International Union of Operating Engineers, Local 793 v. Camaro Enterprises Limited

[1992] OLRB Rep. August 901

1499-90-R; 1500-90-R; 1512-90-R International Union of Operating Engineers, Local 793, Applicant v. Camaro Enterprises Limited, Respondent v. Group of Employees, Objectors

BEFORE: M. G. Mitchnick, Chair, and Board Members D. G. Wozniak and D. A. Patferson.

APPEARANCES: S. B. D. Wahl and E. Kaplan is for the applicant; William S. Gardner and Barry Mulder for the respondent; Michael Werier and Len Miller for the objectors.

DECISION OF THE BOARD; July 24, 1992

1. This is the continuation of consolidated applications for certification for a unit of construction operators and drivers of the agreed-upon employer Camaro Enterprises Limited in the District of Kenora. The applicant recently has been certified to represent the employees of Camaro in the areas of Thunder Bay and of Rainy River as well. The parties here went through protracted examination proceedings to settle the "List of Employees"~ culminating in a decision by another panel of the Board dated April 30, 1992. That decision determined that the applicant was in a position to be certified without a vote pursuant to the provisions of section 7(2) of the Labour Relations Act. There were, however, timely statements in opposition filed in this matter by both Mr. Len Miller and Mr. Frank Cooney, and the overlap with the applicant's membership evidence was such that if the Board were to be satisfied that either of the two documents represented a voluntary “change of mind" on the part of the employees who signed them, the Board normally would exercise the discretion vested in it to order a vote.

2. The Board in the course of arriving at the decision just referred to also made the following determinations of "employee" status with respect to this application:

21. With respect to the applicant's "managerial" challenges, the Board finds, on the evidence before it, that D. Boulanger, W. Peniuk and D. Oneschuk exercise managerial functions within the meaning of section l(3)(b) of the Act and must therefore be deemed to not be employees for purposes of the Act in this application. The Board finds that L. Miller, E. Cotea [Coté] and D. Slavuta do not exercise managerial functions and are properly included on the list of employees for this application.

About Mr. Miller in particular the Board wrote:

25. L. Miller worked with a crew of three other employees. He was generally actively employed as a truck driver although on the date of application he spent the majority of his day operating a shoulder spreader. The evidence does not suggest that Miller could affect the employment of any employees of the respondent of [or] that he had any other managerial responsibilities.

3. The organizing campaign in question occurred during the summer of 1990, amongst employees of the respondent engaged in road-work on Highway 17 running westward from Dinorwic to Dryden. The only evidence presented by the "petitioners" was that of Len Miller. Mr. Miller testified that he read the "green sheets" that were posted by the Labour Board at the job site, and decided on his own to take up a petition in opposition to this application because he "doesn't like Unions". He testified that he did not discuss with anyone else what to put as a preamble to the petition, and that the words used came strictly out of his own head. The preamble to Mr. Miller's petition read:

We the undersigned employee's wish to oppose a Union of Camaro Enterprises Ltd. by the International Union of Operating Engineers Local 793.

Mr. Miller testified that he took his petition around by himself, always keeping it on his own person, and that he approached employees only on lunch or coffee breaks, or after working hours at the end of the day, and never in the view of members of supervision. A second petition filed with the Board, by Mr. Cooney, bears exactly the same preamble as Mr. Miller's, except that it is typewritten. Counsel for the petitioners advised the Board at the outset of the hearings that Mr. Cooney would not be attending to give evidence, and Mr. Miller was able to offer no explanation as to how his and Mr. Cooney's petition came to bear the same preamble. Mr. Miller testified that he had not been aware at the time that anyone other than himself was circulating a petition, and that he learned of the existence of this second petition only after giving his testimony before the Labour Relations Officer, whereupon he and Mr. Cooney agreed along with some others to retain their present counsel.

