Raymond Thibault v. International Union of Operating Engineers, Local 793, 1991 CanLII 6166

[1991] OLRB Rep. August 977

0168-90-R; 0567-90-G Raymond Thibault, Applicant v. International Union of Operating Engineers, Local 793, Respondent v. F.H.R. Construction Ltd., Intervener; International Union of Operating Engineers, Local 793, Applicant v. F.H.R. Construction Ltd., Respondent

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members R. M. Sloan and B. L. Armstrong.

APPEARANCES: John A. Desotti and Raymond Thibault for the applicant in Board File 0168-90-R; Craig Flood and Michael Quinn for the International Union of Operating Engineers; Brian R. Gatien and Frank Villano for F.H.R. Construction Ltd.

DECISION OF THE BOARD; August 14, 1991

1Board File 0567-90-G is a referral of a grievance filed pursuant to section 124 of the Labour Relations Act ("the Act"). In it the applicant International Union of Operating Engineers, Local 793 (hereinafter referred to as the Operating Engineers or the union) asserts that the respon­dent has violated the terms of the Provincial Collective Agreement ("the collective agreement") to which it is bound by engaging persons to perform work in the industrial, commercial and institu­tional ("ICI") sector of the construction industry contrary to the provisions of that collective agree­ment. As remedy the trade union requests compliance with the provisions of the collective agree­ment and that wages and benefits owing as a result of the violations be paid to the union in trust.

2Board File 0168-90-R is an application filed pursuant to section 57 of the Act ("the ter­mination application") in which the applicant seeks a declaration that the trade union no longer represents the employees of F.H.R. Construction Ltd. for whom it is the bargaining agent. That application pertains to the Operating Engineers' right to represent the employees of F.H.R. Con­struction Ltd. (hereinafter referred to F.H.R. or the employer) employed in the ICI sector of the construction industry. Another application by Mr. Thibault for a declaration that the Operating Engineers no longer represent the employees of F.H.R. employed in all other sectors of the con­struction industry in Board Area 17 has already been dealt with by another panel of the Board without a hearing. A vote was conducted with respect to that application and the union's right to represent those employees was terminated by decision of the Board.

3These two matters are related to the extent that the trade union submits that the termi­nation application be dismissed because it has not been brought by or on behalf of the "employees in the bargaining unit defined in [the] collective agreement" as required by section 57(2) of the Act. The trade union submits that the applicant and the other employees on the list filed by F.H.R. were employed on the application date but should not be included in the bargaining unit because their employment in the ICI sector was in contravention of the collective agreement.

4The trade union does not dispute the voluntariness of the petition filed in support of the application. The parties are also agreed that the application is timely, that the three persons on the list were employed by F.H. R. on the application date, and that they were the only three persons performing work covered by the collective agreement in the ICI sector of the construction industry on behalf of F.H.R. Thus, the only issue which remained in dispute was the status of the applicant and the other two persons on the list.

5At the commencement of the hearing and after hearing the submissions of the parties the Board orally ruled that these two matters would not be consolidated but would be heard one after the other by this panel of the Board. We further ruled that we would hear the evidence and representations of the parties with respect to the termination application first. Thereafter, we would hear the evidence and representations of the parties with respect to the referral of the griev­ance. The evidence heard by this panel of the Board with respect to Board File 0168-90-R would be applied and considered by the Board in dealing with Board File 0567-90-G.

6At the conclusion of the evidence and submissions in respect of the termination applica­tion, the parties agreed and requested the Board to adjourn sine die the referral of the grievance pending release of the Board's decision in the termination application. Having regard to that agreement the Board consents to adjourn Board File 0567-90-G sine die for a period not exceeding one year from the date hereof. Unless within that time either party requests that the Board pro­ceed with the matter it will be terminated.

7We heard the evidence of the three individuals on the list and the evidence of Mr. Michael Quinn. Mr. Quinn is the area supervisor for north-eastern Ontario of the Operating Engi­neers and has been the full-time business representative of the union for this area since November 1970. All of the witnesses were credible and each gave his testimony in a candid and forthright manner. Indeed, there was little conflict in their evidence. Such conflict as existed was the result of the witnesses' individual ability to recollect with precision events or conversations that occurred some time ago. We are of the view that none of the witnesses was motivated by self interest, but rather all openly and genuinely gave their evidence to the best of their ability.

8F.H.R. is an employer in the construction industry. It operates primarily in the Sudbury area and primarily in the sewer and watermain sector of the construction industry. Although the evidence is somewhat sketchy in this regard, it appears that F.H.R. does not operate exclusively in that sector and has on occasion operated in the residential sector, the road sector and the ICI sec­tor both in and outside the City of Sudbury. Mr. Quinn described F.H.R. as "basically" a sewer and watermain contractor. The employees testified that in the past each had worked on projects other than sewer and watermain including ICI construction projects.

