year later.
The Sigal Shirt Company Limited, supra, was an application for reconsideration of a decision of the Board that had dismissed an application under section 60. The reconsideration application asked for a representation vote in the alternative and supported this request by a petition. The Board refused the application on the basis that there was nothing contained in the request for reconsideration which would have, even if presented prior to its decision, led to another conclusion. In particular, it underlined that section 60 does not anticipate a representation vote except where there is uncertainty as to employee wishes at the time that the voluntary recognition agreement was entered into. At paragraph 6 the Board said as follows:
This section [60(1)] does not give the Board a general power to resort to a Board-supervised vote as an aid in resolving a question of employee wishes where the evidence shows that at the relevant time... the respondent was entitled (in this case majority support) to represent the employees in the bargaining unit. The signatories to the petition may well have wished to show they no longer support the respondent. However, this has no effect on a section 60 application in that the relevant time for determining the entitlement of the respondent to representation rights is the date when the recognition agreement was entered into. A representation vote can only be ordered where there is a lack of certainty as to the entitlement as of that date and a vote is necessary to resolve that uncertainty. In this case there is no uncertainty because the applicant, through her counsel, conceded that on [the date of the voluntary recognition agreement], the respondent had as members 46 of the 87 employees acknowledged to constitute the bargaining unit.
We also note that we find no merit in the argument that the layoff immediately following the recognition agreement sheds light on whether or not the union was entitled to represent the employees on the day the voluntary recognition agreement was signed. This argument seems to imply that a union who is unable to prevent layoffs is not entitled to represent its members. We do not accept this proposition. Furthermore, the fact that a condition of signing the voluntary recognition agreement was that layoff would be in order of seniority is evidence of the assertion of representation rights at that time.
Nor do we consider that we have the jurisdiction to interpret the Act in the manner Mr. Johnston suggests. The language of section 60 is clear. There is no conflict between sections 57 and 60 in our view and therefore no room for the "reading in" that is suggested. To say there is no conflict is not to say that there is symmetry between sections 57 and 60. However, there is no reason to believe that the Legislature intended other than what the provisions together provide. We do not read Genaire Ltd., supra, which dealt with substantially different facts as an invitation to ignore the clear wording of the statute. When and if the parties reach a collective agreement section 57(2) is available. Section 5(3) will apply if another trade union seeks representation rights. In the absence of either of these two situations it does not appear the legislature thought any further provision was necessary to end the relationship which was voluntarily entered into.
For all the above reasons, we will not make the declaration under s. 60 which the applicants request. The application is dismissed.
CONCURRING DECISION OF BOARD MEMBER J. A. RONSON; AUGUST 31, 1990
1 agree with my colleagues that, as matters now stand, the applicant employees have no claim to a remedy under section 57 and section 60 of the Act.
However, given the preamble to our Act, I cannot agree with my colleagues that the legislature actually intended the rather unfortunate results of this case. The employees are caught in a sort of "never never land" where their wishes are of no import. By sitting on its rights the respondent union has created a situation quite unforeseen by the legislative draftsman and clearly abrogative of the stated intention of the Act.