Ontario Labour Relations Board

[1992] OLRB Rep. June 673

0207-92-R Robert Harry Macklin, Applicant v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Respondent v. Bill Bailey of Belleville Limited, Intervener

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

APPEARANCES: William W. Walker and Robert H. Macklin for the applicant; A. J. Ahee and B. Christie for the respondent; Alan Whyte and Barry Box for the intervener.

DECISION OF KEN PETRYSHEN, VICE-CHAIR, AND BOARD MEMBER B. L. ARMSTRONG; June 16, 1992

1. In this application, Robert Macklin seeks an order terminating the bargaining rights held in the I.C.I. sector of the construction industry by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 463 ("Local 463") and the other affiliated bargaining agents for the intervener, Bill Bailey of Belleville Limited.

2. This application was filed on April 21, 1992. In its Reply dated April 30, 1992 Local 463 indicated that the approximate number of employees in the unit was 1. After discussing the issues in the case with a Waiver Officer, the parties agreed to waive the Officer meeting scheduled for May 15, 1992 and proceed directly to hearing. In discussions with the Waiver Officer, the parties agreed to the description of the bargaining unit and also agreed that there were three issues that would be dealt with at the hearing, namely:

(a) the voluntariness of the petition;

(b) whether the applicant can properly bring the application, and

(c) whether the applicant was performing bargaining unit work on the application date.

The Waiver Officer advised the parties that there was one person in the unit for purposes of the count and that person signed the petition.

3. At the outset of the hearing, counsel for Local 463 raised an issue for the first time concerning the number of persons employed in the bargaining unit on the application date. Based on some hearsay information, counsel advised the Board that his client believed there may have been more than one person employed in the bargaining unit on the application date. Local 463 was not then in a position to provide the Board with the names of these persons. Counsel wanted the opportunity to call someone employed by the respondent to give evidence on this issue. After entertaining the parties' representations and after recessing to consider the matter~ the Board ruled orally at the hearing that it would not permit Local 463 to pursue the issue of whether there was more than one person employed in the bargaining unit on the date of application. As a result of discussions with the Waiver Officer, it appears that the parties were agreed that there was only one person in the bargaining unit on the application date. It was the Board's view that Local 463 should not be permitted to resile from that agreement. But even if one could say that Local 463 did not agree on the list issue, the Board was satisfied that Local 463 had not exercised due diligence in pursuing the list issue, and the raising of the issue in the form it did on the day of the hearing was untimely. The Board then proceeded to deal with the three issues identified as issues in dispute by the Waiver Officer.

4. As noted earlier, Local 463 took the position that Mr. Macklin did not have status to bring this application. The Board asked counsel for the respondent to provide the Board and the other parties with the facts it relied upon in support of its position. The respondent asserted that Mr. Macklin was not a member in good standing having regard to the provisions of the union's constitution which provides that the General Secretary-Treasurer shall issue an applicant a membership card. Mr. Macklin had not been issued a membership card, and since the collective agreement provides that as a condition of employment an employee must be in good standing with the union, counsel for Local 463 maintained that Mr. Macklin was not employed in the bargaining unit and could not bring this application.

5. After certification in February 1991, Local 463 gave Mr. Macklin the option to pay his initiation fee (which exceeded $1,000.00) over a period of time. Mr. Macklin took advantage of Local 463's offer and paid his initiation fee in instalments. By the end of March 1992, Mr. Macklin had paid his initiation fee to Local 463 and, as well, he had paid his dues. As of the hearing date, Local 463 had not remitted Mr. Macklin's initiation fee to the International Union in order that the General Secretary-Treasurer would be in a position to issue Mr. Macklin a membership card. At no time has Local 463 taken the position with Bill Bailey of Belleville Limited that Mr. Macklin should not be employed since he was not a member in good standing.

