Sheet Metal Workers' International Association, Local 47 v. Maverick Mechanical Contractors Limited, 1996 CanLII 11211

[1996] OLRB REP. MARCH/APRIL 289

3279-95-R; 3699-95-U Local Union 47 Sheet Metal Workers' International Association, Applicant v. Maverick Mechanical Contractors Limited, Responding Party; Sheet Metal Workers' International Association, Local 47, Applicant v. Maverick Mechanical Contractors Limited, Responding Party

BEFORE: D. L. Gee, Vice-Chair.

APPEARANCES: J. Raso and Paul Graveline for the applicant; Michael S. Ruddy and Neil Robertson for the responding party.

DECISION OF THE BOARD; April 16, 1996

1. Board File No. 3279-95-R is an application for certification which was filed with the Board on November 30, 1995. Board File No. 3699-95-U is an application under section 96 of the Labour Relations Act, 1995 (the "Act") filed on January 10, 1996 in which the applicant seeks certification pursuant to section 11 of the Act.

2. The facts relevant to the Board's determination are not largely in dispute.

3. Maverick Mechanical Contractors Limited ("Maverick") is a mechanical contractor specializing in ventilation sheet metal work in the ICI sector of the construction industry. Neil Robertson is the sole owner, director and shareholder of Maverick. He is responsible for all of the company's estimating, tendering, purchasing and accounting.

4. Maverick began work at the Loeb Medical Research Institute, Ottawa Civic Hospital (the "Loeb job site") in October, 1995. At all times material to these applications, the Loeb job site was Maverick's only significant active job. Maverick employed five sheet metal workers on the Loeb job site: John Grant, Roger Goodenough, Grant Doran, Rick Jones, and Shaun Rancourt. All five are expected to continue working at the Loeb job site until its completion which is slated for June, 1996.

5. Mr. Robertson testified that he believed that John Grant and Grant Doran are members of the applicant because, prior to commencing employment with Maverick, they were employed by his father's unionized company. Mr. Robertson has been told that Rick Jones is a member of the applicant. Thus, at least two, and possibly three, of the five employees at work in the bargaining unit on the application date have been members of the applicant for some time and have had experience working in a unionized environment.

6. The application for certification was filed with the Board on November 30, 1995. The applicant seeks to represent all journeymen sheet metal workers and registered sheet metal apprentices employed by Maverick in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all journeymen sheet metal workers and registered sheet metal apprentices employed by Maverick in all other sectors in Board Area 15, save and except non-working foremen and persons above the rank of non-working foreman. The applicant filed membership support on behalf of three individuals who were at work in the bargaining unit on the application date. The effect of the applicant being certified for the unit sought would be that Maverick would immediately become bound to the applicant's Provincial ICI agreement. Maverick and the applicant would negotiate agreements applicable to non-ICI work.

7. Pursuant to the Board's Interim Certification and Termination Rules, the application, a response form, a copy of the Board's Interim Certification and Termination Rules and a copy of Information Bulletin #2(C) - Vote Arrangements, were all served on Maverick on Friday, December 1, 1995.

8. Mr. Robertson faxed a copy of the materials served on him to a lawyer (not the lawyer who represented Maverick at the hearing) and was advised that the forms were straightforward and that he should complete them himself.

9. Mr. Robertson raised Rule 43aa of the Board's Interim Certification and Termination Rules with the lawyer. Rule 43aa provides as follows:

43aa Evidence that employees do not wish to be represented by a trade union will not be considered by the Board unless the evidence accompanies the application, is in writing and signed by each employee concerned, and is accompanied by the name of the employer and the name, address, telephone number and facsimile number, if any, of a contact person for the applicant. Evidence that employees do not wish to be represented by a trade union must also disclose the date upon which each signature was obtained.

10. Mr. Robertson thought Rule 43aa was applicable to his situation and that it meant that, if he presented the Board with evidence that his employees did not want a union, a vote would not be necessary. The lawyer advised him that obtaining signed declarations from his employees was a good idea. As a result of such discussion, as well as a conversation Mr. Robertson had with a Board Officer, he decided that he would obtain signed declarations from his employees.