9The trade union was certified as bargaining agent for the employees of F.H.R. in the ICI sector of the construction industry in the Province of Ontario and all employees of the respon­dent in the all other sectors in that portion of the District of Cochrane north of the 50th parallel of latitude (Board Area 25) engaged in the operation of cranes, shovels, bulldozers and similar equip­ment and those primarily engaged in the repairing and maintaining of same, save and except non-working foremen and persons above the rank of non-working foreman, on July 12, 1982.

10Between July 1982 and 1989 the trade union was never contacted by F.H.R. to dispatch employees from its hiring hall to F.H.R. for work upon any construction project. It also never pro­vided any clearance cards to any persons employed by F.H.R. The union did not receive any dues authorization forms from persons employed by F.H.R. and never received any monthly dues or other remittances from F.H.R. on behalf of any person employed by F.H.R.

11In April and May 1989 the union was engaged in an organizing drive with respect to the employees of F.H.R. employed within a radius of 57 kilometers (approximately 35 miles) of the City of Sudbury Federal Building (Board Area 17). On or about May 19, 1989 it filed an applica­tion for certification. That application did not relate to the ICI sector. On August 21, 1989 the union was certified to represent employees in Board Area 17 in all sectors of the construction industry, except the ICI sector (for which it already held bargaining rights).

12Mr. Quinn was the union organizer and he testified about the procedure he normally uses to sign up employees. He indicated that he used this same procedure in signing up the F.H.R. employees including Messrs. Thibault, Lamothe and Labelle, the three persons whose names appear on the employer's list in respect of the termination application. There were minor discre­pancies in the evidence of Messrs. Thibault, Lamothe and Labelle and Mr. Quinn as to the conver­sations that took place at the time of the signing of these applications for membership and there­after. Based on the totality of the evidence and what is reasonably probable in all of the circumstances we find the following facts.

13Mr. Quinn spoke to each employee individually at the home of the employee. Mr. Quinn initiated the contact and solicited the employees' support for the union. At the time Mr. Quinn had each employee sign "an application for membership" in the following form:

APPLICATION FOR MEMBERSHIP

INTERNATIONAL UNION OF OPERATING ENGINEERS

LOCAL 793

Obligation of Membership No. 14458

I agree to abide by the Constitution of I.U.O.E.

I wish the I.U.O.E. Local 793 to represent me for the purpose of collective

bargaining.

NAME………………………… BIRTHDATE ……………………

ADDRESS.......................................................................................................

EMPLOYER……………………….. CLASSIFICATION………………...

SOCIAL INS. #................................. CERTIFICATE …………………….

PHONE # …………………………. BENEFICIARY ……………………

I also agree to pay an entrance fee of ……………………………..

and ………………dues per month.

WITNESS………………………… SIGNATURE ……………………….

DATE ……………………………….

I.U.O.E.-LOCAL 793 No.

RECEIPT

DATE…………………………………..

RECEIVED FROM …………………………………………………………..

Applicant's Signature

……………………………………………….as payment on Initiation Fee

Signature of Union Rep.

14The amount of $10.00 is handwritten in the application form in the space following the words "entrance fee of'. Similarly, the amount of $17.00 is handwritten in the appropriate space as the dues per month. Mr. Quinn explained that it was necessary for each person to pay one dollar "to make it legal". He indicated that the one dollar was a "sacrifice" and a reduced initiation fee. The employees were advised that the balance of the $10.00 initiation fee was payable and would normally be payable when a collective agreement was signed with the employer or, if the employee wished, he could pay it at any time. Mr. Lamothe paid the full $10.00 initiation fee at the time he signed the application for membership. Mr. Thibault and Mr. Labelle each paid only $1.00. Each understood that a further payment of $9.00 would be required.

15Mr. Quinn explained to each employee how he maintains the confidentially of these applications for membership. He advised employees that he would not apply to be certified unless he had "signed up" 75 percent of the bargaining unit.

16Mr. Quinn explained the unions' benefit plan to each employee and left each person a copy of the booklet which outlines the benefits. The employees signed a "green card" for the bene­fits and in addition were advised that benefits commenced when the employer started to make con­tributions on their behalf.

17At the meeting with Mr. Quinn each employee was made aware of the fact that monthly dues in the amount of $17.00 would have to be paid. They were told the dues would be deducted from their pay-cheques.

18Mr. Quinn told the employees that they would have to attend a meeting where they would be sworn in. The employees were never provided with a copy of the union constitution which contained provisions with respect to a swearing in ceremony.