6. After entertaining representations from counsel for the respondent, the Board ruled orally at the hearing that Mr. Macklin had status to bring this application. The fact that the General Secretary-Treasurer had not issued Mr. Macklin a membership card did not lead us to conclude that he would not be employed in the bargaining unit and entitled to bring the application. The failure of Local 463 to raise the issue with Mr. Macklin's employer is consistent with the view that it had no difficulty with Mr. Macklin's status as a bargaining unit employee during the relevant period of time. This was clearly not a situation where the employer or Mr. Macklin were attempting to influence bargaining unit employment in order to detrimentally affect the Plumbers' bargaining rights. The circumstances here are not even close to those which gave rise to the April Waterproofing principle.

7. The Board now turns to the issue of whether the petition represents a voluntary expression of employee wishes. As of the application date, Mr. Macklin was the only person employed by the respondent relevant to this application. He has been employed by the respondent for almost 3 years. Prior to being hired by the respondent, Mr. Macklin worked in the plumbing trade for another company for approximately 10 years. While at that firm, he opposed an application for certification by the present applicant and the application was dismissed. Mr. Macklin also opposed the applicant's effort to obtain certification in early 1991 for a bargaining unit of the intervener's employees, After the Board ruled orally at a hearing in Toronto in February 1991 that the applicant would be certified, Mr. Macklin had a discussion in the hallway with Mr. Reynolds, the owner of the intervenet, and the intervener's counsel. Mr. Macklin was unable to recall the conversation at that time in detail. Mr. Macklin did recall that they discussed terminating the applicant's bargaining rights in a year's time but could not recall who initiated the idea. Mr. Macklin could not recall if Mr. Reynolds offered to assist in the termination effort but thought that that was likely. In March 1992, prior to filing this application in April 1992, Mr. Macklin approached Mr. Reynolds to discuss a termination application. Mr. Macklin testified that his reason for discussing the matter with Mr. Reynolds was that he did not want to lose his job and he did not "want to screw up what Mr. Reynolds had going". It appears that Mr. Reynolds' response convinced Mr. Macklin to proceed with a termination application. Mr. Macklin stated that Mr. Reynolds promised him he would not lose his job and also testified that Mr. Reynolds said he would help pay Mr. Macklin's legal fees. Mr. Macklin then approached a lawyer who assisted him in preparing and filing this application.

8. We do not find it necessary to extensively review the Board's jurisprudence concerning petitions. The Board simply notes that there is an onus on the applicant in a termination application to satisfy the Board on the balance of probabilities that the petition filed in support of the application represents a voluntary expression of employee wishes. In assessing the voluntariness of a petition, the Board will have regard to all of the evidence before it. It will not give any weight to a petition where someone in a management capacity has been involved in the origination or circulation of a petition. The Board recognizes that there is a difference between petitions filed in a certification context and those filed in support of a termination application. In Ontario Hospital Association Blue Cross, [1980] OLRB Rep. Dec. 1759, the Board stated the following at paragraph 31:

The sole issue before the Board in every case regarding a "petition" is the voluntariness of the acts of signing. The Board has often drawn a distinction between petitions which are filed in connection with an application for certification, and those which accompany an application for termination of bargaining rights. In the former case, the Board has said that it must be sensitive to the role which management influence, devious or otherwise, may have played in causing employees who have only recently signed a card in support of a union to subsequently sign a petition which opposes the union. In the case of a termination application, the Board is not less concerned about influence by the employer, but there may, as a practical matter, be any number of reasons, including the mere passage of time, to readily explain the employees' apparent change of hearts. As the Board commented in N. J. Spivak Limited, [1977] OLRB Rep. July 462:

In contrast to a statement filed in opposition to an application for certification a statement of desire filed in support of a termination application under section 49 (now 57) of the Act does not represent a sudden change of heart by those who sign it. The operation of section 49 (now 57), a section designed to give vent to employee desires, requires the passage of at least one year from the date of the union's certification before the Board will entertain an application for termination of bargaining rights. Because of the absence of an immediate change of heart, as happens when an employee signs himself into membership in a trade union and shortly thereafter signs a statement in opposition to the certification of the same union, and having regard to the purpose of section 49 (now 57), the Board is less inclined to draw inferences adverse to the voluntariness of the statement filed in support of an application under section 49 (now 57) of the Act.

