Labourers International Union of North America, Local 607 v. Grant Development Corporation, 1993 CanLII 7803

[1993] OLRB Rep. January 21

1575-91-R; 1902-91-U Labourers International Union of North America, Local 607, Applicant/Complainant v. Grant Development Corporation and/or The Ojibways of Pic River, First Nation (The Pic 50 - Heron Bay Indian Band), Respondents

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members W. A. Correll and R. R. Montague.

DECISION OF THE BOARD; January 28, 1993

Introduction

1. This is an application for certification which was heard together with a related unfair labour practice complaint.

2. In the certification application the union seeks confirmation as the bargaining agent for a group of employees working as construction labourers in North Western Ontario. The application was filed (by Registered Mail) on August 1,1991, received by the Board on August 6, 1991, and processed on August 8. Notices of the application were sent to the affected parties, by mail, and received a few days later, in the ordinary course of the mails.

3. The unfair labour practice complaint was filed on September 5, 1991, and alleges a pattern of illegal conduct, beginning August 13-15, and continuing thereafter. Briefly put, the union alleges that when the employer learned of the certification application, it immediately eliminated all employees known or believed to be union supporters, and replaced them with workers known to be reliably non-union.

4. Because the evidence respecting the application and complaint was intertwined, the two proceedings were consolidated and heard together. For the same reason, the case will be disposed of with a single decision. The parties will be referred to in abbreviated form as "the union", "Grant", and "the Band". Conwest Exploration Company Limited will be referred to simply as "Conwest". Statutory references will be to the Legislation as it was in August-September 1991, when these proceedings began.

5. For ease of exposition, we will begin with a brief description of dispute: what is agreed upon and what is not, and a short statement of the parties' positions. We will then turn to the evidence and our determination of these various issues.

What the Case is about

6. There is no dispute and the Board finds that the applicant is a trade union within the meaning of the Act.

7. The Board further finds that this is an application for certification within the meaning of section 121 of the Act - that is, this is a "construction industry certification application": the applicant is a union which according to established trade union practice pertains to the construction industry; and the employer is operating a business in the construction industry; and the employees affected are construction workers. The particular employees affected by this application were working as construction labourers on a dam site and power project on Black River, just east of Marathon, Ontario.

8. The parties are in agreement that if the Board finds Grant to be the employer, the unit of employees appropriate for collective bargaining should be framed as follows:

all construction labourers and all employees engaged in cement finishing, waterproofing or restoration work in the employ of Grant Development Corporation in all sectors of the construction industry excluding the industrial, commercial and institutional sector in the District of Thunder Bay, save and except non-working foremen and persons above the rank of non-working foreman.

Having regard to this agreement of the parties, the Board finds this unit to be appropriate for collective bargaining.

9. We have emphasized the phrase "if Grant is the employer" in the preceding paragraph, because that is one of the issues which the Board must determine. Those issues can be summarized as follows:

(a) Is Grant or the Band "the employer" of the workers affected by this application?

(b) How many construction labourers were there in the bargaining unit on August 1, the application date (bearing in mind that there may have been other employee categories working on the site that day and, on a construction project, the number of employees actively at work may vary from day to day)?

(c) Were a number of employees discharged because they were believed to be active or potential union supporters; and,

(d) Is the trade union entitled to certification on the basis of its membership support (see section 7(2) of the Act), or because of the employer's serious unfair labour practices (see section 8 of the Act), or on both bases.

10. The union relies upon the unfair labour practice allegations not only to seek relief on behalf of the aggrieved employees (primarily compensation for lost wages), but also as an independent basis for certification. That is why the two proceedings are intertwined. Section 8 of the Act reads as follows:

11. Where an employer or employers' organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargaining, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.

12. The union contends that the Band is the employer, that a number of employees were illegally discharged, and that it is entitled to certification in accordance with both section 7(2) and section 8 of the Act. The union submits that it enjoys the membership support of a majority of the employees proven to be in the bargaining unit at the time the application was made, and in addition it is entitled to certification under section 8. The union points out that under section 91(5) "the employer" is obliged to establish that any employee discharge is free from improper considerations, and since either the Band or Grant must be the employer, one of them must come forward with an explanation for the termination of its supporters. The union contends that, for their own reasons, both respondents are "anti-union" and both acted in their own way to remove the union presence from the project. In this respect, the respondents' organizational and commercial interests coincide, even though, in these proceedings, they are taking adverse positions. However, in the union's submission the Band is the employer, and because of the unfair labour practices in which both respondents were involved, a section 8 certificate is warranted.

13. The Band replies that Grant is the employer of the labourers affected by the union s certification application, and if there is any unfair labour practice, Grant is solely responsible for it. The Band denies any knowledge of how the persons working on the power project came to be out of a job, and maintains that its only function was to refer them to work as part of an affirmative action program designed to channel work opportunities to Band members. It was not the "employer", but rather a referral and payroll service which Grant was compelled to engage by the terms of its commercial arrangement with Conwest.

14. Grant replies that the Band is the real employer because it is the one selecting the workers involved, paying them, and generating the related employment documentation. The Band is a "labour only subcontractor" and Grant is a purchaser of these labour services. In Grant's submission, there were bona fide business reasons for the workers' departure from the construction site, and for the failure to recall them. Grant asserts that the workers were laid off because of an unanticipated bottle-neck in the construction schedule, and they did not return because of a festering dispute between Grant and the Band (their employer) concerning the terms upon which its services would be engaged. Were it not for this commercial dispute, the workers would have been recalled in a few days. The union had nothing to do with it. It is mere coincidence that its supporters were removed from the site at the same time that the respondents learned of the certification application.

15. Finally, the union and Grant differ on the number of employees at work in the bargaining unit on the application date. The Band has no direct knowledge of that issue, maintaining, in any case, that they were working for Grant.

