Paul McConachie v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 527, 1992 CanLII 6322

[1992] OLRB Rep. May 604

3899-91-R Paul McConachie, Applicant v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 527, Respondent v. Ken Acton Plumbing & Heating Inc., Intervener

BEFORE: Susan Tacon, Vice-Chair, and Board Members W. N. Fraser and E. G. Theobald.

APPEARANCES: L. P. Merritt for the applicant; N. Meikle, J. Porter and T. Crystal for the respondent; S. Bernofsky, K. Acton and G. Acton for the intervener.

DECISION OF THE BOARD; May 4, 1992

1. This is an application seeking termination of bargaining rights in which the parties reached agreement on a number of matters.

2. The application is in respect of the ICI sector of the construction industry. It was not in dispute that this application is timely. It should be noted that the applicant initially sought termina­tion of the respondent's bargaining rights with respect to the non-ICI sectors as well. However, the parties acknowledged such an application would be untimely under the Labour Relations Act and, accordingly, the application was amended to pertain solely to the following bargaining unit:

all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Ken Acton Plumbing & Heating Inc., in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and accept non-working foreman and persons above the rank of non-working foreman.

3. There was no issue as to the voluntariness of the petition filed in support of the termina­tion application. The parties agreed that five persons on schedules A and B filed by the employer were all performing construction work in the ICI sector on the date of application. There is also no issue that the application is supported by at least forty-five percent of "employees" in the bargain­ing unit, the minimum percentage required under the Act for the Board to direct a representation vote to test the continued support for the respondent as bargaining agent.

4. What is in dispute, and the reason for the quotation marks around the word "employ­ees" in the previous paragraph, is whether the individuals supporting the application and the appli­cant himself are persons entitled to support and bring such an application. The respondent asserts they are not because none of the five are members in good standing in the trade union nor were they hired through the union's hiring hall.

5. The parties proceeded to argument on the basis of an agreed statement of facts, as set out below, plus a number of documents filed with the Board.

AGREED FACTS*

• including references to the documentary material

(a) The union applied for certification on August 30, 1991.

(b) On Tuesday, 5eptember 17, 1991, the union held a meeting of employees of the com­pany at the Holiday Inn, Owen Sound. All but one of the employees of the company attended, including those who had not applied for membership in the union, as did representatives of the union. From that point onward, there was no direct communi­cation between the union and the five employees agreed to be on schedules A and B.

(c) On October 31, 1991, the union was certified to represent the employees of the com­pany, as specified in paragraphs 6 and 7 of that decision (Board File No. 1846-91-R, unreported, October 31, 1991) in the ICI sector and all other sectors of the construc­tion industry in the County of Grey and the Counties of Oxford, Perth, Huron, Mid­dlesex, Bruce and Elgin.

(d) A request for reconsideration of that certification decision was dismissed on February 20, 1992. The request was filed by counsel representing Paul McConachie (the appli­cant in the instant case).

(e) The five employees on schedules A and B are not members of the union in good standing and were not hired through the hiring hall. All five were hired before the union applied for bargaining rights on behalf of the employees of the company. For purposes of this application, the length of service of the five are: P. McConachie, thir­teen years; B. Kivell, twelve years; B. Loosemore, three - four years, J. Lyman, four - five years; R. Gard, from March 1991.

(f) On November 21, 1991, five employees of the company as at the certification applica­tion date were initiated into membership in the union, namely, J. Collins, S. Dramnitzke, B. Mitchell, M. Tigert and D. Vanstone. I. Lyman had signed a membership card but was not initiated and, consequently, did not become a union member. The company was informed of the upcoming initiations by letter dated November 15, 1991.

(g) By letter dated November 22, 1991, the union informed the company the Provincial ICI collective agreement was binding on the company and that the company's employees must be members in good standing of the union. It is useful to set out that letter in full.

RE: Ken Acton Plumbing and Heating Inc.

As you will recall, we act as solicitors to the United Association, Local Union 527.