19When the employees signed the applications for membership Mr. Quinn advised the employees that they would receive a membership card in the mail. Each of the employees subse­quently received a plastic card which had on it the logo of the trade union, its address and tele­phone number and the name of the Business Manager and President. Embossed in plastic on this card is the name of the employee, his social insurance number, the number of the Local and a "date applied". The words "probationary member" also appear on the face of the card as does the warning "this card is to be carried at all times." On the back of these membership cards is printed a calendar of months from January 1989 to February 1990. Preceding the months of January 1989 are the words "initiation paid".

20Although the words "probationary member" appear on the face of the card there was never any discussion between Mr. Quinn and any of the employees about any "probationary" sta­tus. Each of the employees testified that they believed that they were members of the union. Indeed some of the employees did not realize that the words "probationary member" appeared on the membership card until after this application for declaration terminating the union's bargaining rights had been filed and they met with counsel in preparation for the hearing. Mr. Thibault testi­fied that several years ago he was approached by a union representative to sign a membership application. At that time he also paid a dollar. He never however received a plasticized member­ship card on that occasion. Moreover, when he contacted the union thereafter in an attempt to put his name on the "out of work" list and pay dues he was advised that he could not do so as he was not a registered member of the union.

21The meeting between Mr. Quinn and the individual employees at their homes was not the only meeting or communications which the trade union had with Messrs. Thibault, Labelle and Lamothe. Meetings and communications between Mr. Quinn and the employees at F.H.R., including the three employees on the employer's list, continued both before and after the union was certified.

22At some point prior to the certification all of the employees at F.H.R. had their employment terminated. An employee contacted Mr. Quinn about the matter and a meeting with Mr. Quinn and all the employees took place at the Park Plaza Hotel. The matter was eventually resolved apparently through the intervention of the trade union. All the employees were immedi­ately reinstated having lost less than a full day of work. The firing of the employees occurred on a Friday and their reinstatement occurred the following Monday.

23Between the date of application and certification each employee also received five let­ters from Mr. Quinn advising them of the progress of the certification application. Each letter is headed "Dear Sir and Brother" and ends "Fraternally yours". With the exception of the letter dated June 27, 1989 in which Mr. Quinn states "I have enclosed your new probationary card. Carry it proudly", there are no references in any of these letters that refer to the employees' "pro­bationary status", the constitution, the requirement of the swearing in ceremony, dues or the bal­ance of the initiation fee. Indeed, in our view there are a number of references in the correspon­dence from which one could reasonably conclude membership in the union. In addition to this personalized correspondence, at various times throughout the year the employees received copies of "The Operator", a journal published by the union as well as some other bulletins or brochures from the union.

24The employees also had a meeting with Mr. Quinn at his office. The evidence in respect of this meeting was somewhat vague. From the totality of the evidence we conclude that this meet­ing occurred after the union had made its application but before the union was certified to repre­sent the employees at F.H.R. At that meeting the progress of the certification application was dis­cussed. The matter of union dues, union benefits and continued support for the union was generally discussed at that time. We also conclude that it is reasonably probable that it was at this meeting that the employees received a copy of the Provincial Collective Agreement, a schedule of the wage rates and information about projects in the area. There is no evidence before us however, to suggest that the details of the union hiring hall or the job security provisions of the collective agreement (including any provisions to contact the hall upon layoff or recall) were ever discussed with the employees at this or at any other time.

25The employees of F.H.R. also attended a union meeting held at the Orange Hall. That meeting occurred after the union had been certified. This meeting was attended by members of Local 793 and was not restricted solely to F.H.R. employees. The prime purpose of the Orange Hall meeting was not related to either the certification of F.H.R. or the negotiations of a collective agreement with F.H.R. It was a general meeting to discuss proposals for the upcoming negotia­tions for the renewal for the "local" sewer and watermain agreement and to discuss local projects. In addition, Mr. Quinn testified that at the time he specifically met with the F.H.R. employees with respect to matters pertaining to F.H.R. It was Mr. Quinn's evidence (which we accept) that the F.H.R. employees were invited to stay while the discussion with respect to the upcoming nego­tiations for the "local" collective agreement took place.

26Negotiations with F.H.R. with respect to a collective agreement covering the employ­er's "sewer and watermain and road building contracts" did not commence until October 17, 1989. A collective agreement between the parties for those sectors was never concluded.

27Throughout the summer of 1989, Messrs. Thibault, Labelle and Lamothe continued to work for F.H.R. They were each laid off at the end of the traditional construction season in November/December 1989 and were recalled by the employer in late March/early April 1990. Nei­ther F.H.R. nor the employees contacted the union hiring hall at either the time of layoff or the time of recall. As a result, a clearance card was not issued to the employees by the hiring hall upon their return to work.

