Ontario Labour Relations Board
[1998] OLRB REP. NOVEMBER/DECEMBER 948
3815-97-R; 4080-97-U United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, Applicant v. Elitrex Plumbing Ltd., Responding Party v. Labourers' International Union of North America, Local 183, Intervenor; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union 46, Applicant v. Elitrex Plumbing Ltd. and Labourers' International Union of North America, Local 183, Responding Parties
BEFORE: Lee Shouldice, Vice-Chair.
APPEARANCES: Doug Wray, Tony Bisceglia and Ray Snoddon on behalf of the applicant; John Moszynski and Tony lanuzzi on behalf of Labourers' International Union of North America, Local 183; Massimo Arduini on behalf of Elitrex Plumbing Ltd.
DECISION OF THE BOARD; November 19, 1998.
I. Introduction
1These proceedings consist of an application for certification (Board File 3815-97-R) and an unfair labour practice complaint (Board File 4080-97-U), filed with the Board in accordance with the provisions of the Labour Relations Act, 1995 (hereinafter "the Act"). These proceedings came on for hearing before this panel of the Board on November 9 and 10, 1998. I was authorized by the Chair of the Board to hear these matters as a Vice-Chair sitting alone, in accordance with section 1 l0( 14)(a) of the Act.
2Briefly put, the core issue in both of these proceedings is a narrow one - is a voluntary recognition agreement dated November 28, 1997, executed by Mr. Massimo Arduini on behalf of Elitrex Plumbing Ltd. (hereinafter "Elitrex" or "the employer"), and Mr. Nemesio Taddei on behalf of Labourers' International Union of North America, Local 183 (hereinafter "Local 183") valid? If so, the application for certification filed by the applicant (hereinafter "Local 46") is untimely, and must be dismissed. If not, the application for certification may proceed, in accordance with the provisions of the Act.
II. Statutory Context
3These proceedings are brought in the context of section 66 of the Act, which reads as follows:
66.(l) Where an employer and a trade union that has not been certified as the bargaining agent for a bargaining unit of employees of the employer enter into a collective agreement, or a recognition agreement as provided for in subsection 18(3), the Board may, upon the application of any employee in the bargaining unit or of a trade union representing any employee in the bargaining unit, during the first year of the period of time that the first collective agreement between them is in operation or, if no collective agreement has been entered into, within one year from the signing of such recognition agreement, declare that the trade union was not, at the time the agreement was entered into, entitled to represent the employees in the bargaining unit.
(2) Before disposing of an application under subsection (1), the Board may make such inquiry, require the production of such evidence and the doing of such things, or hold such representation votes, as it considers appropriate.
(3) On an application under subsection (1), the onus of establishing that the trade union was entitled to represent the employees in the bargaining unit at the time the agreement was entered into rests on the parties to the agreement.
(4) Upon the Board making a declaration under subsection (1), the trade union forthwith ceases to represent the employees in the defined bargaining unit in the recognition agreement or collective agreement and any collective agreement in operation between the trade union and the employer ceases to operate forthwith in respect of the employees affected by the application.
From a review of the above-referenced provisions, one notes that there is a statutory onus on Local 183 and Elitrex to establish that Local 183 was "entitled to represent the employees in the bargaining unit at the time the agreement was entered into", as prescribed by section 66(1) of the Act. There was no dispute that the document executed by Local 183 and Elitrex on November 28, 1997 was a voluntary recognition agreement for the purposes of the Act.
III. The Facts
4Over two days of hearing, the Board heard the evidence of Mr. Arduini, President of Elitrex, and Mr. Tony Ianuzzi, a Business Representative of Local 183, both of whom were called by Local 183 to give testimony. Local 46 called no testimony in support of its case. During argument, counsel for Local 46 suggested that the testimony given by each of the above two witnesses was of questionable reliability, at least in some respects. I am satisfied that Mr. Ianuzzi, though at times unable to recall details of certain events, testified to the best of his recollection. Mr. Arduini's testimony was, on occasion, difficult to accept at face value. On most of those occasions, however, he conceded certain qualifications to his evidence in further cross-examination. I have specifically noted my concerns with Mr. Arduini's testimony below. It will also be necessary to deal with another evidentiary matter raised during the course of argument by counsel for Local 46; namely, the failure of Local 183 to call Mr. Taddei as a witness.
