Ontario Labour Relations Board

[1991] OLRB Rep. October 1199

2178-90-R; 2754-90-U Local 47 Sheet Metal Workers' International Association, Applicant v. Rayproof Canada Limited, Respondent v. Group of Employees, Objectors; Local Union 47 Sheet Metal Workers' International Association, Com­plainant v. Rayproof Canada Limited, Respondent

BEFORE: Ken Pet ryshen, Vice-Chair, and Board Members J. Lear and N. A. Wilson.

DECISION OF THE BOARD; October 11, 1991

1. The Board has two matters before it. Board File No. 2178-90-R is an application for certification filed by Local 47 Sheet Metal Workers' International Association ("Local 47"). Board File No. 2754-90-U is a section 89 complaint in which Local 47 alleges that Rayproof Canada Lim­ited ("Rayproof') contravened sections 64, 66 and 70 of the Labour Relations Act. Having regard to the agreement of the parties, these two matters are consolidated.

2. The Board 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 April 28, 1986, the designated employee bargaining agency is the Sheet Metal Workers' Interna­tional Association and the Ontario Sheet Metal Workers' Conference consisting of Locals 30, 47, 235, 392, 397, 473, 504, 537, 539, 562 and 269 of the Sheet Metal Workers' International Associa­tion.

3. 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.

4. The Board further finds, pursuant to section 144(1) of the Act, and having regard to the agreement of the parties, that all sheeters, sheeters' assistants and material handlers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all sheeters, sheeters' assistants and material handlers in the employ of the respondent in all other sectors in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, 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.

5. When the application for certification came on for hearing on February 7, 1991, there were a number of issues in dispute between the parties as evidenced by the Labour Relations Offi­cer's Report dated January 17, 1991 and the section 89 complaint. It is unnecessary to detail these issues since the parties were able to settle many of them on February 7, 1991 and prior to the next day of hearing on March 27, 1991. By the hearing on March 27, 1991, the parties agreed:

1. that Rayproof performed work in the construction industry;

2. on a bargaining unit description, and

3. on a list of employees.

6. There remained in dispute between the parties the issue of whether the petitions filed in opposition to Local 47's certification represented a voluntary expression of employee wishes and Local 47's section 89 complaint combined with its request for section 8 relief. The Board will deal firstly with the issue of the voluntariness of the petitions.

7. As the parties had agreed, there were nine persons employed by Rayproof in the bar­gaining unit on the application date. In support of its application, Local 47 filed membership evi­dence on behalf of six of those employees. On the two petitions filed with the Board, each contain­ing two signatures, there were the signatures of two persons who previously had signed a membership card. The objecting employees called two witnesses, namely B. Onion and R. Mathe­son. Rayproof called L. Martin and M. Fortier to testify with respect to the issues in dispute. D. Mitchell, D. Kinch, T. Bullis and K. Van Iterson were called to give evidence by Local 47. In determining the facts, the Board has carefully reviewed all of the evidence before it and the par­ties' submissions.

8. Rayproof is engaged in the fabrication, supply and installation of shielded enclosures and anechoic chambers. Its Ontario office and shop facilities are located in Smith Falls. At the time of the application, Rayproof was involved in a significant project in Ottawa at the National Headquarters, Solicitor General's Building ("Sol. Gen. site"). While working at that site, the employees of Rayproof were supervised by L. Martin, a foreman.

9. Local 47 filed its application on November 16, 1990 and the Registrar fixed a terminal date of November 30, 1990. As noted earlier, the Board received two timely petitions opposing the certification of Local 47. No one appeared at the hearing to give evidence concerning the prepara­tion, origination and circulation of the petition dated November 29, 1990 which was sent to the Board by registered mail on November 29, 1990. Accordingly, the Board is not in a position to give any weight to the signatures on this petition. In any event, the signatures on this petition were not relevant. Mr. Onion appeared at the hearing and he and Mr. Matheson gave evidence concerning the origination, preparation and circulation of the petition dated November 26, 1990 which was sent to the Board by registered mail on November 28. The evidence from these witnesses concern­ing the actual preparation and circulation of the petition, the details of which we find unnecessary to set out in this decision, could support in isolation a finding of voluntariness. However, such evi­dence cannot be viewed in isolation and it is necessary to review the events which immediately pre­ceded the preparation of the petition on November 14 and 15, 1990.