28The record of employment issued to the employees at the time of their layoff did not contain a specific date of recall. The evidence discloses however that the layoff and recall of the employees in the Fall/Winter of 1989-1990 was consistent with the pattern of employment which each had experienced with F.H.R. in the past. Messrs. Thibault, Labelle and Lamothe are all long service employees. Mr. Lamothe has worked for the company for six years, Mr. Labelle has worked for F.H.R. or its predecessor for ten years. With the exception of a two-year period when he quit, Mr. Thibault has worked for the company for sixteen years. During the time of their employment with F.H.R. the pattern of layoff in the winter and recall in the spring has been con­sistent. We note that none of the employees were considered employees for purposes of the appli­cation for certification in 1982, the time when the union acquired its ICI bargaining rights.

29Of the three individuals only Mr. Lamothe paid the total amount of the $10.00 initiation fee. Both Mr. Thibault and Mr. Labelle paid a dollar when they signed the card, but never paid the remaining balance. None of the three ever paid any monthly union dues to the union. Mr. Thibault and Mr. Labelle testified that each expected that the dues would be deducted from their payche­ques and were waiting for that to happen. When dues were not deducted however, none contacted the union to inquire about the matter and none of the employees attempted to pay the dues at their own initiative.

30The union never arranged for a swearing-in ceremony with respect to these employees. Although aware of the requirement to be sworn in, the employees also never made any further inquiries of the union about such a ceremony. As a result none of the employees were sworn m.

Submission of the parties

31Counsel on behalf of the applicant employees submitted that the evidence disclosed that the three individuals were members of the applicant. As members employed in the bargaining unit they had status to bring this application. Each had signed an application for membership and paid a dollar and for purposes of the original application for certification had been considered to be members of the union. Each employee genuinely believed that he was a union member as a result of the signing of that card. He argued that after signing the application for membership nothing occurred which would cause these employees to think that they were not members of the trade union. He argued that in fact the opposite was the case.

32The employees had regular communications with the union about the status of the application for certification. All such communications encouraged and promoted their view that they were union members. They attended meetings with union representatives after the union had been certified to discuss issues of contract negotiations. The union interceded on their behalf when the employer fired the employees. They were given plasticized membership cards.

33In addressing the position of the trade union that the three were not union members because they had not been sworn in as union members, had not paid any union dues and, in the case of Mr. Thibault and Mr. Labelle had not paid the $9.00 balance of the initiation fee, counsel for the employees submitted that in these circumstances the union could not raise these "proce­dural matters" to adversely reflect on the status of the three employees. Counsel argued that the onus was on the union to ensure that any additional criteria needed to become "full" members had been met. He submitted that this was especially so with respect to the swearing-in ceremony which is controlled by the union itself. It is the union which arranges for the meeting at which the cere­mony must take place. Similarly, it was submitted that with respect to any other criteria which needed to be fulfilled all the union had to do was "pick up the phone" and advise the employees of the requirements which still needed to be met from the trade union's perspective.

34Counsel maintained that the failure of the employees to pay dues or the balance of the initiation fee was understandable and not fatal to the termination application because of the evi­dence that employees were advised that dues and the balance of the initiation fee would be deducted after a collective agreement with the employer had been negotiated. Counsel asserted that the likely inference of the evidence is that Mr. Quinn believed that the union would soon enter into a collective agreement with F.H.R. covering the sewer and watermain and road sectors of the employer's operations. As a result he was not going to "rock the boat" by demanding the balance of the initiation fee or the payment of dues. Having solicited the employees to join the union for one dollar, he did not want to alienate the employees by requests for more money. Mr. Quinn therefore continued negotiations with the employer and did not raise with either the employer or the employees any problems about the continued employment status of the employees or the hiring hall principle. It was only after the filing of the termination application that the trade union, using 20/20 hind sight raised these matters of "process" concerning the membership status of the individ­uals. Prior to the termination application the trade union had been quite content to permit the employees to continue to work for F.H.R.

35In support of these submissions counsel relied upon, inter alia, Culliton Brothers Limited, [1983] OLRB Rep. March, 339, Aero Block and Precast Ltd., [1989] OLRB Rep. Feb. 93 and Pierre A. Gratton Construction Inc., [1986] OLRB Rep. Jan. 137. Counsel distinguished Corecon Construction Ltd., [1987] OLRB Rep. Dec. 1480 from the facts in this case. He pointed to such factors as the long service of the employees with F.H.R. and the fact that they had not been hired "off the street" just prior to the filing of the termination application. He referred to the fact that each employee had joined the union and the fact that (unlike Mr. Connolly in Corecon Con­struction Ltd.) the employees of F.H.R. had not consciously refused to follow up matters to com­plete membership but had in essence been lulled into a course of conduct by the trade union's own actions. He therefore argued the decision of the Board in Corecon Construction Ltd. was not appli­cable to these facts.