11. Mr. Robertson completed the response form and faxed it to the Board and to the applicant on December 5, 1995. In response to the question "[d]o you wish to make any other representations with respect to this application?", posed at paragraph 18 of the response form, Mr. Robertson wrote as follows:

We have additional evidence to supply herewith. Because of the shortage of time we will present that evidence by end of business December 6/95.

The "additional evidence" Mr. Robertson referred to was the declarations he intended to seek from his employees. 12. Mr. Robertson prepared declarations for each of the five employees working on the Loeb job site to sign. Each declaration was individualized such that it had the employee's name typed in and indicated whether the individual was a sheet metal apprentice or a sheet metal worker. The declarations read as follows:

DECLARATION

I [individual's name] do declare that I am currently employed as a [Sheet Metal apprentice or a Sheet Metal worker] by Maverick Mechanical Contractors Limited at the Loeb Medical Research Institute, Ottawa Civic Hospital.

I further declare that it is my intention while employed by Maverick Mechanical Contractors

Limited that I do not wish to be represented or governed by Local 47 or any other Union or Association.

Signature

Date

The declarations are printed on Maverick letterhead.

13. On December 6, 1995 at approximately 2:00 p.m., Mr. Robertson attended at the Loeb job site. All five employees were at work on the site that day. Mr. Robertson approached Messrs. Goodenough, Doran, Jones and Grant individually and asked them to read the declaration and, if they agreed with it, to sign it. Each individual read the declaration and signed it. Mr. Robertson's discussion with each individual was extremely brief. Mr. Robertson could not find Mr. Rancourt and after a brief search left the job site without having approached him.

14. Upon arriving back at his office at approximately 4:00 p.m., Mr. Robertson discovered that he had received a fax from the Board indicating that a vote would be held on December 8, 1995 at 11:00 a.m. at the Loeb job site. Although Mr. Robertson did not previously know the exact date on which the vote would be held, he was aware that the vote would be held within five days of his having received the application.

15. Mr. Robertson believed the declarations he had had signed by the employees would render the vote unnecessary. He faxed them to the Board on December 6, 1995 at approximately 5:00 p.m.

16. On the morning of December 7, 1995, Mr. Robertson spoke to Mr. Grant on the phone and advised him that there would be a vote the following day. Mr. Robertson attended at the job site at approximately noon on December 7, 1995 and posted the Board's decision directing the vote as well as the Notice of Vote in Maverick's lunch room. Mr. Robertson advised Mr. Grant of the posting and the fact that there was to be a vote.

17. Maverick's standard work week is nine hours per day Monday to Thursday. Work is only performed on Fridays to correct deficiencies or if a job is running behind schedule. On December 6, 1995, Maverick received notice of a deficiency on the Loeb job site. Mr. Robertson asked Mr. Grant if he and Mr. Rancourt wanted to work. On Friday, December 8, 1995, the only individuals at work were Messrs. Grant and Rancourt.

18. On December 8, 1995, Mr. Robertson arrived at the job site at 10:45 a.m. The vote was delayed and accordingly Mr. Robertson took a walk to look for Messrs. Grant and Rancourt. Mr. Robertson saw Mr. Rancourt working. Mr. Robertson never saw Mr. Grant. The vote was eventually conducted at 12:00 noon. Mr. Rancourt was the only individual to vote. Mr. Rancourt cast his ballot in opposition to the union.

19. Maverick submits that the applications should be dismissed or, in the alternative, that the Board should order the holding of another vote. In Maverick's submission, while Mr. Robertson's conduct was ill-advised, it was not tainted by anti-union motivation. It is submitted that Mr. Robertson was motivated by a desire to see the application concluded without the need for a vote.

It is further submitted that, while the employees may have been placed in an uncomfortable position when approached by Mr. Robertson and asked to sign the declaration, Mr. Robertson's conduct did not interfere with the employees' right to attend on December 8, 1995 and cast a secret ballot.