5Turning to the salient facts, on or about November 7, 1996, Local 46 filed an application for certification with the Board (Board File 2358-96-R), seeking to represent a bargaining unit comprised of plumbers and plumbers' apprentices employed by Elitrex. Shortly after receipt of that application, Elitrex, through Mr. Arduini, issued to all employees a letter in which he urged employees to vote against union representation. In part, the letter provides as follows:
Our position is quite simple: we don't believe that you need a union. We don't think that a union would be good for either the company or the employees. We believe that a union would bring a confrontational approach that is contrary to everything we have tried to accomplish since this company was formed.
The employees of Elitrex voted against representation by Local 46 in the representation vote that was held in that proceeding. On January 31, 1997, the Board, by way of written decision, dismissed the application for certification and established January 15, 1997 as the date for the purposes of the statutory one year bar. That is, Local 46 was barred from applying to the Board for a certificate to represent the employees in the bargaining unit requested until January 16, 1998.
6Moving ahead to November, 1997, Mr. Arduini was aware that representatives of both Local 46 and Local 183 were attending at work sites and competing to obtain the support of his employees. Although Mr. Arduini initially suggested in his testimony that he was unaware of Local 183's organizing campaign before being approached by Mr. Taddei, a Business Representative of Local 183, it became clear in cross-examination that he was, in fact, aware prior to Mr. Taddei's contact with him that both trade unions were organizing his employees. In fact, Mr. Arduini agreed in cross-examination that the employer had "had problems with unions since 1996" and that they "were breathing down our necks". He also testified that he had known that both trade unions had been talking to his employees "all along". Although Mr. Arduini stated during the course of testimony that he was not aware of representatives of Local 46 trying to sign his employees into membership, I am quite satisfied that he believed that both unions were attempting to convince his employees to join their respective organizations. No other conclusion could possibly be reached on the evidence.
7Mr. Arduini stated that before Mr. Taddei contacted him respecting representation by Local 183, one of the employees of Elitrex had provided him with a copy of Local 183's Residential Plumbing Agreement. Mr. Arduini testified that he read the Agreement, and "could live with it" because of the piecework provisions contained within it. It was Mr. Arduini's testimony that, after reviewing the Residential Plumbing Agreement, he consulted with his partner. In Mr. Arduini's words, "we could fight or go with one of them. We went with the one that gave us the subcontracting [i.e. piecework] clauses". It would appear that at that time Local 46 did not have included in its "standard" residential plumbing agreement a piecework clause. This was of concern to Mr. Arduini, who paid a number of his plumbers by way of piecework rates. He conceded in cross-examination that he did not like the Local 46 agreement because there was no piecework clause contained in it. Mr. Arduini testified that, after having reviewed the Residential Plumbing Agreement, he told the employee who had initially dropped off the Agreement (who was a pieceworker) that "you guys do what is best for you guys. If Local 183 gives you piecework, I can live with that".
8A few days before the voluntary recognition agreement was executed by Elitrex and Local 183, Mr. Taddei contacted Mr. Arduini respecting the possibility of voluntary recognition. Again, Mr. Arduini suggested in his examination-in-chief that the execution of the agreement and this initial contact from Mr. Taddei both occurred on November 28, 1997. In cross-examination, however, Mr. Arduini agreed that the contact by Mr. Taddei most likely occurred a few days before November 28, 1997. I find as a fact that this is what occurred.
9Accordingly, Mr. Arduini and Mr. Taddei spoke about voluntary recognition a few days before the voluntary recognition agreement was signed. At that time, Mr. Taddei requested that Mr. Arduini provide him with the names of persons who were in the employ of Elitrex, and Mr. Arduini did so. Although Mr. Taddei did not testify in these proceedings, his handwritten note was produced at the hearing. The note identifies 18 names, which Mr. Arduini testified he listed for Mr. Taddei. Irrespective of Mr. Taddei's failure to testify, I am satisfied, on the basis of Mr. Arduini's testimony, that the list produced reflects the names provided to Mr. Taddei by Mr. Arduini at that time. After listing the names, Mr. Taddei advised Mr. Arduini that Local 183 had signed up 60% of the persons on the list, and requested that Mr. Arduini agree to voluntary recognition. Mr. Arduini consented to Mr. Taddei's request. Mr. Taddei at no time suggested that Local 183 would be applying to the Board for certification.
