Teddy Petrushevski v. Ontario Pipe Trades Council, 1998 CanLII 18404

Ontario Labour Relations Board

Citation: Teddy Petrushevski v. Ontario Pipe Trades Council, 1998 CanLII 18404 Date: October 21, 1998 File No.: 0233-98-R

Between: Teddy Petrushevski, Applicant v. Ontario Pipe Trades Council of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada ("O.P.C.") and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada ("U.A."), Responding Parties v. Marsil Mechanical, Intervenor

Before: G. T Surdykowski, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.

Appearances: Bruce Sevigny and Teddy Petrushevski for the applicant; James Fyshe, Garth Cochrane, Jim Boyle and Brian Christie for the responding parties; Erin R. Kuzz, Joseph Liberman and Marco Grande for the intervenor.

DECISION OF THE BOARD

1The name of the applicant is amended to "Teddy Petrushevski".

2This is an employee application, under section 63(2)(a) of the Labour Relations Act, 1995 for a declaration that the responding trade unions no longer hold industrial, commercial and institutional ("ICI") sector construction industry bargaining rights for employees of Marsil Mechanical Inc. ("Mar­sil").

3As a result of the collective bargaining scheme established in the Act for the ICI sector of the construction industry, this application comes relatively soon after the Ontario Pipe Trades Council of the United Association of Journeymen of Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada and the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (the designated employee bargaining agency for ICI sector bargaining and itself also an affiliated bargaining agent) was certified by the Board, on its own behalf and on behalf of all other affiliated bargaining agents of that designated employee bargaining agency (the totality of which entities are hereinafter referred to the "UA"), as the exclusive bargaining agent of all plumbers, plumbers' apprentices, steamfitters and steamfitters' apprentices in the employ of Marsil in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario, save and except non-working foremen and persons above the rank of non-working foreman. The certificate (as well as a certificate for all non-ICI sectors of the construction industry in Board Area #18) was issued under section 11 of the Act as it then was (i.e. prior to the Bill 31 amendments which received Royal Assent on June 26, 1998).

4By decision dated April 29, 1998, the Board (differently constituted in part) directed that a representation vote be held in the ICI sector bargaining unit. The vote was held on May 1, 1998 as directed by the Board. Because of the issues raised by the UA, the ballots which were cast have been segregated and the ballot box has been sealed.

5A hearing was held with respect to this application on September 8 and 9, 1998.

6Relying on the April Waterproofing Limited, [1980] OLRB Rep. Nov. 1577 line of cases, the UA asserts that neither the applicant nor either of the other two persons who voted were employees in the bargaining unit for purposes of a termination application, and that this application should therefore be dismissed. More specifically, the UA asserts that the applicant Petrushevski, Adrian Torti and Silvio Grande are not, and were not at any material time, members of the applicant, and that they were not employed by Marsil in accordance with the UA Provincial Agreement at the time the application was made. (Initially, the UA also asserted that Silvio Grande was not an "employee" for purposes of this application because he exercised managerial responsibilities, but it quite rightly withdrew this assertion in the course of the hearing.)

7The Labour Relations Act has been much amended since the Board's decision in April Waterproofing Limited, supra. In our view, none of the amendments affect the validity of the April Waterproofing principle properly applied.

8The root of the April Waterproofing principle lies in the nature of employment, and trade union representation of employees, in the construction industry. In that respect, the Board in April Waterproofing (which was a displacement application for certification) observed that:

6. Employment patterns in the construction industry differ from those in most other industries. One major difference is that the manpower requirements of most construction firms fluctuate greatly over relatively short periods of time. Not only do different projects require different size work forces, but frequently the number of tradesmen required on any particular project will vary depending on the stage of development of the project. Employment levels also vary because of cyclical and seasonal fluctuations in construction activity. For their part, most construction trades­men are required to work for a succession of different employers. These factors have resulted in the negotiation of collective agreement terms which are unique to the construction industry. This fact is recognized in the following excerpt from the judgment of the Ontario Court of Appeal in Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, (1975), 1975 CanLII 707 (ON CA), 8 OR. (2d) 103 at p. 112:

In this industry, there is no continuing employment and so collective agreements have developed to ensure a source of labour to the contractor, to provide for preference in the employment of trade union members and, while establishing the terms and conditions of such employment, to provide other benefits which may become due or payable at a time when the union member is not employed.

