Ontario Labour Relations Board
File No.: 0156-95-R Date: June 20, 1995
Between: International Union of Operating Engineers, Local 793, Applicant v. Gisborne Design Services Ltd., Responding Party v. Christian Labour Association of Canada, Intervenor
Before: G. T Surdykowski, Vice-Chair.
Appearances: A. M. Minsky and M. Sallasher for the applicant; John Mastoras and Rae Clark-son for the responding party; Ron Rupke and Derek Schreiber for the intervenor.
DECISION OF THE BOARD
1Upon considering the evidence and representations of the parties, I dismissed this application in a decision given orally at the hearing on June 14, 1995. That oral decision is incorporated into the following written decision.
2The name of the responding party is amended to: "Gisborne Design Services Ltd." ("Gisborne").
3This is an application for certification in the construction industry. As such, it is an application within the meaning of section 121 of the Labour Relations Act.
4The applicant is a trade union within the meaning of section 1(1) of the Labour Relations Act and is an affiliated bargaining agent of a designated employee bargaining agency.
5The application relates to the industrial, commercial and institutional sector of the construction industry referred to in section 119 of the Act. Because it is made by an affiliated bargaining agent, it is therefore made under section 146(1) of the Act.
6The applicant sought to be certified for what is in effect its "standard" section 146(1) bargaining unit as follows:
all employees of the responding party engaged in the operation of cranes, shovels, bulldozers and similar equipment and those primarily engaged in the repairing and maintaining of same, and employees engaged as surveyors; (i) in the province of Ontario in the industrial, commercial and institutional sector of the construction industry; (ii) in all sectors of the construction industry in that portion of the District of Algoma south of the 49th parallel of latitude (Ontario Labour Relations Board Area #21), excluding the industrial, commercial and institutional sector; save and except non-working forepersons and persons above the rank of non-working foreperson. (See paragraph 7 of the application).
7The Christian Labour Association of Canada (the "CLAC") intervened in this application, asserting that it and the responding employer Gisborne are party to a collective agreement dated March 24, 1995 which covers all of the employees affected by the application. Gisborne agreed, and it and the CLAC submitted that their collective agreement constitutes a complete bar to the application which should therefore be dismissed.
8The applicant denied the validity of the collective agreement, and pursuant to section 61 of the Act, put Gisborne and the CLAC to the proof of that agreement, and specifically that the CLAC was entitled to represent the employees in the bargaining unit at the time the agreement was entered into. At the hearing and without objection from either of the parties until argument, the applicant also asserted that the CLAC had received employer support from Gisborne such that the Board should consider the agreement between them not to be a collective agreement for purposes of the Act and this application, pursuant to section 49 of the Act.
9The parties joined issue on the applicant's challenges to the agreement between Gisborne and the CLAC at the hearing on June 14, 1995.
10Under section 61, the onus of establishing that a trade union was entitled to represent the employees in the bargaining unit at the time an agreement in that respect was entered into is on the parties to that agreement. Accordingly, the CLAC and Gisborne proceeded first (and in that order).
11The CLAC began by offering to submit membership records it said it had, and employer payroll records. It subsequently became apparent that at least the CLAC misunderstood the applicant's submissions that the CLAC and Gisborne had to call evidence to satisfy the onus on them, or the Board's suggestion that it was indeed not that simple, and that evidence would have to be presented through witnesses who could be cross-examined by the applicant to test the reliability of that evidence. The CLAC then called Mr. Ron Rupke, its Ontario representative for some fifteen years as its witness (and who as it turned out was the only witness who testified), and did not attempt to file, either through Mr. Rupke or otherwise, either the membership evidence it had referred to, or any employer records.
12In argument, the applicant made much of these omissions, which it characterized as being fatal to the position of Gisborne and the CLAC having regard to the onus on them under section 61. In response, Mr. Rupke, who in addition to being a witness acted as the CLAC's primary representative, said that he was taken aback by this because he had made an offer to present the membership evidence to the Board, and that as a result of what was said by the applicant and the Board he thought it was unnecessary for the CLAC to do so. Mr. Rupke said that he was unfamiliar with the Board's processes in this type of case. Accordingly, said Mr. Rupke, if the Board perceived this to be as big a problem as the applicant submitted it was, the Board should some how "re-open" the hearing to permit the CLAC to put its membership evidence before the Board. The CLAC also said that it did not attempt to put its membership evidence in through Mr. Rupke because it was inappropriate to do so given the confidentiality provisions in the Act (section 113) with respect to such material. On this point, Gisborne argued that the CLAC's status was not in issue and that it was therefore unnecessary for the CLAC to file any membership evidence. In alternative, Gisborne also suggested that the CLAC's membership evidence should be put before the Board, either through a Board Officer or otherwise.