10Accordingly, on November 28, 1997, Mr. Arduini and Mr. Taddei executed a voluntary recognition agreement on behalf of their respective principals. Mr. Arduini kept an original of the document, as did Mr. Taddei. The voluntary recognition agreement provides that the parties are bound to Local 183's Residential Plumbing Agreement. It was Mr. Arduini's testimony, which I accept, that he and Mr. Taddei discussed delaying the effective date of that collective agreement until the then current projects being worked on were completed. Mr. Arduini did not provide a clear explanation of the exact terms of the deferral, and the agreement to delay the effect of the collective agreement was not reduced to writing. Accordingly, the collective agreement provisions were not immediately applied to the employees of Elitrex. Nor, would it appear, were the employees immediately advised of the execution of the voluntary recognition agreement. Mr. Arduini testified that he did tell his employees of the existence of the voluntary recognition agreement, but could not recall whether he did so before the middle of January, 1998.
11The next event of significance appears to have occurred in early January, 1998. Mr. Taddei suffered a heart attack, and was hospitalized for a number of months. Mr. Ianuzzi, a Business Representative of Local 183, testified that, to the best of his recollection, Mr. Taddei's heart attack occurred in early January, 1998, and in any event prior to January 14, 1998. Shortly after Mr. Taddei's heart attack, Mr. Ianuzzi (who had had no involvement in the organizing campaign of the employees of Elitrex to that date) was asked by Mr. Taddei to provide a notice to the employees of Elitrex, announcing that a meeting of the employees in the bargaining unit would be held at the Local 183 hall on February 3, 1998. That notice was prepared and Mr. Ianuzzi hand delivered it to the employer's offices on January 14, 1998, asking the receptionist to ensure that they were placed in the paycheques of the employer's employees. It was not clear from Mr. Ianuzzi's testimony who directed that the notice be prepared, or who had chosen the language and information contained in the notice. This is of some relevance, because the notice suggests that the collective agreement was to have come into effect on January 1, 1998. There is no question that this was not, in fact, the case, and there was no real explanation given at the hearing for how that date was chosen to appear on the notice provided to the employees. In any event, on January 15, 1998, Mr. Ianuzzi flew to Dallas, Texas for a conference, and he did not return to Toronto until January 20, 1998.
12As noted above, the notice to employees was to be placed in the paycheques of the employees of Elitrex. However, the notice had a somewhat important spelling error (the name of the company was spelled incorrectly), and Mr. Arduini contacted Mr. Carlos D'Ambrosio at Local 183's Training Centre about the error. It would appear that during Mr. Ianuzzi's absence, Mr. D'Ambrosio prepared a revised version of the notice and had it delivered to the employer. When Mr. Ianuzzi returned from Dallas, he listened to his voice-mail, discovered the error (Mr. D'Ambrosio had left a message advising of the problem), and Mr. lanuzzi decided to attend at the employer's offices to speak to the employees to ensure they were aware of the meeting. Accordingly, on January 22, 1998, Mr. Ianuzzi and another Business Representative of Local 183, Mr. Gaetano Strazzanti, attended at the employer's office and spoke to the employees about the upcoming meeting on February 3, 1998. The employees were also advised at that time about the Local 183 benefit plan and Mr. Taddei's hospitalization. Mr. Ianuzzi was questioned about the piecework rates contained in the Residential Plumbing Agreement, and indicated that no one currently earning more would make less as a result of lower rates in the Agreement. Mr. Ianuzzi also commented upon the application for certification filed by Local 46, indicating that some employees had signed cards for Local 46, and that it would be dealt with at the Board.