In a decision dated October 31, 1991, the Ontario Labour Relations Board certified Local Union 527 as bargaining agent for a bargaining unit of employees of Ken Acton Plumbing and Heating Inc. Pursuant to Section 145(4) of the Labour Relations Act, the Company became bound on that date to the Provincial Agreement between the Mechanical Contractors Associa­tion of Ontario and the Ontario Pipe Trades Council for construction work in the industrial, commercial and institutional sector. This means, inter alia, that employees in the bargaining unit working in the I.C.I. sector must be members in good standing of the Union and that the proper wages and benefits must be paid to them.

By letter dated November 15, 1991, Mr. Jack Porter, Business Manager of Local Union 527 invited your client to meet with him at a convenient place on November 25 to discuss their con­tractual relationship. By letter dated November 20, 1991, Mr. Acton indicated to Mr. Porter that he could not meet until December 20 or January 17, 1992 in your offices.

We wish to impress upon you that Mr. Acton's inability to meet with our client does not absolve the company from its obligations under the collective agreement. From the date of the Board's decision, Ken Acton Plumbing and Heating Inc. has been liable for any violation of the collec­tive agreement. The subject of a "transition period" to allow the Company to order its affairs was raised by you when we attended at the Labour Relations Board. Presumably this could have been addressed by the parties at the proposed November 25 meeting. The inordinate delay in meeting proposed by your client suggests that this is no longer a concern to him.

Mr. Porter requested a list of the jobs which the Company has under way as well as a list of future jobs secured as of October 31 as well as a list of employees (presumably bargaining unit employees). At the very least, your client should send this information to Mr. Porter immedi­ately and arrange a telephone conference call between Mr. Acton, Mr. Porter and yourself in lieu of a personal meeting.

We must emphasize that our client will take any legal action necessary to ensure that the terms and conditions of the collective agreement are honoured by Ken Acton Plumbing and Heating Inc.

We trust that you will advise your client of this communication at your earliest convenience.

(h) The documents indicate that, from November 1991 to March 1992, the company and the union exchanged correspondence and held discussions by telephone regarding negotiations for a non-ICI collective agreement, the issue of remittances, the applica­tion of the ICI collective agreement and related matters. On December 9, 1991, J. Porter, K. Acton, G. Acton, S. Bernofsky and N. Meikle held a telephone confer­ence call. On January 9, 1992, there was a meeting of representatives of the union and the company with their respective counsel.

(i) The union informed the company (through company counsel) by letter dated January 15, 1992 that R. Vanstone was appointed union steward pursuant to Article 103.1, Local 527 Appendix of the ICI agreement.

(j) On March 3, 1992, the union filed a grievance with the company alleging violation of union's security clause in that the company was employing persons who were not members in good standing of the union and who were not cleared through the hiring hall. That grievance was referred to the Board on March 17, 1991, pursuant to section 126 [formerly section 124] of the Act. The hearing was initially scheduled for March 31, 1992 but was adjourned and rescheduled for May 26, 1992.

(k) The instant termination application was filed March 9, 1992.

6. The submissions of counsel are next set out in highly summarized form.

7. Counsel for the union asserted that there were no employees, including the applicant, who were properly in the bargaining at the application date. The agreed facts and provisions of the collective agreement were reviewed in support of the proposition that the persons in question, since they were not members in good standing in the union and had not been hired through the hir­ing hall, were employed in violation of the collective agreement and, hence, could not properly bring or support the termination application. It was argued the correspondence demonstrated that the union had not abandoned the employees or the company subsequent to the certification and, indeed, had filed a grievance against the company regarding the employment of persons not union members in good standing prior to the bringing of the termination application. To direct a repre­sentation vote in such circumstances, it was submitted, would permit the company's non­compliance with the collective agreement, whether advertent or inadvertent, to destroy the union's bargaining rights. In the alternative, counsel argued any representation vote should be deferred until the composition of the bargaining unit was in accordance with the collective agreement requirements. Cases cited in support included April Waterproofing, [1980] OLRB Rep. Nov. 1577; Corecon Construction Limited, [1987] OLRB Rep. Dec. 1480; Culliton Brothers Limited, [1983] OLRB Rep. March 339 ("Culliton III").