13No one told the CLAC either not to file its membership evidence, or that it was unnecessary to do so. It was merely indicated to the CLAC that it had to prove its case and that merely presenting membership evidence would not be sufficient in that respect. How the CLAC chose to proceed was up to it. It chose, rightly or wrongly, to call the membership evidence it did and then it closed its case.
14In any event, it was clear that all of the available relevant evidence with respect to the section 61 issue was not before the Board in this application. However, this is far from the first case in which that has occurred. Indeed, it is probably more often the case than not that for reasons of mistake, oversight, strategy, expense, unavailability or otherwise all of the material evidence does not make it before the Board. It is not the Board's function to save parties from each other or themselves in that respect. The Board's function is to apply the Labour Relations Act or other applicable legislation to the matters brought before it upon a fair consideration of the evidence and representations of the parties. Although proceedings before the Board are perhaps less formal than judicial proceedings, they are nevertheless adversarial quasi-judicial proceedings in which it is the responsibility of the parties to present their cases. Concomitantly, it is up to the parties to properly inform themselves about the Board procedures and the applicable law, and to prepare and present their position(s) to the Board. A party which fails to do any of these things runs the risk of having its position(s) rejected by the Board and, to put it in more practical terms, of losing the case. Board proceedings are not a baseball game, and subject to reconsideration, a party normally gets only one chance to present its case to the Board.
15In this application, I found it unnecessary to determine whether the Board "re-open" a proceeding in the manner suggested by the CLAC or Gisborne, or if it can do so whether it would be appropriate to in the circumstances of this case to permit the CLAC to present further evidence over the objection of the applicant.
16Where pre-existing bargaining rights are asserted and put forward as a bar to an application for certification, the trade union which asserts those bargaining rights usually files membership evidence with its intervention, or does so at the hearing (and which membership evidence is treated in much the same way as any membership evidence and is specifically not subject to cross-examination as such). In this case, the CLAC did not file membership evidence. However, in the circumstances, I was not prepared to draw an adverse inference from that failure. On the other hand, neither was I able or prepared to assume anything about the nature, quality or quantity of any such CLAC membership evidence since there was none before me.
17This would probably have been an easier case to decide if I had had the CLAC's membership evidence, and better evidence of the number of employees at work for the employer at the material times, in this case, specifically on March 24, 1994. However, I was able to decide the matter without that evidence.
18Section 61 does not require a trade union to a challenged collective agreement to establish that a majority of the employees in the bargaining unit at the time the agreement was entered into were members of that trade union, either through the kind of membership evidence which is typically submitted by a trade union applying for certification, or otherwise. That is a common, perhaps the most common, way of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into, but it is clearly not the only way this can be accomplished (see, for example, cases as far back as Spring Plastering Limited, [1967] OLRB Rep. Dec. 887; Gilbarco Canada Ltd., [1971] OLRB Rep. Mar. 155; and see York County Quality Ltd., [1984] OLRB Rep. Sept. 1340). Accordingly, the CLAC's failure to file membership evidence was not fatal to its position in this case.
19On the evidence presented in this case, Gisborne has not previously been active in Ontario. However, it has been active in the construction industry in western Canada, specifically British Columbia, where it as evidently had labour relations dealings with the CLAC. Consequently, when it obtained a contract for work in the construction of the Georgia Pacific Flake & Board Plant somewhere near Sault Ste. Marie, the employer contacted the CLAC in Ontario with a view to establishing a similar relationship and employing members of the CLAC on that job.