16. The evidence respecting these various matters was received over a number of days at hearings held for that purpose in Thunder Bay~ and not surprisingly, the parties had quite different versions of "the facts", and urged us to draw quite different inferences from the evidence. We do not think it is necessary at this stage to embark upon any extensive analysis of the witnesses' relative credibility, or to try to reproduce in these reasons a transcript of the testimony, highlighting those portions which we find to be credible but incomplete, credible but mistaken, or simply untrue. It suffices to say that in assessing the witnesses' credibility, we have taken into account such factors as: their demeanour when giving their evidence; the clarity, consistency and general plausibility of that evidence when tested by cross-examination; the witness's ability to resist the tug of self-interest or self-justification when framing their answers; the willingness to concede facts, statements or attitudes (antagonism to unions, for example) which might be seen to be contrary to their interest in these proceedings; whether the oral evidence or current recollections are consistent with reliable documentary material prepared before this litigation began; and what seems most probable in all the circumstances.

17. It will be convenient to sketch in some general background, then turn, more specifically, to the various issues outlined above. The provisions of the Act relating to the union's unfair labour practice allegations are as follows:

18. Every person is free to join a trade union of the person's own choice and to participate in its lawful activities.

19. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express his views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

20. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the

imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade onion or to cease to exercise any other rights under this Act.

71. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

91.-(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers organization did not act contrary to this Act lies upon the employer or employers' organization.

The provisions of the Act which touch on the list dispute include:

7.-(1) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at the time as is determined under clause 105(2)(j).

(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of the employees are members of the trade union, the Board may direct that a representation vote be taken.

121.-(1) Where a trade union applies for certification as bargaining agent of the employees of an employer, the Board shall determine the unit of employees that is appropriate for collective bargaining by reference to a geographic area and it shall not confine the unit to a particular project.

(2) In determining whether a trade union to which subsection (1) applies has met the requirements of subsection 7(2), the Board need not have regard to any increase in the number of employees in the bargaining unit after the application was made.

123. An agreement in writing between an employer or employers' organization, on the one hand, and a trade union that has been certified as bargaining agent for a unit of employees of the employer, or a trade union or a council of trade unions that is entitled to require the employer or the employers' organization to bargain with it for the renewal, with or without modifications, of the agreement then in operation or for the making of a new agreement, on the other hand, shall be deemed to be a collective agreement despite the fact that there were no employees in the bargaining unit or units affected at the time the agreement was entered into.

Background

17. In 1987-88, the Ministry of Natural Resources indicated an interest in exploiting the hydro-electric potential of the Black River through the construction of a dam and power plant near Heron Bay. Various proposals were solicited and assessed. The successful one came from the "Begetekong Power Corporation". Begetekong was a federally incorporated joint venture, owned equally by David Carter, an independent entrepreneur, and the Band, which has a reserve at Heron Bay.

18. The proposed Hydro project was not situated on the Band's reserve lands. Nevertheless, the Band had considerable leverage over the way in which the project unfolded. The site lies within the scope of an outstanding aboriginal land claim, and the project could be said to affect traditional aboriginal rights in adjacent lands and waters. As a practical matter, the development could not go ahead without the Band's approval. No one would risk investing millions in a project, the ownership of which might later be subject to litigation.

19. But neither the Band nor Carter had the capital to develop the site on their own. Accordingly, they turned to Conwest, to whom they sold their interest in Begetekong - and hence the right to develop the site - for a sum of money, plus a share of the net profit from the sale of electricity once the plant was in operation.

20. The "net profits interest agreement" with the Band was executed on October 16, 1990. Most of its details are not particularly relevant. Conwest acquired ownership of the site together with the right to develop and operate the generating station, and the Band acquired a share of the net operating profits. One critical feature of the deal was the Band's release of all other claims in respect of the project or its operation, and the Band's undertaking not to do anything to interfere with the planning, development, construction, or operation of the facility. However, another critical feature from the Band's point of view, was Conwest's undertaking to promote employment opportunities for Band members. Article 6.2 of the agreement reads:

6.2 In both the construction and operational phases of the Black River project, Conwest shall use its best efforts to give priority to employing members of the Band who are equally qualified with other persons being offered employment and shall also require its contractors and subcontractors to use their best efforts to give such priority. The employment opportunities that shall be made available to members of the Band on this basis include, without limiting, road construction and maintenance, including snow removal, bush clearing and grass cutting and general ground maintenance.

21. Once the agreement with the Band was settled, Conwest was in a position to begin construction of the dam, the powerhouse and the related transmission facilities. To do that, Conwest engaged a number of engineering and construction firms. One of them was Grant. Grant is a general contractor with head office in Englehart, Ontario, and considerable construction experience in North Western Ontario.

22. Grant is a "non-union" company. Its employees have never opted for trade union representation; and there is not much doubt that Grant would prefer to remain "non-union

23. Grant has a regular core of workers whom it tries to employ on a regular basis. Grant prefers to meet its employment requirements from this pool of known and valued workers. Grant prefers not to hire "outsiders" if it can be avoided.

24. The Band had no part in selecting Grant or any other construction contractor working on the site. The Band did not act as owner or developer. The Band no longer had an ownership interest in the site. All it retained was an interest in future profits. However, during the construction phase, Band members were the beneficiaries of Article 6.2. In accordance with this undertaking, Conwest made aboriginal employment a condition of its commercial arrangements with the various subcontractors whom it retained - including Grant. The supplementary bid specifications include this advice to prospective subcontractors:

“……(5) the Contractor's attention is also directed to the Pic 50 First Nation. Conwest is committed to give employment preference to the qualified Band Members, and it will be a requirement that the Contractor give equal preference. The Band office will provide liaison to the Contractor in this matter, and the Contractor shalt, upon request from Conwest, provide a summary of Band employees, complete with job description, tenure, etc

Any contractor wishing to take part in the project had to agree to hire native workers.