8. Counsel for the applicant asserted that section 58 [formerly section 57] of the Labour Relations Act specified that any "employee" in the bargaining unit may apply for termination of bargaining rights; the Act did not speak of union membership, just the concept of an "employee". It was contended that employees who were not members in good standing of the union might well be subject to discharge but, until that time, they were still employees in the bargaining unit and, therefore, entitled to bring the instant application. Counsel argued that the subsequent cases had distinguished the reasoning in April Waterproofing, supra, confining that case to the "mischief' therein where an employer sought to pad the schedule of employees in contravention of the collec­tive agreement in order to decertify the union. That is, it was submitted that the April Waterproofing analysis should be confined to instances where the employer had engaged in some positive act to undermine the union and not where, as here, the persons involved in the termina­tion application were long service employees who were hired prior to the certification application and had simply been retained subsequent to the certification of the union as bargaining agent. Counsel stressed the fact that the union had not sought to contact the employees and persuade them to become members following the union's certification as bargaining agent. In the instant case, there was no evidence the termination application was fostered by the company; it was sup­ported by employees who simply did not want the union. It was suggested that the fact that the union had not gained support among the long service employees did not constitute "prejudice" to the union in the sense the April Waterproofing decision suggested. It would be bizarre for the Board to require employees opposed to the union to become members of the union in order to val­idly bring an application to terminate the union's bargaining rights. Counsel contended that the persons in question were never told by the union that they must join or they would lose their jobs nor was it suggested they necessarily would not join if losing their jobs was the only alternative to not becoming members. It was simply that the five were employees in the bargaining unit as required by the statute and, thus, were entitled to bring and support the termination application. Cases referred to: Pierre A. Gratton Construction Inc., [1986] OLRB Rep. Jan. 137; E. R. Masonry Ltd., [1988] OLRB Rep. July 668; Ideal Railings Limited, [1988] OLRB Rep. July 674; Inducon Development Corporation, [1983] OLRB Rep. July 1038; Thomas Construction (Gait) Limited, [1982] OLRB Rep. Nov. 1727; Culliton III, supra; April Waterproofing, supra.

9. Counsel for the company adopted the submissions of counsel for the applicant. It was submitted the company in the instant case had not acted so as to come within the parameters of April Waterproofing, supra. Rather, the company had forwarded remittances to the union in respect of its employees, whether or not union members, in accordance with the collective agree­ment; the remittances were subsequently returned on the basis that the union could not accept remittances from non-members. Counsel argued the union knew, as at the date of the certification application, that some long service employees were not union members but took no steps until March 1992, when the grievance was filed. It was submitted that, if the ~matter was a real concern, the union would have acted sooner. Whatever the outcome of the grievance between the union and the company, that should not affect the entitlement of the persons in question to bring and support the termination application.

10. The Board afforded the parties the opportunity to make written submission on the applicability, if any, of the recent decision in F.H.R. Construction, [1991] OLRB Rep. Aug. 977. As those submissions were in writing, the Board sees no need to reiterate them herein.

11. It is useful to begin with the oft-quoted passage from April Waterproofing, supra, wherein the Board held that persons not hired in accordance with the relevant collective agreement may not be considered employees within the bargaining unit:

12. There can be little doubt that at the relevant time there existed a common-law employee-em­ployer relationship between the respondent and the three individuals challenged by the inter­vener. That by itself, however, is not determinative of their status as bargaining unit employees. See Local 273, International Longshoremen's Association v. Maritime Employers' Association, 1978 CanLII 158 (SCC), [1979] 1 S.C.R. 120. In our view, the bargaining unit is comprised of employees employed under the terms of the applicable collective agreement. To be so employed, an employee must have been hired in accordance with the provisions of the agreement. The three individuals in dispute were not hired in accordance with the provisions of the collective agreement and accordingly, in our view, they do not come within the bargaining unit covered by the collective agreement. This being so, we are satisfied that in ascertaining the number of employees in the bargaining unit for the purposes of section 7(1) of the Act, the three individuals in dispute should not be taken into account.