10. T. Belleville, a Local 47 representative, attended at the Sol. Gen. site on two occasions on November 14, once during working hours and at the end of the shift. On both occasions, Ray-proof employees signed applications for membership in Local 47. When Belleville first approached Rayproof employees during the workday on November 14, the employees were on a break. The discussion between Belleville and the employees was not extensive and briefly canvassed the advantages of union membership. When Belleville left the jobsite, employees had further discus­sions amongst themselves. At some point, one of the employees, G. Robb, telephoned Rayproof's office and advised M. Fortier, Rayproof's Project Manager, that Belleville was on site talking to employees. Fortier instructed Robb to tell Martin to call the office. Robb did as he was told and when Martin called Rayproof, Fortier was engaged in a telephone conversation with P. Currie, the General Manager, who at the time was in the United States. During a conference call, Fortier, Currie and Martin discussed some business matters and then turned to a discussion of the union sit­uation. Currie's "knee jerk" first suggestion was to fire all of the employees on site. It appears that Fortier and Martin convinced him that such a response was not wise. They then discussed sending the crew home for the remainder of the shift, but this notion was also discarded. Ultimately, it was decided that the status quo would be maintained and that Fortier would obtain some legal advice. When Martin returned to the employees, he told them the essence of his conversation with Fortier and Currie, including Currie's initial reaction that they should all be fired. The employees had some further discussion about the union and then returned to work. Belleville was contacted later in the afternoon and did come to the jobsite in order to secure additional membership evidence.

11. Fortier called Martin at approximately 5:00 p.m. on November 14 and told him that he would be at the site on the following day to talk to the employees. Fortier testified that Martin had given him the impression that there was a considerable amount of tension and uncertainty amongst the employees concerning future work on the site. Fortier did talk to the employees during the morning of November 15 for approximately half an hour. It is unnecessary to review all of what Fortier said and the details of the discussion that occurred between Fortier and the employees. Fortier began by advising the employees that no one would lose his job over union activity and that Rayproof could not stop them from joining a trade union. A number of employees at the meeting had been hired on a temporary basis and Fortier pointed out that for them and Rayproof this was a probationary period. Fortier made reference to the unique nature of the installation work per­formed by Rayproof and that even though the work was sporadic, Rayproof was trying to create a work force in the Smith Falls area from which it could draw. Fortier did compare Rayproof's hiring philosophy with what he understood to be the way the union's hiring hall system worked. The gist of the point being made by Fortier was that Rayproof's plan to train and use Smith Falls' employ­ees in the future for its sporadic work requirements would be jeopardized with a hiring hall scheme requiring it to seek employees from Local 47. Fortier also referred to the possible purchase of another plant in order to permit Rayproof to diversify and expand. At the conclusion of the meet­ing, Fortier reviewed the progress of the job with Martin and then left. Fortier conceded that this was the first time he had held a meeting with all employees at a jobsite.

12. The onus is on objecting employees to satisfy the Board on the balance of probabilities that the petition represents a voluntary expression of employee wishes. When assessing the volun­tariness of a petition, the Board has often noted that it has regard to the overall environment in the workplace, as well as the responsive nature of the employer-employee relationship. Having regard to the evidence before us and the parties' submissions, the Board is not satisfied that the relevant petition filed with the Board represents a voluntary expression of employee wishes given that it was prepared and circulated shortly after the events of November 14 and 15, 1990.

l3. Although Rayproof did not take any direct action with its employees on November 14 or prior to the terminal date, the message conveyed to employees by Martin was that Rayproof considered unionization to be a serious matter and that Currie had considered serious employment consequences for the employees if they elected unionization. It is not surprising that employees did have some concern about work at the Sol. Gen. site once they were advised that Currie considered firing everyone on the site. Fortier testified that his purpose in meeting with employees on Novem­ber 15 was to calm them down and he did advise them that no adverse consequences would flow from a decision on their part to select a trade union to represent them. However, reasonable employees who heard Fortier's comments at the meeting of November 15 would more likely than not have concluded that their future employment with Rayproof may have been in some jeopardy if they selected Local 47 to be their bargaining agent. Fortier's comments concerning Rayproof's hiring philosophy in the context of sporadic work as opposed to what could occur if Local 47's hir­ing hall procedure was to apply sent the message to employees that their long-term employment interests may be enhanced by opposing the certification of Local 47. In effect, the consequences of Fortier's comments gave employees the choice of Local 47 as their bargaining agent with whatever work Local 47 might be able to obtain for them and continuing to work for Rayproof. When one examines the petition activity in the context of the totality of the events of November 14 and 15, the Board is not satisfied that the petition represents a voluntary expression of employee wishes and accordingly, will give it no weight. As a result of this determination, it is unnecessary to deal with Local 47's claim for section 8 relief.