25. These contractual arrangements contemplate that qualified Band members will be employed on the project either by Conwest or its subcontractors. They do not contemplate that the Band itself will be a bidder or subcontractor, responsible for some portion of the construction work. They do not contemplate that the Band itself will be an employer of construction workers -although the Band office is to "provide liaison" and facilitate the hiring of Band members.

Who is the "employer" of the Band Members "working for Grant"?

26. In determining who is the "employer" of persons who are undeniably the employees of someone (i.e., as opposed to self-employed independent contractors), the Board typically considers a variety of factors, some of which are interrelated or overlap. These include: who exercises direction and control of the employees when doing their work, who allocates their duties, corrects performance, sets standards, determines hours of work, and so on; who sets wage rates and bears the burden of remuneration; who appears to be hiring the employees, imposing discipline (if any) and terminating employment for cause or otherwise; for whose benefit do the employees expend their labour and from what source do their work opportunities appear to arise; to put the matter another way, for whose organization do they appear to be working, and of which organization do they appear to be a part while performing their duties; whom do the employees themselves perceive to be their employer; was there an expressed intention to create an employment relationship, and if so, with whom; does one organization or another hold itself out to be the employer; and, apart altogether from common-law considerations, what choice appears to be more consistent with the statutory and labour relations framework within which the Board operates, and the decision must be made. None of these factors is necessarily determinative. Each case must be considered on its facts. However, the Board must be careful not to let commercial form obscure labour relations realities. (See generally cases such as York Condominium Corporation, [1977] OLRB Rep. Oct. 645; Ralston Purina Canada Inc., [1979] OLRB Rep. June 552; Sutton Place Hotel, (1980] OLRB Rep. Oct. 1538; Sylvania Lighting Services, [1985] OLRB Rep. July 1173; Thunderhawk Developments, [1983] OLRB Rep. Aug. 1378; Alwell Forming Limited, [1978] OLRB Rep. Aug. 709; and, more recently, Nichirin Inc., [1991] OLRB Rep. Jan. 78.)

27. What then are the facts in the instant case?

28. Grant had no desire to hire aboriginal workers. It sought, unsuccessfully, to avoid Article 6.2 of Conwest's agreement with the Band (as imposed upon Grant by the Bid Specifications) and were it not for those obligations, Grant would have had no dealings with the Band at all. But there was nothing racist about that. Grant simply preferred to meet its manpower requirements by drawing from the pool of tradesmen who had worked for Grant before - and whom the union contends were known to be reliably non-union. However, Grant had no option. Like other contractors on site, Grant was obliged to give some employment preference to qualified Band members.

29. Byron LeClair is the Band's economic development officer. His office provided the "liaison" to the contractor mentioned in Item 5 of the Bid Specifications (above). LeClair explained that one of his duties was to help Band members find jobs.

30. Early in June 1991 LeClair approached Larry Jauvin, Grant's project manager, to enquire what the company's labour needs might be, and to ascertain whether Band members might have the required qualifications. LeClair learned that the company would probably need a couple of equipment operators, and three or four labourers from each of the shifts it proposed to establish for its own employees. Jauvin indicated, in a general way, that the company would be prepared to pay twelve or thirteen dollars per hour for labourers, and that there might be some adjustment depending on employee skills or performance. No firm rates were fixed or promised.

31. With that information LeClair canvassed the out-of-work Band members to see if there were any who might meet the company's needs. Various criteria were applied including: whether the candidates had related experience, whether they were known to be good workers, and whether they were out of work for an especially long time or otherwise in particular need of a job. LeClair told persons whom he thought were suitable to go out to the job site and see Larry Jauvin who could put them to work. There was no job guarantee but, by the same token, no reason why Jauvin would be disposed to reject anyone referred to him by the Band. The work was unskilled, the proposed wage rates were not excessive, Grant was under an obligation to facilitate the employment of Band members, and it was understood that if Jauvin was unhappy with a worker's performance, he could be sent back, and the Band would find a replacement. In this regard, the Band's activhies resemble those of a union hiring hall, selecting and referring out-of-work members to available work opportunities.

32. Not all of the Band members sent by LeClair were taken on by Grant, and at least one Band member (but perhaps as many as three) was engaged without reference to the Band office at all. Some Band members did prove unsatisfactory and were told to leave the site. The Band had no involvement in that determination, but it did send replacements, as needed.

33. We accept LeClair's evidence that the Band had no involvement with the Band members on site nor any advance knowledge of when they would be needed or sent home. The Band had no advance knowledge that Grant intended to lay off all of the Band members as Grant eventually did, and the Board was genuinely upset by this decision. However, we do not think that the Band was particularly concerned about an anti-union motivation. The Band's concern was that the Band members were all out of a job, and this was both contrary to the arrangement with Conwest, and generated political difficulties within the local community. Nevertheless, it is significant that the alleged "employer" had no knowledge that "its employees" would soon be out of work. Because, of course, it was Grant's work that they were doing.

34. For practical purposes, the wage rates were dictated by Grant. There were no real negotiations. The workers received what Grant was prepared to pay.

35. Grant determined the hours of work, the shift schedule, and days off. Grant decided when overtime would be worked and by whom, or when workers would be sent home because of a lull in construction activity. Grant determined what the Band members would be doing from hour to hour or day to day, where, and with whom. The Band members worked side by side with Grant employees doing similar work. The Band members worked in work crews arranged by Grant, with tools supplied by Grant.

36. The crews were supervised by foremen employed by Grant, who supplied whatever direction or admonishment was required. Some Band members thought that Jauvin and other Grant managers pushed them too hard. We make no finding about that. We do note that, apparently, some Band members did not meet Grant's standards of productivity or punctuality and those workers were "let go". This was a decision made by Grant. The Band was not involved.