4. Mr. Miller's home is in the Winnipeg area, as is the respondent's Head Office, and he has worked for the respondent during the construction season in each of the past 12 years. Mr. Miller is principally a truck driver, and in fact leases his own tractor-trailer to the respondent. It is clear from the evidence of everyone that what Mr. Miller did for the bulk of the job in question, commencing with his employment on it at the end of June, was to haul and dump gravel. Indeed, Ed Kaplanis, the applicant's chief organizer for this application, was around the job from May to September, and acknowledged that all he ever saw Mr. Miller do was drive truck. Mr. Kaplanis a couple of times in fact tried to get Mr. Miller to sign a card for the Union. What is equally clear, however, is that Mr. Miller, by his own admission, has on occasion served the respondent in the capacity of a foreman - albeit, in Mr. Miller's words, a "working" foreman - and towards the latter part of the project was directed by the respondent's superintendent, Walter Ambrozik, to provide himself with a white construction hat and a company half-ton and take over supervision of the shoulder-spreader crew. While Mr. Ambrozik himself, for example, prefers to wear a baseball cap because, as he says, the hard hat gives him a headache, it is clear from both the viva voce evidence and the transcript of the LRO hearing, to which the parties referred us, that a white hat on this project was the typical indicium of individuals placed by the company in at least the role of a “working" foreman - as is the use of a company half-ton. Mr. Miller's evidence is uncontradicted that even after he took over the half-ton, he carried tools in the back of it, and might help in manually spreading gravel, or setting the mould-board, as needed. However, it is also clear that, apart from employees like the sign-man or the mechanic whose job entails such mobility, no one but ~'foremen" were provided with a company half-ton to drive, and, as will be seen, the assignment of that truck allowed Mr. Miller the latitude to visit employees with his petition at points along the job removed from the place where the actual spreader crew was working.

5. The timing of Mr. Miller's move to "foreman" of the spreader crew was obviously of significance to the issue that the present panel of the Board had convened to hear, and Mr. Miller at the outset was most adamant in his cross-examination that the change did not take place before the month of October. That was the firm evidence of the superintendent, Mr. Ambrozik, as well. By the end of Mr. Miller's own cross-examination, however, Mr. Miller acknowledged that he had been given his hat and truck by the terminal date for this application, September 20th, and that he did in fact approach various individuals in his truck to sign the petition. For reasons that will be elaborated upon in the jurisprudence below, the parties recognized that the determination of the Board in its April 30, 1992 decision as to Mr. Miller's "actual" status is not determinative of the issue that the present panel has to decide. But we would note in any event that the date of the application itself, being the relevant date for the purpose of the LRO hearings and the Board's earlier status determination, was September 7th, a week to two weeks prior to the emergence of Mr. Miller's petition, and the "Foreman's Daily Report" tendered in those hearings made it clear that as of that date Mr. Miller was in fact, as he claimed, still hauling gravel in the large tractor-trailer.

6. This timing of the change in Mr. Miller's status was confirmed as well by a variety of employees called to testify before us on behalf of the applicant. Counsel both for the respondent and for the Interveners placed considerable weight in argument on the difficulty of the applicant's witnesses in recalling specific dates or sequences, or in testifying in a manner that conformed with the details of written statements that had been provided by them to the Union at the close of the applicant's organizing campaign. That was, however, in September of 1990. It is unfortunate that any case before the Board would take so long to be completed, let alone a certification application, but the fact is that delay of that sort is always going to have some effect on the ability of witnesses to give clear, cogent evidence. While the applicant's witnesses in giving their testimony generally had their prior written statements to be measured against, Mr. Miller did not. On the other hand, Mr. Miller did have his nearly-two-years-old petition to speak to, and were the Board not prepared to make allowances for the passage of time in assessing Mr. Miller's recollection of the origin and circulation of his petition, Mr. Miller might well have failed to meet the evidentiary onus upon him on the basis of the quality of his own evidence alone. With respect to the applicant's witnesses, Claudia Edmonson worked as a flagger, and testified that she was called to the other side of the road one day while flagging by Mr. Miller. Mr. Miller was stopped facing in the other direction in a half-ton truck which she had not seen him driving before. Asked by Ms. Edmonson about the truck, Mr. Miller responded that he was "a foreman now", and asked Ms. Edmonson if she would sign his petition against the Union. Mr. Oneschuk, her own foreman, was with the operating crew immediately across the road at the time. It might be noted that Ms. Edmonson's evidence of her perception of Mr. Miller as a result of this conversation with Mr. Miller and of his new truck and hat is consistent with the written statement she gave to the Union at the time, and with the evidence given by her before the Labour Relations Officer. We also note that, while an issue was raised before us in Ms. Edmonson's cross-examination of her relationship with the foreman Dave Oneschuk, her account of the course and state of that relationship was not contradicted, and we note as well that she herself identified having a "problem" with the foreman in her own written statement given at the time.

