[1996] OLRB Rep. May/June 386
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, Applicant v. Covertite Eastern Limited and Christian Labour Association of Canada, Construction Workers Local 52, Responding Parties
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members Orval R. McGuire and H. Peacock.
APPEARANCES: Ron Rupke, Derek Schreiber and Rob Juhasz for Christian Labour Association of Canada, Construction Workers Local 52; J. Raso and Ross Mitchell for Sheet Metal Workers' International Association, Local 47; Lynn Harnden, Bruce Warner and Jim 0'Hara for Covertite Eastern Limited.
DECISION OF THE BOARD; May 10, 1996
This is the continuation of an application for certification and an unfair labour practice complaint. The applicant in the certification application, who will be referred to as "CLAC" in this decision, seeks to displace the intervening incumbent union, referred to as "Local 47" below. The responding party employer will be referred to as Covertite.
These applications were the subject of an earlier decision of the Board, differently constituted, dated June 19, 1995 in which the Board considered the status of reaffirmation documents filed by Local 47. This decision deals with unfair labour practice allegations relevant to the certification application.
Local 47 takes the position that CLAC should not be certified by the Board because of the involvement of both the employer and working foremen in the campaign, and what it is alleged to be intimidation and coercion of the roofers in support of CLAC and against Local 47. CLAC and Covertite vigorously dispute these allegations.
The hearing of this matter took place during 7 days spanning several months. There were several areas of dispute as to the facts, which will be dealt with where necessary in the course of the decision which follows. In assessing credibility, the Board has had regard to the usual factors, including the ability to recall, the manner in which the testimony was given, the capacity to resist the pressures of self-interest when testifying, and what is most probable in all the circumstances. Minor inconsistencies and natural erosion of memory over time do not usually detract from overall credibility.
Covertite is a roofing and sheetmetal contractor operating in the Ottawa area. It has been bound to a provincial collective agreement covering roofers and sheetmetal workers for a number of years. The hands on, day-to-day, management of the operation is done by two of its four owners, Bruce Warner and Jim O'Hara, assisted by a superintendent. Mr. O'Hara also works as a superintendent. His duties include project scheduling and safety. He makes the decision as to which foreman will work on which project and the size of the crews. There are from four to nine working foremen with the company, depending on how much work there is. Their duties will be dealt with below, but we note here that they form a significant portion of the bargaining unit of 20 people.
Work was very slow in early 1995. Management made the decision that it was no longer able to keep its steady people on through advances and shop or office work, because it could not afford it. The periods during which it had done such things in the past had usually been a month or 6 weeks, and the down times were getting longer and longer. Mr. O'Hara testified that he knew there was work available, but the company wasn't getting it because their wage rates were not competitive. Although they were bidding on many jobs, their success rate was only about 3%, when they needed 20 to 25%.
This view of the availability of work was shared by Robert Juhasz, a part-time working foreman. Having done pre-bid inspection for the company, and not seeing himself or Covertite working on the jobs once the job closed, he concluded the problem was not lack of jobs. Talk among the employees about the problem of getting more work in early January, 1995, included talk of possible contract concessions, such as a ratio of pre-apprentices to roofers more favourable to the company, and other alternatives, such as working four days for three days' pay. The company was not happy with a contract restriction on the ratio of pre-apprentices to roofers, and made this known in late 1994 and possibly earlier to at least some of its employees.
On February 6, 1995, Mr. O'Hara met with the working foremen about how slow things were and were likely to remain. He was upset at losing a bid to non-union contractors, one which he had shaved to the minimum. Mr. O'Hara suggested to the assembled foremen that they had better go down and see what they could get from Local 47 - meaning if there was any relief from the collective agreement provisions. The men seemed agreeable to that suggestion, and several went to talk to Local 47 that morning.
When the working foremen met with Local 47 on February 6, they asked for a ratio of preapprentices more favourable to the company so the company could hire more workers at a lower wage rate. Ross Mitchell, Local 47 business representative, said he could not give more pre-apprentices, but when the men were laid off, they should go organize non-union companies. Mr. Mitchell also said they should do what they had to to survive, but if he got complaints he would have to look into it. At least one of the foremen took that to refer to a one to one ratio for pre-apprentices.
The same afternoon, February 6, 1995, the four owners of Covertite and the superintendent met with representatives of Local 47, including Ross Mitchell, the business agent. Mr. O'Hara said he was "trying to get through to them what had changed in five years" - compared to 1990, jobs three times the size carried one third the overhead. Mr. Mitchell told them '~Do what it takes to get a job", referring to the ratio of pre-apprentices to apprentices, if none of the men complains. He added that if there was a complaint from the men he would have to act on it. Mr. O'Hara had hoped that the meeting would give him something to work with in computing the labour rate for jobs six to eight months down the line on which they were bidding.
Mr. Juhasz was not satisfied with the union's solutions and decided to call CLAC, as he had heard about it in the Windsor area where he had previously worked. Material sent by CLAC shortly thereafter contained advice to the effect that if management was involved in an organizing campaign, it wouldn't go through. Mr. Juhasz discussed this with the other working foremen over coffee, telling them that if anyone wanted to kill the campaign, the thing was to say management had been involved. Further contact with CLAC resulted in further information, including information about terminating the bargaining rights of the current union. Mr. Juhasz discussed the CLAC material with working foremen and key men.