20. The applicant disputes that Mr. Robertson acted without an anti-union motive. It is asserted that Mr. Robertson's actions were designed to avoid the union being certified. In the applicant's submission, Mr. Robertson's conduct violates sections 70, 72(c)and 76 of the Act. The applicant also disputes the suggestion that Mr. Robertson's conduct did not affect the employees' ability to attend on December 8, 1995 and cast a secret ballot expressing their true wishes. The applicant relies on the following facts: Mr. Robertson is the sole owner of Maverick; he met with the employees one-on-one and face-to-face when he asked them to sign the declaration; the bargaining unit is very small; the declarations were signed only two days before the vote; and the union's support dwindled from 60 percent, when the application was filed, to zero, within a period of one week. The applicant asks the Board to conclude that the vote taken on December 8, 1995 does not reflect the employees' true wishes and that another representation vote would not be sufficient to counter the effects of the violations of the Act committed by Maverick.

21. Section 11(1) of the Act provides as follows:

11.(1) Upon the application of a trade union, the Board may certify the trade union as the bargaining agent for the employees in a bargaining unit in the following circumstances:

1. An employer, employers' organization or person acting on behalf of an employer or employers' organization has contravened the Act.

2. The result of the contravention is that a representation vote does not or would not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

3. No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.

4. The trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board to be appropriate

for collective bargaining.

22. The language of the section makes clear that certification under section 11 can only be granted if the following conditions are met:

23. The Act has been violated.

24. As a result, a representation vote does not or would not reflect the employees' true wishes concerning union representation.

25. No remedy, including the taking of another representation vote, would counter the effects of the violation.

26. The union has membership support adequate for the purposes of collective bargaining.

27. In the present case, Mr. Robertson met with his employees one-on-one and asked them to sign a personalized declaration opposing the trade union. The Board's jurisprudence clearly indicates that an employer has no place engaging employees in one-on-one discussions concerning a trade union in circumstances where such discussions would reveal whether the employee was a union supporter, or asking employees to sign a petition or declaration opposing the trade union, and that such conduct constitutes a violation of the Act (see: J. Pascal Inc., [1985] OLRB Rep. July 1075 and St. Laurent I.G.A, [1984] OLRB Rep. May 745). It is my determination that Mr. Robertson's conduct violates section 76 of the Act such that the first condition necessary for the application of section 11 has been met.

28. Mr. Robertson asked four out of five of his employees to sign a declaration on December 6, 1995. The representation vote was held on December 8, 1995. The one employee who was not approached to sign a declaration was the only employee to cast a ballot. Although it is possible that three of the employees may not have voted because they were not scheduled to work on December 8, 1995, such would not explain why Mr. Grant, who was at work on December 8, 1995, did not cast a ballot. Having regard to Mr. Grant's behaviour, it is my determination that Mr. Robertson's conduct had the effect of discouraging the employees from attending at the job site on December 8, 1995 and casting a ballot, and, as a result, the results of the vote held on December 8, 1995 do not reflect the true wishes of the employees in the bargaining unit. Thus, the second condition necessary for the application of section 11 has also been met.

29. The third condition necessary for the application of section 11 requires the Board to be satisfied that no other remedy, including the taking of another representation vote, is sufficient to counter the effects of the violation. The Board has generally granted automatic certification in one of two types of situations. First, where an employer has made threats to the continued job security of its employees conditional on whether the union succeeded in its attempt to become certified, certification has followed automatically. Alternatively, where the cumulative effect of a range of unlawful employer activities, none of which taken separately might call the section into play, has the effect of undermining the confidence in the rule of law which a reasonable employee is presumed to have and which give a reasonable employee the confidence to make a free choice the Board has automatically granted certification to the union (see: The Globe and Mail, [1982] OLRB Rep. Feb. 189 at paragraphs 60 and 61).

30. In the instant case, neither of these two scenarios are present. Mr. Robertson's conversation with the employees was limited to asking them to read the declaration and, if they agreed with it, to sign it. Nothing he said to the employees would suggest that their job security depended on the company remaining non-union. The declaration itself indicates that, while employed by Maverick, it is the employee's wish not to be represented by a union. When read in context, and keeping in mind the brief opportunity the employees had to review the declarations, I am satisfied that the declaration would have been interpreted by the employees as an expression that they do not wish to have trade union representation with respect to their employment relations with Maverick and not as a threat that their employment was conditional on their not seeking union representation.