7. The displacement of one union's bargaining rights by another is by no means rare in the construction industry. Such cases generally involve situations where the applicant union has won over the allegiance of members of the incumbent union who were hired by the employer in accordance with the provisions of the incumbent's collective agreement.

Those observations are as accurate today as they were then. As a result, the Board in April Waterproofing concluded that:

8. There can be little doubt but that at the relevant time there existed a common-law employee-employer relationship between the respondent and the three individuals challenged by the inter­vener. That by itself, however, is not determinative of their status as bargaining unit employees. See Local 273, International Longshoremen's Association v. Maritime Employer's Association, 1978 CanLII 158 (SCC), [1979] 1 SCR. 120. In our view, the bargaining unit is comprised of employees employed under the terms of the applicable collective agreement. To be so employed, an employee must have been hired in accordance with the provisions of the agreement. The three individuals in dispute were not hired in accordance with the provisions of the collective agreement and accordingly, in our view, they do not come within the bargaining unit covered by the collective agreement. This being so, we are satisfied that in ascertaining the number of employees in the bargaining unit for the purposes of section 7(1) of the Act, the three individuals in dispute should not be taken into account.

This paragraph of April Waterproofing has been cited as standing for the broad proposition that persons who have been hired or retained as employees contrary to a construction collective agreement will not be considered to be employees in a bargaining unit for purposes of a representation proceeding under the Labour Relations Act. As the Board's jurisprudence demonstrates, that is, with respect, too broad a statement of the principle.

9As the Board observed in E. R. Masonry Ltd., [1988] OLRB Rep. July 668:

15. Subsequently, the Board has held that the April Waterproofing principle does not apply in circumstances where the affected individuals are "pre-existing" employees in the sense that they were not hired in violation of any existing or inchoate collective agreement (see Culliton Brothers Limited, [1983] OLRB Rep. Mar. 339; Inducon, [1983] OLRB Rep. July 1038). Further, in declining to apply the April Waterproofing principle in Pierre A. Gratton Construction Inc., [1986] OLRB Rep. Jan. 137, the Board stated, at paragraph 11:

11. Obviously the potential for mischief in a situation of unlawful hiring is, as the Board has repeatedly pointed out, considerable. Accordingly, the Board, particularly with its knowledge of the construction industry, has not hesitated to presume, in the words of Inducon, supra, that the employer intended the natural consequences of his acts. That presumption is rebuttable, however, in the face of cogent evidence, and the Board on the evidence before it in the "sale" application is unanimously of the view that the principals of Grager were acting in good faith, and did in fact believe that the new, merged undertaking was not the subject of the shelved Pierre Gratton Construction Inc.'s collec­tive agreement. We are satisfied that the principals of Grager made no effort whatever to hide the operations of "Grager" from the intervener Labourers' Union; in fact, they willingly hired individuals whom they knew to have been members of the Labourers' Union through their prior employment with "Gratton". The "Grager" company was in the field bidding on and performing jobs in the high-profile Transitway project for a substantial period of time before the Labourers', through their counsel, began to assert their claims. While the race is not simply to the swiftest, the Board can expect some measure of diligence in the unique world of construction, where unions know they must move quickly to organize or assert bargaining rights before a project is completed. Here the Carpenters' Union expended its recourses(sic) in a good-faith effort to organize the apparently unrepresented employees of "Grager", and it is the decision of the Board that their application for certification is entitled to proceed, on the basis of the persons "employed" as of the date of certification.

It is evident that the principle in April Waterproofing is one of limited application.

Subsequently, in Aero Block and Precast Ltd., [1989] OLRB Rep. Feb. 93, the Board clearly stated (in paragraph 15) that the April Waterproofing principle does not apply in every case in which employees have been employed in a bargaining unit contrary to a collective agreement.

10On the other hand, cases like Culliton Bros. Limited, [1983] OLRB Rep. March 339 ("Culliton III") and Inducon Development Corporation, [1983] OLRB Rep. July 1038 have been cited as standing for the proposition that the April Waterproofing principle applies only to new hires, and not to employees hired before a union obtained bargaining rights. Although retained employees do stand on a somewhat different footing than new hires, the April Waterproofing principle also applies to them, as decisions like Ken Acton Plumbing & Heating Inc., [1992] OLRB Rep. May 604 demonstrate.