In early March, Mr. Juhasz was called by Local 47 to meet with Ross Mitchell, which he did on March 6th. Mr. Mitchell gave him to understand that the executive wanted him brought up on charges, presumably under the Union Constitution, for organizing for CLAC, and that in order to avoid that he needed a statement from Juhasz that he was not a CLAC supporter. Mr. Juhasz testified Mr. Mitchell asked him to put in that the company had motivated him to look into CLAC. Mr. Mitchell testified he merely asked him if there was company involvement, as he asks all his men. Mr. Juhasz wrote out a statement, indicating that the company was not behind his seeking an alternative, and saying he thought the CLAC issue was dead, as at the time, he thought that the others did not want to pursue CLAC, but wanted to work something out with Local 47. However, later that week, he was approached by another working foreman expressing interest in pursuing CLAC again, and he set up a meeting with a CLAC representative for Saturday, March 11th. This was eventually rescheduled for March 1 8th, as he was not able to get in touch with everyone for the first date.
In late February, Mr. O'Hara had told the estimators to work with a labour rate of $26 an hour when $31.50 is the rate they carry under the collective agreement. Even with this, they were only successful on one contract by the time he got back from vacation on March 13th. The company had previously cut all the overhead items they could think of, including selling vehicles, cutting out shop time,and cellular phones. Mr. O'Hara testified that they were running out of things to cut.
During this period Bruce Warner, one of the other Covertite owners, was participating in negotiating, on behalf of the employer association, the collective agreement to which Covertite is bound. Rumours were that the union would accept a wage rollback, and Mr. O'Hara wanted to pin down how much, as this would be very helpful in bidding. He was gambling on $5 to $8 hour rollback. He said he approached each of the working foremen individually to hear their idea of what they had heard from the union about rollbacks or a wage freeze. He wanted to talk to them individually so that he would get a clearer idea of what each thought without the influence of others' responses. On cross-examination, he said what he wanted to know was what the leaders would do, not what the men wanted. When asked if he bypassed the union and went directly to the workers, he said, "We chased all avenues. 'Mr. O'Hara said that he posed questions to each of the foremen with whom he met as to what they had heard through Local 47 about negotiations. The rollback rumours they had heard were for sheetmetal workers, but they had not heard what to expect for roofers. When asked if he or Mr. Warner posed questions to the men about CLAC, he said he did not believe so.
Robert Strenkowski is a part-time working foreman, who was supportive of Local 47, and did not respond favourably to Mr. Juhasz' initial invitations to meet with CLAC. Mr. Strenkowski met with Mr. O'Hara, Mr. Stocker and Mr. Warner on March 13th in the Boardroom. He said the first question, from Mr. Warner, was why he did not want to attend the meeting with CLAC. He gave his reasons. Mr. Warner did not testify. Mr. O'Hara said it was possible Mr. Strenkowski had been asked this and added he asked many of the men with whom he met "why wouldn't they keep an open ear to any suggestions out there that were legal". Mr. Strenkowski said this was about a week or two before the meeting he did attend with CLAC. We accept Mr. Strenkowski's evidence that he was asked why he would not meet with CLAC, and that he answered the question. Mr. Strenkowski says that Mr. O'Hara then asked him how much he made last year, presumably referring to the decline in business, and he said none of his business. Mr. O'Hara persisted and Mr. Warner told him to shut up about it. Mr. O'Hara denies asking this. Mr. Warner asked if another foreman than Rob arranged a meeting with CLAC, would he go, and he said he'd have to think about it. He also said that he was asked what the men expected from Local 47 and he told him they were asking for no raise for the first two years. Mr. Strenkowski says the mention of CLAC came up in the conversation considerably before the discussion about bargaining. Mr. Strenkowski said Mr. O'Hara had been after him about how much he made and the issue the of pre-apprentices ratio since the fall of 1994.
There was a meeting on Saturday March 18th between Derek Sebreiber for CLAC and 8 working foremen. There was a dispute in the evidence as to whether Mr. Juhasz had announced this on the company pager, as a foreman's meeting (Strenkowski's evidence) or whether it just said "important meeting" (Juhasz' testimony). In the end, it is unnecessary to resolve this detail. It is abundantly clear that the organizing drive was carried out initially through the working foremen and whether or not the pager was used in precisely the manner alleged is not ultimately of crucial importance here.
At the meeting on March 18th, the working foremen discussed what CLAC could do as compared to Local 47. The main item was that CLAC negotiates directly with the employers rather than province wide. No cards were signed that day. Mr. Strenkowski recalls that the thrust of the discussion was to the effect that foremen and roofers would keep their salary, but all the classifications beneath them would be eliminated to allow for cheaper labour. At one point in the discussion, the CLAC rep was asked to leave so the Covertite employees could discuss the matter among themselves. They wanted further information and decided to have another meeting which would include roofers other than the working foremen as well.
I 8. Mr. Strenkowski said that the following morning at coffee at the restaurant near the shop, there were managers and workers there and one question stuck out; how was the meeting on Saturday. It is unclear whether this question was asked on Monday, March 13th or the following Monday, March 20th, but Mr. Strenkowski's evidence was clear that it was asked. The company evidence was to the effect that it was possible it was asked, and Mr. O'Hara put the grouping referred to as on March 13th, the first day he was back from vacation. We accept that it was asked, and in the final analysis, nothing turns on which Monday it was asked. There had been a meeting scheduled for the Saturday before the 13th as well, and the inference that the company knew about a meeting on the Saturday is equally valid, regardless of which Monday it actually was. The evidence is not conclusive on whether there was a specific reference to CLAC. However, the evidence taken as a whole is convincing that there is no great barrier in terms of information flow between the working foremen and the managers. There is little doubt that the company knew that its men were meeting with CLAC. We have found above, for instance, that Mr. Strenkowski was asked about meeting with CLAC in the March 13th meeting with the three managers described above. In the context of this meeting, Mr. O'Hara was asked in reexamination who raised the subject of CLAC. His answer was that he had actually received a phone call from men on two occasions and he had told them he could not get involved, that if they wanted to discuss it further, they would have to talk to one of the other men in the company. He did not say when this was, but in context it appeared to be before the meeting with Mr. Strenkowski, and it generally supports the idea that Mr. O'Hara and managers were aware of the presence of CLAC.
