Ontario Labour Relations Board

[1992] OLRB Rep. August 971

0334-92-R; 0335-92-R Donald Feener, Applicant v. Sheet Metal Workers' Interna­tional Association, Ontario Sheet Metal Workers' and Roofers' Conference, Sheet Metal Workers International Association Locals 30, 47, 235, 269, 392, 397, 473, 504, 537, 539 and 562, Respondents v. Walden Roofing & Sheet Metal Co. Lim­ited, Intervener; John Jordan, Applicant v. Sheet Metal Workers' International Association, Ontario Sheet Metal Workers' and Roofers' Conference, Sheet Metal Workers International Association Locals 30, 47, 235, 269, 392, 397, 473, 504, 537, 539 and 562, Respondents v. Walden Roofing & Sheet Metal Co. Lim­ited, Intervener.

BEFORE: Brain Herlich, Vice-Chair, and Board Members W. A. Correll and B. L. Armstrong.

APPEARANCES: Ian S. Campbell, Steven Gadbois, Donald Feener and John Jordan for the appli­cants; J. Raso and Cliff Coffin for the respondents; no one appearing for the intervener.

DECISION OF THE BOARD; August 24, 1992

1. The name of the respondents in both files is hereby amended to read: “Sheet Metal Workers' International Association, Ontario Sheet Metal Workers' and Roofers' Conference, Sheet Metal Workers International Association Locals 30, 47, 235, 269, 392, 397, 473, 504, 537, 539 and 562" (to whom we shall refer as the "union").

2. These are applications pursuant to section 58 of the Labour Relations Act for a declara­tion that the union no longer represents employees.

3. As the two files involve different bargaining units of employees of the same employer heretofore represented by the same trade union, the parties agreed that the matters be heard together.

4. Board File 0334-92-R concerns a bargaining unit composed of:

all journeyman sheet metal workers and registered sheet metal apprentices in the employ of Walden Roofing & Sheet Metal Co. Limited in the industrial, commercial and institutional sec­tor of the construction industry in the Province of Ontario, save and except non-working fore­men and persons above the rank of non-working foreman.

5. For ease of reference we shall henceforward refer to this bargaining unit as the "sheet metal unit".

6. Board file 0335-92-R concerns a bargaining unit composed of:

all employees of Walden Roofing and Sheet Metal Co. Limited performing work covered by the terms and conditions of this agreement in the commercial, industrial and institutional sectors and new high-rise structures in all other sectors, except the work covered in the collective agree­ment of the Electrical Power Systems Construction Association and the union, of the construc­tion industry in all geographic areas in the Province of Ontario.

7. The agreement first referred to in the above bargaining unit description is the collective agreement between The Labour Relations Section of the Ontario Industrial Roofing Contractors' Association on the one hand and The Built-Up Roofers Damp & Waterproofing Section of the Ontario Sheet Metal Workers' & Roofers' Conference of the Sheet Metal Workers' International Association on behalf of the following affiliated bargaining agents:

(a) Local Unions 30, 47, 235, 269, 392, 397, 473, 504, 537, 539 and 562.

(b) The Sheet Metal Workers' International Union

on the other hand. For ease of reference we shall henceforward refer to this bargaining unit as the "roofers' unit".

8. The parties agreed and the Board finds that the bargaining units concerned are those just described and that the present applications are timely having regard to section 58(2) of the Act.

9. The parties were also agreed that in each case the applicant has filed material indicating that not less than forty-five percent of the employees in the respective bargaining unit have signi­fied in writing that they no longer wish to be represented by the respondents.

10. The only issue in these matters is whether the documents filed in support of the applica­tions represent the voluntary wishes of the signatory employees.

11. The parties were able to call all their evidence on the day of hearing scheduled for these matters. We heard the evidence of the two applicants and of Cliff Coffin, business manager of Local 562. Rather than convene for a further hearing day simply to hear argument, the parties agreed to file written argument with the Board.

