[1991] OLRB Rep. May 609
0021-90-R Angelo Ganassin, Applicant v. The United Brotherhood of Carpenters and Joiners of America; the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America; the Carpenters District Council of Toronto and Vicinity; Lake Ontario District Council; Western Ontario District Council; Ontario Acoustical and Drywall District Council, and their affiliated Local Unions 18, 27, 38, 93, 249, 397, 446, 494, 572, 675, 785, 1071, 1256, 1316, 1450, 1669, 1946, 1988, 2041, 2050, 2222, 2451, 2486 and 2965, Respondents v. D-K Construction Ltd., Intervener
BEFORE: N. B. Satterfield, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
APPEARANCES: Michael Horan and Angelo Ganassin for the applicant; Douglas J. Wray, Karl Ball and Steve Koehler for the respondents; Pamela Yudcovitch and Murray Dietrich for the intervener.
DECISION OF THE BOARD; May 9, 1991
1At the hearing into this application, counsel for the applicant requested and the Board directed that the name of the respondent be amended to read: "The United Brotherhood of Carpenters and Joiners of America; the Ontario Provincial Council, United Brotherhood of Carpenters and Joiners of America; the Carpenters District Council of Toronto and Vicinity; Lake Ontario District Council; Western Ontario District Council; Ontario Acoustical and Drywall District Council, and their affiliated Local Unions 18, 27, 38, 93, 249, 397, 446, 494, 572. 675, 785, 1071, 1256, 1316, 1450, 1669, 1946, 1988, 2041, 2050, 2222, 2451, 2486 and 2965".
2This application was made under section 57 of the Labour Relations Act for a declaration that the respondent no longer represents carpenters and carpenters' apprentices employed by D-K Construction Ltd. It was unclear from the application whether the applicant was seeking to terminate the bargaining rights for all of the carpenters and carpenters' apprentices employed by the employer in the construction industry, or only those in the industrial, commercial and institutional (ICI) sector of the construction industry. At the hearing, the applicant agreed that its application should properly be limited to the ICI sector and the other parties agreed. Having regard to their agreement, the Board finds that, for the purposes of this application, the bargaining unit affected by the application is:
all journeymen and apprentice carpenters, other than millwrights, engaged in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario for whom the respondents have bargaining rights with the employer.
The parties agree that the application is timely.
3The employer filed a list of employees containing the names of seven persons, including the applicant Angelo Ganassin. The union took the position initially that Ganassin was not an employee in the bargaining unit because he exercises managerial functions within the meaning of subsection 1(3)(b) of the Act or, in the alternative, on the date of making of the application he was not at work in the bargaining unit. The union claimed also that Jeff Piotrowski, an apprentice carpenter, should not be on the list because he was not at work in the bargaining unit on the date of making of the application. Employer counsel produced a time record for Piotrowski for that date. After union counsel examined the record, he took the position that the union may have to challenge all of the persons on the list on the grounds that none of them were employed in the bargaining unit on the date of making of the application. While the union's claim that Ganassin did not have status to bring this application was in the nature of a preliminary motion, for reasons given in the hearing, the Board ruled that it would hear all of the evidence respecting whether the petition expressed the voluntary wishes of the employees who had signed it and the evidence respecting the union's challenges to the list and would decide those issues in the appropriate order after hearing the parties' final argument.
4The applicant, Angelo Ganassin, was the only witness who gave evidence at the hearing. He was a forthcoming, candid and credible witness. The findings of fact herein have been made having regard to Ganassin's evidence and the parties' representations respecting the conclusions which the Board should reach based on that evidence and the Board's jurisprudence on which they relied.
5When an application is made under section 57 of the Act, subsection 57(3) requires the Board to ascertain the number of employees in the bargaining unit when the application was made and whether not less than forty-five per cent of those employees "... have voluntarily signified in writing ... that they no longer wish to be represented by the trade union, ...". If not less than forty-five per cent of those employees have so signified, subsection 57(3) requires the Board to satisfy itself by means of a representation vote whether "... a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.".
6The employer classified Ganassin on the list of employees as a working foreman. Three other persons on the list were similarly classified. Ganassin described himself as a carpenter working foreman. He was working foreman on the employer's Mastercut project, one of two projects which the employer had at the time the application was made. Six of the seven persons on the list of employees were working on that project on the date of making of the application. The seventh person, Jeffrey Lehmann, was working on the other project. The Mastercut project had been started the day before the application was made and Ganassin had been assigned by the employer to supervise it. Ganassin testified about his duties and responsibilities as a working foreman and contrasted them with the duties and responsibilities of the other three persons classified by the employer as working foremen. He testified also about the nature of the work being performed by the five other persons on the Mastercut project.
