[1996] OLRB REP. JANUARY 4
0215-95-R; 0236-95-R Kevin Smith and Clifford Wilkinson, Applicants v. International Union of Operating Engineers, Local 793, Responding Party v. Elirpa Construction and Materials Limited, Intervenor
BEFORE: Lee Shouldice, Vice-Chair.
APPEARANCES: Martin Z. Rosenbaum for the applicants; Bernard Fishbein for the responding party; Richard Anstruther for the intervenor.
DECISION OF THE BOARD; January 24, 1996
I. Introduction
1These are two applications for a declaration terminating bargaining rights in the construction industry. Board File 0215-95-R relates to an application filed with the Board on April 18, 1995 in which the applicants ask the Board, pursuant to what was then section 58(1) of the Labour Relations Act (hereinafter "the old Act"), to declare that the responding party (hereinafter referred to as "Local 793") no longer represents the employees in the bargaining unit for which it is the bargaining agent. Pursuant to a certificate issued by the Board on January 31, 1986, Local 793 represents the employees of the intervenor (hereinafter referred to as "the employer") in all sectors of the construction industry, save and except the I.C.I. sector, in Board Area 8. The application in Board File 0215-95-R relates to the roads sector of the construction industry. Local 793 has never concluded a collective agreement with the employer with respect to this sector of the construction industry.
2Board File 0236-95-R relates to an application filed with the Board on April 19, 1995 in which the applicants ask the Board, pursuant to section 58(2) of the old Act, to declare that Local 793 no longer represents the employees in the bargaining unit for which it is the bargaining agent. This particular application relates to the sewers and watermain sector of the construction industry. As a result of an accreditation order of the Board (see Metropolitan Toronto Sewer and Watermain Contractors Association, [1989] OLRB Rep. Dec. 1226), the employer is bound to a collective agreement negotiated between the Metropolitan Toronto Sewer and Watermain Contractors Association and Local 793, effective August 4, 1992 until April 30, 1995. The collective agreement in question has as its geographic ambit Board Area 8, and the County of Simcoe, which is part of Board Area 18.
3These two matters came on for hearing before this panel of the Board on October 17, 1995. At that time, certain preliminary matters were dealt with and the applicants proceeded to call their evidence in support of the applications. In both Board files, Local 793 asserts that the applications were not voluntary, and takes the position that the applicants are required to establish their voluntariness before the Board can grant the declarations requested. When provided with an opportunity to particularize its allegations of involuntariness, counsel for Local 793 conceded that the union had no evidence of any improprieties committed by the applicants or the employer. In Board file 0236-95-R, Local 793 asserts that all four of the individuals on the list of employees are not properly on that list, on the basis of the Board's decision in April Waterproofing Ltd., [1980] OLRB Rep. Nov. 1577.
4On the first day of hearing, counsel for the applicants completed the examination-in-chief of Mr. Kevin Smith, one of the applicants. Counsel for Local 793 was to cross-examine Mr. Smith when this matter resumed on November 20 and 21, 1995. However, on November 10, 1995, the Labour Relations and Employment Statute Law Amendment Act (S.O. 1995, c.1) was given Royal Assent. Amongst other things, this legislation (hereinafter referred to as "Bill 7") repeals the old Act and enacts the Labour Relations Act, 1995 (hereinafter referred to as the "Act") in its stead. At the outset of the resumption of the hearing on November 20, 1995, some discussion ensued regarding the effect of the Bill 7 amendments on how the parties should proceed on these matters. The parties agreed to argue two particular points affecting these proceedings: first, whether the effect of the Bill 7 amendments is to eliminate the need for applicants in termination applications to establish the voluntariness of the petition documents filed with the Board (and, as a corollary to that issue, whether the onus and/or burden of proof respecting allegations of employer initiation of the application or threats, coercion or intimidation in connection with the application lies on the applicant or the union in a termination application). Secondly, the parties addressed the issue of whether the Board's jurisprudence reflected by the April Waterproofing Ltd. decision is in any way altered or affected by Bill 7.