11There are three aspects to an inquiry in the applicability of the April Waterproofing principle:

(i) the conduct of the employer;

(ii) the conduct of the employee(s); and,

(iii) the conduct of the union raising the issue. The questions are these:

(a) Has the employer acted or failed to act in a manner which manipulates the composition of the bargaining unit in a way which fosters or encour­ages a particular result in a representation proceeding? (As the Board pointed out in Culliton III, the root of this question lies in what is now section 70 of the Act, which prohibits an employer from interfering in the formation, selection or administration of a trade union.)

(b) Did the employees act reasonably in the circumstances (see F.H.R. Construction Ltd., [1991] OLRB Rep. Aug. 977)?

(c) Did the union acquiesce in the actions or inaction of the employer, or in the conduct of the employees (see F.H.R. Construction Ltd., supra, E.R. Masonry, supra; Ken Scharf Construction Limited, [1990] OLRD #1797, decision dated September 19, 1990)?

The April Waterproofing principle applies where an employer has knowingly hired or retained employ­ees in the bargaining unit contrary to the provisions of the applicable collective agreement, the employees in question have acted in a manner which is inconsistent with their obligations under the collective agreement in the circumstances, and the union has not acquiesced in the situation or otherwise acted inappropriately.

12In this case, there is no question that the three persons in issue were employees of Marsil for the purposes of of non-representation proceedings under the Act. The question is whether they should be counted as bargaining unit employees for purposes of a representation proceeding.

13All three individuals were employees of Marsil prior to the application for certification which resulted in the UA obtaining the bargaining rights in issue. All three were employees in the bargaining unit for purposes of that application. Petrushevski and Torti had only been employed by the company for a relatively short time prior to the application for certification. Silvio Grande, who is the brother of Marco Grande, the president and sole principal of Marsil, had been employed for a somewhat longer period. The other two employees who were there when the application for certification was made, and who everyone knew were UA members, (and now knows were the seeds for the application for certification) are no longer employed by the company. As a practical matter, all three of Petrushevski, Torti and Silvio Grande have been "continuously" employed by Marsil since the application for certification was made. That is, they continued to be employed by Marsil after the UA was certified.

14Petrushevski and Torti were not members of the UA either at the time this application was made or since the UA was certified in September 1997. Silvio Grande was a member at the time the application for certification was made (although he was not counted as one for purposes of the certification proceeding) but he was expelled, purportedly in accordance with the UA constitution, before the UA was certified, for working "non-union" (for Marsil) and for not supporting the application for certification.

15The applicant concedes that none of the three individuals in issue were UA members at the time this application was made. The applicant and Marsil also concede that all of Petrushevski, Torti and Silvio Grande were employed in violation of the collective agreement (to adopt the words of counsel). They also concede the April Waterproofing principle. However, the applicant, strongly supported by Marsil, submits that the three individuals should nevertheless be counted as employees in the bargaining unit for purposes of this application because the UA did nothing to enforce its ICI bargaining rights before this application was made, and that in the circumstances the April Waterproof­ing principle does not apply.

16Marsil presented evidence of the ICI work it engaged in after the UA was certified, up to the day that this application was filed. The company presented evidence of thirteen ICI jobs. Its documentary evidence in that respect appears to be incomplete. For example, although it presented some Marsil invoices, there is not an invoice for every job. Further, the nature of the jobs is such that the Board would have expected to see bid documents for more than the one job for which there is such a document (and for that job there were no other documents). Finally, Marsil presented timesheets for Silvio Grande for the week in which the application was made, and for the prior week. No other timesheets were presented to substantiate the company's assertion regarding the ICI work it asserts it performed between September 17, 1997 (the date of certification) and April 20, 1998 (the day that this application was made). Perhaps the company's record keeping is not what it might be, or perhaps the company considered such evidence to be unnecessary. But neither of these, nor any other explanation was offered in that respect. In the result, the Board is left with rather sketchy, and apparently selective, evidence of Marsil's ICI activities during the relevant period. The testimony of Marco Grande is also somewhat suspect because it tended to be either over or understated as appeared to suit the company's obvious interest in the success of this application. For example, Marco Grande was adamant that all three of the persons in issue worked on all thirteen ICI jobs, but from what the Board considers to be the more reliable evidence of the three individuals themselves it is apparent that neither Adrian Torti nor Silvio Grande worked on all of them. Further, Marsil presented evidence of three jobs which were not performed within the period of September 17, 1997 to April 20, 1998, and which are therefore irrelevant to the application. Marco Grande also clearly overstated the amount of ICI work performed by Petrushevski and Torti relative to the residential work which they performed.