37. The Band had no presence on site, nor was it involved in any way in the training, supervision, or allocation of workers, or the disposition of the work. The workers' time sheets were kept by Grant supervisors, who slotted them into the appropriate pay categories and recorded their hours. The Band members' time sheets were grouped separately from those of Grant's regular employees, but otherwise the information and the way it was recorded were pretty much the same. And as we have already mentioned, the Band was not consulted or advised with respect to any changes in the organization or disposition of work, or the lay-off of employees, either because of a lack of work or unsatisfactory performance.

38. On the other hand, the workers' "official" employment documents all list the Band as their employer. The Band members were paid on Band pay cheques, drawn on the Band's bank account, with deductions for unemployment insurance and vacation pay. There were no deductions for income tax or Canada Pension Plan and the payment of Worker Compensation levies became a matter of some controversy. The Worker Compensation levy was paid by Grant, but remitted to the credit of the Band's Worker Compensation number. When the Band members' services were no longer required, the Band prepared the "separation certificates" necessary for unemployment insurance purposes. The "paperwork" therefore suggests that the Band is the workers' employer.

39. However, this documentation is a little misleading. While the Band made up the workers' pay cheques, it did so entirely on the basis of the information kept and supplied by Grant. The Band had no alternative. It had no involvement with the workers once the initial screening was completed. The Band depended upon Grant to keep track of the workers' names, hours of work, payment periods, premium pay (if any), and so on. This work cycle and information were entirely controlled by Grant.

40. Nor did the Band actually bear the burden of remuneration; for not only were the rates effectively set by Grant, but Grant provided the Band with the funds from which the workers were paid. There was a "chargeback" arrangement, whereby Grant supplied the payroll sheets, the Band issued a corresponding invoice to Grant which included an additional 10% (sometimes 15%) "administration fee", and Grant made the necessary payments to the Band's bank account so that the Band would be in a financial position to issue the necessary cheques. The Band kept a parallel set of records, but it was Grant that really paid the wages. The Band members' labour was not supplied to the Band nor did the Band actually pay for it.

41. It is a little difficult to determine what benefit Grant obtained, or what the Band actually did, for its 10% "administration fee". However, the pre-screening may have some value, cooperation with the Band was a condition imposed by Conwest (With whatever associated expenses being a "cost of doing business"), it may be unrealistic to apply strict economic criteria to a compulsory affirmative action program, and, in the result, Grant did obtain satisfactory workers at relatively modest wage rates. In any event, we do not think the "paperwork" provides an infallible test for determining the identity of the "real employer" - although it may explain why employees said they were "working for Grant" or "Larry Jauvin" but also said that the Band was their "employer".

42. LeClair explained that the main purpose for structuring the documentation in this way was to permit the employees to avoid income tax. As status Indians, purportedly working for the Band organization, the workers' earnings would be tax free. The avoidance of this tax burden was advantageous to all parties concerned. The Band set up its paperwork accordingly. It had no intention of being the workers' "employer" and was not the source of their work. The Band was a placement agency and an artificial payroll service designed with income tax in mind.

43. Before us, the Band and Grant each claimed that the other was "the employer", and that this was understood and agreed from the start. We do not accept either submission. It is evident that no one thought very much about this question prior to these proceedings, and certainly there was no shared understanding as to who would be "the employer" for the purposes of the Labour Relations Act. That question only crystallized when Grant and the Band became respondents whose legal obligations might depend upon the characterization of their status. It was only at that point that each began to assert that the other was the "real employer" of the Band members affected by this application.

44. Having heard and considered the evidence, we are satisfied that we should not give much weight to the documentation, and much of the other evidence points to Grant as the "employer" for the purposes of the Labour Relations Act. Grant provides effective direction and control of the employees on the job, including Band members. Grant retains the effective power to hire, fire, promote, lay off or otherwise deal with those working for it. Grant bears the real burden of remuneration. Mr. Jauvin's description of the Band as a "labour only subcontractor" is an exercise in semantics. In a functional, colloquial, and legal sense, the Band members are "working for Grant". These workers are integrated with and properly regarded as part of the Grant organization. It is Grant which ultimately determines the work flow, the work pattern, and their essential terms and conditions of employment, and such significant questions (for Labour Relations Act purposes) as whether they are actively employed, as labourers, on the application date.

45. The entity making decisions or exercising authority of this kind is the "employer" for the purposes of the Act, and in our view, it is Grant. Indeed, once the initial finger-pointing subsided, it was evident that only Grant could answer the unfair labour practice allegations. Only Grant could provide an explanation of how it was that employees working one day came, unexpectedly, to be out of a job, then were never called back to work at the site again, despite the continuation of the work they were formerly doing. There was an explanation for this pattern of labour utilization, which we will discuss in more detail below. For present purposes, we only note that it is significant that Grant, and only Grant, was in possession of the information.

46. We find that Grant is the respondent employer in the certification application.

The Unfair Labour Practice Allegations

47. The provisions of the Act upon which the union relies for this branch of the case are set out above, and the law is not particularly complex. Where it is alleged that an employee has been discharged or otherwise dealt with contrary to the Act, it is incumbent upon the employer [here Grant] to come forward with an explanation for its actions which is entirely free of anti-union animus. If the employer's conduct is motivated, in whole or in part, because an employee is a member of a trade union or has exercised rights protected by the Act, then the employer's actions are illegal (see generally: R. v. Bushnell Communications et al, (1973) 1973 CanLII 475 (ON HCJ), 1 O.R. (2d) 442 (O.H.C.), affd. at 1974 CanLII 559 (ON CA), 4 O.R. (2d) 288 (O.C.A.); Sheehan and Upper Lakes Shipping Limited, et al, (1977) 1977 CanLII 3060 (FCA), 81 D.L.R. (3d) 208 (Federal C.A.); Westinghouse Canada Limited, [1980] OLRB Rep. Apr. 577, affd. by the Ontario Divisional Court under the name Westinghouse Canada Inc. v. United Electrical Radio & Machine Workers of America, Local 504, et al, 80 CLLC, ¶14,062).