The next meeting with CLAC took place on Sunday, March 26th at a soccer club with a CLAC representative, Derek Schreiber, the majority of the working foremen (seven out of the nine), and Covertite employees, about 20 to 21 in all. Working foremen were to tell their men about the meeting; Mr. Juhasz did not personally inform the men, so he did not know if the working foremen had excluded anyone. Fourteen people signed CLAC cards that day. They did not apply for certification that day as it was not a working day. Mr. Strenkowski was not informed of this meeting and did not know what went on at it. He had spoken up against CLAC at the earlier meeting, had expected to be informed of the next meeting and was clearly dismayed that he had not been.
On March 22nd, the provincial negotiating teams had reached a tentative settlement, which did not include Covertite's hoped for improvement in the ratio of pre-apprentices to roofers.
On April 12th, there was a mandatory ratification vote for the roofers' collective agreement. Mr. Juhasz testified that at the ratification meeting, roofers were asked to sign papers pledging allegiance back to Local 47 and only after they signed did they get a ballot. Mr. Juhasz explained to some Covertite employees that it did not matter if they re-signed, that there would be a vote in any event. He said he supposed one could have refused if one wanted to with 500 roofers around you. And he did not watch every person to see if anyone who did not sign was allowed in. Mr. Mitchell testified not everyone signed, and that he gave out the cards because he had heard that CLAC was around talking to roofing companies.
Robert Beauchamp testified that his foreman, Ed Beckett, was at the ratification meeting, as were all the other working foreman and most of the roofers. Mr. Beckett talked to Mr. Beauchamp and Mr. Thibeault that night in support of CLAC. To Mr. Beauchamp, he said it would be better to have another union, to get a cheaper labour rate which would lead to more work. Mr. Beauchamp took this other union to be CLAC. Mr. Beckett talked to him about CLAC on ajob site in Hawkesbury as well, where he made the same points to the effect that there would more work if there was a cheaper labour rate.
The company was successful in getting a job in Hawkesbury for April, but only after carrying $20 a day as the room and board rate in the bid, rather than the $54 a day provided in the collective agreement. Mr. O'Hara had to decide what crew to give the work to, a decision he makes depending on what roofing system is involved and the skill of the foreman and the crew. He spoke to foreman Ed Beckett before the two others who would be on his crew, to tell him there was only one other job on the books, being a roofing system that Beckett and his crew knew nothing about. He said he was trying to work him into this last job, but wanted to talk to his two main men, Jacques Thibeault and Bob Beauchamp before assigning it.
Mr. O'Hara said it was standard to talk to the men before ajob about the room and board he carried, although other witnesses said it was more unusual to have him meet with the workers; usually it was Mr. O'Hara and the foreman who met. In any event, Mr. Beckett, and his two men, Mr. Beauchamp and Mr. Thibeault, met with Mr. O'Hara on April 17th. There is significant variation in the three accounts we heard of this meeting (from O'Hara, Beauchamp and Thibeault). However, there is also substantial common ground. No one had perfect recollection of the events, and it is clear that there was overlap in the subjects covered in this conversation and one that occurred a week later, causing understandable confusion when the witnesses tried to recount the facts several months later. It is not necessary to resolve all the disputed testimony. The important points have to do with whether or not the men were told at the meeting that there was further work for them after the Hawkesbury job and whether CLAC was discussed.
There was also considerable testimony suggesting that the employer was making various arrangements regarding pay with individuals outside of the parameters of the collective agreement. In the end, it is not necessary to deal with that as an issue in this case, and thus, much of that evidence has been omitted. The evidence was referred to in argument only to demonstrate that Ed Beckett, the foreman in question, was taking the side of management in the discussion.
As to the conversation on April 17th, we have balanced the various accounts and we have concluded that the men had been told there was a possibility of future work, and that the foreman said in Mr. O'Hara's presence that they would be better off with another union. Both of these subjects were in the context of Mr. O'Hara's discussions of how "tight" the job was, and that in the past it had gone non-union. We have concluded that Mr. O'Hara made no guarantee of future work, and may well have said that the Hawkesbury job was the last one on the books for that crew. However, we have also concluded from all the testimony, that O'Hara did mention the possibility of an 800 square foot job elsewhere after Hawkesbury.
Mr. Thibeault recalls that Mr. O'Hara talked about wages saying the job was pretty tight and that he could not afford regular wages according to Local 47 rates. Mr. Thibeault says Mr. O'Hara said if they worked with another union or non-union, that could bring the wages down. He thought he meant CLAC because he had heard it discussed at the ratification meeting.