12. As the facts are largely not in dispute it is unnecessary for us to recount them in intricate detail.

13. Sometime in the fall of 1991 and as a result of his concerns about the employer's com­petitive position in a difficult economic climate, Mr. Feener took steps which resulted in a meeting attended by Mr. Feener, Mr. Thistle, an employee in the roofers' unit, Mr. Coffin, business man­ager of Local 562 and principals of the company. At this meeting Mr. Feener sought the union's agreement to certain concessions or exemptions from some requirements of the provincial agree­ment(s) in order to enhance the employer's competitive position. Mr. Coffin advised that he was unable to comply with the request.

14. Shortly afterwards, Mr. Feener sought legal advice regarding a possible termination application. He was advised, among other things, that such an application would not be timely until the two-month period ending April 30, 1992.

15. The possibility of a termination application was discussed by employees on various occasions over a period of time at informal gatherings at a local donut shop. Interest fluctuated.

16. Mr. Jordan, commencing in January, 1992, made various inquiries, was in touch with a number of counsel and ultimately retained counsel who represented the applicants at the hearing in this matter.

17. Statements of desire (petitions) were prepared by counsel. Mr. Jordan circulated a peti­tion among employees in the roofers' unit; Mr. Feener did the same in the sheet metal unit. The petitions were delivered to counsel who, in turn, had them filed with the Board.

18. There was nothing remarkable about the manner in which the petitions were circulated and neither did the respondents claim any defect in that aspect of the application.

19. In advancing its contention that the applicants had failed to meet the onus of proving the voluntariness of the petitions, the respondents relied on what they asserted were Mr. Feener's close ties to management; contradictions, inconsistencies and lack of credibility in the applicants' evidence; and the significance of the economic climate.

20. We are satisfied that there were no significant contradictions or inconsistencies in the evidence of the applicants. The respondent's position in this regard related to what it claimed were disparities in evidence regarding whether or not Mr. Feener had attended one of the meetings at the donut shop and the specific date of a telephone conversation between the two applicants. Even assuming that the evidence of the applicants, is contradictory or inconsistent in this regard (some­thing we do not find to be the case) the disparity in evidence does not strike us as one which is particularly significant or telling in the circumstances and would not cause us to doubt the balance of the applicants' evidence which was given in a direct, forthright and credible manner.

21. We are unable, however, to as easily dismiss the concerns raised about Mr. Feener's position. In this respect while both applicants are working foremen, Mr. Jordan testified that he performed no functions which would impact on the economic stability of bargaining unit employ­ees. Specifically, he testified that he does not have supervisory authority to hire, lay off, discipline or dismiss. Neither does he do lay out nor decide how many and which employees would be used for a particular job. Mr. Feener, on the other hand, testified that he performed a number of func­tions with significant impact on employees' job security. In particular he acknowledged doing lay out, determining how many and which employees would be used on a particular job. He also acknowledged having a power of effective recommendation regarding hiring and layoff and agreed he was responsible for hiring the other two sheet metal unit employees.

22. This is not the first time the Board has had to deal with the consequences of the involve­ment of working foremen in the circulation of a petition. In A. N. Shaw & Sons (Eastern) Ltd., [1980] OLRB Rep. Oct. 1347 the Board observed:

23. This then brings us to the issue of whether the statement of desire can be accepted as volun­tary signification of those who signed it. The Board is always concerned that employees may have signed such a statement of desire out of the belief that it had the support of management and that management might become aware of any refusal on their part to sign it. It is worth not­ing at the outset that we are fully satisfied that there was no actual managerial involvement in either the preparation or circulation of the statement of desire. Notwithstanding the lack of any evidence indicating actual management involvement, counsel for the union contended that employees would likely have perceived that management was involved with the statement of desire because of the leading role played by Mr. Foley in its origination and circulation and the fact that Mr. Foley is employed as a working foreman.

24. Mr. Foley is a member of Local 200 who is paid an hourly rate pursuant to the terms of the collective agreement. He is regarded as a bargaining unit employee and does not exercise any managerial functions. However, as a working foreman, Mr. Foley does perform certain supervi­sory functions. He is responsible for assigning work to employees in his crew and also for point­ing out to them any errors which they may have made. Mr. Foley makes reports to management on the work performance of other employees. Mr. Foley does not become directly involved in discussions relating to the hiring and firing of employees. However, it is reasonable to assume that his reports concerning employee work performance are taken into account by management when it considers its staffing requirements.