36Counsel for F.H.R. supported these submissions. In addition, counsel asserted that the

three individuals were employees in the bargaining unit both under the provisions of the collective agreement and within the principles of the Board's jurisprudence.

37Counsel for the employer referred to Article 3 of the collective agreement. It is entitled "Union Security" and states:

3.1 (a) The Employer shall first call the Union Office whenever personnel are required. If the Union cannot supply such personnel within 48 hours, excluding Saturdays, Sundays and Holi­days, the Employer may secure such personnel from any other source. The Employer may recall former regnlar employees through the Union office who have been absent from the Employer up to twelve (12) months.

(b) Regnlar employees shall be defined as employees who have been on the Employer's payroll for six (6) consecutive months or more.

3.2 All personnel hired shall be required to have a clearance card issued by the Union before they start to work, unless other arrangements are made with the Union dispatcher. Such clear­ance card will not be unreasonably withheld.

3.3. Employees working under this Agreement shall be members of the Union in good standing, or make application to become members of the Union within seven days of hiring or be replaced upon written request by the Union.

38Counsel for the employer asserted that the collective agreement does not necessarily require union membership as a condition of employment. Rather, it is sufficient if employees "make application to become members of the union". In this way the collective agreement incor­porates subsection 1(1)(l) of the Act which also refers to "members" as persons who have applied for membership. This each of the employees had done. Counsel argued that the employees had done everything required of them in order to be "employees in the bargaining unit defined in [the] collective agreement" as required by section 57(2) of the Act. There is no evidence to suggest the trade union has made any request that the employees be replaced as permitted in Article 3.3. A grievance was only filed after the employees filed the termination application. That grievance is in any event ambiguous with respect to a request that employees be replaced.

39Counsel further submitted that Article 3.1(a) of the collective agreement did not apply. He asserted that this provision requires an employer to contact the hiring hall when it needs more personnel. Counsel for F.H.R. argued that there is no evidence that F.H.R. required any addi­tional employees. It merely returned to active employment persons who had been temporarily laid off at the end of the 1989 construction season. The evidence establishes that the employees are all long-service employees of F.H.R. with a consistent history or pattern of full-time employment dur­ing the construction season, a brief layoff over the winter months and regular recall in early spring.

40Counsel for the employer further submitted that application of the Board's jurispru­dence to the facts of this case also led to the conclusion that these persons were employees with status to bring the termination application. Counsel distinguished April Waterproofing Limited, [1980] OLRB Rep. Nov. 1577, Inducon Development Corporation, [1983] OLRB Rep. July 1038 and Corecon Construction Ltd., supra. He asserted that the "mischief' which the Board sought to guard against in those cases was not present in the circumstances. Here employees were not hired shortly before the termination application was filed either off the street or from a rival union to foster the application. Neither were the employees continued in their employment after the employer had become aware of a "knowing violation" of the collective agreement as was the case in Inducon Development Corporation. Rather, these employees were long-service employees. Over the years of their employment there had not been any request from the trade union for dues or health and welfare deductions. Similarly, there had been no interaction between the trade union

and the employer with respect to a request for, or referral of, persons to work on F.H.R. jobs. In arguing that the mischief was not present in this case counsel for the employer relied upon Culliton Brothers Limited, supra, Aero Block and Precast Ltd., supra, Pierre A. Gratton Construction Inc., supra, Thomas Construction (Galt) Limited, [1982] OLRB Rep. Nov. 1727 and Ottawa Greenbelt Construction Limited, [1990] OLRB Rep. Nov. 1143.

41In response counsel for the trade union submitted that, for purposes of this collective agreement and this application, the three employees were in fact hired "off the street" immedi­ately prior to the filing of this termination application. Each of the employees had been laid off without any definite date of recall. None had been rehired through the union hiring hall. Counsel described the employees as persons who had a "periodic attachment" to F.H.R. by reason of their past employment with the employer. He argued however, that the employees had their employ­ment terminated each year and were newly hired in the spring of the following year. At the rele­vant time in the spring of 1990 therefore they were "new hires" who had come to work for F.H.R. and been assigned to an ICI project in breach of the collective agreement.

42In response to the submissions of counsel for the applicant that application for member­ship was sufficient for purposes of certification and should be similarly sufficient in this instance, counsel for the Operating Engineers submitted that the Act drew a distinction between "union membership" and "membership in the bargaining unit". Although section 1(1)(l) of the Act pro­vides a statutory definition of membership, section 57(2) refers to "employees in the bargaining unit". Thus, although someone can be a "member" for purposes of an application for certification, that does not make the person an "employee in the bargaining unit defined in a collective agree­ment". The Board must look to the collective agreement in order to determine whether a person is or is not an employee in the bargaining unit for purposes of a termination application.