13On February 3, 1998, Mr. Ianuzzi met with a large number of the employees of Elitrex at the Local 183 hall. A general discussion transpired, during which the employees were given some background about the history of Local 183 from Tony Dionisio, the Business Manager of Local 183, and information regarding the benefit plans of the local was provided to those in attendance. Mr. Ianuzzi also recalled that one of the pieceworkers discussed the piecework clause in the Residential Plumbing Agreement, and questioned his rate, which, at the time, was higher than that contained in the Agreement. As on January 22, 1998, Mr. Ianuzzi recalls telling this individual that he would not incur a reduction in his rate as a result. It would appear that there was also a discussion regarding the union dues that would be deducted from the wages of the employees and remitted to Local 183. The employees were not asked to ratify the Residential Plumbing Agreement at this meeting.
14Moving chronologically back in time, on January 16, 1998, Local 46 had filed with the Board an application for certification, seeking a certificate to represent all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Elitrex in the ICI sector of the construction industry, and a certificate to represent all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Elitrex in all other sectors of the construction industry in Board Area 8, save and except for the usual managerial exceptions in both cases. Elitrex responded to that application, relying on the voluntary recognition agreement as a bar to the application. Local 183 filed an intervention in the proceeding, also relying upon the voluntary recognition agreement. Subsequently, Local 46 filed the application which comprises Board File 4080-97-U, alleging that the employer and Local 183 have violated sections 70, 72, and 76 of the Act by executing the voluntary recognition agreement. Local 183 and the employer both responded to that complaint. There is no dispute that counsel for Local 183 prepared the response filed by Elitrex in that proceeding.
15The evidence before the Board establishes that the terms of the Residential Plumbing Agreement were not first applied to the workplace until February 1, 1998, at which time union dues were deducted from the wages of the employer's employees for the first time. The employer's benefit plan previously in effect was wound up as at February 1, 1998, and the Local 183 plan had effect as at that same date. The pension plan took effect on May 1, 1998. The wage rates identified in the Residential Plumbing Agreement as effective on May 1, 1998 did not become effective for some employees until July 6, 1998; for others, the rate they currently receive is higher than that outlined in the Agreement, and accordingly they are not being paid in accordance with its terms. It would also appear that Local 183 has not enforced the provision contained in the Residential Plumbing Agreement that employees of Elitrex become members of that union, nor the journeyman/apprentice ratio contained in the Agreement.
16During the course of the hearing, the Board provided the parties with certain information regarding the membership evidence filed with the Board by Local 183 as part of its intervention in the certification proceeding. Fourteen cards were filed by Local 183, each of which corresponds with one of the 18 names on the handwritten list of Mr. Taddei. Each card was signed, and each identifies a collector, of which there were two. Six of the membership cards are dated November 3, 1997; one is dated November 24, 1997; two are dated November 25, 1997; one is dated November 28, 1997; three are dated January 22, 1998; and one is undated. Mr. Taddei also executed a document similar in form to the Board's Form A-80, Declaration Verifying Membership Evidence, Construction Industry, which was filed with the membership evidence relied upon by Local 183. The text of that document reads as follows:
I, Nemesio Taddei, the Business Representative of the responding party, declare that, to the best of my knowledge, information and belief:
The documents submitted in support of the response to the application represent membership evidence on behalf of fourteen (14) persons who were employees of the responding party on November 28. 1997 in the bargaining unit for which the responding party has been recognized as the bargaining agent in the Recognition Agreement/Memorandum of Agreement dated November 28, 1997.
On the basis of my personal knowledge or inquiries I have made, the documents were signed by the employees indicated on the documents, except in the following instances: The one (1) undated card was signed by the employee prior to the 28th day of November, 1997.
Dated February 20, 1998 "Nemesio Taddei" (Signature)
Accordingly, Mr. Taddei states in this document that the one undated piece of membership evidence filed by Local 183 was signed prior to November 28, 1997.
17It is also relevant to note that Mr. Arduini conceded during the course of his testimony that Mr. Taddei's list of names (which was created when Mr. Arduini advised Mr. Taddei of the identities of his employees prior to November 28, 1997) was incomplete, and that there were two individuals who were left off the list: Mr. Nick Ricciuto, who operates as Elite Plumbing, and someone who is probably most accurately identified only as "Danny", who operates as Danjil Plumbing Ltd. This individual is identified in the documentation before the Board as either "Danny Danny" or "Danny Danjil". Accordingly, there is no dispute that the actual number of persons employed by Elitrex Plumbing on November 28, 1997 totalled 20, rather than 18.