When asked about the allegation that he had made reference to the other union in the meeting on April 17th, Mr. O'Hara said he was referring to a Quebec union that had asked for $20 a day on a job in Lachute which was 15 minutes further away than the Hawkesbury job, to show that another union thought $20 a day tbr ajob even further away was fair. In cross-examination, he said that he just used the Quebec union as a comparator, that $20 is his interpretation of the collective agreement. He considers there to be a grey area in the collective agreement in respect of room and board in circumstances such as these. When asked why he would need to speak to Mr. Beckett first, if it was what the collective agreement provided, he said that he did not want them going down there thinking they were getting $54 and then get $20. Mr. Beauchamp does not remember anything about the Quebec union in this conversation.
Mr. Beauchamp said Mr. O'Hara said the job was in the hole before they started. On cross-examination by CLAC's representative, he said it was in this context that CLAC came up - that they would be better off with another union; more labour at cheaper rates being equated with more work. He was not sure whether it was Mr. Beckett or Mr. O'Hara who brought it up. Beauchamp says that Beckett talked about CLAC at this meeting and said that they would be better off with this union because the rate for labour was cheaper than the Local 47 rate, thus it would lead to more work. He said Mr. O'Hara and Mr. Beckett were agreeing with everything each other said. When pressed on cross by employer counsel, Mr. Thibeault said that CLAC was not mentioned on the 18th, just on the 25th in Hawkesbury.
Mr. Beauchamp said that Mr. O'Hara spoke about a $7 student rate at this meeting and that there was no chance he was confusing this meeting with the exchange on the roof at Hawkesbury, about which more will be said below. Mr. O'Hara denies he made any reference to the student classification during this conversation. As well he denied saying that the company would have to change unions because they needed the cheaper rate of $7 an hour. He says the first time he ever saw anything about another union was when he went to Hawkesbury (April 25) and read the literature that Local 47 had handed out. Mr. Thibeault says he recalls no reference to a student rate, just cheaper labourers.
Mr. Beckctt did not testify, and Mr. O'Hara did not contradict the evidence of Messrs. Beauchamp and Thibeault about the role of Mr. Beckett in the conversation on April 17th. Although their evidence about Mr. Beckett's interventions in the conversation was not put to Mr. O'Hara in cross-examination, Mr. Beauchamp and Mr. Thibeault were challenged on the portion of the testimony related to Mr. Beckett in cross-examination and Mr. Beauchamp remained firm in his recollection that Mr. Beckett had raised the matter of the other union at the meeting on the 17th. Mr. Thibeault, however, conceded that the name CLAC had not been mentioned on the 17th. Neither Mr. Beckett nor Mr. O'Hara was called in reply to contradict Mr. Beauchamp. Thus, we accept that Mr. Beckett mentioned being better off with another union at the meeting with Mr. O'Hara and generally agreed with what Mr. O'Hara said throughout the conversation. There is no suggestion that Mr. O'Hara was absent for any portion of the conversation. However, on balance, we find that it is likely that CLAC was not specifically mentioned on the 17th, given that both Mr. O'Hara and Mr. Thibeault agree on that detail, and Mr. Beauchamp did not insist that CLAC's names was mentioned, saying that he understood that to be what Mr. Beckett meant by the other union.
Whether or not Mr. O'Hara specifically referred to CLAC or another union in a context that was a clear reference to CLAC, as we have found Mr. Beckett did in his presence, is not necessary to decide. However, the evidence taken as a whole ts convincing that for months Mr. O'Hara had been speaking to his men to convince them to do something to get the labour rate down. Mr. Beckett had made the connection explicit between CLAC and getting the labour rate down as early as March 22nd.
Even if he did not use the name CLAC on April 17th, the reference was unmistakable in context. Whether or not Mr. O'Hara himself said anything about CLAC at the meeting of April 17th is not particularly important because he did so explicitly a week later, as will be discussed below. It would add to the union's case if Mr. O'Hara's intervention on April 17th were to be seen as explicitly favouring CLAC, since that was before Mr. Beauchamp signed a CLAC card on April 18th, and Mr. O'Hara's intervention on the roof was after his signing. However, numerically, it does not make any difference. Fourteen of the eighteen cards submitted by CLAC were signed well before this alleged intervention, and are sufficient to establish the forty-percent of the twenty member bargaining unit necessary to obtain a vote, (leaving aside for the moment the issue of the role of the foremen in obtaining the cards).
After the soccer club meeting Mr. Juhasz continued to try to get others to sign for CLAC on his own time. The evidence indicates some of it was on the signatories' working time. For example, the uncontradicted evidence of Jacques Thibeault and Bob Beauchamp was that they were asked to sign cards when they were working at Hawkesbury on April I 8th. Mr. Beauchamp says he was approached to sign with CLAC by Mr. Juhasz and did because everyone else signed on the roof. His foreman was Ed Beckett, who was known to support CLAC. Mr. Beauchamp said if you want to work you "go with" the working foreman; you'd better agree with him or you won't get any work. Mr. Juhasz had gone to Hawkesbury on April 1 8th to deliver a generator, and agreed that he stayed for an hour talking to people about CLAC, but said he did not get paid for that hour. He was paid for the time to get there and back but not for the time in between. Five cards bear the date of April 18th.
On Monday, April 24th, representatives of Local 47 attended at the Hawkesbury job site to ask the men to sign reaffirmations of supports Estimates of how long they were there ranged from twenty to forty-five minutes. Mr. Juhasz said it affected morale a lot; the men seemed confused and did not believe him anymore about CLAC, and some did not want to talk about it anymore. Others were happy they were there. Foreman Beckett complained to Mr. Beauchamp about their presence, asked him what they were doing there and said they should be thrown off the job site. Mr. Beauchamp told him they were probably there to get people to rejoin Local 47. Mr. Beckett said basically they had already signed with CLAC and that Local 47 had no business disturbing the guys.