43Counsel submitted that the three persons on the list were not "employees in the bar­gaining unit defined in the collective agreement" as required by section 57(2) regardless of whether one looked to the language found in the collective agreement, the constitution of the Operating Engineers, or the Act and the Board's jurisprudence interpreting and applying the Act in cases such as April Waterproofing Ltd., supra, Inducon Development Corporation, supra, Corecon Con­struction Ltd., supra.

44Counsel for the Operating Engineers submitted that Articles 3.1(a) of the collective agreement requires the employer to call the union hall when it requires personnel. He disputed the employer's position that the article only applied when the employer needed additional personnel. It was his position that in the spring of 1990 the employer required three persons. The three per­sons were subsequently employed but not recalled "through the union office" and did not have clearance cards by the union as required in Article 3.2 nor where "other arrangements" were made with the union dispatcher.

45With respect to Article 3.3 of the collective agreement it was asserted that the employ­ees had not made "application to become members of the union within seven days of hiring". These employees applied to become members in 1989 and not 1990 when they were hired. Counsel argued that in any event Article 3.3 must be read in conjunction with Article 3.2. Article 3.2 requires all hired persons to obtain a clearance card from the union.

46Similarly, with respect to Article 3.3 it was submitted that the employees were not "members of the union in good standing". As they were not members in good standing they could not be considered "employees in the bargaining unit defined in the collective agreement". We were referred to various provisions of the union's Constitution to support this submission. Having

regard to our ultimate determination, we do not find it necessary to detail the lengthy submissions of counsel with respect to the provisions of the Constitution.

47With respect to the application of the Board's jurisprudence to these facts, counsel for the trade union submitted that a review of the cases indicated that the persons were not employees in the bargaining unit defined in the collective agreement. Counsel asserted that April Waterproof­ing Ltd. continues to be good law and is applicable to the facts at hand. Although the Board has on some occasions made certain exceptions to the April Waterproofing Ltd. principle, those excep­tions do not apply to these circumstances. This is not a situation where pre-existing employees were "swept in" by operation of statute as in Inducon Developing Corporation, supra, or Culliton Brothers Ltd., supra. Neither is this the case where employees were at work because the union had waived its rights under the collective agreement as was the case in Aero Block and Precast Ltd., supra, E.R. Masonry, [1988] OLRB Rep. July 668, Ottawa Greenbelt Construction Limited, supra or Thomas Construction (Galt) Ltd., supra.

Decision

48We find it unnecessary to determine whether these persons were in fact "members of the union in good standing". Regardless of whether these persons were or were not "members" of the trade union in conformity with the constitution of the Operating Engineers, we find that their employment in the bargaining unit to perform work covered by the collective agreement was in violation of that collective agreement.

49Having regard to the recognition and union security provisions of the collective agree­ment in their entirety, we have concluded that before the employees commenced work in the spring of 1990 the employer was obliged to contact the union hiring hall and/or the employees were obliged to obtain a clearance card. These obligations were not met. The employment of the three employees was therefore in contravention of the collective agreement.

50That however, is not the end of the matter for we must determine whether the employ­ment of these persons in the bargaining unit contrary to the terms of the collective agreement pre­cludes the employees from bringing this termination application. That determination involves the application of the Board's decision in April Waterproofing Ltd., supra.

51Briefly stated the decision of the Board in April Waterproofing Ltd., supra ("the April Waterproofing principle") appears to stand for the proposition that persons hired contrary to the terms of an existing collective agreement should not be considered employees in the bargaining unit for purposes of a representation application.

52We do not consider the April Waterproofing principle to be applicable to these circum­stances. The Board's jurisprudence following April Waterproofing Ltd., supra, has indicated that the principle enunciated in that decision has limited application. The principle is not a strict rule. It is a principle which may be applied or not applied in given circumstances having regard to the pur­pose of the principle. As the Board stated in Aero Block and Precast Ltd., supra, at page 98:

15. Thus, it may be seen that the April Waterproofing principle does not fit every situation in which employees may be employed in a bargaining unit contrary to the provisions of a collective agreement. The Board has been prepared, in the face of cogent evidence, to look beyond the simple fact that challenged persons were hired contrary to a collective agreement before it decides whether to apply the principle in a particular case. Does the principle have application in the instant case?