II. Relevant Statutory Provisions
5The pertinent provisions of the old Act referred to during argument are the following:
58.- (1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 62, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 62, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;
(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be;
(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.
(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at the time that is determined under clause 105(2)(j.1) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
(4) If on the taking of the representation vote more than 50 per cent of the ballots cast are cast in opposition to the trade union, the Board shall declare that the trade union that was certified or that was or is a party to the collective agreement, as the case may be, no longer represents the employees in the bargaining unit.
(5) Upon an application under subsection (1) or (2), where the trade union concerned informs the Board that it does not desire to continue to represent the employees in the bargaining unit, the Board may declare that the trade union no longer represents the employees in the bargaining unit.
(6) Upon the Board making a declaration under subsection (4) or (5), any collective agreement in operation between the trade union and the employer that is binding upon the employees in the bargaining unit ceases to operate forthwith.
6Similarly, the pertinent provisions of Bill 7 and the Act referred to in argument are the following:
(2) A proceeding continuing after the new Act comes into force shall be decided as if the new Act had been in force at all material times. The presiding person or body shall apply the substantive provisions of the new Act as well as the procedural rules established under it.
(1) If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 67, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 67, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation;
(b) in the case of a collective agreement for a term of more than three years, only after the commencement of the 35th month of its operation and before the commencement of the 37th month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation, as the case may be;
(c) in the case of a collective agreement referred to in clause (a) or (b) that provides that it will continue to operate for any further term or successive terms of either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or to the making of a new agreement, only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation, as the case may be.
(3) The applicant shall deliver a copy of the application to the employer and the trade union by such time as is required under the rules made by the Board and, if there is no rule, not later than the day on which the application is filed with the Board.
(4) The application filed with the Board shall be accompanied by a list of the names of the employees in the bargaining unit who have expressed a wish not to be represented by the trade union and evidence of the wishes of those employees, but the applicant shall not give this information to the employer or trade union.
(5) If the Board determines that 40 per cent or more of the employees in the bargaining unit appear to have expressed a wish not to be represented by the trade union at the time the application was filed, the Board shall direct that a representation vote be taken among the employees in the bargaining unit.
(6) The number of employees in the bargaining unit who appear to have expressed a wish not to be represented by the trade union shall be determined with reference only to the information provided in the application and the accompanying information provided under subsection (4).
(7) The Board may consider such information as it considers appropriate to determine the number of employees in the bargaining unit.
(8) The Board shall not hold a hearing when making a decision under subsection (5).
(9) Unless the Board directs otherwise, the representation vote shall be held within five days (excluding Saturdays, Sundays and holidays) after the day on which the application is filed with the Board.
(10) The representation vote shall be by ballots cast in such a manner that individuals expressing their choice cannot be identified with the choice made.
(11) The Board may direct that one or more ballots be segregated and that the ballot box containing the ballots be sealed until such time as the Board directs.
(12) After the representation vote has been taken, the Board may hold a hearing if the Board considers it necessary in order to dispose of the application.
(13) When disposing of an application, the Board shall not consider any challenge to the information provided under subsection (4).
(14) If on the taking of the representation vote more than 50 per cent of the ballots cast are cast in opposition to the trade union, the Board shall declare that the trade union that was certified or that was or is a party to the collective agreement, as the case may be, no longer represents the employees in the bargaining unit.
(15) The Board shall dismiss the application unless more than 50 per cent of the ballots cast in the representation vote by the employees in the bargaining unit are cast in opposition to the trade union.
(16) Despite subsections (5) and (14), the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.
(17) Upon an application under subsection (1) or (2), where the trade union concerned informs the Board that it does not desire to continue to represent the employees in the bargaining unit, the Board may declare that the trade union no longer represents the employees in the bargaining unit.
(18) Upon the Board making a declaration under subsection (14) or (17), any collective agreement in operation between the trade union and the employer that is binding upon the employees in the bargaining unit ceases to operate forthwith.
III. Decision
(a) Voluntariness
7Counsel directed much of their argument towards the meaning and effect of many of the substantive provisions contained in section 63 of the Act. Bill 7 is new legislation, and to a great extent reflects a new point of departure for labour relations in Ontario. In my view, it would be inappropriate to comment on matters which, strictly speaking, are not before this panel of the Board for decision. With that being said, I will now address the two issues raised for determination in this proceeding.