The following day, Tuesday, April 25th, Mr. O'Hara went to the Hawkesbury site late in the afternoon to see how the job was going. It was suggested that he already knew from foreman Beckett that men had re-signed with Local 47 when he arrived, but the evidence does not establish that. When he got to the roof, Mr. O'Hara says he was shocked that not much work had gone on in two days. He went to the foreman, Mr. Beckett, looking for an explanation. Mr. O'Hara testified that Mr. Beckett told him the union had been there for a couple of hours the day before and took the whole morale down. He added that the union had passed out some literature, which he gave to Mr. O'Hara.
Mr. O'Hara sat down and read the material and became quite angry, as he did not believe the union was being truthful with his men, some of whom are close friends. The points that struck him related to the suggestion that there was ~~no work out there", which he considered to be untrue, as he saw four of five tenders going out of the office each day. To his mind, there was lots of work; it was just that Covertite wasn't getting it. The other point that offended him was a suggestion that the company was making a lot of money at the roofers' expense. This upset him, since he said the company was making very little.
Although there are important discrepancies in the accounts of the conversations on the roof that day, again there is also important common ground. Mr. O'Hara testified that Mr. Beckett told him that the union had gotten the men to sign something. It is clear from hi~ own testimony and that of Messrs. Beauchamp. Thibeault and Gravelle, that Mr. O'Hara then went around the site asking them, and Mr. Beckett, if they had signed something and/or what they had signed the day before. Mr. O'Hara maintained that what he was worried about was whether they had signed a grievance about the room and board rate he was paying on that site. While that may also be true, it would have been clear from the material he read from Local 47, and the responses that the men gave him, that what had been signed was not a grievance. The written material he was given to read is about one subject only: stopping the potential loss of support to CLAC. It urges the men to reject CLAC, and in two different places asks them to sign a re-affirmation of their desire to be represented by Local 47. In this context, if Mr. O'Hara truly did not know by the time he left, as he testified, what the men had signed, it was because he was in a highly excited state.
The Local 47 material, as part of its attempt to persuade the workers to stay with them and reject CLAC, sets out provisions from CLAC collective agreements. One that caught Mr. O'Hara's attention was the $7 rate for students. Mr. O'Hara acknowledges he said, "Do you know how much work we could get" with those rates. One other thing he recalls saying is "According to this you could tell me you want $35 an hour," referring to the fact that the CLAC agreement was with a specific company, rather than a provincial agreement.
The point that is more controversial is whether Mr. O'Hara linked the signing to whether or not there would be any more work for that crew or individual members of it. When union counsel asked Mr. O'Hara if it was true that it was after Mr. Beauchamp and Mr. Thibeault told him what they signed that he said it was their last job, he said "No," but added that he did make them aware that there was not another job at that point. We have weighed this testimony together with that of Messrs. Beauchamp and Thibeault to the effect that there was a direct link between the two. Our conclusion is that Mr. O'Hara made it very clear that there would be less work if they stayed with Local 47 and more work if they went with CLAC, and that he preferred the idea of CLAC because of the low student labour rates. Mr. O'Hara, by all accounts, and as he appeared in the witness stand, is a voluble, excitable, and loquacious individual. He tends to make his points at length, and with emphasis. Taking only Mr. O'Hara's evidence, it is clear that he communicated to the men on the roof anger at Local 47, a preference for CLAC's rates and the idea that there was no more work, all in the same short conversation.
The evidence of Messrs. Beauchamp and Thibeault did not square on every detail, nor do they have total recall of the events, but their evidence was persuasive that Mr. O'Hara made it very clear that staying with Local 47 would have a negative effect on how much work they got in the future. Both Mr. Beauchamp and Mr. Thibeault recall for example that Mr. O'Hara linked staying with Local 47 with having to go work in Quebec, which for both of them was tantamount to no work, because they do not have the appropriate papers to work in Quebec. Mr. Thibeault testified that when Beauchamp told O'Hara he signed with Local 47, Mr. O'Hara said, quite upset, "That was a bad move.", and that if they still wanted to work, the only way was to go with CLAC. David Gravelle, the pot man, said that Mr. O'Hara told him it was his last day, without specifically linking it to the fact that he had told him he re-signed with Local 47. However, Mr. Gravelle concluded that was the reason.
There were various parts of the conversation which make the linkage between staying with Local 47 and less work less stark than might otherwise have been the case. For instance, we accept that Mr. O'Hara told Messrs. Beauchamp and Thibeault that if they stayed with Local 47, they would have to bring a pre-apprentice to work. This would be meaningless if they were never to have any more work. And this was not Mr. Beauchamp's last day working for Covertite; he was transferred to another job, and then came and worked on the Hawkesbury job again. Employer counsel also suggested that what was going on was a discussion of the pros and cons of CLAC and Local 47, and Mr. Thibeault agreed. As well, it was suggested that given that the workers did not lose their jobs after this, that they would have concluded that Mr. O'Hara was just blowing off steam. It is clear that the men knew Mr. O'Hara fairly well, and there may well have been some element of discounting what Mr. O'Hara said because of his known personality. And although some of the men agreed that Mr. O'Hara might also have been upset that Local 47 had slowed down the job the day before, it was clear from all the evidence, that that was not the main event. Mr. O'Hara himself acknowledged that he was angry at what Local 47 distributed, as well as the progress of the job, and the possibility of a grievance about room and board.
