Labourers' International Union of North America v. Hurley Corporation
[1992] OLRB Rep. May 582
2893-91-R Labourers' International Union of North America, Applicant v. Hurley Corporation, Respondent v. Group of Employees
BEFORE: Robert Herman, Vice-Chair, and Board Members W. H. Wightman and D. A. Patterson.
APPEARANCES: Bernard Fishbein, Michael Klug and John Cruz for the applicant; Scott Thompson, J. Michael Horgan and Jim C. Long for the respondent; Paul Jewell, Q. C. and Steve Homen on February 10, March 4, 12 and 16, 1992; Steve Homen for the objectors on April 13, 22 and 30, 1992.
DECISION OF THE BOARD; May 13, 1992
1This is an application for certification.
2The parties first met with a Labour Relations Officer and were able to reach agreement on a number of matters in dispute between them.
3The Board finds that the applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act.
4Having regard to the agreement of the parties, the Board further finds that all employees of Hurley Corporation at the Trillium Terminal 3 complex at the Lester B Pearson International Airport in the City of Mississauga, save and except non-working supervisors and persons above the rank of non-working supervisor, constitute a unit of employees of the respondent appropriate for collective bargaining.
5On the basis of the membership evidence filed, the Board is satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit, at the time the application was made, were members of the applicant on December 13, 1991, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
6Although this level of membership support would ordinarily be sufficient for the Board to automatically certify the union, there were also filed with the Board "petitions" or "statements of desire", signed by employees, indicating opposition to the certification of the applicant. The number of those employees signing the petition, who had also signed membership cards on which the union relies, was sufficient so that the Board would not automatically certify the union, if it were to be satisfied that the petition represented the voluntary expression of the employees so signing it, but rather, the Board would then direct a representation vote be held.
7Although there were additional issues before the Board, including the reliance of the applicant on the provisions of section 8 of the Act, it was agreed that the Board first consider the allegations filed by the employee objectors asserting improprieties in the collection of the memberships by the applicant union, and then consider the issue of whether the petition was voluntary.
8The applicant union asserted that the allegations filed by the employee objectors, asserting improper behaviour in the collection of some of the union memberships, failed to disclose a prima facie case. The union submitted that those allegations ought to be dismissed on that basis. After entertaining the submissions of the parties, the Board orally ruled, with reasons provided at the hearing, that the allegations did not disclose a prima facie case. Accordingly, the allegations of the employee objectors, insofar as they asserted a breach of section 70 of the Labour Relations Act by the applicant, were dismissed at the hearing.
9Over five further hearing days, the Board heard the evidence of the employee objectors with respect to the voluntariness of the petition they had filed. At the conclusion of their evidence, the employer indicated it had no evidence to call, at that stage, on the issue of the voluntariness of the petition. At that point, the applicant union in effect made a motion for a non-suit, arguing that the petitioners, based on all their evidence, had failed to establish a prima facie case for the voluntariness of the petition, and that the petition ought to be found to be involuntary without the case proceeding further. The applicant submitted that it not be put to its election before being able to make the non-suit motion; specifically, it argued that it not be required to indicate to the Board whether it intended to call any evidence, should its motion be unsuccessful, prior to being allowed to argue the motion on its merits. After hearing the submissions of the party on this issue, the Board ruled that the applicant would not be required to make an election as to whether it wished to call any evidence, should the hearing proceed, and that it could proceed to make its motion for non-suit without so electing. Our reasons for this ruling will issue at a later date.
10After entertaining the submissions of all the parties on the motion for non-suit, the Board ruled orally at the hearing as follows:
Based on the evidence, in all the circumstances, the Board is unanimously of the view that the petition is involuntary. We have reached this conclusion viewing the evidence led by the petitioners in the best light, from the petitioners' perspective. It is nevertheless clear that the petition is not voluntary.
The petition was started by the fianc 2i of the daughter of a manager of the respondent company, who was actively assisted in the circulation of the petition by the wife of another manager of the respondent. Numerous employees were requested by their forelady, at the workplace while they were working their shifts, to go during their breaks to sign the petition. Although this forelady did not in fact exercise managerial duties within the meaning of section 1(3)(b) of the Labour Relations Act, she was still a forelady who would be perceived as a forelady by the employees under her control. Further, these actions arose in a context where the employees had already been told directly by their employer, the respondent company, through the publication of Exhibit 6, a notice to all employees, that their employer was opposed to the union, and they had a legal right to actively oppose a union organizing attempt.
In these circumstances, the Board is satisfied that the petition could not be voluntary.
The message employees would have taken, in all these circumstances, would be that their employer was both opposed to the union and that their employer favoured their signing the petition opposing the union. Whether this was true or not (that is, whether the employer wanted employees to oppose the union and whether the employer was actively sending that message), the fact remains that the employees would clearly have been under this impression.
In these circumstances, the petition is clearly involuntary.
Accordingly, the motion is granted.
11In the result, the Board is not prepared to give any weight to the petition as an indicator of the wishes of those who signed the petition and also signed membership cards. As the union has filed a sufficient level of membership support to warrant certification without the holding of a representation vote, a certificate will issue forthwith to the applicant.