48. In the instant case, therefore, it must be established that the reasons for the initial employee lay-off, and for the continuing failure to recall, were both totally untainted by anti-union considerations.

49. Larry Jauvin testified that the Band members (and a few others) had to be laid off between August 13-16, 1991 because, quite unexpectedly, there was no work for them to do at that time. They were not recalled to the site because of an unresolved dispute between Grant and the Band over the arrangements for native employment. Jauvin testified that the union's organizing campaign had nothing whatsoever to do with either decision. It was just coincidence that the union supporters were all laid off immediately after the company learned of the certification application. Indeed, Jauvin told the Board that he was indifferent about the certification application which he learned about on approximately August 13-14. He said that it did not bother him that an employee may be a union member because, over the years, he had "lots of guys" who had union cards and he once had one himself.

50. But in our view, the timing is telling, and the explanation advanced by the company simply does not withstand scrutiny.

51. The aggrieved employees testified that at the time of their lay-off it appeared to them that there was a considerable amount of work for them to do. They did not think much about their lay-off at the time because they did not anticipate being off work very long, and, in some cases, were told that they would be called back in a couple of days. By this time, the crew had stabilized, there was no question about the employees' abilities, and they reasonably expected to continue working until the end of the project. Grant concedes that the Band members were good workers whose performance was satisfactory.

52. The employees' impression of the amount of work available at the time of their lay-off is confirmed by Carl Larouche. Mr. Larouche was then a general foreman on the site, although he subsequently left the company's employ. As general foreman, Mr. Larouche was responsible for coordinating and supervising the work of a number of tradesmen, including Band members. Mr. Larouche was called as a witness for the Band, which, on this branch of the case, supports the claim of the aggrieved workers that they were discharged improperly.

53. Mr. Larouche testified that at the time of the lay-off there was lots of labourers' work to do. He was unaware of any need for a slowdown. Mr. Larouche's testimony directly contradicts that of Mr. Jauvin.

54. The fact that there was labourers' work available at the time of the lay-off is confirmed by what actually happened on site. Within a couple of days of the lay-off - purportedly for lack of work - new employees appeared on the scene, doing the same kind of work that had previously been done by the workers laid off. Their presence was verified by the independent observations of various witnesses, as well as the company's own employment records, which, on this point, we accept to be accurate.

55. The workers who were discharged (and who in a number of cases did support the union) were replaced by transferees from other Grant projects (whom the union claims Grant knew to be reliably "non-union"). Grant had only engaged a small number of workers who were not drawn from its regular pool of employees or former employees, and this entire group of newcomers was eliminated. In so doing, Grant removed the group that had indicated some appetite for trade union representation. And despite Grant's assertion that there was no work for them to do, it is clear that there was.

56. It is interesting to note that the construction schedule prepared by Grant in mid-May, shows a considerable amount of labouring work left to be done, both at the time of the lay-off, and afterwards. In fact, a company construction schedule prepared for submission to Conwest on August 12, only a day or two before the lay-off, also shows considerable labourers' work to be done at that time and thereafter. This documentation is totally inconsistent with the explanation now tendered by the company and was not successfully discounted by Mr. Burke, a company official who said that the lay-off was occasioned by a production bottle-neck and Grant's desire to send Conwest "a signal" that more work should be given over to Grant. Indeed, Mr. Burke's cross-examination elicited answers which, if anything, suggest that the so-called scheduling problems, changes in design or unexpected developments all increased the amount of work available for labourers. Yet satisfactory employees were laid off and not recalled - replaced by workers from out of town for whom Grant would have to provide room and board.

57. In the circumstances, it is very difficult to accept that the workers were laid off because of an unexpected shortage of work. The anti-union inference suggested by the timing - a mass lay-off coincidental with notice of a certification application - was simply not rebutted by plausible evidence of business justification.

58. There is, moreover, considerable evidence that this was not the real or only reason for the lay-off. There is direct evidence of anti-union animus.

59. As early as mid-July, in a meeting with Byron LeClair and Band Chief Roy Michano, Jauvin identified Manual Twance as a union card carrier. Jauvin told the Band officials that Grant was a non-union operation and that Twance would have to go. There were other problems with this employee's performance as well; however, his union affiliation was clearly a concern. Shortly afterwards, Twance's employment was terminated.

60. Initially Jauvin denied that there was any mention of the trade union in this conversation with Byron LeClair and Roy Michano. In cross-examination, though, he admitted that the conversation had touched upon the employee's trade union membership and that there had been some discussion of the union at that time. Jauvin also initially testified that he had no knowledge of the union's organizing campaign until about August 14 when Byron LeClair showed him a copy of the Certification notice that the Band had received from the Board. However, Jauvin later admitted that he had known for some time that a number of Band members were signing union membership cards. Jauvin testified that he wasn't concerned about this union activity and did not bother to advise any other members of management about what was happening on site. Nevertheless, it was evident that, in Jauvin's mind at least, it was the Band members who formed the base of the union support. And, of course, it was the Band members who were laid off, en masse, at the same time as the company found out about the certification application.

61. Carl Larouche testified that on or about August 16, he was directed by Larry Jauvin to give notice of termination to Bob Martin and Bob Levesque. Levesque and Martin were two other "newcomers", who had been hired by Grant based on Larouche's recommendation. As we have already noted, Grant only (and somewhat unwillingly) took on a small group of workers with whom it was not previously familiar. Martin and Leveque were in this group.

62. Jauvin told Larouche that the Band members, Levesque and Martin, all had to be let go because they had joined the union. Jauvin said that it was unfortunate that the entire group had to be released because he had particular need for equipment operators and he would have to bring in replacements for the workers laid off; however, Jauvin indicated that it was not his decision. He had received instructions from the company's head office to terminate everyone involved with the union.