17Turning first to the irrelevant jobs, it is apparent that the "Mississauga Industrial Condomin­ium" job (Exhibit #5) and the "Mr. Submarine" job (Exhibit #7) were performed prior to September 17, 1997; that is, before the UA held any bargaining rights with respect to Marsil. The "Tanning Salon" job (Exhibit #14) was invoiced by Marsil on May 1, 1998. On the evidence, this was a small job which only took "a couple of days", and while it is not entirely clear, it seems more probable than not that it was performed after this application was made. (However, we observe that the nature of the job was such that including it would make no difference to the result.)

18As for the ten relevant jobs, the evidence reveals as follows:

1. The "Oshawa Schools" job involved the installation of science labora­tory sinks. This work was performed intermittently, a day or two at a time, over a period of some two months at the end of 1997 at three separate schools. Although Marco Grande purported not to know the value of this job, the plumbing supplies invoices (the only documentary evidence presented) indicates the value of the supplies purchased for the job to be approximately $6,300.00 (before taxes). This suggests a relatively small job.

2. Marsil did another "Mr. Submarine" job in Oshawa. The work, which was also intermittent, involved installing some toilets and sinks in late December 1997 or early January 1998. The "supply and install" contract figure was $6,250.00 (before GST), which suggests a small job.

3. Marsil installed plumbing and sprinklers in a beer store in Georgetown. The value of this contract was approximately $18,000.00. Although Marco Grande testified that the work was performed over a three-month period between December 1997 and March 1998, the documentary evidence (which consists solely of materials invoices) indicates that all supplies were shipped in February 1998, which suggests that the work did not begin until January 1998 at the earliest.

4. Marsil had a $7,500.00 contract for work at a doctor's office at Bathurst Street and Major MacKenzie Drive in February or March 1998. This work took approximately one week to perform.

5. Marsil had a labour and materials contract for plumbing and gas line work at a TTC building at 1900 Yonge Street. It is clear that the total value of this contract was less than $15,000.00, and while Marco Grande testified that the work was performed between February and April 1998, the evidence suggests that February to mid-March 1998 is much more likely.

6. Marsil performed another small job at another doctor's office in Scarbor­ough (value of approximately $7,000.00) in January 1998.

7. At a medical office at 2200 Yonge Street, Marsil performed a labour and materials job valued at approximately $7,700.00 between, it appears, late March and early May 1998 (and not February to April 1998 as suggested by Marco Grande).

8. Marsil had a small air-conditioning ($4,500.00) and heating ($2,400.00) job at George Brown College in April 1998. This is where Petrushevski and Torti were working at the time this application was filed.

9. Silvio Grande was employed at a $10,500.00 job at Denison Cold Storage at the time the application was made.

10. Marsil performed a $10,000.00 gas line job at Xebec between October and December 1997.

Except for the Xebec job and one of the doctor's office jobs, there is no evidence which suggests that any of these jobs were brought to the UA's attention. Even in the case of those two jobs, the information given to the UA was vague and did not suggest that anyone other than Marco Grande himself was performing work covered by the ICI agreement. There is nothing in the evidence which suggests that any of the other eight relevant jobs either actually came to the UA's attention, or were so open and notorious that they ought to have. On the contrary, the evidence suggests that they were all small jobs which were performed intermittently over a broad geographic area in locations where they were unlikely to come to the UA's attention.

19It is common ground that Marco Grande met with Brian Christie, an Ontario Pipe Trades Council Representative, and Jim Boyle (one of five UA, Local 46 Business Agents) in late October 1997. Marco Grande testified that he asked for the appropriate paper work or forms necessary for him to operate as a union contractor under the UA's ICI agreement, and that his main concern was that the three persons in issue be accepted into UA membership so that they could work on ICI jobs for him. Marco Grande asserted that he raised these questions on several subsequent occasions as well.

20This October 1997 meeting took place on the heels of a letter dated October 2, 1997 which Christie sent to Marco Grande (Exhibit #19). After stating the UA's position with respect to damages owed by the company arising out the certification proceedings, Christie went on to write as follows:

Further, I advise you that as of September 17, 1997, Marsil Mechanical Inc. became bound to the Ontario Province Collective Agreement. Therefore, you are required to employ only members in good standing. To facilitate a resolve to any outstanding concerns, please supply Mr. Jim Boyle with a list of all projects awarded on or after September 17, 1997 along with the address of the projects.

I further advise you that any projects awarded prior to September 17, 1997 and continuing after that date are covered as of September 17, 1997. Please furnish an accurate list of these projects and the address of each project.

