United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 527 v. Ken Acton Plumbing & Heating Inc.

[1992] OLRB Rep. February 187

1846-91-R United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 527, Applicant v. Ken Acton Plumbing & Heating Inc., Respondent v. Group of Employees, Objectors

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.

DECISION OF THE BOARD; February 20, 1992

1. By decision dated October 31, 1991 the applicant was certified as the exclusive bargain­ing agent on its own behalf and on behalf of all other affiliated bargaining agents of the employee bargaining agency in respect of all all plumbers, plumbers' apprentices, steamfitters and steamfit­ters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all plumbers, plumbers' appren­tices, steamfitters and steamfitters' apprentices in the employ of the respondent in all other sectors in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin and in the County of Grey save and except non-working foremen and persons above the rank of non-working foreman.

2. By letter dated November 23, 1991 counsel for Paul McConachie, an employee of Ken Acton Plumbing and Heating Inc. requests reconsideration of the Board's decision certifying the applicant. Counsel requests an order pursuant to section 59 [formerly section 58] of the Act or in the alternative pursuant to section 108(1) [formerly section 106(1)] of the Act terminating the applicant's bargaining rights and revoking the certificate. Sections 59 and 108(1) read as follows:

3. If a trade union has obtained a certificate by fraud, the Board may at any time declare that the trade union no longer represents the employees in the bargaining unit and, upon the making of such a declaration, the trade union is not entitled to claim any rights or privileges flowing from certification and, if it has made a collective agreement binding upon the employees in the bargaining unit, the collective agreement is void.

108.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nev­ertheless the Board may at any time, if it considers it advisable to do so, reconsider any deci­sion, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

In the further alternative counsel requests a vote be held.

3. In support of the request for reconsideration counsel in its letter of November 23, 1991 states:

"We are the solicitors for Mr. Paul McConachie who is an employee of Ken Acton Plumbing and Heating Inc.

On August 30, 1991 the Applicant made Application to the Ontario Labour Relations Board for Certification as bargaining agent of employees of Ken Acton Plumbing & Heating Inc.

On October 17, 1991 the Employer and the Union appeared before a Labour Relations Board Officer and consented to the Board issuing a certificate without a full hearing before the panel of the Board. The list of employees was agreed upon for purposes of the count.

Mr. McConachie has just recently retained us and advised us of a matter that is of serious con­cern both to our client, and to the Board.

Our client has discovered that at least one employee (and perhaps other employees) did not make any monetary payment or provide any other consideration for membership in the Appli­cant Union.

We have just recently determined that Jamie Lyman, an employee of Ken Acton Plumbing & Heating Inc., signed a membership card but did not pay one ($1.00) dollar or provide any other form of consideration in exchange for his membership.

The non-payment by Jamie Lyman was not brought to the Board's attention by the Applicant before the Certificate was issued to the Applicant and was not disclosed in the Applicant's "Form 9" declaration.

On behalf of our client, we hereby request the Board to reconsider its earlier decision to certify the Applicant as bargaining agent, and seek the following relief;

1. An order pursuant to section 58 of the Labour Relations Act that the Applicant's bargaining rights be terminated and that the Certificate be revoked.

2. In the alternative, reconsideration pursuant to section 106(1) of the Labour Relations Act that the Applicant's bargaining rights be terminated and that the Certificate be revoked.

3. In the further alternative, an Order that a vote be held.

The material facts are as follows;

1. Jamie Lyman attended a Union organizational meeting at "the Dornock" on Thursday August 29, 1991 between the hours of 7:00 p.m. and 11:00p.m.

2. At this meeting, present were Union Representatives Tom Crystal and Jack Porter and sev­eral employees from Ken Acton Plumbing & Heating Inc.

3. Before Mr. Lyman signed a Union Membership card, he indicated that he was uncertain of his decision and requested time to think about his decision. He specifically requested a vote. Mr. Lyman was advised that, without a successful vote that night, the Union would not return.

4. Shortly thereafter, Mr. Lyman's name was called to go and sign a Union membership card, at which point he stated that he had no money to pay the Union.

5. At this point, two other Ken Acton employees each placed one dollar in front of Mr. Lyman and advised him that they would pay for his membership. There was no discussion of repayment of the money advanced for Mr. Lyman, nor was there any intention to repay the money advanced.

6. The parties have not yet commenced negotiations of a first collective agreement.

7. This Application has been made with all due diligence and dispatch. Mr. McConachie retained us and obtained our opinion on or about October 29, 1991. Investigations were con­ducted immediately thereafter and this Application for reconsideration was brought immedi­ately.

This Application is not made for any improper purpose. Rather the Board is asked to reconsider its decision based on the facts now known and set out above.

It is submitted that there is evidence of irregularities in the membership evidence submitted by the Applicant which should cause the Board to fully investigate and scrutinize all membership evidence submitted by the Applicant. There is reason to doubt that the persons who signed the Application portions of the membership cards paid the one dollar initiation fee.

It is further submitted that since there has been an involvement in the "non-pay irregularity" by Union officials, the Board cannot rely on any of the membership evidence submitted by the Applicant, nor on the Form 9 declaration signed and submitted by the Applicant.

It is finally submitted that the matter of membership evidence is a matter that goes to the very root of the Union's application. Therefore, the Applicant's bargaining rights ought to be termi­nated and the certificate ought to be revoked. We look forward to receiving your response with respect to our client's request for the Board to reconsider its decision to certify the Applicant."

4. On the facts pleaded in the above letter we do not find that there has been a "non-pay" or an involvement in the "non-pay irregularity" by union officials.

5. The issue of a "loan" and the effect on the Form 80 declaration was dealt with in Calvano Lumber & Trim Co. Ltd., [1988] OLRB Rep. August 735, stating:

6. In the instant case we are satisfied that Mr. Comeau, to the extent that he thought about it at all, intended to and would have repaid the dollar to Mr. Luna, if Mr. Luna had raised the matter or really expected formal repayment; or, alternatively, that this minor amount was a gift, to be used by Mr. Comeau as he saw fit - either to buy a coffee or, in this case, to provide the token amount required to confirm his written intention to join the trade union and seek its rep­resentation. The transfer of one dollar from Mr. Luna to Mr. Comeau was a private arrange­ment, and, once consummated, left Mr. Comeau with a dollar to dispose of as he pleased. It was his money which was tendered on his own behalf to support his written signification that he wished to join and be represented by a trade union.

7. In conclusion then, whether the origin of the dollar in question is characterized as a "gift" or a "loan" we are satisfied that it was Mr. Comeau's money to do with as he pleased, and that advancing that sum in support of his application for union membership meets the requirements of section 1(1)(l) [now 1(1)1 of the Act and provides the requisite confirmation of the written document contemplated by the statute. That being so, there is no error, omission or misstate­ment on the Form 80 declaration. While it might well have been wiser for the union organizer to note the loan/gift that he had witnessed, (because that might have avoided these proceedings and considerable delay), we do not think that there was anything improper in his failure to do so.

8. Having regard to the above the Board in the exercise of its discretion under section 108(1) declines to reconsider its decision of October 31, 1991. The request for reconsideration is denied.