63. We find Mr. Larouche's testimony to be both candid and credible.

64. A few days after the lay-off, Barry Michano approached Jauvin and asked when he would be called back to work. Jauvin replied that Michano would not be re-hired until this "matter" (or "business") was cleared up, then asked Michano if he too had signed a union card. When Michano replied in the affirmative, Jauvin displayed a look of disgust, and repeated that no one would be called back to work until the matter was cleared up.

65. Wilford Nabigon also had a conversation with Jauvin shortly after Nabigon's lay-off. According to Nabigon, he asked Jauvin about the chances of getting back to work because he (Nabigon) had not signed a union membership card. Nabigon had been told by other Grant employees that this was the reason for the lay-off and Nabigon hoped that, because he had not signed a union card, he might be exempted.

66. Jauvin initially said that he could not talk about a return to work because the issue could be subject to litigation, and the company might be subject to a fine of $1,000 per day (an apparent reference to an unfair labour practice prosecution); however, Jauvin later admitted that he "got the word" from head office to lay the Band members off because of the union's organizing drive. Accordingly, the evidence is that Jauvin's remarks to Nabigon (called by the union) were the same as those he made to Larouche, the company's (then) general foreman (called by the Band). And while these comments may indicate that Jauvin was not personally responsible for the lay-off, they also show that the union's organizing campaign was one of the reasons for it.

67. On August 16, in his capacity as project manager, Mr. Jauvin wrote to the Band as follows:

"Because of the present schedule, your services are not required for the immediate future".

On its face, this document appears to terminate Grant's relationship with the Band, and as it turned out, that termination was as permanent as the lay-offs proved to be. According to Mr. Burke, as of August the company was still trying to iron out its arrangements with the Band and expected to be bringing the workers back. But it didn't, of course, nor does "the present schedule" explain why Band members were laid off.

68. On the basis of the totality of the evidence, we are not persuaded that the lay-off of the Band members (and a few others) was motivated solely by bona fide business considerations. On the contrary, we find that the lay-off was prompted in whole or substantial part by Grant's desire to remove from its employ all those workers known to be members of or sympathetic to the union. And our finding in this regard makes it exceptionally difficult to conclude otherwise with respect to Grant's continuing refusal to return any of these employees to work.

69. Grant asserts that it found itself enmeshed in a dispute with the Band and on the horns of a dilemma; and we accept that this is so. But it was not quite the dilemma Grant described. Grant was obliged by its commercial arrangements with Conwest to provide employment opportunities for native workers, but having done so, it found itself saddled with a group of employees who (unlike its regular workers) wanted trade union representation. And while the Band was not itself enamoured of the trade union, neither could it be seen to publicly abandon its members, or the work opportunities to which it believed itself entitled by its arrangements with Grant and, ultimately, Conwest.

70. We also accept that there was a vagueness and variability in Grant's relationship with the Band which, for Grant, was a continuing irritant - especially since Grant had been unwilling to deal with the Band in the first place. There was, for example, a dispute about Workers' Compensation levies which Grant eventually made on behalf of the workers to the credit of the Band's W.C. number, together with a number of requests from Grant to the Band to provide the appropriate W.C. "letter of good standing". However, the fact remains (and Desmond Burke confirmed) that Grant's relationship with the Band officials was a good one, and after some initial adjustments, the Band members were performing satisfactorily and economically from Grant's point of view. The Worker Compensation documentation remained incomplete but this was not a serious issue. An injured worker's claim was processed without incident, monies were remitted to the Band's number without difficulty, and there was no actual liability for which Grant was responsible. Nor do we accord much significance to the way in which the Band's administration fee was calculated. Grant eventually paid in accordance with its own understanding of the arrangements, the accounts were balanced in a general reconciliation, and the Band never quarrelled with this outcome.

71. In summary, then, while there may have been some irritants in Grant's relationship with the Band, we are not persuaded that those problems were sufficiently serious to explain the total repudiation of that relationship or Grant's decision not to re-hire any Band members. On the contrary, we find that Grant refused to take the Band members back for the same reason that it had laid them off: because some number of them had joined the union and Grant was determined to remain a "non-union" company. And once Conwest was prepared to relieve Grant of its obligation to hire native workers, as Conwest eventually did, Grant was free to follow its anti-union inclinations and replace the union supporters with new employees.

72. For the foregoing reasons, the Board finds that the termination of the aggrieved employees was contrary to sections 65, 67, and 71 of the Labour Relations Act, and that their ongoing lay-off was a continuing breach of the Act.

73. The Board therefore directs that the grievors be reinstated, forthwith, to the company's employment rolls and compensated, with interest (in accordance with Practice Note 19) for all wages and benefits lost.

74. The Board will remain seized in the event there is any continuing dispute about the amount of compensation to which the employees may be entitled. We note, however, that the evidence before us establishes that, were it not for their unlawful terminations, these employees would have continued to work until the end of the project; moreover, any question of "mitigation" must be measured in light of both the Board's comments in cases such as Jackmorr Manufacturing Limited, [19871 OLRB Rep. Aug. 1086, and the employment realities of North Western Ontario. The fact is, that there really was little or no work available for the aggrieved employees in the local area. That is why the affirmative action program was such an important part of the arrangement from the Band's point of view.

Certification Pursuant to Section 8 of the Act

75. As the Board has indicated in a number of cases, certification can be granted under section 8 of the Act if three conditions are satisfied:

(1) The respondent must have contravened the Act;

(2) the contravention(s) must have resulted in a situation in which the true wishes of the employees are not likely to be ascertained by a representation vote; and,

(3) the applicant must have membership support that, in the opinion of the Board, is adequate for the purposes of collective bargaining.