31. In addition, I would note that Mr. Robertson fully complied with all of the Board's procedures and directions. He filed a response and posted the required Board notices. When he approached the employees to sign the declarations, he did so after obtaining legal advice. He believed he was acting in accordance with the Board's Rules. While it is the effect of the violation on the employees that is of primary concern to the Board, and legal advice does not immunize an employer from the consequences of his or her actions, this background speaks to how Mr. Robertson behaved. I am satisfied that there would have been nothing in Mr. Robertson's behaviour that would have suggested to the employees that he would readily flout the law and penalize the employees if the union was certified.

32. Regarding the second type of situation in which the Board would typically grant automatic certification, asking the employees to sign the declaration was an isolated incident of improper conduct such that it cannot be said that there exists a range of unlawful activity. In addition, at least two of the employees had previously been employed by unionized contractors such that it would be reasonable to assume that they are familiar with unions and their rights as union members. In light of these facts, it is my determination that the declarations alone would not have had the effect of undermining the employees' confidence in the rule of law.

33. The applicant relies on Ex-Cell-O Wildex, Canada, [1977] OLRB Rep. June 370; Kernohan Lumber & Sash Co., [1977] OLRB Rep. Oct. 676; and Zenith Wood Turners Inc., [1987] OLRB Rep. Nov. 1443, to suggest that a representation vote is not an adequate remedy where there is a very small number of employees in the bargaining unit.

34. In each of Ex-Cell-O Wildex, Kernohan Lumber and Zenith Wood, the employer was found by the Board to have committed violations of the Act involving threats to job security. Accordingly, the Board's comments in these decisions suggest that, in cases where the Board would typically grant automatic certification, the size of the unit is a factor to be considered in determining whether a vote would be an adequate remedy. The Board's comments do not stand for the proposition that, regardless of the nature of the violation committed, unfair labour practices committed in the context of a small bargaining unit, cannot be remedied.

35. Thus, I am not persuaded that the relatively small size of the instant bargaining unit necessarily leads to the conclusion that no remedy, including the taking of another representation vote, is sufficient to counter the effects of the violation.

36. The facts of this case are somewhat similar to those in DI-AL Construction Limited~ [1983] OLRB Rep. Mar. 356, in which an employer assisted one employee, at the employee's request, in seeking to resign from the union and forwarded statements of desire in opposition to the union to the Board on behalf of the same employee as well as two others. There were five employees in the bargaining unit. The Board had no evidence before it as to how the employees came to sign the statements but inferred from the fact that they were sent to the Board by the employer that there had been employer involvement. The Board rejected the applicant's submission that the employer's involvement with the statements of desire was sufficient to trigger the application of what was then section 8. The Board stated that it was not prepared to certify the applicant solely on the basis of the employer's involvement with the statements of desire and the first employee's resignation from the union.

37. Like the Board in DI-AL Construction Limited, I am not persuaded that the conduct in issue in the instant case warrants the application of section 11(1) of the Act. The conduct of Maverick was highly inappropriate. However, I believe that the adverse impact of Maverick's violation of the Act can be rectified in such a way as to enable to true wishes of the employees to be ascertained by way of a representation vote.

38. As indicated above, I believe that Mr. Robertson's conduct may have discouraged the employees from casting a ballot on December 8, 1995. I do not believe, however, that they would have perceived a threat to their job security or had their confidence in the rule of law undermined. In my view, a Board order which would result in the employees being apprised of the fact that their being asked to sign a declaration was wrong, that they have the right to freely cast a ballot for or against the union, and that no consequence will accrue to them as a result of their doing so, would counter the effects of Mr. Robertson's conduct and enable the employees' true wishes to be ascertained by way of a representation vote.

39. Accordingly, I make the following directions:

40. Maverick is directed to cease and desist violating the Act.

41. Maverick is directed to post this decision and the attached notice, after being duly signed by Mr. Robertson, in a location or locations where they are likely to come to the attention of the employees and to leave this decision and the notice posted until the conclusion of the representation vote. Maverick is to make every reasonable effort to insure that the posted decision and notice are not defaced or obscured in any way.