7. Dennis Cornelius was employed as a grader-operator, and testified that, while the vehicles were warming up early one morning in September, he also noticed Mr. Miller for the first time with his own half-ton. As with Ms. Edmonson, Mr. Miller explained to Mr. Cornelius that he was a foreman now. Subsequently, again like Ms. Edmonson, Mr. Miller pulled up alongside Mr. Cornelius on the road, and asked him to stop his grader. Mr. Cornelius did so, and Mr. Miller asked him if he wanted to sign his petition against the Union. Mr. Oneschuk once again was on the side of the road opposite, and Mr. Cornelius pointed to him and replied to Mr. Miller: "With assholes like that around, we need a Union". A couple of hours later Mr. Cornelius was sitting having a coffee and Mr. Oneschuk walked by and said: "I hear you don't like me very much".

8. Sue Hatfield was employed as a surveyor and confirmed in her testimony that she had to consult with Mr. Miller as the spreader "foreman" from time to time in the later stages of the job, as to how certain things were going to be carried out, and that he himself told her that he had been promoted to foreman. Mr. Miller was driving his own half-ton and wearing a white hat at the time, and on one occasion pulled up as she was leaving lunch at the Truck Stop to ask her if she wanted to sign his petition.

9. The evidence of all of the employee witnesses who testified, except perhaps Ms. Edmonson, is that Mr. Miller was cordial in his approach to them on the petition, and said nothing to them at all to indicate any direct or indirect threat to their employment. Whether or not individual witnesses were or were not intimidated, however, or did or did not sign the petition, the Board recognizes that other employees may be reluctant to go to the Union or testify at all, and relies on episodal evidence like the above to gain an overall "objective" view of how, and by whom, such a petition has been handled, and what effect that might reasonably be inferred to have had with respect to the "voluntary" element that is critical to the Board in signifying this sudden "change of mind". As the Board put it early on in the Morgan Adhesives case, for example, [1975] OLRB Rep. Nov. 813, at 818:

There is a natural suspicion which attaches to a statement of desire following closely upon a union organization campaign. The Board must assure itself that the "change of heart" indicated by employees who sign the petition in opposition to the union after having indicated support for that same union is a free choice unimpeded by overt or subtle pressures. The rationale giving rise to this suspicion is well summarized in the Pigott Motors (1961) Ltd. case, 63 CLLC 16, para. 16,264, where the Board stated:

“…..In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act…..”

Or in Lo Foods, [1983] OLRB Rep. May 676:

14. It must be clear that the circulation of the petition is free from the actual or perceived influence of management. Often, as in the present case, a petition will be signed by employees who have indicated their support for the union only a short time before, and a natural question arises as to what prompted the change of heart. Moreover, while an employee can be reasonably assured that his support for the union will not be communicated to his employer, he may have no such assurance concerning his refusal to sign a petition opposing the union. Frequently, such petitions are openly circulated on or near the employer's premises, or during working hours, by employees who, in their opposition to the union, will be objectively aligned in interest with their employer and may be so perceived. In these circumstances, an employee may sign a petition because he fears that a refusal to do so will expose his support for the union and will be made known to his employer....