9. Although the Board is less inclined to draw negative inferences in a termination application where there is no "sudden change of heart" than it would be in a certification proceeding, the Board's task is still to "protect the fundamental rights of employees to make their own choice, as distinct from the choice of their employer, in the matter of selecting or rejecting a bargaining agent" (Peel Block Co. Ltd., 63 CLLC ¶16,227).

10. The issue before us is not an easy one to decide. Mr. Macklin has expressed opposition to the applicant on two previous occasions. When he filed his application, he was the only person in the bargaining unit, a situation which eliminates some of the concerns expressed in the Board's petition jurisprudence. Nonetheless, the Board must be satisfied that the origin of the termination effort is not tainted by employer influence or interference. The discussion in the hallway at the Board's offices after the union was certified, in which Mr. Reynolds and Mr. Macklin discussed terminating the applicant's bargaining rights in a year's time, is not fatal, by itself, for Mr. Macklin's petition. What raises a difficulty for Mr. Macklin's petition in this case is his discussion with Mr. Reynolds in March 1992. Mr. Macklin did not simply file his termination application during the open period. Rather, he felt he needed to have a discussion with Mr. Reynolds before proceeding. One of his reasons for discussing the matter with Mr. Reynolds was that he did not want to interfere with anything Mr. Reynolds had going. One can only conclude from Mr. Macklin's evidence that if Mr. Reynolds suggested that he not proceed with an application, Mr. Macklin would not have filed this application. It looks very much like it is the intervener that determined whether this application would be made. In addition, Mr. Reynolds offered to assist Mr. Macklin with his application by contributing to his legal costs, a gesture which Mr. Macklin did not refuse. Having regard to these circumstances, the Board is satisfied that the intervener has interfered with the origination of this application and the Board is not prepared to find that Mr. Macklin's petition is a voluntary expression of employee wishes.

11. In the circumstances, the Board finds it unnecessary to decide whether Mr. Macklin was performing bargaining unit work on the application date.

12. The Board is not satisfied that not less than forty-five per cent of the employees of Bill Bailey of Belleville Limited 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 1,1992, the terminal date fixed for this application and the date which the Board determines, under section 105(2)(j) [formerly 103(2)(j)] of the Labour Relations Act, to be the time for the purpose of ascertaining the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent trade union under section 58(3) [formerly 57(3)] of the Act.

13. This application is dismissed.

DECISION OF BOARD MEMBER R.M. SLOAN; June 16, 1992

1. With respect, I dissent from the majority decision.

2. While I share some of the concerns expressed by my colleagues with respect to the circumstances relating to the build-up to the filing of the application, I find that in the final analysis the petition is voluntary.

3. The criteria set out in a myriad of Board decisions with respect to the voluntariness of all petitions - in matters such as its origination, circulation, custody and disposition are designed to ensure that the petition is free of management influence, pressure and taint (among other matters).

4. This instant case is unique in that in addition to the absence of any "change of heart" considerations, there is only one person in the bargaining unit, which eliminates many of the concerns the Board normally deals with in respect to the voluntariness of petitions.

5. It is also clear to me that any contact between Mr. Macklin and his employer occurred after Mr. Macklin had made his decision with respect to the termination of the union's bargaining rights and had no influence whatsoever on the voluntariness of the petition.

6. In my view there can be no doubt that the opposition to union representation by Mr. Macklin is a long-standing, personal, sincerely held conviction and that the majority decision prevents him exercising his rights under the Act.

7. I find that the petition is voluntary and I would order the required vote.