[1995] OLRB Rep. June 729
0275-95-R; 0528-95-U Christian Labour Association of Canada, Construction Workers Local 52, Applicant v. Covertite Eastern Limited, Responding Party v. Sheet Metal Workers' International Association, Local 47, Intervenor; Sheet Metal Workers' International Association, Local 47 v. Covertite Eastern Limited and Christian Labour Association of Canada, Construction Workers Local 52, Responding Parties
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: Ron Rupke, Derek Schreiber and Rob Juhasz for Christian Labour Association of Canada, Construction Workers Local 52; J. Raso and R. Mitchell for Sheet Metal Workers' International Association, Local 47; no one appearing on behalf of Covertite Eastern Limited.
DECISION OF THE BOARD; June 19, 1995
Board File No. 0275-95-U is an application for certification in which Christian Labour Association of Canada .Construction Workers, Local 52 ("CLAC") seeks to displace Sheet Metal Workers' International Association, Local 47 ("Sheet Metal") as the bargaining representative of all employees of Covertite Eastern Limited ("Covertite") performing roofing, waterproofing and damproofing work in the commercial, industrial and institutional sector in Board Area 15 and new high rise structures in all other sectors in Board Area 15, save and except non-working foremen and persons above the rank of non-working foreman. Board File No. 0528-95-U is an application under section 91 of the Labour Relations Act (the "Act") in which Sheet Metal alleges that CLAC and Covertite have violated sections 13, 65, 67 and 71.
In the application for certification, CLAC requested that a pre-hearing representation vote be taken. The parties met with a Board Officer on May 3, 1995 for the purpose of completing a pre-hearing vote meeting report. At such meeting, Sheet Metal took the position that the application was not timely and made four challenges to the list of employees compiled for the purpose of the count. Sheet Metal also took issue with whether CLAC had the minimum level of membership support required by section 9 of the Act in order to request a pre-hearing vote on two alternative bases. First, Sheet Metal asserted that the membership evidence filed by CLAC did not represent the voluntary wishes of the signatories. Secondly, Sheet Metal asserted that much of the membership evidence filed by CLAC was nullified by documents subsequently filed by Sheet Metal, signed by employees of Covertite, in which the signatories reaffirmed their desire to be represented by Sheet Metal and revoked their signature from any document indicating otherwise.
By decision dated May 11, 1995, the Board directed that a pre-hearing representation vote be taken. The vote was held on May 23, 1995. This matter was scheduled to be heard on June 12, 1995.
At the commencement of the hearing, Sheet Metal advised the Board that it no longer took issue with the timeliness of the application and did not intend to pursue its challenges to the list of employees. With respect to the remaining issues, the Board was advised that the parties were in agreement that the Board should determine, as a preliminary matter, whether, as a result of the reaffirmations filed by Sheet Metal with the Board, CLAC did not have 35 per cent membership support on the date of application, such that the vote is a nullity and the application should be dismissed. The Board was in receipt of a letter from counsel for the employer dated June 9, 1995 indicating that the employer was in agreement with this manner of proceeding and, as it took no position with respect to the preliminary issue, would not be attending at the hearing on June 12, 1995. Thus, the Board proceeded to hear the submissions and arguments of Sheet Metal and CLAC on the preliminary issue set out above.
CLAC filed membership evidence on behalf of 18 of the 20 employees who were at work in the bargaining unit on the date of application. Fourteen of the applications for membership filed by CLAC are dated March 26, 1995. The remaining four applications for membership are dated April 18,1995. Under cover of letter dated April 13, 1995, Sheet Metal filed reaffirmations with the Board signed by 12 of the employees who had signed applications for membership in CLAC on March 26, 1995 and all four of the employees who signed applications for membership with CLAC on April 18, 1995. The reaffirmations are dated April 12, 1995. Thus, as of April 20, 1995, the date of application, the most recent document executed by 12 of the 20 employees in the bargaining unit on the date of application was a reaffirmation of their support for Sheet Metal.