Any tradesmen employed with your company on the date of application may make application for membership into the Union. Please be advised that you must submit all payroll records for employees, their Certificates of Qualifications, address and telephone numbers.

I further advise that all employees must have referral slips issued by the Union Hall before starting work.

(emphasis added)

21The Board is satisfied that there was discussion about Marsil's obligations under the collective agreement, about Petrushevski and Torti becoming UA members, and about Silvio Grande's situation (the latter having been fined $10,000.00 and expelled from membership in the UA). It is clear from Marco Grande's own evidence that he was left with no illusions concerning his obligations under the UA's ICI Agreement, and specifically his obligation to employ only UA members to perform work covered by that collective agreement. Marco Grande was well aware that this applied to all three of Petrushevski, Torti and his brother, Silvio Grande.

22Christie's October 2, 1997 letter stated that "any tradesmen employed with [Marsil] may make application for membership into the [UA]". This could be read as suggesting that any such person (which could only be Petrushevski, Torti and perhaps Silvio Grande) would have his application accepted. But it is clear on the evidence that that was not necessarily the case. In addition, the issue as it developed became one of "which Local" rather than UA membership in general.

23It is clear that Marco Grande's inquiries concerning UA membership were with respect to UA, Local 46, which is the Toronto local. It is equally clear that the UA, including Local 46, were less than enthusiastic about that idea, both because Petrushevski, Torti and Silvio Grande had not supported the application for certification (and indeed they had obviously opposed it), and because of Local 46's high unemployment rate among Local 46 members. In addition, the UA's policy and practice is to grant employees of a newly certified employer membership in the UA Local with geographic jurisdiction in the area in which the application for certification was made, whether or not they supported the application. Such employees who wish to join a different UA Local may do in the exercise of the particular Local's discretion. This discretion is often exercised in favour of an employee who supported the application for certification (although equally often it is not, it appears), but it appears that it is never exercised in favour of an employee who opposed the application. In this case, however, this policy was not put to the test (although we will have more to say about it later), and the Board is satisfied that although they were discouraged from doing so, none of the persons in issue were either specifically told that they could not apply for membership in any UA Local they wished, including Local 46, and none were actually refused membership.

24In that respect also, the UA did offer up Local 46 membership to Petrushevski and Torti if Marsil would sign a UA "standard agreement", which upon a quick review would have bound the company to the UA residential agreement in Local 46's jurisdiction, and would also have required it to apply the provisions of the Provincial ICI Agreement to certain other non-ICI work. But this was a matter of the UA trying to get more than it had, and this purported "precondition" to membership for Petrushevski and Torti was never actually put to the test either.

25In either case, it is clear that Marco Grande never did provide a list (whether consisting of one or more jobs) of Marsil's ICI projects to the UA. Indeed, with the exception of what the Board considered to be vague and inadequate information with respect to the Xebec and one doctor's office job, the company made no or insufficient disclosure of its ICI work to the UA. Further, it is clear that Marsil knowingly violated the UA's ICI agreement by employing Petrushevski, Torti and Silvio Grande to perform ICI work covered by that agreement when it knew that none of them were UA members.

26As for the employees, there is no indication that any of them took any steps to become UA members. In December 1997, Christie and Cochrane (an Ontario Pipe Trades Council organizer and part-time Business Agent for Local 463, the Oshawa Local) sought out and met with Petrushevski and Torti on a large residential job site in Bowmanville (which is in Board Area 9). They tried to "sell" Petrushevski and Torti on the benefits of UA membership. However, they steered them toward the Barrie Local, and specifically tried to steer them away from Local 46 or even the Oshawa Local (although regarding the latter they suggested membership would be available if they helped the UA organize Marsil in the non-ICI sectors of the construction industry in Board Area 9). But even though they discouraged Petrushevski and Torti, they never told them either that they could not become members of Local 46 or that they could not apply for membership in Local 46, or any other UA Local.

27As far as Petrushevski and Torti were concerned, if they were going to join any UA Local it would have to have been Local 46, because they both live and spend much of their working time in Toronto and the immediate area. They had no interest in going to the Barrie local. This is understandable. But none of this entitled either Petrushevski or Torti to ignore the situation or their obligations if they wished to continue to perform work for Marsil in the ICI sector.