That reasoning was adopted in Corecon Construction, supra, where the Board found that certain individuals were not hired or employed in accordance with the provisions of the collective agree­ment and, consequently, were not employees within the bargaining unit for purposes of a termina­tion application.

12. Subsequent decisions have referred to the "mischief' with which April Waterproofing was concerned, often characterized as a positive act by an employer to undermine the union's bar­gaining rights, to distinguish that case from other situations where the Board has held the April Waterproofing rationale inapplicable. In the Board's view, those cases may be roughly grouped under two categories: those following relatively closely on the heels of the introduction of prov­ince-wide bargaining and those wherein the conduct of the union holding bargaining rights signifi­cantly impacted upon the relevant circumstances.

13. Culliton III, supra, which falls into the first category, addressed the April Waterproofing analysis in this way:

14. 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 unfairness 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?

15. 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 did not appropriately cap­ture the collective bargaining reality.

16. 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 purpose of a representation application.

17. 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 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.

18. 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 is should be.

19. 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.

20. The reasoning in Culliton III was adopted in Inducon, supra, wherein the Board distin­guished between those persons hired prior to the province-wide bargaining amendments in 1980 and those hired subsequent to those amendments and after the union gave notice to the company regarding the resultant applicability of the collective agreement. The former were considered "em­ployees" within the bargaining unit for the purposes of bringing the termination application, the latter were not. Although the decision is not entirely clear on this point, it appears that similar rea­soning underlies the Board's conclusion in Thomas Construction, supra.

21. The Board has also evaluated the conduct of the union asserting the persons in dispute should not be considered "employees" in the bargaining unit for purposes of a certification or ter­mination application. While considering the totality of the circumstances in each case, the Board has been influenced by factors such as delay by the union in questioning the propriety of the inclu­sion of persons in the bargaining unit, consideration of the rights of "innocent" third parties and conduct by the union which may be characterized as waiving or sleeping on its rights.

22. Pierre A. Gratton, supra, a certification application, is an example of the Board's con­cern with delay and the consequent emergence of third party rights:

23. The present case lies somewhere in between the situations in Culliton and April Waterproofing; as the Board ultimately found, there has been an extension of bargaining rights "by operation of law", but all of the employees in question were hired after the extension took place. And, unlike the cases of Culliton and Inducon, there was here an overt act on the part of the respondents which gave rise to that operation of law. At the same time, however, the Board, in assessing the impact of any delay on the part of the Labourers' in this case, has to con­tend with the fact of an innocent third party, the Carpenters' Union, having expended efforts to organize the employees of Grager. See Al Smith Plastering, [1981] OLRB Rep. Feb. 129, and the cases cited therein.

24. Obviously the potential for mischief in a situation of unlawful hiring is, as the Board has repeatedly pointed out, considerable. Accordingly, the Board, particularly with its knowledge of the construction industry, has not hesitated to presume, in the words of Inducon, supra, that the employer intended the natural consequences of his acts. That presumption is rebuttable, however, in the face of cogent evidence, and the Board on the evidence before it in the "sale" application is unanimously of the view that the principals of Grager were acting in good faith, and did in fact believe that the new, merged undertaking was not the subject of the shelved Pierre Grarton Construction Inc.'s collective agreement. We are satisfied that the principals of Grager made no effort whatever to hide the operations of "Grager" from the intervener Lab­ourers' Union; in fact, they willingly hired individuals whom they knew to have been members of the Labourers' Union through their prior employment with "Gratton". The "Grager" com­pany was in the field bidding on and performing jobs in the high-profile Transitway project for a substantial period of time before the Labourers', through their counsel, began to assert their claims. While the race is not simply to the swiftest, the Board can expect some measure of dili­gence in the unique world of construction, where unions know they must move quickly to orga­nize or assert bargaining rights before a project is completed. Here the Carpenters' Union expended its resources in a good-faith effort to organize the apparently unrepresented employ­ees of "Grager", and it is the decision of the Board that their application for certification is enti­tled to proceed, on the basis of the persons "employed" as of the date of the certification.