In the end, the basic nature of the conversation is clear, and mostly common ground. Mr. O'Hara was upset about what Local 47 was saying to his men, he communicated his preference for CLAC wages and pointed out at the same time that this was the last job for the crew. Even if part of the recollection of Messrs. Beauchamp and Thibeault can be attributed to interpretation, rather than the precise words Mr. O'Hara used, the substance is admitted, and does not require a finding of exactly what words were used. In the end, there is not a different legal effect depending on whether Mr. O'Hara made the connection absolutely explicit, as in the version of Messrs. Beauchamp and Thibeault, or only obvious albeit indirect, as in his own. CLAC meant more work for them; Local 47 meant less.
There was also questioning of Mr. Thibeault which amounted to a suggestion that he had breached the exclusion order. Mr. Thibeault was reluctant to acknowledge that there had been a conversation in the hall, during a break in his cross-examination, involving Mr. Beauchamp and Mr. Juhasz. At a time after Mr. Beauchamp had finished his testimony, and in the presence of Mr. Juhasz, Mr. Beauchamp asked Mr. Thibeault what kind of roof they had put on in Hawkesbury. This was a matter that had arisen in Mr. Beauchamp's cross-examination. Mr. Thibeault said he did not remember, and Mr. Juhasz supplied the answer. There was a suggestion that Mr. Thibeault had indicated to Mr. Juhasz that there had been a separate conversation between Messrs. Beauchamp and Thibeault. However, Mr. Thibeault denied this, and Mr. Juhasz was not called to contradict this. In the circumstances, we do not find event this grounds to disregard Mr. Thibeault's evidence. Most of his evidence is in any event corroborated by others. This was a conversation in a public area, in the presence of someone, Mr. Juhasz, that both Messrs. Thibeault and Beauchamp knew was appearing with "the other side". Mr. Thibeault did not answer the question, and whether or not it was improper for Mr. Beauchamp to ask it in view of the exclusion order, it was after he had testified and was not something that went to the heart of the evidence or his or Mr. Thibeault's credibility, although it was relevant to it. As well it is not clear to us that it is the kind of area that Mr. Beauchamp would have known could infringe the exclusion order. Although the matter is of concern, and it is something we have taken into account, it does not change our findings of fact.
The morning following his visit to Hawkesbury, April 26, 1995, Mr. O'Hara went to get coffee at the coffee shop, and Robert Strenkowski, a part-time working foreman and another roofer were there. After chatting about other things for a bit, Mr. O'Hara asked them if they had seen the material handed out on one of the sites the day before. He asked their opinion, but neither offered one. So Mr. O'Hara gave them his. He told them he thought it was an unfair piece of literature, referred to the tenders they were pumping out, as contrasted to the idea in the literature that there was no work, and to all the cuts they had made in reference to the idea in the literature that all the company wanted was to make money. He also remembers something about the $7 an hour. He gave his opinion of why the company wasn't getting work, including the presence of 3 companies from the Quebec side ~'stealing work on the Ontario side", because they were not bound to the collective agreement - a problem that didn't exist a few years previous. He also mentioned rumours of cash deals with people working for competitors while they collected Unemployment Insurance, and the fact that analyzing the jobs they did not get, he could see he would have to cut the labour rate in half, which is impossible. Mr. O'Hara put this in the context of the fact that these two men are his "close buddies", with whom he has been through a lot. He told them that at $32 an hour, they were simply too expensive for him to send to the Hawkesbury job. He also let them know that there was a policy that foremen were not going to be jumping onto other crews anymore. Since he felt for them however, as they were each in a difficult financial situation, he told them if they could get a pre-apprentice to bring along with them at $12 an hour, it would bring the average hourly rate down to where he felt he could send them. He told them he would worry about the other crews who were not working later. The only significant difference between Mr. O'Hara's version of this and Mr. Strenkowski's is that the latter is definite that Mr. O'Hara asked if he re-signed with Local 47 and he said yes, while Mr. O'Hara says it was merely possible, and that he did not know why he would be asking Mr. Strenkowski that when he had not been on the site where he was worried about the grievance about room and board.
In general, Mr. O'Hara denies saying on numerous occasions that the union had done nothing for the roofers and was robbing them. Further he said he was neutral on which union all the way through the campaign. He said he would be quite content to have Sheetmetal, with concessions. The evidence is also clear that he knew after the settlement of March 22nd that the employer side had not gained the concessions he had hoped for from Local 47.
The union's case includes the assertion that the working foremen had such significant control over the lives of the other roofers that their participation in the CLAC organizing campaign means that neither the cards nor the vote are reliable indicators of the true wishes of the employees. In his evidence, Mr. Juhasz acknowledged that he relied fairly heavily on the working foremen to get CLAC in.
The evidence about the duties of the foremen was not in dispute, with the exception of some minor details. They perform duties typical of working foremen in the construction industry, both heading up crews and working on the tools. Management relies on them to know what is going on on the work sites and meets with them regularly to this end.
Crews working under a foremen vary in size, usually from two to ten. The crews are usually filled from the men with experience with Covertite, often through the foremen. If the foremen is short he will contact Mr. O'Hara or the other superintendent who will fill in the spots from other crews if possible, or authorize contacting the union for more roofers. Although they do not have the power to hire without consulting management, it is clear that the working foremen have significant input as to whether a person is hired or continued after a lay-off. It was agreed that on occasion the working foreman with the prior approval of the superintendent is authorized to call the union ball to select workers off the list.