20It is not unusual for an employer to approach a trade union offering to voluntarily recognize it or enter into a collective agreement with it so that that employer can gain access to union" job sites or to a supply of employees, or for a trade union to approach an employer with a similar such offer. Indeed, the Board has long accepted as valid, voluntary recognition or collective agreements entered into at a time when there was not even any employees in the bargaining unit where the parties intended the union to supply employees to the employer (Nicholls-Radtke and Associates Limited, [1982] OLRB Rep. July 1028; M. J. Guthrie Construction Limited, [1984] OLRB Rep. Jan. 50; Square One Carpentry Inc., [1988] OLRB Rep. Oct. 1112) so long as that was the bone fide intention and the trade union party did or was able to supply employees (FDV Construction Ltd., [1984] OLRB Rep. May 719). Indeed, this kind of "pre-hire" agreement is a fairly common form of voluntary recognition in the construction industry, and the Sunrise Paving and Construction Co. Ltd., [1972] OLRB Rep. Mar. 199 line of cases which stands for the proposition that a first voluntary collective agreement entered into when no employees were in the bargaining unit is invalid on the grounds of employer support does not represent the law in the construction industry in Ontario.
21The responding party first contacted the CLAC in that respect in late February 1995. The CLAC was willing and immediately began negotiating a collective agreement based on an existing collective agreement with another employer. Gisborne was scheduled to begin work on the project on or about March 15, 1995. By March 14, 1995, the negotiations between Gisborne and the CLAC had progressed to the point that Gisborne asked the CLAC to refer a welder/fitter to the job site. The CLAC referred Stan Bloxom, a long time CLAC member and steward, in response to this request. Mr. Bloxom was to be the CLAC on-site representative and was also to refer other employees from the Sault Ste. Marie area to the job as well, which on the evidence~ I was satisfied he did.
22On March 23, 1995, after an exchange of some draft language and collective agreements, the CLAC received three copies of a collective agreement which Gisborne had signed and was prepared to enter into from Gisborne's representatives in British Columbia. Mr. Rupke immediately had the proposed collective agreement photocopied and made up into booklets, and on March 24, 1995 he flew with them to Sault Ste. Marie. From Sault Ste. Marie, Mr. Rupke made his way to the Georgia Pacific Flake & Board Plant job site. He introduced himself with the employer's site superintendent, Rick Ulmer, explained why he was there, and asked if he could meet with Gisborne's employees during the lunch period. Mr. Ulmer agreed and drove Mr. Rupke to the area where the employees were working some 1/2 to 3/4 of a kilometre away. There, Mr. Rupke found Mr. Bloxom who introduced him to the other employees. Mr. Rupke explained to the employees as he came across them why he was there and told them that he wanted to meet with them at lunch with respect to the proposed collective agreement he had brought with him.
23I was satisfied that all of the employees came to the lunch trailer at their usual lunch time, that Mr. Rupke gave each of them one of the photocopied collective agreement booklets, that he explained that it was a collective agreement which the employer was prepared to enter into, that he recommended that agreement to them, and that he was prepared to and did discuss it with them. After some twenty minutes of discussion, Mr. Rupke handed out written ballots or the employees to use to vote on whether they accepted the proposed collective agreement. All ten employees cast ballots and Mr. Rupke and Mr. Bloxom counted the ballots. The employees voted to accept the proposed collective agreement by a vote of 8-2 in favour. Mr. Rupke and Mr. Bloxom then immediately signed the collective agreement on behalf of the CLAC.
24Mr. Rupke then found Mr. Ulmer again, told him that the employees had accepted the collective agreement, and gave Mr. Ulmer a copy of that collective agreement. Mr. Rupke and Mr. Ulmer had a brief discussion about the employer's manpower needs and Mr. Rupke left several resumes of persons he thought would be suitable with Mr. Ulmer. Mr. Rupke then returned to his office to do the necessary administrative things with the new collective agreement, including filing a copy of it with the Ministry of Labour.
25It is important to remember that the context of this application is a large construction job in northern Ontario. In Nicholls-Radtke and Associates Limited, supra, the Board abandoned its path it had begun to go down in Sunrise Paving and Construction Co. Ltd., supra. In correcting its course, the Board noted the special characteristics of the construction industry (which are recognized both in the Act and the Board's jurisprudence) and said that:
……where no other persons were working or had worked for the employer in the bargaining unit, and no other trade union held bargaining rights in respect of that bargaining unit, the agreement is not a valid collective agreement would have us place a premium on a strict, and technical interpretation of the Act, rather than giving the statute a practical and purposive one, particularly having regard to the common and sensible methods used by employers and trade unions in the construction industry to create bargaining rights without resorting to the certification procedures under the Act.