8As noted above, Bill 7 reflects a new point of departure for the Board, specifically with respect to applications for certification and for termination of bargaining rights. Historically, any bargaining unit employee who desired to terminate the bargaining rights of a trade union was required to apply to the Board for a declaration that the trade union no longer represented the employees in the bargaining unit. For such an application to be successful, it had to be supported by evidence in writing that not less than 45 per cent of the employees in the bargaining unit no longer wished to be represented by the trade union. Significantly, the old Act, in section 58(3), required the Board to ascertain, amongst other things, whether those who had signified their desire to no longer be represented by the trade union had done so voluntarily. Only if the Board was satisfied that the written evidence in support of the application (typically referred to as a "petition") was voluntary in nature was the Board authorized by the old Act to further satisfy itself, through the vehicle of a representation vote, that a majority of the employees in the bargaining unit desired to terminate the right of the trade union to bargain on their behalf.
9As a practical matter, any employee who brought an application for the termination of bargaining rights was required by the Board to establish that the origination, preparation and circulation of the petition documentation supporting the application was free of actual or perceived management interference. In a typical proceeding, the proponents of the application would proceed to call their evidence first. They would be required to establish, on the balance of probabilities, that the origination of the petition document, its preparation, and its circulation were not in any way influenced by management, or the perception of management involvement. If the applicant or applicants could not clearly establish the voluntariness of the petition document for any reason, the application would not be successful. Actual employer involvement, perceptions by employees that the fact of their signing or not signing a petition could possibly be communicated to management, gaps in the custody of the petition, or a failure to explain the circumstances of the signing of any of the names on the petition document would usually lead the Board to doubt the voluntariness of the signatures on the petition document and dismiss the application.
10Section 63 of the Act does not contain a provision such as that in the old Act which requires the Board to ascertain, prior to the ordering of a representation vote, that 45 per cent of the employees in the bargaining unit have voluntarily signified their desire to terminate the bargaining rights of their trade union. Instead, section 63 of the Act establishes a structure for the termination of bargaining rights which is centred on the taking of a representation vote shortly after the filing of an application for termination of bargaining rights. In essence, the provisions of section 63 of the Act require the Board in a typical case to direct the taking of a representation vote of the employees in the bargaining unit if it determines that 40 per cent or more of the employees in the unit "appear to have expressed a wish not be represented by the trade union at the time the application was filed". The determination made by the Board of the number of employees in the bargaining unit who appear to have expressed a wish not to be represented by the trade union is to be made solely by reference to information provided in the application and a list of names of the employees in the bargaining unit who have expressed a wish not to be represented by the trade union which is to be filed by the applicant. Quite simply, at this early stage of the process, the Act does not anticipate an inquiry into the voluntariness of the documentation supporting the application. In the typical case, if it appears to the Board that 40 per cent of the employees in the bargaining unit have expressed a wish to not be represented by the trade union, a representation vote is to be directed by the Board.
11The Act does, however, anticipate that a hearing may be necessary to dispose of a termination application. There may well be numerous issues relating to the application which will require a hearing to resolve. One of the issues may be the effect of employer misconduct in connection with the application.
12In that regard, reference must be had to the terms of section 63(16) of the Act. This provision, which was not present in the first reading version of Bill 7, provides as follows:
Despite subsections (5) and (14), the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.
The question which arises on the facts of these applications is whether this provision confirms the Board's historical practice; i.e. that an applicant in a termination proceeding must establish the voluntariness of the written documentation filed with the Board in support of the application, as described above.