Management has the right to overrule recommendations from its foremen. Only members of management, and not working foremen, have authority to discharge workers, except in the case of substance abuse or repetitive safety violations. In the latter circumstance, a foreman has the authority to dismiss, and Mr. Strenkowski said he once fired someone who had threatened his life. If someone is not working out, the foreman alerts the office, who decides on what is going to happen as a result.
The roofing industry has slow periods and periods when no one works. The regulars are recalled in May or June. Once the working foreman is recalled, management and the foreman will work together to recall his crew. In slow periods, foremen may work on the crew of another foreman or be assigned to other tasks in the office or repairing equipment.
Foremen have limited purchasing authority, essentially what is necessary to keep a job going; there is a nominal limit of $100, which is not always followed.
The representation vote was held on May 23, 1995. Neither Mr. Thibeault nor Mr. Beau-champ voted.
With the above factual context, we turn to the assessment of the facts in light of the parties' arguments. Generally, the applicant and the employer take the position that nothing illegal took place and that the results of the vote should determine the representation application. In the alternative, it is argued that if a violation of the Act is found, sufficient time occurred between the violation and the vote that a secret ballot vote is still a reliable indication of the wishes of the employees. The intervenor, Local 47, on the other hand, argues that the above facts show clear employer support for the CLAC application, and undue influence by the working foremen.
There are potentially three layers of inquiry prompted by the above facts. First, was there employer support such that the Board may not certify the applicant pursuant to section 15 [formerly section 13] of the Act? If the answer to that is yes, it is unnecessary for the determination of the certification application to answer the second and third questions: did the participation of the working foremen in the organizing campaign mean that the true wishes of the employees are not ascertained from either the membership cards or the vote results? And, thirdly, were there any breaches of the Act, and if so, how should they be remedied?
Section 15
- Section 15 [formerly section 13 of the Act] provides as follows:
- The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of any ground of discrimination prohibited by the Unman Rights Code or the Canadian Charter of Rights and Freedoms.
The Board has made it clear in its jurisprudence that the purpose of section 15 is to preserve the arm's length relationship between unions and employers which is fundamental to the structure of the Act. A purposive, rather than literal, application of the section has found favour in the Board's jurisprudence, and is in our view the appropriate approach. Thus, not everything that an employer does that might be said to be supportive of an organizing campaign is sufficient to warrant the application of section 15. It is activity which is of a character or proportion such that it is reasonable to infer that employees have not exercised a free choice in the matter of the selection of a bargaining agent. See, for example, Edwards v. Edwards, (1952), 52 CLLC ¶17,027 and Ontario Hydro, [1989] OLRB Rep. Feb. 185 and University of Toronto, [1988] OLRB Rep. March 325. The purposive interpretation has meant that the provision of a list of employees to a union in an organizing drive by the employer contravened section 13 [now 15] in Tri-Can, [1981] OLRB Rep. Oct. 1509 but not in Continuous Mining, [1990] OLRB Rep. April 404, because in the former the trade union applicant had been formed to thwart another union's organizing attempts, while the applicant in the latter had a long history of arm's length collective bargaining with the parent of the employer.
Here, there is no evidence that when Mr. Juhasz contacted CLAC he was doing so on the initiative of the employer, or in collusion with the employer. The evidence is that Mr. Juhasz knew of CLAC from his own experience, and independently decided that an alternative to Local 47 was necessary. Subsequent to that, it is clear that the employer welcomed the idea. There was some suggestion in the employer's argument that management was not sure that CLAC would be good for the company, because the experienced roofers might be able to demand more than the rates in the provincial agreement. Whether or not any such reservations were operative, it is clear from the evidence that they were dwarfed by the prospect of lower labour rates which would average down the wages of the skilled roofers.
The first expression of the fact that the employer welcomed the idea of the CLAC campaign in evidence was the questioning of Mr. Strenkowski by Mr. Warner as to why he did not want to meet with CLAC, and whether he would be more interested if someone other than Mr. Juhasz organized a meeting. About six weeks later, Mr. O'Hara's intervention on the roof in Hawkesbury indicated clear support for the CLAC rates and linked them to a reversal of the dismal trend in getting contracts. It was argued that neither of these interventions was intimidatory, when seen in context. The employer argued that the lengthy, wide ranging conversation that the three managers had with Mr. Strenkowski is not indicative of his being intimidated to abandon support for Local 47 and support CLAC, when viewed in context. As to the conversation with Mr. O'Hara on the roof, employer counsel characterized this as a discussion of the pros and cons of Local 47 and CLAC, rather than intimidation. It is not necessary for the consideration of the application of section 15 to decide whether or not these interventions were actually intimidatory. Employer participation or contribution of support does not need to be intimidatory to attract the application of section 15. And it does not have to focus on punishing people for supporting the less-favoured union. Support can be given, as many of the cases show, by encouraging one side over the other.
Counsel for the employer also argued that the evidence does not show that the employer was trying to illegally interfere in the CLAC campaign. The intention necessary does not need to be a specific intention to do something illegal. And Mr. O'Hara appears, for instance, to have wished to stay on the right side of the law when he suggested to his men that they keep an ear out for any options that were legal. However, it is clear from the evidence that both Messrs. Warner and O'Hara intended to communicate to their employees, both at the foreman level (e.g. the conversation with Mr. Strenkowski), and below (the conversation with Messrs. Beauchamp and Thibeault in Hawkesbury) that CLAC would be good for them and the company and that Local 47 was not.