7Having regard to the evidence about the work being performed on the date of making of the application at the Mastercut project, including the time card for Jeff Piotrowski for that day, the Board finds that each employee on the list except Piotrowski was employed in the carpentry trade for the majority of his time on the application date. Therefore, the Board finds that, at the time the application was made, there were six persons at work in the bargaining unit, namely, Monte Fitch, Angelo Ganassin, Andreas Kyriakou, Jeffrey Lehmann, Robert Mader and Robert Tonin. Five of those employees signed the petition signifying that they no longer wish to be represented by the union. Therefore, should the Board find that the petition expresses their voluntary wishes, the Board would direct the taking of a representation vote.
8Ganassin has been employed by the employer as an apprentice carpenter and carpenter for 15 years. As noted already, he is one of four persons whom the employer has classified as working foremen on the list of employees. The others are Monte Fitch, Jeffrey Lehmann and Robert Tonin. They are part of a core group of employees whom the employer tries to keep employed on a regular basis. They are paid the rate for a working foreman under the collective agreement even when not overseeing the work of other carpenters. Whether they function as working foremen depends on the number of projects which the employer has going at any time. Since there were only two projects at the time of this application, Ganassin and Lehmann were the only two actually working as working foremen. The other two were working on the Mastercut project under Ganassin. He was responsible for overseeing their work along with that of the other carpenters and apprentices. At other times, Ganassin has worked on the tools under the supervision of one of the other three working foremen.
9The employer's working foremen are the only supervisors regularly on site with its employees. They report to the employer's general superintendent. He usually visits a job site twice a week for a couple of hours and, at other times they maintain telephone contact with him four or five times a day. Ganassin and the other working foremen supervise the employer's carpenters and labourers on the projects assigned to them. Carpenters and labourers are the only trades directly employed by the employer on its projects. Supervision performed by the working foremen includes assigning work, checking to see that it is done properly, correcting it if needed and recording and reporting their time and that of their employees. On site, they lay out the job, organize the work to be performed by the carpenters and labourers and order the material for their work. The working foremen keep a weekly costing report and prepare a daily report sheet for their projects, which is submitted weekly to the general superintendent. Depending on the job, that report may record such matters as subcontractor activity, the volume of concrete poured and the amount of lumber used. They do not co-ordinate the work of subcontractors except where it has to be co-ordinated with carpentry work, and then only to advise the subcontractor when he can start work, but they keep the general superintendent informed respecting the comings and goings of subcontractors.
10The working foremen are not responsible for deciding the number of employees to be assigned to a project, who those employees will be, whether they will work overtime, or when they will be laid off. They are not responsible for discipline or hiring and firing, and they do not make effective recommendations in respect of discipline, hiring and firing. Ganassin has reported employees to the general superintendent when he has been unable to get them to do acceptable work. While, to his knowledge, that has never resulted in an employee being fired, he admitted that some time such persons were the first to be laid off when work on a project was winding down.
11The Board is satisfied on that evidence that Ganassin does not exercise managerial functions within the meaning of subsection 1(3)(b) of the Act. That does not end the matter however. The issue is not Ganassin's status. As the Board noted earlier, it is whether the employees who signed the petition were signifying voluntarily that they no longer wish to be represented by the union in their employment relations with the employer. The responsibility for satisfying the Board that they were, rests with the applicant. To that end, Ganassin testified about the origin, preparation and circulation of the petition. His evidence is uncontradicted.
12Ganassin had held the view for several years that the employer might be able to obtain more of the available work if it did not have to pay "top dollar" to carry certain union sub-trades which he believed the employer was obliged to carry because of its collective bargaining relationships with the union and with the labourers union. He believed that, if the employer did not have to carry the union sub-trades, it would be able to get more of the available work because its costs would be lower. After some employees were laid off in March and the Dalton and Mastercut jobs were the only ones on the books, Ganassin concluded that he would be out of work soon if he did not do something about the union. He decided without prior discussion with other employees in the bargaining unit that he should try and get rid of the union. He obtained legal advice and had the petition prepared by counsel before he discussed it with employees in the bargaining unit.
13Ganassin met three of the employees at a local bar on the Friday before the start of the Mastercut job. The meeting was not prearranged. Employees were accustomed to meeting there at the end of each week. He had the petition in his car. He told them about it and that he had consulted a lawyer. He told them that he was paying for the lawyer and did not ask them to contribute to the cost. When challenged in cross-examination that he had told employees at the bar that he expected the employer to reimburse him if the application was successful, he acknowledged that he might have said he would expect to get his money back if the application was successful and the employer was grateful enough. Ganassin explained his views about the employer being able to get more work without the union. The employees were concerned that their wages would be cut if they got rid of the union. He told them that, if the employer did get more work, as a group they should be able to negotiate better conditions with the employer or they should be able to do at least as well for wages and benefits as they were doing with the union. He based his expectations on the fact that the employer made benefits available to other employees who were not covered by any collective agreement. He told them that, if their expectations were not satisfied by the employer, they could always get the union back. After that discussion, Ganassin and the employees left the bar together and went to his car where he had left the petition. Ganassin signed it first and then gave it to the others to sign. All three signed it. He got the fifth signature the next day after first giving that employee an explanation similar to the one given to the other three employees.