42. Maverick is directed to give reasonable access to the applicant to its premises at reasonable times so that the applicant can satisfy itself that the posting requirements are being complied with.

43. Maverick is further directed to forthwith send a copy of this decision and the attached notice to each of the employees in the bargaining unit described in paragraph 6 above at their home address by regular mail.

44. Maverick is to provide two representatives of the applicant with an opportunity to address the employees in the bargaining unit referred to in paragraph 6 above, out of the presence of any member of management, during normal working hours without loss of pay, for a maximum of one hour. Such meeting is not to be on the date the representation vote is held.

45. The representation vote held on December 8, 1995 is hereby set aside. The Registrar is directed to destroy the ballot within 30 days of this decision.

46. A representation vote will be conducted among the employees of the responding party in the bargaining unit described in paragraph 6 of this decision. Those eligible to vote are all employees of the responding party at work in the bargaining unit on November 30, 1995.

47. The vote is to be held during normal working hours without loss of pay. The time, date and location of the vote is to be determined by the applicant provided the voting arrangements allow reasonable access to vote for those so eligible. The applicant is to advise the Registrar of the Board and the responding party of the time, date and location of the vote within 48 hours of receipt of this decision. In the event the responding party has any submissions it wishes to make on the vote arrangements chosen by the applicant, the responding party is to notify the Registrar of the Board and the applicant within 24 hours of receiving the applicant's vote arrangements.

48. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

MAVERICK MECHANICAL CONTRACTORS LIMITED HAS POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH THE UNION AND THE COMPANY HAD THE OPPORTUNITY TO PRESENT EVIDENCE. THE ONTARIO LABOUR RELATIONS BOARD HAS DETERMINED THAT MAVERICK MECHANICAL CONTRACTORS LIMITED VIOLATED THE LABOUR RELATIONS ACT, 1995. AS A RESULT. THE BOARD HAS SET ASIDE THE VOTE WHICH WAS HELD ON DECEMBER 8, 1995 AND ORDERED THAT ANOTHER VOTE BE HELD. IN ADDITION. THE BOARD HAS ORDERED US TO INFORM YOU OF YOUR RIGHTS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS,

TO ORGANIZE THEMSELVES.

TO FORM. JOIN AND PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION,

TO ACT TOGETHER FOR COLLECTIVE BARGAINING,

TO REFUSE TO DO ANY AND ALL OP THESE THINGS.

WE ASSURE ALL OF YOU THAT.

WE WILL NOT DO ANYTHING THAT INTERFERES WITH YOUR RIGHT TO FREELY VOTE FOR OR AGAINST THE UNION IN A VOTE WHICH IS TO BE HELD IN THE NEAR FUTURE AND THAT, IF A MAJORITY OF THE EMPLOYEES VOTE IN FAVOUR OF TRADE UNION REPRESENTATION. MAVERICK WILL RECOGNIZE THE TRADE UNION AS THEIR BARGAINING REFRESENTATIVE AND WILL APPLY THE PROVINCIAL COLLECTIVE AGREEMENT AS REQUIRED BY LAW.

WE WILL NOT INTIMIDATE OR EXERT UNDUE INFLUENCE UPON YOU, WHETHER THROUGH MEETINGS, INDIVIDUAL CONVERSATIONS OR OTHERWISE. TO PREVENT YOU FROM EXERCISING YOUR RIGHT TO ASSOCIATE AND PARTICIPATE IN THE LAWFUL ACTIVITIES OR SYMPATHIES OF A TRADE UNION.

WE WILL NOT LAY OFF, DISCHARGE OR THREATEN TO LAY OFF OR DISCHARGE ANY EMPLOYEE BECAUSE OF THAT EMPLOYEES UNION ACTIVITIES OR SYMPATHIES.

WE WILL NOT IN ANY OTHER MANNER INTERFERE WITH OR RESTRAIN OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER THE ACT.

WE WILL COMPLY WITH ALL DIRECTIONS OF THE ONTARIO LABOUR RELATIONS BOARD.

MAVERICK MECHANICAL CONTRACTORS LIMITED

PER,

NEIL ROBERTSON

This is an official notice of the Board and must not be removed or defaced.

DATED THIS 16TH DAY OF APRIL 1996