In our opinion, the evidence in this case meets all three criteria.

76. We have already indicated our finding that the respondents' mass layoff of all those thought to be union supporters contravened sections 65, 67 and 71 of the Act. Viewed objectively, this unlawful conduct has created a situation in which it is highly unlikely that any kind of representation vote would disclose the employee's true wishes about the union or collective bargaining.

Indeed, it is difficult to conceive of a more serious or graphic unfair labour practice than the kind which has occurred here. Grant has summarily discharged everyone whom it believed had exercised or might potentially exercise the right to join a union. Grant has made it abundantly clear to union supporters or potential union supporters that if they choose the union they are effectively choosing unemployment. The aggrieved employees were ultimately successful in securing redress, but that result did not occur without protracted litigation during which they had to rebut Grant's assertion that the reason for their termination was the ebb and flow of construction activity, or the actions of the Band. In the meantime, the construction work which the grievors expected to do was undertaken by others. In these circumstances, it is difficult to see how any kind of a fair test of employee wishes could be undertaken. Grant's actions have totally poisoned the atmosphere and undermined the normal statutory mechanisms for measuring employee support for collective bargaining.

77. Does the union have support adequate for collective bargaining? In our opinion, the answer is yes. The union has established a substantial core of membership support regardless of the disposition of the list dispute; and we do not think we need attach much significance to the fact that this core may not be a majority or may vary as a proportion of the overall workforce. In the construction industry, a fluid workforce is not unusual, and the Board is not required to take into account changes in the level of employment after the application was made. Indeed, a collective agreement can even be negotiated where there are no employees actively at work in the bargaining unit at the time the collective agreement was entered into (see section 123 of the Act). Whether membership strength is adequate under section 8 is not a question of numbers or percentages or whether the union would ultimately be successful in negotiating a collective agreement (although in this regard now see the "first contract" provisions of the Act). It is rather an assessment of the totality of the circumstances (see for example: Manor Cleaners Limited, [1982] OLRB Rep. Dec. 1848 and cases referred to therein; and, Aurora Resthaven Extended Care and Convalescent Centre, [1986] OLRB Rep. Aug. 1031). In the circumstances of this case, it is the Board's opinion that the union has support adequate for collective bargaining.

78. We find, therefore, that quite apart from section 7(2) of the Act, the union is entitled to certification pursuant to section 8 of the Act. In other words, quite apart from the dispute concerning the list and composition of the bargaining unit, our findings respecting the number of employees on the list and the relative proportion of employees who are union members, section 8 of the Act provides a separate and independent basis for the union's certification, which is applicable to the facts of this case.

79. However, would the union also be entitled to certification under section 7(2) of the Act? To answer that question, it is necessary to review the way in which the Board determines the population of construction industry bargaining units, and the evidence which the parties provided in this case.

The Composition of the Bargaining Unit and Certification pursuant to Section 7(2)

80. The Act requires the Board to ascertain the number of employees in the bargaining unit at the time the application was made, but there are no legislated criteria to guide the Board in this task. Obviously, there is really no difficulty in respect of those individuals who are both employed and actually working on the application date at a job described in the bargaining unit. The problem arises in respect of individuals who may not be actively at work or, as here, there is some dispute about who was at work, and who among those admittedly working was actually employed in the trade to which the bargaining unit relates.

81. The construction industry poses a number of special problems, because employment is necessarily transitory. Employees are quite literally "here today and gone tomorrow". A construction project is completed in phases, so that on any given day the mix of tradesmen on a site can be different, and that mix will vary with such factors as: the exigencies of the market, the pace of work, the relationship with other contractors and the vagaries of the weather. Similarly, what a tradesman may do can vary markedly from day to day so that it is sometimes quite difficult to pin down the precise number of employees actively at work on the application date, and the trade within which they are working. And, while it is easy to talk about the trades in generic terms - carpenter, electrician, sheet metal worker, labourer, etc. - it is not always easy to categorize particular functions, because a carpenter or bricklayer, say, will sometimes do work that is similar to the work a labourer might also perform.

82. To cope with the special problems in the construction industry, the Board has developed a particular rule of thumb for ascertaining the number of employees in the unit and their "trade" "at the time the application was made" (to use the words of section 7(2)). The Board determines the employee complement to be that which exists on the application date - fully realizing that the number may well be different the day before, or the day after. This "rule of thumb" has been accepted and applied in the construction industry for forty years - and for a very practical reason: anything else could lead to costly and time-consuming litigation on every certification application, causing delay which would severely prejudice the establishment of bargaining rights purportedly guaranteed by the statute. If time is of the essence generally in labour relations, that maxim is particularly true in the construction industry; and, unfortunately, this proceeding is a case in point. In the time that it has taken the parties to litigate the matters in dispute between them, the construction project to which the application relates has been completed. If Grant does not return to the District of Thunder Bay the whole exercise will be academic: it will have done its work "non-union" on the Black River project, and there may be no other project to which collective bargaining can practically relate. And even if one focuses on the application date, with the passage of time, it becomes quite difficult to determine precisely who was actively at work on the application date, and whether those employees were engaged in work within the bargaining unit, because memories fade and documentary material may be imprecise or incomplete.

83. In the instant application, the trade union has filed documentary evidence of membership on behalf of more than fifty-five per cent of what it claims to be the employees in the above-described bargaining unit. This documentary evidence took the form of membership cards, which include a combination application for membership and an attached receipt. These cards are signed by the subject employee, and the receipts are countersigned by a witness ("the collector") and indicate a payment of at least one dollar to the union in respect of its membership fees.

84. This documentary evidence is supported by a properly-completed Form 80 Statutory Declaration, attesting to its regularity and sufficiency. There is no allegation of any irregularity in the form of this documentary evidence, nor is there any alleged impropriety in the manner in which it was solicited. The membership evidence meets the form and timeliness requirements established pursuant to sections 1 and 105(2)(j) of the Act, and clearly demonstrates that these individuals are "members" of the union for the purposes of the Act.