IV. Decision of the Board
18There was not much dispute amongst the parties regarding the legal principles to be applied to the circumstances of these proceedings. A voluntary recognition agreement was signed by Local 183 and Elitrex on November 28, 1997. Local 46 has applied for certification in accordance with the Act, and has requested, as part of that proceeding, that the Board determine that Local 183 does not represent the employees of Elitrex, and that the Residential Plumbing Agreement is no longer operative, on the basis that, as of November 28, 1997, Local 183 was not entitled to represent the employees in the bargaining unit.
19I have considered all of the submissions made by counsel during the course of argument. I am of the opinion that Local 183 and the employer have not satisfied the statutory onus imposed upon them. Accordingly, Local 183 no longer represents the employees of Elitrex, and the Residential Plumbing Agreement does not act as a bar to the certification application brought by Local 46. I reach this result for the following reasons.
20The Board's jurisprudence establishes that the primary method (though not the only method) of establishing that a union was entitled to represent the employees in the bargaining unit is by reference to membership evidence executed by a majority of the employees who were in the bargaining unit on the date the agreement was executed (see, for example, TR.S. Food Services Limited, [1980] OLRB Rep. Mar. 360, and Besiview Holdings Limited, [1983] OLRB Rep. Aug. 1250). However, any membership evidence proffered in support of that result is not conclusive of the question. The Board's observations in Eugene Marks, [1987] OLRB Rep. June 872, at para. 12, support that conclusion:
Neither these nor any of the other cases cited by counsel for the union support the proposition that evidence that a majority of employees in the unit were members of the respondent union at the time the employer granted it recognition is conclusive of the question whether at that time the union was "entitled to represent the employees in the bargaining unit" for the purposes of section [66]. We are not aware of any decision which supports that proposition. The analysis in Trent Metals Limited, [1979] OLRB Rep. Aug. 827, seems inconsistent with it. In any event, the proposition is inconsistent with the general scheme of the Act, and we reject it. Evidence of their membership in a trade union is rebuttable, not conclusive, evidence of their desire of employees to be represented by that trade union in collective bargaining with their employer.
(emphasis in original)
That same decision highlights a proposition which was relied upon by counsel for Local 183 during the course of argument; namely, that evidence of the union's entitlement to represent employees for the purpose of section 66 of the Act is not considered by the Board in the same, stringent manner that it would be for the purposes of an application for certification. At paragraph 9 of the decision, the Board cites both Spring Plastering Limited, [1967] OLRB Rep. Dec. 887, and Gilbarco Canada Ltd., [1971] OLRB Rep. Mar. 155 for that proposition. The excerpt from Spring Plastering Limited, at paragraph 10, is apposite:
..Evidence that the trade union was entitled to represent the employees may well take a different form from the evidence of membership required on an application for certification. It must be remembered that any documentary evidence of the right of a trade union to represent employees was not necessarily prepared with a view of applying for certification and accordingly could reflect the desire of the employees to have the union represent them without complying with the Board's stringent tests of membership.
21In this proceeding, Local 183 relied exclusively upon the membership evidence filed with the Board as establishing its entitlement to represent a majority of the employees in the bargaining unit on November 28, 1997. The difficulty with doing so is that the membership evidence filed by Local 183 does not establish majority support. There is no dispute that Elitrex had in its employ on November 28, 1997 20 persons in the bargaining unit described in the voluntary recognition agreement and the Residential Plumbing Agreement. Of those 20, on or before November 28, 1997, Local 183 had signed 10 presumptively valid applications for membership. Ten of 20 does not establish majority support; an eleventh is needed. Counsel for Local 183 points to the undated membership application, and submits that that card ought to be considered by the Board as valid evidence of membership support prior to November 28, 1997, in light of the declaration signed by Mr. Taddei, which is set out above in its entirety at paragraph 16, and which states that the card was executed prior to that date. This result is urged by counsel for Local 183, particularly in light of the fact that the Board has stated on numerous occasions that a lesser standard is applied to evidence relied upon in support of a voluntary recognition agreement.