25. Mr. Foley and another employee, Mr. J. Shipperbottom, were the ones who originally decided to seek to terminate the union's bargaining rights. Although they first met as employees of the intervener, Mr. Foley and Mr. Shipperbottom are personal friends outside of the work place. According to Mr. Foley, the reason for the decision to seek to terminate the union's bar­gaining rights was the feeling that union representation acted to restrict the work opportunities available to the intervener's employees. Mr. Foley made particular reference to a job at Eatons' Bayshore in Ottawa. According to Mr. Foley, he and the intervener's other employees had been working at this job for some period of time when they were laid off for five to six weeks while employees of another firm were brought in to perform some sheet metal work. Mr. Foley indi­cated that he felt that he and the intervener's other employees could have performed this work themselves, and that to his mind the reason they were not asked to do so was because the work was not covered by their collective agreement. Mr. Foley testified that after he and Mr. Shipper-bottom decided to seek to terminate the respondent's bargaining rights, they discussed the mat­ter with the other employees and then retained the services of a lawyer who had recently acted on Mr. Shipperbottom's behalf in a real estate transaction. The lawyer prepared the statement of desire, which was later signed by the employees in the presence of both Mr. Foley and the lawyer.

26. In assessing the volunrariness of the statement of desire, we are unable to accept the proposition that Mr. Foley stands in the same position as any other employee in the bargaining unit. Because of his supervisory functions, Mr. Foley's active involvement with the statement of desire raises concerns which would not exist if he were other than a working foreman. However, we also do not believe that his involvement with the statement of desire must invariably result in a finding that it cannot be given any weight. Rather, what is required is an examination of all of the surrounding circumstances and an assessment of whether other employees would likely have viewed Mr. Foley as acting on behalf of, or with the support of management, or whether they would likely have perceived him as a bargaining unit employee seeking only to further his own self-interests.

27. Employees would have been well aware of Mr. Foley's supervisory role, particularly in assigning work. They would also likely have been aware of the fact that he was responsible for making reports to management concerning their work performance. It is also reasonable to assume that the other employees would have known that notwithstanding his status as a working foreman, Mr. Foley, like themselves, was a union member within the bargaining unit. The evi­dence does not suggest that Mr. Foley did anything to indicate to the employees that he was act­ing on behalf of management. To the contrary, his case in favour of terminating the respon­dent's bargaining rights was based upon his view that union representation had acted to restrict the work available to himself and others. Along with the other employees he had been laid off for five or six weeks under circumstances where he felt he need not have been, and he blamed the existence of the collective agreement for this fact. When all of these considerations are taken into account, we feel that the other employees would more likely have regarded Mr. Foley as acting in what he perceived to be in his own interests rather than acting on behalf of management.

(emphasis added)

23. Highlighting the extent to which the inquiry will turn on the facts before it, the Board in subsequent cases has applied the same analysis and come to the opposite conclusion (see, for example, Apex Services, [1983] OLRB Rep. Jan. 1; and also D-K Construction Ltd., [1991] OLRB Rep. May 609 where, but for other considerations, the Board might well have come to a result sim­ilar to that in the A. N. Shaw case).

24. Indeed, the facts before the Board in the present applications further underscore the point. Insofar as Mr. Jordan is concerned we are satisfied (and neither did the respondent argue to the contrary) that he would not have been viewed by other employees as acting on behalf of or with the support of management. On the other hand, we are unable to arrive at the same conclu­sion regarding Mr. Feener. While simply considering Mr. Feener's duties with respect to the sheet metal unit may have been sufficient in this regard, when these are considered in the context of his involvement in seeking collective bargaining concessions in favour of the company in the particular economic climate it is difficult for us to conclude that other employees would not reasonably have perceived him to be acting on behalf of or with the support of management.