14. 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 November 30, 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.

15. 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 sheeters, sheeters' assis­tants and material handlers 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.

16. Further, pursuant to section 144(2) of the Act, a certificate will issue to the applicant trade union in respect of all sheeters, sheeters' assistants and material handlers in the employ of the respondent in all sectors of the construction industry in the Regional Municipality of Ottawa-Carleton, and the United Counties of Prescott and Russell, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman.

17. We now turn to the section 89 complaint in which Local 47 alleges that T. Bullis, D. Kinch and K. Van Iterson were treated by Rayproof contrary to the Act. These three grievors were laid off by Rayproof and their last day of work was January 11, 1991. Local 47 takes the position that there was work available for the grievors subsequent to January and that Rayproof's deci­sion not to offer further work to the grievors was based on their support for Local 47.

18. The three grievors, as well as some other employees, were hired by Rayproof as instal­lers during the Fall of 1990 to work on the Sol. Gen. site in Ottawa. It appears that at the time of hiring, Rayproof knew that the grievors had previously worked for a firm where Local 47 held bar­gaining rights. The grievors were advised that they were being hired on a temporary basis for the Sol. Gen. project which was expected to last for approximately twelve weeks, after which they would be laid off. Once the installation work was essentially completed, Rayproof decided to lay off the three grievors and R. Matheson, the most junior employee, at the end of the week of Janu­ary 7, 1991. For reasons not necessary to set out, Rayproof discovered it was necessary to keep one of the four laid-off employees on a little longer. Rayproof asked Matheson if he would stay on and he agreed to do so. Matheson continued to work at the Sol. Gen. site for a short while and then performed other work for Rayproof where required. In reviewing the evidence concerning what work would have been available to the grievors subsequent to January 11, 1991, the Board is satis­fied that the only work any of the grievors could reasonably have expected to be considered for was the work performed by Matheson. In other words, there was only work for one person. No additional persons were hired in the shop and Rayproof did not commence any other projects dur­ing the relevant time. Rayproof did rehire a person for a job at Shirley's Bay, but we are satisfied that its decision not to offer this job to one of the grievors was not contrary to the Act. In essence, the Board is left with the issue of why Rayproof continued to employ Matheson and whether its decision not to continue to employ the grievors was in part contrary to the Act.

19. Rayproof's decision not to offer continued employment to the grievors was based, as Fortier maintained in his evidence, on its understanding that the three grievors did not want to continue working. Matheson, on the other hand, had expressed a desire to continue working for Rayproof. Martin testified that during the week of January 7, 1991 he canvassed all the grievors about whether they would want to work for Rayproof at some point in the future after the lay-off. Martin stated that each grievor responded by saying that they did not want to work for Rayproof in the future. Martin conveyed this information to Fortier who later decided to offer continued employment to Matheson.

20. In their evidence before us, the grievors denied that Martin asked them whether they wished to work for Rayproof in the future and that their response was a negative one. After exam­ining the evidence on this issue, the Board prefers the evidence of Martin. The three grievors con­ceded that it was not uncommon for all of them to express a desire to be laid off or in some other way indicate an inclination not to work for very long for Rayproof. They claimed that any com­ments they made along these lines were made in a joking fashion. Although denying that he indi­cated to Martin during the week of January 7 that he did not want to work for Rayproof in the future, Kinch indicated that any response that was made was made in a joking manner. In cross-ex­amination, Kinch further agreed that Martin was probably not wrong if he did not interpret the response of the grievors in a joking manner. In examining Martin's evidence and the evidence of the three grievors, the Board is satisfied that the grievors made comments to Martin which could reasonably be relied upon by Rayproof as an indication that the three grievors did not want future employment with Rayproof.

21. In deciding the section 89 complaint, the Board has had regard to Rayproof's probable knowledge of the grievor's support for Local 47, as well as the events of November 14 and 15, 1990. However, the Board finds as credible Fortier's contention that the only reason he did not offer any of the limited work that Matheson continued to perform to one of the grievors was because of his understanding that they did not want such work. In the Board's view, Rayproof has satisfied the onus upon it to demonstrate that its treatment of the grievors was not contrary to the Act. In reaching this conclusion, the Board notes that it did not take into account any of the evidence or submissions of R. Matheson which were directed to the section 89 complaint.

22. Accordingly, the section 89 complaint is dismissed.