The responding employer required persons to do work for it, and went to the intervener union, who had members available to do that work, for those persons. In the same way that the Courts in the Blouin Drywall and Maritime Employers Association cases, supra, held that members of a trade union who are not actually working for a particular employer but are associated with the union's hiring hall to seek work are employees, the members of the intervener trade union on whose behalf the collective agreement was entered into are "employees" whom the union represents, Section [123] of the Act indicates that an agreement in writing which is signed when there are no employees in the bargaining unit is deemed to be a collective agreement if, for example, the union is renewing a collective agreement or making a new agreement after an earlier collective agreement had expired, thus implying that an agreement signed after voluntary recognition when there are no employees in the unit may not be a collective agreement. The Board notes that section [1231 of the Act merely deems an agreement in writing to be a collective agreement under certain circumstances; it does not provide that an agreement signed when there are no employees in the unit is not a collective agreement. (See section [49] of the Act for a specific provision deeming an agreement not to be a collective agreement). Therefore, section [123] of the Act has no application to the facts of this case.
The Board in C. Strauss and Volens held that there was no collective agreement by applying section 40 [now 49] after finding that the union had received "other support" from the employer when it signed a collective agreement without employees in the bargaining unit. We are satisfied that, in the circumstances of this case, although the agreement was signed on October 8th, 1975, when, as the parties have stipulated, "The respondent had no employees in the purported bargaining unit….., the intervener union did not receive "other support" from the employer. To the contrary, the employer needed persons to perform work, and the union, which had members available with the skills necessary to do that work, undertook to refer its members to the employer in exchange for receiving voluntary recognition from the employer as exclusive bargaining agent for those persons. In our view this arrangement in the circumstances presently before us is not "other support" from an employer which calls for the application of section [49] of the Act.
26In Eighty-Five Electric, [1987] OLRB Rep. June 833, the Board found that an agreement entered into at a time when there were no employees in the bargaining unit and when there was no immediate or realistic expectation that employees would be required did not constitute a legitimate pre-hire agreement within the meaning of the Nicholls-Radtke reasoning. However, in doing so, the Board both applied Nicholls-Radtke and commented that in order to accommodate the realities of the construction industry, the hiring hall function performed by construction industry trade unions had to be given effect and recognized as not offending what is now section 49 of the Act. Further, there is nothing in the Act or the Board's jurisprudence which suggests that the Nicholls-Radike reasoning and approach is limited to situations in which a trade union operates a formal hiring hall.
27In this case, the agreement which Gisborne and the CLAC entered into on March 24, 1995 is not a pre-hire agreement within the meaning of the Nicholls-Radtke line of cases. However, Gisborne and the CLAC did have a kind of pre-hire agreement or understanding which they arrived at as the negotiated the agreement they signed on March 24, 1995, as evidence by the referral to work by the CLAC of Mr. Bloxom. I was also satisfied that it is more probable than not that at least some of the other ten Gisborne employees on the job site on March 24, 1995 were also there pursuant to that pre-hire agreement. That same evidence and the evidence of the discussions between Mr. Rupke and Mr. Ulmer on March 24, 1995 after the agreement was signed indicated that there was a real and immediate need for employees which the CLAC was able to supply. Further, I was satisfied that neither Gisborne nor the CLAC did anything improper in negotiating or arriving at the either the pre-hire arrangement or the agreement the employees voted on on March 24, 1995.
28I was satisfied on the evidence that it was more probable than not that the ten employees who voted were all of the Gisborne employees on the job site on March 24, 1995, that they all received the information necessary to permit them to make an informed choice, and that they did so in casting their ballots approving the proposed collective agreement. I was also satisfied on the evidence that the group of ten employees was composed of equal or approximately equal numbers of persons from Ontario and British Columbia and that, regardless of where they came from, how they came to be at the job site, and whether or not they were members of the CLAC on March 24, 1995, the bargaining unit employees indicated by their majority vote in favour of accepting the proposed collective agreement their willingness to have the CLAC represent them in their employment relations with Gisborne. I was satisfied that the CLAC was therefore entitled to represent the employees in the bargaining unit at the time it entered into the collective agreement with Gisborne, which it did when it signed the agreement after the vote.