85. There is no real dispute, therefore, that all of the persons who signed union membership cards are, by statute, "members" for the purpose of this certification application. For these card signers, the question is not whether they are "members" of the union, but whether they were employees in the bargaining unit (i.e., actively working as "labourers") on the application date, August 1, 1991. In order to perform the arithmetic calculation contemplated by section 7(2), the Board has to determine the total number of employees in the bargaining unit, as well as how many of them have signed cards. And it is the former number which is in dispute.

86. In response to the certification application, the employer filed a list of individuals claimed by it to be employees in the bargaining unit on August 1, 1991. The union challenged a number of the names appearing on that list, claiming, alternatively, that the individual was not actively at work on August 1, 1991 [the Board's test], or that he was not employed as a labourer, or, in some cases, that the disputed individual was not an employee eligible for inclusion because of section 1(3)(b) of the Act. The union's claim was that the employer had loaded the list with regular employees known to be non-union, and intentionally omitted those individuals who it knew or suspected were union supporters; and this submission has at least surface plausibility because the persons omitted from the list are individuals whom we have found were illegally discharged. The union submitted that a number of persons should be added to the employer's list.

87. For its part, Grant maintained that the individuals whom the union sought to include on the list were not its employees, or were not at work on the application date or, if they were at work, were employed in a capacity other than that of construction labourer. As is typical in disputes of this kind (and perfectly plain to all of the parties), all of the individuals whom the union sought to add to the list were supporters and all of those whom it sought to remove were not. The proposed lists were totally different. Only one employee - Bob Martin - was common and not disputed.

88. There were, in Grant's submission, 14 individuals properly on that list, and the proposed Schedule "A" has a confirmatory signature as required by the Rules. However, in this case the list is signed by Mr. Braithwaite, counsel for the respondents, and indicates that it has been prepared on the basis of the instructions he received. Consequently, Mr. Braithwaite is clearly not responsible for, nor able to verify, the accuracy of the list. He could only record what he was advised by Grant's representatives.

89. Given the nature of the issues raised in these proceedings, and the desirability of full disclosure prior to the hearing, the Board directed all parties to produce all of the relevant documentation. In compliance with that direction, Grant produced, among other things, all of the payroll records said to be relevant, and the daily labour reports listing its employees at work, day by day, over the course of the project. The daily labour report for the application date, August 1, 1991 (and for the preceding and following day) lists 7 employees actively at work - not the 14 appearing on Schedule "A". There is an overlap, but the two lists are obviously not the same. There are no Band members on Schedule "A" at all. And Bob Martin - the person who was not in dispute - does not appear from the records to be actively at work on August 1, 1991, the application date.

90. We recognize, of course, that the way in which the respondent Grant compiled its employee list is intertwined with its position that it was not the "employer" of Band members. But that still does not explain the discrepancy, nor in all the circumstances of this case are we inclined to give much weight to employment documents of this kind - at least in the absence of confirmatory evidence that the persons said by the employer to be actively at work in the bargaining unit actually were employed (despite their absence from the employer's own daily labour report for August 1) and actually were working as labourers. There was no such evidence. Mr. Jauvin did not keep the time sheets which form the basis of the daily labour report and Mr. Burke was not on site at all. None of the employer's witnesses addressed the discrepancy between the daily labour report and its proposed Schedule "A" list, nor was there much evidence about what the employees were doing on the day in question.

91. In short, while the Schedule "A" sets out the employer's position, it is not obviously consistent with the employer's own documentary material, and is unsupported by any other or first-hand evidence to establish the accuracy of any of those documents.

92. By contrast, the union did call direct evidence from Barry Michano and Sinclair Michano, both of whom testified that they were working as labourers on August 1,1991, and, so far as they were aware, they were the only labourers working on the site that day. They testified that they had a firm recollection of their duties because they had been visited by the union representative (no doubt contemplating an imminent certification application) and told to take careful note of their job functions for August 1, 1991. And that is what they did. They had only an imperfect recollection of what may have been done by others that day. In the result, theirs is the only concrete, first-hand, and unambiguous evidence of employment as a labourer on the application date. Indeed, there is no similar evidence respecting the other union supporters whom the union asserts should be on the list, or respecting the other persons whom the company submits were working as labourers that day.

93. Thus, if the Board were required to decide (as we believe it must) on the basis of the reliable evidence (as opposed to the parties' assertions) of the number of "employees in the bargaining unit at the time the application was made", that number would be: 2 - Sinclair and Barry Michano. The other persons named by the union or the employer may or may not have been actively at work that day and, if at work, they may or may not have been employed as a labourer. We are simply unable to make that finding on the basis of the reliable evidence that the parties have brought before us. All that can reliably be said is that the bargaining unit described above contained at least 2 individuals, and both of them were trade union members within the meaning of section 1(1) and 105(2)(j) of the Act.

94. We are not entirely sanguine about this result; however, it is the one which appears to us to be warranted by the evidence. And it supports a finding of entitlement to certification, under section 7(2) of the Act. apart from, and in addition to, the union's entitlement under section 8 of the Act.

95. Accordingly, on the basis of the totality of the evidence before it, the Board finds that not less than fifty-five per cent of the employees of the respondents in the bargaining unit described in paragraph 8 hereof, at the time the application was made, were members of the applicant on August 16, 1991, the terminal date fixed for this application and the date which the Board determines, under section 105(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.

Conclusion

96. For all of these reasons, the Board finds that the union is entitled to certification under both section 7(2) and section 8 of the Act, and a certificate will therefore issue in respect of the bargaining unit described in paragraph 8 above.

97. As noted, the Board will remain seized in the event that there is any outstanding problem concerning the unfair labour practice remedy.