22Even with that proposition in mind, I am unable to place any weight upon the undated membership application card. The central issue in these proceedings is the validity of the voluntary recognition agreement. Its validity, on the facts of these proceedings, stands or falls upon the basis of membership evidence signed by employees in the bargaining unit, and, most particularly, the dates upon which that membership evidence was signed. The pivotal piece of membership evidence is undated. Mr. Taddei has declared that the critical piece of membership evidence was executed "prior to" November 28, 1997. Presumably, Mr. Taddei would have identified the exact date had he recalled it as at February 20, 1998, the date of his declaration. One can assume, therefore, that at that time Mr. Taddei could not recall exactly when that membership application was signed. If the membership application had been executed on November 29, 1997, it would have little value for the purposes of determining the validity of the voluntary recognition agreement. Accordingly, there is a legitimate issue as to the relevancy of that piece of membership evidence for the purpose of establishing Local 183's entitlement to represent the employees in the bargaining unit. Counsel for Local 46 asserted that, in these circumstances, Mr. Taddei ought to have been called to testify about the circumstances surrounding the execution of the application for membership. In the absence of Mr. Taddei, it was asserted that a negative inference must be drawn that Mr. Taddei's testimony would not have been supportive of Local 183's position. If Mr. Taddei was unavailable to testify because of his health, counsel suggested that Local 183 ought to have requested an adjournment, to which his client would have consented.
23Counsel for Local 183 vigorously disagreed with that proposition. Counsel noted that in a case heard the week prior to these proceedings (Rolan Plumbing, Board File 4580-97-R), Local 183's request for an adjournment of that proceeding on the basis of Mr. Taddei's health was contested by Local 46, and suggested that it had been argued in that case that Local 183 had utilized the current state of Mr. Taddei's health as a means of postponing determination of a certification case which it did not want to proceed. The Board, in part because of Mr. Taddei's health, adjourned that proceeding (see the decision of the Board dated November 5, 1998). In light of the arguments made in that proceeding, counsel for Local 183 submitted that it could hardly lie in the mouth of Local 46 to criticize Local 183 for proceeding without Mr. Taddei in these proceedings.
24At first glance, there does appear to be a certain level of gamesmanship attributable to the suggestion made by Local 46 that Local 183 ought to have requested an adjournment of this proceeding if Mr. Taddei's health was truly a problem. The fact is, however, that Local 183, by litigating these proceedings without requesting an adjournment, accepted the risk of proceeding without Mr. Taddei's testimony. Whether or not Local 46 would have consented to an adjournment of these proceedings is beside the point. If the critical piece of membership evidence must be supported by oral testimony, and was not, then that membership evidence cannot be given any weight in these proceedings.
25In my view, the membership application card relied upon by Local 183 as establishing its entitlement to represent a majority of the employees of Elitrex in the bargaining unit ought to have been supported by oral testimony, given the absence of a date on the card. Traditionally, membership evidence which has not borne an accurate (or any) date has been supported by oral testimony (see, for example, Campbell Soup Company Limited, [1966] OLRB Rep. Mar. 883; P.R.C. Chemical Corporation of Canada Ltd., [1980] OLRB Rep. May 749; Maple Leaf Mills Limited, [1984] OLRB Rep. Oct. 1474; and Robert M. Heenan Sales Limited, [1996] OLRB Rep. Feb. 106). In this regard, there is no real question of "drawing a negative inference" in the circumstances. If Mr. Taddei is ill and unavailable to testify, as Vice-Chair Surdykowski concluded one week prior to the commencement of these proceedings, I am willing to accept that as a fact, and consider that as an explanation which has the effect of rebutting the inference that Mr. Taddei's evidence would be unfavourable to Local 183. But that alone is not sufficient to avoid the consequences of Mr. Taddei's failure to give evidence. The failure of Mr. Taddei to testify negates the possibility of giving any weight to the membership evidence card without the date, because I am unprepared to make the critical factual finding that that membership application was executed prior to November 28, 1997 without oral testimony in support, which testimony, of course, would be subjected to cross- examination. Quite simply, the critical finding in these proceedings - majority support as at November 28, 1997 - cannot be based solely upon a hearsay declaration prepared by Mr. Taddei.