28It appears that there was some misunderstanding between Petrushevski and Torti on one hand and Christie and Cochrane on the other. After exchanging telephone numbers, each left their meeting thinking the other would contact them further about UA membership. But even if that was their understanding, it was not open to Petrushevski or Torti to proceed as though nothing had happened, and without regard to the effects of certification. The Board does not accept Petrushevski's and Torti's assertions that they did not know how to apply for UA membership, either generally or in UA Local 46. First of all, they could have informed themselves. In that respect, they had Christie's and Cochrane's telephone numbers, and it is apparent that they knew where the Oshawa Local was located. In addition, Torti had previously been a UA Local 46 member, and presumably he knew where it could be found. Further, Petrushevski had the wherewithall to find out how to bring this application. It was hard to believe that it would have been harder to find a Local of the UA.

29Silvio Grande also knew or ought to have known what was required of him. He could have paid the fine and sought reinstatement of his membership. He could have appealed the fine and expulsion order under the UA constitution. Without suggesting that the UA had acted contrary to the Act, he could have sought relief at the Board. Instead, he did nothing, except that he continued to perform ICI work for Marsil contrary to the provincial agreement.

30In the result, none of the three persons in issue acted reasonably or did what was required of them.

31And what of the UA? Could the UA have done more than it did? Perhaps, but like employers and employees, unions in the UA's position are not held to a standard of perfection. On the evidence, there was reason for the UA to think that Marsil wanted to employ Petrushevski, Torti and Silvio Grande to perform ICI work. Indeed, the UA knew this. But there was no reason for the UA to think that Marsil was in fact doing so. There was no reason for the UA to suspect that anyone other than Marco Grande himself was performing ICI work on the Xebec job or on the one doctor's office job the UA knew about. And the UA did not know, nor ought it have known, about any of the other eight relevant ICI jobs. It cannot be said that the UA either turned a blind eye or otherwise acquiesced in the conduct of the company or of the three employees. Nor did the UA otherwise act in a manner contrary to the Act.

32In the result, this application presents an employer and three employees who knowingly acted contrary to the UA's ICI Agreement, as though certification had never happened. On the other hand, the UA's conduct may not be above reproach, but it did not acquiesce to this. In short, this is a situation to which the April Waterproofing principle applies, and none of Petrushevski, Torti or Silvio Grande can be considered to be bargaining unit employees for purposes of this application.

33This application presents an unfortunate situation. It is apparent that the three "steady Eddy" employees of Marsil want no part of the UA. But because of the company's conduct (which earlier conduct resulted in this situation in the first place) and their own, their wishes cannot be given effect. How, one may ask, is this fair, particularly under a statute which appears to emphasize the wishes of employees? Fairness involves a consideration of the rights and interests of everyone involved, not just those employees. Further, there are preconditions to every expression of employee wishes under the Act. The Labour Relations Act does not provide that the wishes of the employees take precedence over all else in every situation, regardless of the circumstances or the rights of other parties. Does this mean that an employee has to first join (or at least attempt to join) a union in order to get it out of his/her workplace? In the construction industry, the practical answer may well be "yes". An employee has to play by the rules of the game, just like everyone else.

34Speaking of rules, what of the UA's policies and practices, particularly as they relate to employees of newly certified employers? Although any actual determination in this respect must be left for a case where it is actually put in issue, the Board feels constrained to make some observations. Employees cannot be discriminated against on the basis of whether they supported or opposed an application for certification. Although it enjoys a great deal of freedom in the way it structures its internal affairs, and although it has legitimate interests to protect, the UA is not a law completely unto itself. The UA constitution, and every other union constitution, is subject to the laws of this Province, most importantly for our purposes, the Labour Relations Act, 1995. Employees cannot be treated differently because of the way they choose to exercise their rights under the Act. With respect, this means that retained employees are prima facie entitled to join the union Local which will enable them to continue to their employment relationship with a newly certified employer, and that they will not have to leave that employment to be replaced by unemployed members referred from the hiring hall. A union has obligations to all the employees it has been certified to represent, whether or not they were or are union supporters, and a result of certification cannot be that employees lose their jobs (at the instance of the successful trade union) because they opposed the union's application for certification (just as an employer cannot discharge employees because they supported an unsuccessful application for certification). I suggest that it is likely that the Board would not apply the April Waterproofing principle to an employee who was actually refused UA membership, in a UA Local which would permit him/her to continue to be employed by a newly certified employer, on the basis that s/he had not supported the application.

35In the result, in the circumstances of this case, there were no employees in the bargaining unit for purposes of a termination proceeding. This application must therefore be dismissed.