14Union counsel contends that Ganassin's role with the petition's origin and circulation would cause the employees to perceive the employer to be involved and, therefore, they would have signed the petition out of a belief that the employer supported it and/or might learn of any refusal to sign it. The Board has acknowledged that there are extra concerns about the voluntariness of a petition when a working foreman with supervisory responsibility for other employees in the bargaining unit has been actively involved in it. The Board expressed its concern in A. N. Shaw & Sons (Eastern) Ltd., [1980] OLRB Rep. Oct. 1347, at paragraph 10 as follows:
In assessing the voluntariness of the statement of desire, we are unable to accept the proposition that Mr. Foley stands in the same position as any other employee in the bargaining unit. Because of his supervisory functions, Mr. Foley's active involvement with the statement of desire raises concerns which would not exist if he were other than a working foreman. However, we also do not believe that his involvement with the statement of desire must invariably result in a finding that it cannot be given any weight. Rather, what is required is an examination of all of the surrounding circumstances and an assessment of whether other employees would likely have viewed Mr. Foley as acting on behalf of, or with the support of management, or whether they would likely have perceived him as a bargaining unit employee seeking only to further his own self-interests.
[emphasis added]
Foley was the only supervisor of Shaw's employees on the project where they were working when they signed the petition. In the unionized part of the construction industry, working foremen like Foley are usually, if not always, part of the bargaining unit. Construction industry employees are accustomed to being supervised by other employees in the bargaining unit who are also members of the same union and would not automatically perceive such supervisors to be part of management or to be more allied in interest with management than with the employees. Recognition of that reality may be what led the Board in A. N. Shaw, supra, to acknowledge that the extra concerns raised by Foley's involvement with the petition need not "... invariably result in a finding that [the petition] cannot be given any weight.". In the circumstances of that case, the Board concluded that the other employees who signed the petition "... would more likely have regarded Mr. Foley as acting in what he perceived to be his own interests rather than acting on behalf of management.'' and found the petition to express the voluntary wishes of the employees who signed it. The Board applied the test described in the emphasized passage of the quotation from A. N. Shaw to a petition supporting a section 57 application in Apex Services, [1983] OLRB Rep. Jan. 1, paragraph 7, but came to the opposite conclusion in circumstances where two bargaining unit employees, both of whom had exercised supervisory authority over the other employees, originated the petition in support of the application and got the employees to sign it. The different results reflect the different circumstances of each case and the fact that, in the end, the decision whether a petition is or is not voluntary is a factual one.
15There is no evidence before the Board that the employer has conducted itself in any manner which would likely influence the origin, preparation and circulation of the petition or which would support an inference that the employer has acted to influence the origin, preparation and circulation of the petition. It is clearly a question of whether the employees who signed the petition viewed Ganassin as acting in his own interests or on behalf of the employer. Given the fact that the employer's practice of using working foremen as site supervisors has existed for at least seven or eight years, the employees who signed the petition would have been accustomed to seeing Ganassin and the other working foremen exercise that type of supervision over them and the labourers. In appropriate circumstances, that fact might have led the Board to a similar conclusion to the one reached in A. N. Shaw, supra. However, when Ganassin approached the employees to sign the petition, he did so at a time when the employer's work activity was at a low point. Five of the six employees on the list had been scheduled to start on the Mastercut project under Ganassin's supervision the next working day after he asked them to sign the petition. That project was one of the employer's two remaining jobs. Coupled with that, Ganassin acknowledged in cross-examination that he might have expressed to the employees the hope of being reimbursed for his legal fees by the employer if the application was successful and the employer was grateful enough. While his testimony leaves unclear the precise content of his remarks and the Board has not inferred from his testimony that Ganassin was in any way acting with the support of the employer, it would not be unreasonable for the employees to view any remark about hoping to be repaid by the employer as an indication that Ganassin was either acting with the employer's support or, at least, was pursuing the application because he perceived that to be what the employer wanted. In the Board's view, in these circumstances, even if Ganassin was pursuing the application out of his own interests, it would not be unreasonable for the employees to be concerned that any refusal to sign the petition might become known to the employer and jeopardize their chances of being retained on the remaining work and to sign the petition for that reason rather than because they no longer wish to be represented by the union.
16Therefore, having regard to all of the circumstances surrounding the origin, preparation and circulation of the petition, the Board is not satisfied in the balance that the petition expresses the voluntary wishes of the employees who signed it.
17The application is dismissed.