Thus the primary focus for the Board in "petition" cases, with the sole issue being the satisfaction of the Board as to voluntariness, is on employee perception - and on the courses of action of either the employer or the petition's sponsors, or both, to the extent they contribute positively or negatively in that regard. As Westgate Nursing Home put it, [1981] OLRB Rep. June 810, in the terms relevant here:

9. Ii appears from the evidence before us that Mrs. Haley does not in fact exercise managerial functions. However, in determining the voluntariness of a petition, the Board is concerned not with the actual authority or proximity to managerial authority of the person who circulates it. but rather with what employees reasonably perceived that person's authority or proximity to managerial authority to be. Thus, the Board will consider whether employees reasonably perceived the circulator as having managerial powers or as being in greater proximity to managerial authority than other employees (see, for example, Fibre Therm Corp., [1980] OLRB Rep. Aug. 1196. and Dad's Cookies Ltd., [1976] OLRB Rep. Sept. 545). The Board has adopted this approach in recognition of the delicate and responsive nature of the employer-employee relationship which gives rise to a natural desire by employees to appear to identify with the interests and wishes of their employer. The Board must be satisfied on the balance of probabilities that the signatories of a petition signed it out of genuine opposition to the union and not out of concern that their failure to sign would be communicated to the employer, or could result in reprisals (see Peacock Lumber Ltd., [1979] OLRB Rep. May 423, and Radio Shack, [1978] OLRB Rep. Nov. 1043.

That is not to say that every petition originated and circulated by someone in the kind of "hybrid" position of Mr. Miller will necessarily be rejected by the Board as unworthy of weight. The Board has recognized that a person whose powers are not such as to take them outside the scope of the Act are prima facie entitled to participate in the Act's activities, and as long as such persons are sensitive to their unique position, and neither seek to use it to advantage nor behave in a manner that would in any event be probable to produce that effect, the Board will not be adverse to according to that entitlement its due weight. See, for example Elgin Handles Limited, [1987] OLRB Rep. April 496; Data Security Limited, [1985] OLRB Rep. Aug. 1183; and F. W. Woolworth Co. Limited, [1982] OLRB Rep. May 797. The question in all cases is whether the conduct of the petitioner and/or the employer is such that the Board is of the view that the former, in carrying out his or her "anti-Union" petitioning activities, would reasonably be perceived as acting as the agent or conduit of the latter.

10. In the present case there are some troublesome aspects that have not yet been commented upon. On both pages 1 and 2 of Mr. Miller's 3-page petition there is the signature of a "managerial" person, and although Mr. Miller insisted that he, at least initially, showed each employee only the page he or she was being asked to sign on, the evidence of the employees who testified is uniformly to the contrary (and Ms. Edmonson makes that point in her original written statement, before it was apparent that there was going to be an issue over it). Ms. Hatfield, an articulate, impressive witness, also gave disturbing evidence about a conversation occurring early on with the office secretary. There was also evidence adduced by the applicant that would indicate overt involvement by the respondent, through Mr. Ambrozik, in the circulation of the petition itself. Given the quality of that latter evidence, however, and the low profile maintained by the respondent with respect to the Union's application in general, we decline to decide this matter on the basis of any direct or intentional involvement by the respondent whatever. Nor, in the end, do we find that we have to address the other issues raised in this paragraph. The timing of Mr. Miller's assumption of the "trappings" of management, together with what we are satisfied was his own characterization of his new position to employees he solicited, and the freedom with which he moved about and interrupted employees' work in making those solicitations, in the presence of actual members of management, satisfy us that the employee perspective would more likely than not here have been to link Mr. Miller's petitioning activities to the employer. We accordingly do not find ourselves able to give any weight to the apparent "change of mind" by employees who previously had signed cards in support of the applicant, as represented by the petition put forward to us by Mr. Miller.

11. On the basis of the membership evidence filed by the applicant therefore~ and pursuant to the provisions of section 7(2) of the Labour Relations Act, the Board certifies the applicant as exclusive bargaining agent for a unit of employees described as:

all employees of Camaro Enterprises Limited engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in repairing the same, and those employees of Camaro Enterprises Limited engaged as surveyors, construction labourers and truck drivers, in all sectors of the construction industry, excluding the industrial, commercial and institutional sector, in the District of Kenora including the Patricia portion, save and except non-working foremen and persons above the rank of non-working foreman.

12. A certificate will issue to the applicant.