25. In E. R. Masonry, supra, the Board considered the Gratton decision and April Waterproofing in the context where the incumbent union resisted a termination application solely on the basis that the applicant never obtained a referral slip in respect of his employment with the company. On the evidence, the union had not required referral slips be obtained by other employ­ees of the company yet accepted the requisite remittances for those employees for a considerable period of time. The union did not take issue with the employment of the applicant nor assert he was not properly an employee in the bargaining unit until after the termination application was filed. In the circumstances, the Board found the union had waived its rights to insist on the referral slips requirement during the relevant period and with respect to the applicant's status as an employee in the bargaining unit.

26. The Board was likewise concerned with the union's conduct in Ideal Railings, supra. In that case, the union opposed the termination application on the grounds that the applicant was not a member in good standing because of his failure to pay union dues for quite some time. It is useful to refer to the decision itself:

6... As of the filing of this termination application, no move had been made by the trade union under Article 6.05 of the agreement to compel the employer to discharge Mr. Romero or any other "employee". It should also be noted that Mr. Romero was an employee of the intervener long before the union acquired its bargaining rights and that he was only one of a large number of employees who had failed to pay union dues. Indeed, it is conceded that at the time this application was made only a small number of the intervener's employees were paying union dues and therefore were union members "in good standing".

7. The difficulty with the union's position is that it is inconsistent with the terms of the collective agreement upon which it is purportedly based. That agreement - and in particular Article 6.05 -makes it perfectly clear that the obligation of employees with respect to union membership and the payment of dues, is distinct from "employment" in the bargaining unit. An employee who fails to comply with the obligations imposed by Article 6 may be subject to discharge, but until such discharge is actually effected s/he remains an employee in the bargaining unit defined above. The applicant and other recalcitrant dues payers continue to work for the employer, for wages, must as they did before, and they continue to meet the literal wording of the recognition clause and what it means, at law, to be an "employee". There is no suggestion here that the employer has somehow manipulated the employee complement so as to avoid its contractual obligations, nor is the employer in this case obliged to resort to the union hiring hall in order to fulfil its employee requirements. There is no evidence that the applicant or anyone else was hired contrary to the terms of the the collective agreement, and no issue of the "inchoate" rights of out-of-work union members who should have been hired if the terms of the collective agree­ment had been followed. At most, one has a failure by certain employees to fulfil obligations imposed upon them personally by the terms of the agreement, and a decision by the union not to require the discharge of such employees as contemplated by Article 6.05. The principles and the concerns expressed in April Waterproofing Limited, [1980] OLRB Rep. Nov. 1577 have no application in the circumstances of this case. We are satisfied that the applicant was an employee in the bargaining unit at the relevant time.

8. The recent decision if F.H.R. Construction, supra, echoes similar concerns in the fol­lowing passage:

9. We 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:

10. 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?

11. As 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.

12. We 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.

13. Although 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.

14. We 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.

15. There 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 ii 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.

16. With 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.

17. In the instant case, the collective agreement requires, as a condition of employment, that employees must be members in good standing of the union and, in the Local 527 Appendix, that all employees must be hired through the union office. The relevant provisions read:

ARTICLE 12- UNION SECURITY

12.1 As a condition of employment, an employee must be in good standing with the Union.

LOCAL 527 APPENDIX

Article 101 - HIRING

101.1 All employees shall be hired through the Union Office. The Union List of Unemployed members consisting of Plumbers, Steamfitters and Welders will be in effect.