25. The applicant argued that there was no evidence called by the respondent to establish any employee perception of Mr. Feener acting on behalf of management and that a negative infer­ence ought to be drawn from the respondent's failure to challenge Mr. Feener's inclusion on the list of employees as well as his right to bring the present application by virtue of section 1(3)(b) of the Act.

26. We are unable to give much force to these arguments. The respondent conceded that Mr. Feener was not "managerial" within the meaning of section 1(3)(b); that concession does not determine the separate issue of whether he would be reasonably perceived to be acting on behalf of the employer. The Board addresses that question on an objective standard based on what the reasonable perception of employees would be. For that reason, the absence of any direct subjec­tive evidence of employee perception is not significant. Indeed, the Board has often expressed its aversion to requiring individual employees to testify as to their (potentially competing and differ­ing) individual perceptions.

27. In summary, we are not satisfied that the petition filed in respect of the sheet metal unit represents the voluntary expression of the signatories thereto. Mr. Feener's application is conse­quently dismissed.

28. On the other hand, there was no evidence that Mr. Feener's duties extended beyond the sheet metal unit to the roofers' unit. Neither was there any evidence of direct involvement on his part in the circulation of the petition in the roofers' unit. We are satisfied that not less than forty-five percent of the employees in the roofers' unit have voluntarily signified in writing that they no longer wish to be represented by the respondent trade union.

29. The Board directs that a representation vote be taken of the employees of Walden Roofing and Sheet Metal Co. Limited employed in the bargaining unit described in paragraph 6 above as the roofers' unit.

30. Until recently the Board's practice with respect to voter eligibility in construction indus­try representation votes has been to use dual voter eligibility dates i.e. those at work in the bar­gaining unit (voting constituency in pre-hearing certification applications) on both the date the vote is directed (the terminal date in pre-hearing certification applications) and the date the vote is taken.

31. In a recent decision (see Crete Flooring Group Limited, [1992] OLRB Rep. July 792) the Board has determined that, in representation votes resulting from certification applications in the construction industry, voter eligibility will be tied to a single date, namely the application date. In other words, those eligible to vote will be those at work in the bargaining unit or voting constitu­ency, as the case may be, on the application date.

32. Shortly after the release of that decision, the Board issued a Notice to the Community, dated July 17, 1992, in the following terms:

The attention of the community is directed to the Board's recent decision in Crete Flooring Group Limited (decision dated July 8, 1992, not yet reported, Board file number 4150-91). In Crete Flooring, the Board reconsidered its customary practice with respect to voter eligibility in construction industry certification applications.

The Board concluded that dual voter eligibility dates in the construction industry are not appro­priate. It determined that establishing a single date (being the application date) was the more appropriate practice.

Accordingly, in construction industry certification applications, those eligible to vote will be those a work in the bargaining unit ("voting constituency" in pre-hearing applications) on the application date.

33. The Board can see no meaningful distinction to be made between voter eligibility date­(s) in construction industry certification or termination representation votes. Subject to what fol­lows, we see no reason why the reasoning of the Crete decision and consequent Notice to the Com­munity ought not to apply equally to termination applications in the construction industry.

34. Hearing in the present matters was held on June 26, 1992. In accordance with the agree­ment of the parties, the last days for filing written submissions were July 17, 1992 for the respon­dent and July 24, 1992 for the applicant (although the parties did file some limited additional mate­rial beyond those dates). It is therefore not surprising that none of the parties raised the issue of the voter eligibility date or referred to the Crete decision or the subsequent Notice to the Commu­nity. The Board is therefore not even aware of whether a single rather than the former dual voter eligibility date is of any practical or material significance in the present case.

35. In view of our comments above, all those at work in the roofers' unit on April 29, 1992 will be eligible to vote in the representation vote herein directed.

36. Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Walden Roofing & Sheet Metal Co. Limited.

37. Should any of the parties wish to raise the issue of the voter eligibility date, they may do so by making the appropriate challenges to the voters' list prior to the date of the vote. Should any individual whose eligibility is challenged seek to vote they shall be permitted to mark a ballot which shall be segregated and not counted unless the parties subsequently agree on or the Board otherwise determines that person's eligibility to vote.

38. The matter is referred to the Registrar.