53In determining whether the principle has application to the facts at hand we find it useful to refer to the decision of the Board in Culliton Brothers Limited, supra. There, the Board stat­ed:

22. The problem raised in April Waterproofing is understandably a difficult one given the transi­tory nature of employment in the construction industry, and the ease with which an employer's hiring practices can alter the composition of the bargaining unit, and undermine established bar­gaining rights. If an employer intentionally or unintentionally fails to abide by its legal obliga­tion to hire union members, it is relatively easy to create a situation where non-members - albeit perhaps only temporarily - will be in a position to seek termination, of the union's bargaining rights or representation by another union. Union members may be denied the opportunity for present and future employment because of the activities of individuals who should not have been hired at all. The potential for abuse, and the obvious unfaimess of putting a union's rights at risk because of the views of individuals who should not even be there, underlies the Board's decision in April Waterproofing. Why should the rights of union members turn on the speed with which the union can compel enforcement of the collective agreement to eliminate non-members whom the employer has unlawfully employed"? Should the union's rights turn on whether it can require compliance with the agreement through a proceeding under section 124 more quickly than the employees whom it seeks to eliminate can file a termination application under section 57?

23. The approach in April Waterproofing recognizes the need to accommodate individual and institutional rights in a way which is faithful to the statutory parameters within which the Board must operate, yet is also sensitive to the requirements of labour relations policy and orderly col­lective bargaining. No doubt similar considerations influenced the Courts in Blouin Drywall and Maritime Employer's Association which were referred to in April Waterproofing. In Blouin Drywall, the Ontario Court of Appeal held that a potential employee in a union hiring hall had certain inchoate employment rights under a collective agreement even though no common-law employment relationship existed. Similarly, in Maritime Employers' Association, the Supreme Court of Canada determined that a concerted refusal to refer workers from a hiring hall consti­tuted a strike even though, again, the individuals in question were only potential employees. In both cases the Court acknowledged that common-law employment considerations did not appropriately capture the collective bargaining reality.

24. So did the Board in April Waterproofing. The Board recognized that under the Act contrac­tual rights and statutory rights are intertwined so that in some circumstances the employer's abrogation of the former could irreparably prejudice the latter. Individuals improperly hired could repudiate the statutory rights of those who should have been hired. In the Board's view, this result was inconsistent with the intended meaning of the opening words of section 7, and the statute was interpreted in that light. Of course, the Board might equally have said that it would not schedule a representation vote until the composition of the bargaining unit was in accor­dance with the legal requirements of the collective agreement; however, the Board considered it more appropriate and direct to treat individuals improperly hired (i.e., in the bargaining unit contrary to its contractual requirements) as not being members of the bargaining unit for the purposes of a representation application.

25. There can be little doubt that if an employer, in contravention of its contractual obligations, hires particular employees in order to foster a representation application, he will be breaching section 64 of the Act which prohibits employer interference in the formation, selection, or administration of a trade union. Indeed, where an employer has retained in its employ individu­als who have been illegally hired, there may well be an onus of explanation cast upon the employer to satisfy the Board that it did not continue the employment of the disputed individu­als "artificially" for the purpose of influencing a potential representation application or repre­sentation vote. For example, in Custom Aggregates, [1978] OLRB Rep. March 215, the Board determined that a new vote should be held where an employer artificially kept certain strike replacements employed because they were likely to vote against a union in a termination appli­cation.

26. Section 89 offers one remedy for such abuses. There are others. Where the employer has fostered a raid by hiring adherents of a rival union, the Board will probably raise a "section 13" bar on the grounds that the raiding union has been the recipient of employer support. And where the employer action has resulted in a termination application, the Board may consider both its powers under section 89, and its general authority with respect to the timing, composi­tion, and even number of required representation votes. To these express propositions, the Board adds one more by virtue of its decision in April Waterproofing: where the composition of the bargaining unit defined in the collective agreement is contrary to its terms because of the actions of the employer party, the Board will not consider the individuals improperly engaged to do bargaining unit work, as properly part of the unit for the purpose of a representation applica­tion. Individuals illegally hired, transferred or retained in the bargaining unit should have no more right to bring a representation application or vote in it, than they would have if they had been properly engaged in accordance with the terms of the applicable collective agreement, or if the Board had postponed a determination of their rights in a representation application until the composition of the bargaining unit is returned to what it should be.

27. The instant case, however, does not exhibit the "mischief" with which the Board was con­cerned in April Waterproofing. The employer here has not hired persons contrary to the terms of a collective agreement, improperly transferred individuals into the unit contrary to the agree­ment, or engaged in other activities which undermine the contractual rights of union members under the agreement by which the employer is bound. Here, the subject employees were not "hired" at all. The individuals affected were pre-existing employees who were swept into the ambit of collective bargaining by operation of law. Nor is this a case where the employer has manipulated its employee list, withheld information from the union or the Board, or sought to mislead the union with respect to its employee complement to gain the advantages of unioniza­tion, only to take a different position in a subsequent termination application. There was no positive action by the employer here which would raise any concerns or call into play the reason­ing of the Board panel in April Waterproofing. And, given the uncertainty surrounding the rights and status of the individuals affected by this application, we are not prepared to conclude that the fact that Culliton kept them in its employ constitutes improper interference or support which prejudices their right to seek termination of the union's bargaining rights. While there may be cases where the retention of employees, despite a challenge to their status, may warrant careful scrutiny by the Board lest the employer is "padding the list", we are not convinced that this is one of them. Nor are we satisfied that the approach in April Waterproofing should be adopted here.