13On balance, I am satisfied that the Act does not anticipate that such an enquiry into the voluntariness of the origination, preparation and circulation of the underlying supporting documentation is to be undertaken by the Board. It is significant that the Act no longer requires the Board to ascertain the voluntariness of the application or of the supporting materials filed with the application prior to the taking of the representation vote. Presumably, the direction by the Board that a representation vote be taken (within five days, excluding Saturdays, Sundays, and holidays, unless directed otherwise) will permit those voting to express their desires respecting trade union representation freely, without employer interference, and have the effect of "cleansing" any potential involuntariness of the nature which may have historically caused the Board some concern. Accordingly, I am of the view that it is no longer necessary for an applicant in a termination proceeding to establish that the wishes of those who have expressed a desire to terminate the bargaining rights of a trade union have been expressed "voluntarily", in the broad sense historically required by the Board. This conclusion is qualified, however, by the provisions of section 63(16) of the Act.
14Section 63(16) of the Act anticipates that certain employer conduct will permit the Board to dismiss an application for termination of bargaining rights. Section 63(16) of the Act does not direct the Board to dismiss the application in all such cases, but rather provides the Board with the discretion to dismiss the application if it is satisfied that the employer or a person acting on behalf of the employer initiated the application, or engaged in threats, coercion or intimidation in connection with the application.
15Argument was entertained from counsel respecting the meaning and scope of this provision. Counsel for Local 793 asserted that the provision should be read to require the applicant, in every termination application, to satisfy the Board that the application was not initiated by the employer (or an agent) or that the employer did not engage in threats, coercion or intimidation in connection with the application. Counsel conceded that such an inquiry would be somewhat more abridged than that typically engaged in under the old Act, but observed that to require the responding party to assert allegations of misconduct would put the responding party in a difficult position as it would often be the case that the trade union would be unaware of the events constituting improper employer initiation, threats, coercion or intimidation.
16Although I have some sympathy with the practical difficulties alluded to by counsel for Local 793, I do not believe that the legislation anticipates that a hearing will be held in each and every case in order for the applicant to establish that the application was not initiated by the employer, and that there were no employer threats, coercion or intimidation in connection with the application. A petitioning employee may well be (but need not necessarily be) just as ignorant about employer threats, coercion or intimidation against other employees as the trade union may be about that same conduct. To require an applicant in each application to positively establish a lack of employer threats, coercion or intimidation with respect to each person who supports the application may well be impossible; realistically, the best the applicant could do would be to call evidence to establish that, to the best of his or her knowledge, no such employer conduct was communicated to him or her. Although this same difficulty is not apparent with respect to the statutory prohibition on employer initiation, there is questionable utility in convening a hearing solely for the purpose of hearing the applicant testify as to whether the application was his or her idea.
17As a practical matter, the circumstances described by section 63(16) of the Act appear to warrant reference to the old adage that "he who asserts must prove". In my view, the Board should only convene a hearing to deal with the possibility of employer initiation or employer threats, coercion or intimidation in connection with the application should the responding party or an intervenor make allegations of such conduct. The allegations of misconduct should be pleaded in such a manner as to establish a prima facie violation of section 63(16) of the Act. This level of particularity of pleading may be, as was pointed out by counsel for Local 793, difficult in some circumstances, and it may well be that enquiries will have to be made by trade union representatives in receipt of termination applications to satisfy themselves that no employer wrongdoing has occurred. This is not meaningfully different from the type of investigation trade unions regularly engage in when ascertaining whether other sections of the Act have been violated by an employer. However, it is insufficient, in my view, to merely plead in response to an application for termination of bargaining rights that the employer initiated the application, or engaged in threats, coercion or intimidation in connection with the application, and then require the applicant to disprove those bald allegations at a hearing. If the trade union wishes to assert that section 63(16) of the Act applies to the application, it must particularize those allegations with some degree of specificity, and it must be prepared to attend at the hearing and call evidence to support its allegations.
18No such allegations have been made in these cases. In accordance with section 3(5) of Bill 7, that portion of these proceedings consisting of the inquiry respecting voluntariness of the petition documentation is hereby terminated, as it would serve no practical purpose to continue with the hearing on that issue.
(b) Applicability of April Waterproofing Ltd.