Sheet Metal submits that the Board's jurisprudence establishes that the last statement of intention will stand for the purposes of the Board's determination of the level of membership support on certification applications. Thus, as a result of the reaffirmations filed by Sheet Metal, the Board cannot be satisfied that not less than 35 per cent of the employees in the bargaining unit were members of CLAC at the time the application was made. Sheet Metal relies on Minnova Inc., [1991] OLRB Rep. May 644; Smith Beverages Limited, [1975] OLRB Rep. Dec. 956; Baltimore Aircoil Interamerican Corporation, [1982] OLRB Rep. Oct. 1387; Leon's Furniture Limited, [1982] OLRB Rep. Mar. 404; Dominion Stores and UFCW, [1980] 3 Can LRBR 499 (Sask.); Cominco Ltd. and CAIMAW, [1982] 3 Can LRBR 301 (B.C.); and Employe-e-s des Aeroports de Montreal and PSAC (1993), 21 CLRBR (2d) 289 (Can.).
Section 9 of the Act reads as follows:
9.- (1) Upon an application for certification, the trade union may request that a pre-hearing representation vote be taken.
(2) Upon such a request being made, the Board may determine a voting constituency and, if it appears to the Board on an examination of the records of the trade union and the records of the employer that not less than 35 per cent of the employees in the voting constituency were members of the trade union at the time the application was made, the Board may direct that a representation vote be taken among the employees in the voting constituency.
(3) The Board may direct that the ballot box containing the ballots cast in a representation vote taken under subsection (2) shall be sealed and that the ballots shall not be counted until the parties have been given full opportunity to present their evidence and make their submissions.
(4) After a representation vote has been taken under subsection (2), the Board shall determine the unit of employees that is appropriate for collective bargaining and, if it is satisfied that not less than 35 per cent of the employees in the bargaining unit were members of the trade union at the time the application was made, the representation vote taken under subsection (2) has the same effect as a representation vote taken under section 8.
- The reaffirmations filed with the Board by Sheet Metal are on Sheet Metal letterhead and read as follows:
1/Je ________ hereby reaffirm reaffirme mon my desire to be represented by the Sheet Metal desire d'etre represente par l'association Inter- nationale des Travailleures de Metal en Feuille, Local 47 pour raison de negociations en vue d'un contrat collectif, et, par la present, je renonce ma signature de tout autres documents qui indiquent autrement.
April 12. 1995 DATE
SIGNATURE
Quite recently, in Knob Hill Farms Limited (as yet unreported, Board File No. 0268-94-R, March 20, 1995) [now reported at [1995] OLRB Rep. Mar. 303], the Board considered whether documents in which employees who had previously applied to be members in the union withdrew their support for the union, had the effect of reducing the union's level of membership support. In concluding that the documents in question did not have such effect, the Board stated as follows:
When the words of the employee letters are carefully considered and the Legislature's categories applied, we are not prepared to conclude that a "withdrawal of support" from the trade union is the same as a "resignation" or "cancellation" of membership. If we read the statute in accordance with its terms, the Legislature has distinguished these types of employee representation. They are different things; and if we are obliged to consider documents such as this at all, we think that we should do so with the statutory categories in mind. In that light, a withdrawal of support is not a resignation from membership. It has no effect on "membership" at all.
This may seem unduly "technical" at first glance; but as we have already discussed, "membership" in the union - the contractual binding of oneself to the union organization - is different from support for the union, in respect of a particular certification application.
The Supreme Court seems to say in Metropolitan Life: it is not enough to support the union, or apply for membership, or want to be a member; one must actually be a member in accordance with the union constitution. The Legislature rejected the specific result in that case, but it preserved the concept of "membership" which was, and remains, distinguished from the notion of employee support.
Is the distinction between "membership" and "support" odd, or counterintuitive? Not at all. It seems clear that, as a factual matter, an individual may well be a member of the union but not wish to be represented by that union in a particular collective bargaining relationship with a particular employer. Indeed, in the Board's experience, it is not at all unusual for an individual to be a member of more than one trade union, so that s/he may have to decide which union s/he wishes to support in a certification application. A member at one time, may change his/her mind later without withdrawing from membership. Conversely, an individual may support or oppose a union's bid for certification regardless of whether s/he is a member - for example, when given that opportunity in a representation vote which canvasses "support". There is a real distinction between membership and support - as unions sometimes learn to their chagrin when their "members" vote "no" in a representation vote.