Both the employer and CLAC argued that the company's behaviour should not affect the results of the vote taken in this matter. It is clear that there are more obvious cases in the jurisprudence. For instance in Coons Heating & Sheet Metal Limited, [1978] OLRB Rep. June 525, the employer went looking for a union to organize his workers and gave his employees a union representative's business card and assisted in informing employees of a union meeting. Here, we have found that there is no evidence that the initiative for the CLAC campaign came from the employer. See also Kinetic Construction Ltd. and Local #1 CISIWU and Victoria Labour Council, unreported decision of the British Columbia Industrial Relations Council, No. C45/92, Case No. 6815, dated March 19, 1992. In that case an employer representative had been explicit that an application by CISIWU rather than the Carpenters would be unopposed, a more specific and overt message than here. Even if the support here is not as extensive or as overt as in some of the cases, it is our finding that it was clear and significant, and does qualify as "other support in the terms of section 13.
What took place here was a clear expression by the employer of desire to have CLAC, rather than Local 47, represent its employees. It took place in a context where the employer had been emphasizing its precarious financial situation for months. Wage rates were a constant theme coming from Mr. O'Hara in particular; he had made it very clear to his men in a number of ways that the collective agreement rates were not in his view viable. Whether or not that message itself may be seen as simply being truthful in bad times, as employer counsel characterized it, it was put in another light in the context of the CLAC campaign. In the Board's view, when the message extended to specific support for another bargaining representative, the line set by section 15 was crossed. That is, "other support" has been provided in a manner in which the Board cannot be satisfied that the employees were freely, for their own reasons, choosing CLAC over Local 47, rather than simply respecting their employer's preference. The context of the "unaffordability" of the Local 47 wages, gave a specifically sharp and persuasive focus to the employer's expression of support for CLAC. The combination of circumstances amounts to pressure to vote for CLAC.
Employer counsel also underlined that the upshot of the employer's first overtures to its workers was a meeting with Local 47. While this is true, it is also clear that the employer did not receive the assurances it was looking for from Local 47. It is significant in our view, that the meeting with Mr. Strenkowski in which he was questioned as to why he would not meet with CLAC occurred within a week after Mr. Mitchell had told Covertite that he could not provide the concession on preapprentices that they were looking for. His communication to the effect that he would turn a blind eye as long as no one complained could not have been of significant comfort to the company. As well, Mr. O'Hara's intervention on the roof in Hawkesbury came after the new provincial settlement had been made without the concessions the company had sought. Local 47 was acceptable to Mr. O'Hara with concessions. When those concessions were no longer available for the life of the new collective agreement, there is no evidence that Local 47 was any longer acceptable to him. Certainly, the message he gave to his employees was that it was an obstacle to the company's viability.
It was also argued on behalf of CLAC that even if we found employer support, we should look to Crosvle Electric, [1982] OLRB Rep. Oct. 1458, as a case where a representation vote was held, even in the face of employer support. The significant difference between this case and Crowle Electric is that the support shown by the employer in that case was for the incumbent, rather than the union applying to be certified. If the vote went for the incumbent in Crowle Electric, the Board would not be in the position of certifying a union in contravention of section IS. Rather, the result would be the dismissal of the application by the other union. We are not of the view that the option available in Crosvle Electric is available on the facts of this case. The main basis for ordering a vote expressed in the Board's reasons was the fact that an incumbent is presumed to have majority support while it holds bargaining rights. That presumption obviously is inapplicable to CLAC which is not the incumbent in this case.
It was argued on behalf of CLAC that it was not palatable to have this application dismissed and have to wait until the next open period when it had done nothing wrong. The application of section 15 is not reserved for cases of collusion between a union and the employer, although they may be the cases that cry out most strongly for intervention. The fact that the applicant did not collude with the company is something we have taken into account. Nonetheless, the actions of the company have in our view lent such support to the CLAC campaign that we are of the view that section 1 5 applies. The result is one mandated by the Act in such circumstances; it is not a penalty to CLAC. It is one of the ways the statute attempts to preserve the right of employees to freely choose their own bargaining representative.
In the circumstances, and further to section 15 of the Act, the Board is unable to certify the applicant, and the application for certification is dismissed.
Given the above conclusions, it is not necessary to decide the effect of the role of the working foremen in the organizing campaign, and whether that alone, or together with the employer's activity, would have caused the Board to dismiss the application or hold a new vote. We are not of the view that it would be of any significant assistance to the parties for the future either, because the circumstances of any new application by CLAC would have to be judged afresh. Suffice it to note that organizing through working foremen in a certification campaign will always bear the risks of garnering support which is the result of alleged or actual undue influence, rather than the clearly voluntary wishes of the employees supervised.
There remains the matter of the complaints of unfair labour practice relating to interfering with the administration of Local 47 and intimidatory conduct. We note the fact that the unfair labour practice complaints filed by Local 47 were in response to CLAC's certification application, and were specifically aimed at findings related to the membership evidence collected and the vote that was held in that application. In the circumstances of the dismissal of the application for certification, and in the exercise of our discretion, we decline to inquire further into those complaints. Neutrality must be the watchword for an employer in circumstances such as those before the Board; the employees are to be allowed their own free choice in matters related to the choice of the bargaining agent. We are of the view that the decision on the section 15 issue is sufficient to reinforce those basic principles, and that a decision on the other matters is not necessary in the result.