19Having considered fully the argument of counsel, I am satisfied that the Board's jurisprudence reflected by the decision of April Waterproofing Ltd., supra, and the cases that have followed and/or qualified the applicability that decision are not affected in any way by the passage of Bill 7. Distilled to its absolute core, the April Waterproofing Ltd. decision stands for the proposition that "employees illegally hired contrary to the terms of an existing collective agreement should not be considered to be employees in the bargaining unit even though their hiring was inadvertent and not intended to foster a representation application" (see Culliton Brothers Limited, [1983] OLRB Rep. Mar. 339 at para. 21). The applicability of this proposition is in issue in Board File 0236-95-R, as noted above.
20The provisions of section 63 of the Act do not in any way suggest that the Legislature intended to limit the applicability of the principle established by the Board in April Waterproofing Ltd. In fact, if anything the Act underscores the significance of being an employee in the bargaining unit for the purposes of the representation vote. Section 63(2) of the Act provides that an employee "in the bargaining unit" defined by the collective agreement may apply for a declaration that the trade union in question no longer represents "the employees in the bargaining unit". As noted above, the Board is required by virtue of section 63(5) of the Act to direct a representation vote "among the employees in the bargaining unit" if it is determined that 40 per cent or more of the "employees in the bargaining unit" appear to have expressed a wish not to be represented by the trade union at the time of application. In the normal course, if on the taking of the representation vote more than 50 per cent of the ballots cast are cast in opposition to the trade union (it being kept in mind that only employees in the bargaining unit are entitled to vote), the Board will declare that the trade union no longer represents the employees in the bargaining unit.
21One of the underlying concerns of the Board in establishing the principle set out in April Waterproofing Ltd. was that an employer not be permitted to rely upon its own (intentional or unintentional) act of violating the collective agreement to facilitate the termination of bargaining rights of an incumbent trade union. The unfairness of such a situation is obvious. There is nothing contained in Bill 7 that suggests that the Legislature intended to alter the Board's jurisprudence reflected by the decision of April Waterproofing Ltd. In my view, it is still open for the responding party to allege in a termination application that one or more of the employees on the date of application has been hired contrary to the terms of the applicable collective agreement, and therefore unable to properly cast a ballot in a representation vote.
22Of course, the structure of the Act will not, in such circumstances, preclude the taking of a representation vote upon receipt by the Board of the application. As a result of the combined effect of sections 63(4), (5), (6), (7), (8) and (13) of the Act, in the normal course the April Waterproofing Ltd. issue will now arise after the taking of the representation vote and cannot preclude the taking of that vote. However, should a responding party identify the issue prior to the vote, the Board can direct that the ballots of challenged individuals be segregated and the ballot box sealed so as to ensure that only those properly entitled to vote are ultimately provided with that opportunity.
23For the reasons set out above, I am of the view that the hearing in Board File 0236-95-R may continue for the purpose of calling evidence relating to the April Waterproofing Ltd. issue raised by Local 793.
IV. Disposition
24By way of decision dated November 24, 1995 the Board directed that a representation vote be held in each of these two Board files. Representation votes were, in fact, conducted by the Board on December 4, 1995. The decision of the Board directed that the ballot boxes in both Board files be sealed until otherwise directed by the Board. It would appear, however, that in error (but with the consent of the parties) the ballot box in Board File 0215-95-R was opened, and the ballots counted, after the vote was conducted. As the only issue remaining for consideration in Board File 0215-95-R was that of voluntariness, which issue has been disposed of by this decision, it is convenient to determine that proceeding and make the appropriate declaration herein.
(a) Board File 0215-95-R
25No statement of desire to make representations has been filed with the Board within the time fixed by the Board following the taking of the representation vote pursuant to the Board's direction of November 24, 1995.
26On the taking of the representation vote directed by the Board, more than fifty per cent of the ballots cast by employees in the bargaining unit were cast in opposition to the responding party.
27The Board declares that the responding party no longer represents the employees of Elirpa Construction and Materials Limited in the roads sector of the construction industry for whom it has heretofore been the bargaining agent.
28The Registrar will destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.
(b) Board File 0236-95-R
29With respect to Board File 0236-95-R, the hearing of that proceeding will continue for the purpose of dealing with the remaining issues on hearing dates convenient to the parties. The Registrar is directed to contact the parties and schedule one or more hearing dates for the continuation of this proceeding.