That is why it is the Board's longstanding practice under section 8 to order a representation vote where it is shown that persons who have applied to become, or are, "members", have subsequently had a change of heart about their support for the union's certification, even if the change of heart does not take the form of a "resignation". Bill 40 does not change that practice either. If employees appear to be of two minds, the Board orders a vote to allow them to make their choice by secret ballot.
In our view, "membership" in a trade union organization is different from support for it, either generally, or in the context of a particular certification application. That withdrawal of support may take the form of a cancellation of membership (although under section 8 it would not make any difference how the change of heart was framed). But the Board will not readily conclude that an employee has "resigned from" or "revoked" his/her membership unless the document clearly says so - particularly when the result may be to prevent those and other employees from registering their wishes in a secret ballot vote. (And, if the Board really is required to take a "club law" approach to these matters, it is difficult to see how one could "resign" from "the club" by writing to some third party (the Board)).
It would have been relatively easy for an employee in the instant case to resign from, cancel, or revoke his/her membership; and if s/he had done so, the Board might well have had to consider the effect under section 9, when a vote had already been taken, and the whole purpose of that vote was to give all employees - including the wavering ones - the option of reconsidering their support for the union. But that is not what these employees have done here. They have not revoked, cancelled, or resigned from membership. They have, at most, purportedly withdrawn their "support".
For the foregoing reasons, even if we were to make the various assumptions recorded above, and even if we were to find a place for objections of this kind in the vote - based process of section 9, we would not find that these letters withdrawing support for the union either stand in the way of the initial direction that a representation vote should be taken to test employee wishes, or now preclude the Board from counting the ballots. They do not alter the union's "membership" level. At best, they demonstrate precisely the kind of equivocation that should be addressed by giving the employees the opportunity to express their wishes in a secret ballot vote - which is what has happened here in any event.
See also Famous Players, (as yet unreported, Board File Nos. 3719-94-R, 3847-94-R and 3916-94-R, April 25, 1995) [now reported at [1995] OLRB Rep. April 397].
The reaffirmations filed by Sheet Metal in the instant case indicate that the employees' desire to be represented by Sheet Metal in collective bargaining and revoke their signature from any document indicating otherwise. The reaffirmations say nothing about the employees wishing to revoke their membership in CLAC (even if they did, as the Board commented in Knob Hill, it is doubtful whether individuals could withdraw from membership in CLAC by providing such a request to Sheet Metal). The fact that the employees have reaffirmed their desire to be represented by Sheet Metal in collective bargaining has no effect on their membership in CLAC. An individual can be a "member" of more than one union at the same time. Thus, even if Sheet Metal is correct, and each employee's last statement filed prior to the date of application prevails for the purpose of determining CLAC's level of membership support, the last statement of intention filed on behalf of the employees of Covertite concerning their desire to be members of CLAC is the membership evidence filed by CLAC with the Board.
Subsection 9(4) of the Act directs the Board, following the taking of a representation vote, to determine the number of employees in the bargaining unit. If the Board is satisfied that not less than 35 per cent of the employees in the bargaining unit were members of the trade union at the time the application was made, the pre-hearing vote has the same effect as a vote under section 8. In the instant case, there were 20 employees in the bargaining unit, 18 of whom had applied to be members of CLAC on the date the application was made. As of the application date, CLAC had 90 per cent membership support. Thus, apart from Sheet Metal's challenge as to the voluntariness of the membership evidence filed by CLAC, I would find that CLAC had not less than 35 percent membership support at the time the application was made.
Given my determination that the reaffirmations filed by Sheet Metal have no effect on the signatories' membership in CLAC, and thus cannot affect CLAC's level of membership support, it is not necessary for me to determine the other issue before me, whether, in the context of a pre-hearing vote, it is the last statement of intention that is to be relied upon in determining the applicant's level of membership support. The jurisprudence relied on by Sheet Metal sets out the Board's policy that, in a certification application, a petition, if timely, voluntary and numerically relevant will result in a vote. A petition does not have the effect of nullifying the membership evidence filed (see: Minnova Inc., supra, at para. 36 and Baltimore Aircoil, supra, at para. 36). In contrast, a counter-petition can have the effect of nullifying signatures on a petition and will not necessarily result in a vote. The cases relied on by Sheet Metal do not consider the issue here, the effect of reaffirmations filed in the context of a pre-hearing vote.