26Independently of this basis, however, there is one further ground upon which I would reach the same conclusion; that is, that the documentary membership evidence filed by Local 183 is insufficient to support the conclusion which must be reached to validate the voluntary recognition agreement -that Local 183 was entitled to represent the employees in the bargaining unit because it had majority support of the employees in the bargaining unit on November 28, 1997.
27During the course of argument, counsel for Local 46 provided the Board with the decision of Trent Metals Limited, [1979] OLRB Rep. Aug. 827. In that case, the applicant (the Trent Metals Employees Association) was determined by the Board to be a "trade union" for the purposes of the Act. In question in that proceeding was the status of a voluntary recognition agreement executed by that Association and Trent Metals Limited. It would appear that at the time that Trent Metals Limited recognized the Association as the bargaining agent of its employees, more than 60% of the employees in the bargaining unit had signed membership cards and paid dues to the Association. The intervenor trade union (the U.E.) had commenced an organizing drive approximately eight days prior to the execution of the voluntary recognition agreement, signed up 25 employees in that eight day period, and then found that its campaign had come to an abrupt halt, signing up only two more employees in the next two weeks.
28The Association applied to the Board for a certificate. The U.E. intervened and applied for certification prior to the terminal date. Accordingly, the Board was faced with the question of which trade union's application for certification ought to be given precedence. The Board noted that, if the recognition agreement were allowed to stand "then the application of the [U.E.] must be found to be untimely". The Board went on to note that where an employer and a trade union enter into a voluntary recognition agreement, the Board, upon application by an employee in the unit or any trade union representing an employee in the unit, is given "a broad discretion under section 52 [now 66] of the Act, to declare that the trade union was not entitled to represent the employees in the bargaining unit". Most importantly, the Board observed as follows, at paragraphs 7 and 8:
The recognition agreement between the applicant and the respondent employer was entered into at a time when the intervener trade union was in the process of signing employees of the respondent into membership. Indeed the intervener had signed more than one third of the respondent's employees into membership at the time the recognition agreement was entered into therefore, there was a legitimate contest between the two unions at the time as to which one would become the bargaining agent for the respondent's employees. Having regard to this fact the Board hereby declares, pursuant to its authority under section 52 [now 66] of the Act, that the applicant was not entitled to represent the respondent's employees at the time the recognition agreement was entered into. Accordingly, that agreement and the "wage settlement", whatever it may have been, cease to operate and cannot bar the intervener's application. The Board must consider both applications.
Section 12 [now 15] of the Act provides:
"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 his race, creed, colour, nationality, ancestry, age, sex or place of origin."
The Board is proscribed by statute from certifying a trade union if any employer has contributed financial or other support to it. The Board can think of no more meaningful support in the context of a bi-union contest of membership, as in this case, than the extension of recognition to one of the two unions. The effect of such recognition is to indicate the employer's desire to deal with that union to the exclusion of the other and to thereby chill, if not destroy, the organizing campaign of the unrecognized trade union. Indeed in this case the intervener union submitted only two membership cards which were signed after the applicant and the respondent company entered into their recognition agreement. In the circumstances the Board finds that the applicant has been the recipient of employer support within the meaning of section 12 [now 15] of the Act and dismiss its application.
29The means of obtaining bargaining rights under the Act has changed since 1979, and the Trent Metals Limited case is somewhat different than the instant proceedings in context, being an application for certification by the trade union previously recognized on a voluntary basis. However, the underlying concern of the Board identified in Trent Metals Limited is also of concern to the Board in these proceedings. Counsel for Local 183 submitted during the course of argument that the Act, by permitting for voluntary recognition, has signalled the Legislature's belief that the concept of voluntary recognition is a "good thing", and that voluntary recognition agreements ought not to be negated unless it is apparent that the circumstances reflect that the agreement is a "sweetheart deal", which is not the case on our facts.