29Unlike the section 61 issue, the onus in the section 49 issue did not lie with Gisborne or the CLAC, but rather with the applicant. In any case, I was satisfied that the CLAC did not receive employer support such that the agreement they entered into should be considered not to be a collective agreement for purposes of the Act. Again, this is a case in the construction industry. Under the Act, employers and trade unions (whether in the construction industry or not) are entitled to enter into voluntary recognition agreements. Consequently, as the Board recognized in Nicholls-Radke and Associates, supra, the mere fact that an employer has voluntarily recognized a trade union cannot, by itself, constitute improper employer support for purposes of section 49 or otherwise. However, for over forty years the Labour Relations Act has recognized and acted as the safeguard to the rights of employees to select, join and bargain collectively through a trade union of their choice (see, for example, Edwards & Edwards Limited, 52 CLLC ¶17,027). Consequently, if an employer and a trade union enter into a voluntary recognition agreement for the purpose of defeating the purposes of the Act or the rights of employees under it, that agreement will be invalid for purposes of the Act. As the Board stated as far back as Edwards & Edwards Limited, supra, provisions like section 49 (and section 13) are intended to preserve the integrity of the free collective bargaining process by precluding employers from meddling in the exercise by employees of their rights under the Act and prohibiting "employer dominated" trade unions. Consequently, "sweetheart" arrangements or conduct by an employer which affects the ability to freely choose or not choose a particular or any trade union are prohibited (see also, Canada Crushed Stone, [1977] OLRB Rep. 806; Jen-Ry Utility Contracting Limited, [1985] OLRB Rep. Aug. 1243; Square One Carpentry Inc., supra).
30As indicated above, the Board has not considered it improper for an employer in the construction industry to voluntarily recognize a trade union in order to obtain employees or work or to otherwise show a commercial preference for a trade union, particularly in the absence of organizing activity by another trade union. The Jen-Ry Utility Contracting Limited, case provides an interesting example of the Board's approach. In that case, the CLAC applied for certification (and Mr. Rupke appeared as one of its representatives). The International Union of Operating Engineers, Local 793 (the applicant herein) and the Labourers International Union of North America, Local 183 (both of whom were represented by the same counsel as the applicant was herein) intervened in that case and alleged that the CLAC had received employer support contrary to section 13 of the Act, and that the CLAC's application would therefore be dismissed. That case is obviously not identical to this one but it is analogous given that the purpose and intent of section 13 is the same as that of section 49, and the similarity of some of the circumstances. In Jen-Ry Utility Contracting, supra, a new employer began work in the construction industry. After first contracting the IBEW, it contacted the CLAC and on the basis of what the CLAC told it regarding the men that the CLAC could supply and the rates which would apply, the employer asked that CLAC to sent it some employees. The CLAC did so, indicating at the same time that it intended to apply for certification which for commercial reasons the employer was content to have happen. Even before the CLAC applied for certification, the employer began deducting union dues for employees the CLAC had obtained authorization from, and by the time the application for certification was made half of the employees of employer had come from sources other than the CLAC. Notwithstanding this, and the fact that the two building trades union intervenors had (unsuccessfully) asserted bargaining rights for the same employees under sections 1(4) and (now) 64 of the Act, the Board found that the employer had not given improper support to the CLAC.
31In this case, the applicant can point only to the ride Mr. Ulmer gave to Mr. Rupke and the fact that Mr. Rupke was permitted to remain on the job site and talk to the employees during their lunch hour as constituting improper employer support on March 24, 1994. In the circumstances of this case, including the previous discussions or negotiations between Gisborne and the CLAC, the manner in which at least some of the employees obtained their employment with Gisborne, the job site itself, and there being no competing trade union on the scene at the time, I was satisfied that there was nothing which occurred on March 24, 1995 which interfered with the rights of the employees under the Act or was otherwise improper, and more specifically, that the CLAC did not receive improper support such that section 49 should be invoked. In the result, I was satisfied that the collective agreement dated March 24, 1995 between Gisborne and the CLAC is a valid collective agreement within the meaning and for the purposes of the Labour Relations Act, and that the CLAC was entitled to represent the employees covered by it at the time it was entered into, and I so ruled, orally.
32Accordingly, the collective agreement between Gisborne and the CLAC constituted a complete bar to this application for certification and which therefore had to be dismissed, and I so ruled.