101.5 Should the Union be unable to supply member journeymen or apprentices, then the Con­tractor may hire others, who as a condition of employment shall be required to obtain clearance from the Union Office.

21. It was not disputed that the five persons in question are not members of the union in good standing nor were they hired through the hiring hall. Their continued employment is in con­travention of the provisions of the collective agreement. Counsel for the applicant, with whom company counsel concurred, argued that the fact that the individuals were employees prior to the certification application and the company merely retained their services rendered the reasoning in April Waterproofing inapplicable. That is, there was no positive act by the employer to subvert the union's bargaining rights, for example, through padding the list or hiring employees opposed to the union. Therefore, it was asserted the persons satisfied the statutory requirement that they be "em­ployees in the bargaining unit" in order to properly bring and support the termination application.

22. The Board does not agree that the rationale in April Waterproofing is confined to cir­cumstances where there is a positive act by the employer in the sense urged by applicant's counsel. Culliton III, supra, itself speaks of circumstances wherein persons may be improperly "retained" as employees and, accordingly, not "employees in the bargaining unit" for purposes of a termination application (see paragraphs 26 and 27 of that decision). In the instant case, the employer was put on notice by letter dated November 22, 1991 that the Provincial ICI agreement was binding and that company's employees must be members in good standing of the union. The letter emphasized that the union would take any legal action necessary to ensure that the terms and conditions of the collective agreement were honoured by the company. In November 1991, subsequent to the certifi­cation decision, the union also initiated into membership five employees of the company. There is no evidence before the Board as to why J. Lyman, who had signed a membership card and who was referred to in the union's letter to the company regarding those who were to be initiated, was not, in fact, initiated into membership. In any event, in the instant circumstances (unlike in F. H. R. Construction, supra,), nothing turns on the fact that Lyman applied for membership but subse­quently was not initiated into membership. What stands as a critical difference between the instant case and F. H. R. Construction, is that here the union filed a grievance with the company on March 3, 1992 alleging contravention by the company of the union security clause in the employment of persons who were not members in good standing and who were not hired through the hiring hall. This grievance pre-dated the instant termination application filed on March 9, 1992.

23. The Board is congnizant of the fact that the grievance preceded the termination applica­tion only by a few days. Counsel submitted the explanation for the delay between October 31, 1991 and March 3, 1992 lay in the filing of the request for reconsideration of the certification decision and the fact that the reconsideration request was not dismissed until the Board decision dated Feb­ruary 20, 1992. In the Board's view, the proffered explanation is not relevant at least in the instant case. What is important - and why the circumstances herein differ from those cases which distin­guished April Waterproofing, supra, - is that the union informed the company in November 1991 that the collective agreement was binding, that only union members in good standing must be employed and hiring effected through the hiring hall and the union did challenge the company's employment practices through the filing of a grievance before the termination application. The cases which have departed from April Waterproofing have resonated with the Board's concern that a union cannot waive its rights or ignore a known situation and seek to reassert those rights only at the point a termination application has been filed in order to defeat such an application (or act likewise with respect to a certification application filed by another union). Those concerns do not exist in the instant case, notwithstanding that the persons involved were employees prior to the fil­ing of the certification application.

24. The Board regards the reasoning in April Waterproofing, supra, as applicable in the instant case. The union acted to assert its rights under the collective agreement prior to the filing of the termination application. To characterize the continued retention of persons not members in good standing of the union as not a "positive act" in the context of the mischief adverted to in April Waterproofing is merely a semantic distinction. In substance, for the Board to ignore the retention of employees in the face of the union's assertion of its rights would be to permit precisely the type of subversion of the union's bargaining rights April Waterproofing sought to avoid.

25. For the foregoing reasons, the Board finds that the five persons in question including the applicant, were not employees in the bargaining unit for purposes of the termination applica­tion. Accordingly, the application is dismissed.