The Board considered a situation similar to that presently in issue in Caldwell Linen Mills Limited, [1967] OLRB Rep. Mar. 948 where the incumbent union filed notices of withdrawal of membership signed by employees of the respondent who were claimed by the applicant as members. Based on such withdrawals, the incumbent challenged the sufficiency of the membership evidence filed by the applicant. The Board commented that the provisions of the Act dealing with pre-hearing votes do not contemplate statements of objection or withdrawal of membership evidence apparently because the employees will have an opportunity to express their wishes by casting a ballot in the pre-hearing vote. The Board determined that the reaffirmations did not have the effect of nullifying the membership evidence filed. Caldwell Linen, was subsequently followed in Texturon Yarns Limited, [1972] OLRB Rep. April 305. As the following excerpt from Knob Hill, supra, indicates, the Board's reasoning in Caldwell Linen, appears equally applicable today:
When sections 8 and 9 are read together, in light of the statutory scheme and purpose, it seems clear to us that "change of heart" documents of the kind now before us have no place in the pre-hearing vote process. Unlike section 8, section 9 makes no provision for the Board receiving such material, and in our view that "omission" is intentional. It is useful, though, to look at how section 8 treats such documents, because as we have already noted, sections 8 and 9 are both about certification and are, to some extent, alternative procedures.
Under section 8 a union can be certified solely on the basis of documentary evidence of membership. On the other hand, the Legislature has provided under section 8 that employees may register a change of heart in various ways, and if they do so in a timely manner, the Board will take that into account. But it is interesting to note how the Board is instructed to treat a "change of heart" - and the legal categories which the Legislature has established to deal with such matters.
Section 8(4) item 2 and 8(4) item 3 categorize the various kinds of documents which the board can receive with respect to employee wishes. Some of those documents have to do with "membership". Others have to do with support or objection which, as we have already noted, is different from membership notions (albeit both are involved in the certification determination).
Under section 8, documents of objection are all treated in the same way: they go to the Board's discretion to order a representation vote. In this regard there is no operational distinction between a "revocation of membership" a statement of objection to representation, or a withdrawal of "support". If the union's support seems equivocal based upon the documentary evidence of "membership", the Board settles the matter by ordering a representation vote (see section 8(6)). The Board does that even if the persons affected by the application remain "members" in both a common law and statutory sense. If the "members" are of two minds about supporting the union, the Board orders a vote to resolve the issue.
There is no equivalent process under section 9, and in our view that is deliberate. None is necessary because the process contemplates a representation vote in any event. There is no place for "change of heart" documents in a section 9 case because all of the employees - including the indecisive ones - will have the opportunity to record their preference in a Board supervised secret ballot vote.
We see no purpose for this kind of employee representation in a section 9 proceeding where, as noted, documents of this kind are not contemplated and all of the employees will have an opportunity to express their wishes. If the Legislature had intended change of heart documents in a section 9 proceeding it would have said so, as it did in section 8. But it did not. Accordingly, if the Board has the power under section 105(2)(j) to accept documents in this form in a section 9 context, we would decline to do so.
Thus, even if the reaffirmations filed by Sheet Metal are construed as expressing a desire to withdraw from membership in CLAC, they would not stand in the way of the Board counting the ballots as there is no place for change of heart documents in a section 9 proceeding.
The day after the hearing of this matter was concluded, Sheet Metal submitted further written submissions to the Board. Apart from whether I ought to take those submissions into account, nothing in them alters my determination.
There remains one further issue in dispute between the parties. As set out above, Sheet Metal challenges the membership evidence filed by CLAC on the basis that it does not represent a voluntary expression of the wishes of the signatories. The particulars relied upon by Sheet Metal in this regard also form the basis of the section 91 application. Sheet Metal estimates that four hearing days will be required to adjudicate this issue. The parties have all requested that the hearing of this issue be scheduled in Ottawa. For reasons expressed in Frade's Fruit Ltd., (unreported, February 8, 1995) [now reported at [1995] OLRB Rep. Feb. 122] the Board has an administrative policy that it does not travel out-of-town on applications for certification. Accordingly, the hearing of this matter will continue in Toronto.
The Registrar is hereby directed to schedule these matters for hearing, in Toronto, to continue on a day to day basis excluding Fridays and holidays
This panel is not seized.