54As was the case in Culliton Brothers Limited, supra, we do not view these circumstances as exhibiting the "mischief' with which the Board was concerned in April Waterproofing Ltd., supra.

55We do not agree that these persons should be considered as "new hires" or persons who had been hired off the street just prior to the termination application because each employee had received a notice of lay-off without a specified date of recall. In our view, here the employer simply recalled in the spring the employees in its employ who had been laid off in the winter in the same manner as it had done in the past. Indeed, the evidence shows that at least one employee (Mr. Thi­bault) returned to work in the spring of 1990 at the exact same project from which he had been laid off in the winter.

56Although the failure to obtain clearance cards or contact the union hiring hall prior to the recall of the employees in the spring of 1990 was a violation of the collective agreement, in the circumstances of this case we view that violation to be a "technical" violation of a pro forma requirement which should not adversely affect the status of these employees to bring this termina­tion application. The collective agreement acknowledges the employer's right to recall "regular employees". The three persons on the list meet the definition of a "regular employee" (article 3.1(b)). Although the employer recalled these "regular employees" without conforming with the procedure specified in the collective agreement, in the circumstances we do not view that proce­dural flaw to be fatal to the termination application.

57We find that there was no "positive action" taken by the employer which raises the dan­gers which the April Waterproofing principle was designed to guard against. The employer merely recalled to its active employment its long service employees who had been in its employ when the union was certified in the summer of 1989, and who had continued in its employ throughout that summer without any complaint or challenge by the union. After certification in the summer of 1989 the union, although fully aware of the situation did nothing to protest the continued employment of the persons whom it now asserts are not "members of the union in good standing". It did not for example require employees to obtain clearance cards. In these circumstances, having apparently been content with the circumstances throughout the summer and fall of 1989 as it awaited the sign­ing of a sewer and watermain collective agreement, the trade union cannot at this stage and after the filing of the termination application be heard to complain that the situation it permitted to develop continued to exist.

58There is no evidence to suggest F.H.R's actions were designed to foster a representa­tion application. There was no artificial padding of the list, no artificial continuation of employ­ment and no manipulation of the employee complement in order to support, foster or influence a potential termination application. F.H.R. simply continued its business in the same manner as it had done in 1989 (and previous years) when there had been neither follow up nor objection by the union. Although the April Waterproofing principle does not apply only to such situations, the facts and circumstances of this case are far removed from those instances where an employer deliber­ately hires persons who are antipathetic to the union in order to promote a termination applica­tion. In our view the employer's failure to recall "through the union office" ought not to prejudice the rights of the employees who brought this application.

59With respect to its relations with the employees there was also no follow up by the trade union. The union was fully aware that persons who were not in its view "members in good stand­ing" were employed by an employer for whom it held bargaining rights. Indeed it used the applica­tions for membership of these very persons to obtain its bargaining rights in Board Area 17. Yet the union did not take any steps to ensure that these employees had complied with those require­ments which it now asserts are mandatory such as the full payment of initiation fees or the payment of monthly dues. The evidence is to the contrary. The employees were advised that the full initia­tion fee was normally due upon signing a collective agreement (an event which never occurred) and that dues would be deducted directly from their pay-cheques. Having indicated that it was pre­pared to wait for the full payment of the initiation fee or payment of dues until the signing of the collective agreement, the union cannot now rely upon the non-payment of these fees to argue that persons otherwise employed in the bargaining unit defined in the collective agreement do not have the requisite status to bring this application.

60On the basis of the evidence and representations before us we are satisfied that not less than forty-five per cent of the employees of F.H.R. Construction Ltd. in the bargaining unit at the time the application was made had voluntarily signified in writing that they no longer wish to be represented by the respondent trade union on May 18, 1990, the terminal date fixed for this appli­cation and the date the Board determines, under section 103(2)(j) of the Labour Relations Act to be the time for the purpose of ascertaining the number of employees who have voluntarily signified in writing that they no longer wish to be represented by the respondent trade union under section 57(3) of the Act.

61The Board directs that a representation vote be taken of the employees of F.H.R. Con­struction Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario engaged in the operation of cranes, shovels, bulldozers and similar equip­ment and those primarily engaged in the repairing and maintaining of same, save and except non working foremen and persons above the rank of non working foreman. All those employed in that bargaining unit on August 14, 1991 who are so employed on the date the vote is taken will be eligi­ble to vote.