30As a general proposition, I do not disagree with that observation. Nor do I conclude that there was a "sweetheart deal" reached in this case. Although counsel for Local 46 suggested that the evidence in these proceedings established such a "sweetheart deal", I do not share that view. The evidence does show that Local 183 did not enforce the terms of the Residential Plumbing Agreement from November 28, 1997 until February 1, 1998. From the latter date, the enforcement of the Agreement has been inconsistent, especially with regard to wage rates. However, I am satisfied that Mr. Arduini and Mr. Taddei agreed, at or about the time of the execution of the voluntary recognition agreement, that the effective date of the application of the Residential Plumbing Agreement would be delayed to permit for completion of projects then in progress. This is a common occurrence in the construction industry amongst parties to a new bargaining relationship. This agreement, when placed in the context of Mr. Taddei's health problems, suggests to the Board that the failure of Local 183 to actively promote to the employees of Elitrex its Residential Plumbing Agreement prior to February 1, 1998 was not the result of a "sweetheart" arrangement. Furthermore, Local 183's failure to grieve payment by the employer of rates of pay higher than those contained in the Agreement is not surprising nor (at least to Local 183 and the employees of Elitrex who have not grieved same) troublesome in the circumstances. Although Local 183 can hardly be characterized as actively policing its Agreement with Elitrex, neither can I characterize its conduct post-November, 1997 as reflecting that a "sweetheart deal" had been reached with Elitrex.
31Nonetheless, I am troubled by the decision made by Mr. Arduini to communicate to at least one employee his decision to "go with" Local 183. Quite simply, it's not his choice to make. Voluntary recognition agreements are a "good thing" because litigation over labour relations matters - and particularly matters of representation - ought to be discouraged rather than encouraged. If a trade union can establish to an employer that it has the majority support of the employer's employees in a defined bargaining unit, voluntary recognition will avoid the often bitter and protracted litigation which can result from an application for certification. That said, an employer cannot be seen to be contributing to or creating that majority support. Here, that is exactly what Mr. Arduini did. During the month of November, 1997, Mr. Arduini advised one of his employees that he and his partner could "live with" the piecework provisions of the Residential Plumbing Agreement. The employee to whom Mr. Arduini made that comment - a pieceworker, it should not be forgotten - could only have taken those words to be an endorsement of Local 183 and a rejection of Local 46. The possibility exists that the pieceworker in question communicated Mr. Arduini's preference to other employees, some of whom may well have subsequently executed membership cards in favour of Local 183.
32I noted above that the Board's jurisprudence establishes that documentary membership evidence filed by a union is only presumptive evidence of majority support of employees in the bargaining unit. In light of the comments made by Mr. Arduini, I cannot accept the membership evidence filed by Local 183 in the certification proceeding as establishing, on its face, an entitlement to represent the employees in the bargaining unit. Irrespective of the questionable value of the membership card that is undated, one or more pieces of membership evidence filed with the Board may well be tainted by employer interference, and may not represent a voluntary decision by the employee or employees to support Local 183.
33In the circumstances, then, I am not prepared to conclude that Local 183 has established, through the filing of documentary evidence, that it was "entitled to represent the employees in the bargaining unit" as at November 28, 1997. As noted above, there was no other evidence put forward by Local 183 as establishing that entitlement in these proceedings. In accordance with section 66 of the Act, I declare that Local 183 was not, as at November 28, 1997, entitled to represent the employees in the bargaining unit reflected by the voluntary recognition agreement and the Residential Plumbing Agreement. In accordance with section 66(4) of the Act, Local 183 forthwith ceases to represent the employees of Elitrex in the bargaining unit, and the Residential Plumbing Agreement ceases to operate with respect to this employer. The application for certification filed by Local 46 is timely, and may proceed in accordance with the provisions of the Act.
34As counsel for Local 46 advised me at the end of argument that his client did not desire any relief beyond the representation vote for which it had applied in the certification file, I will not make any further remedial orders or declarations in the unfair labour practice proceeding. That proceeding is terminated.
35By decision dated January 28, 1998, the Board (differently constituted in part) determined (in accordance with the agreement of all of the parties) that a representation vote ought not to be ordered until the validity of the voluntary recognition agreement was litigated. This has now been completed. Local 46 and Elitrex are directed to advise the Board no later than November 26, 1998 of their proposed voting arrangements, at which time the Board will consider the materials filed by Local 46 and determine whether Local 46 is entitled to a representation vote in accordance with the provisions of the Act.