[1998] OLRB REP. MARCH/APRIL147
2004-97-R Labourers' International Union of North America, Local 183, Applicant v. Ventara Construction Ltd. c.o.b. as Carriage Hill Homes, Responding Party
BEFORE: Inge M. Stamp, Vice-Chair.
APPEARANCES: M. Lewis, A. Bremner, L. Torres and J. Vala for the applicant; no one appearing for the responding party.
DECISION OF THE BOARD; April 23, 1998
This is an application for certification pursuant to the construction industry provisions of the Act. A vote was held and the ballot box was sealed pending resolution of all outstanding issues.
A hearing in this matter was held on Monday, February 16, 1998. Prior to the hearing counsel for the responding party advised the Board by letter dated February 13, 1998 that the responding party would be representing itself. On the day scheduled for hearing no one appeared on behalf of the responding party. The Board waited its customary half hour before proceeding.
The applicant wished to proceed and called its evidence with respect to all outstanding issues including a request for relief under section 11(1) of the Act. Section 11(1) of the Act provides as follows:
(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:
An employer, employers' organization or person acting on behalf of an employer or employers' organization has contravened the Act.
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.
No other remedy, including the taking of another representation vote, is sufficient to counter the effects of the contravention.
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.
The issues in dispute are 1) the correct name of the responding party, 2) the status of Mark Simpson and Jason McDonald; the allegations relating to the section 11 application.
The Board heard the evidence of Peter Langer, Allan Bremner and Luis Torres.
The responding party, in its submissions prior to the hearing, asserts the correct name of the employer is Ventara Construction Limited. The applicant asserts it should be Ventara Construction Ltd. cob. as Carriage Hill Homes.
Peter Langer testified he was hired as a construction labourer by Mel Joudry, the site superintendent in Barrie. Mr. Joudry told him he would be working for Carriage Hill Homes. The Pickup truck, van and site trailer displayed the name Carriage Hill Homes. The name Ventara Construction Ltd. appeared on Mr. Langer's paycheque.
In the absence of any evidence to the contrary the Board finds the name of the responding party is Ventara Construction Ltd. c.o.b. as Carriage Hill Homes.
The applicant challenged the inclusion of Mike Simpson on the list of employees on the basis that Mr. Simpson was not performing bargaining unit work on the date of application. It is the uncontested evidence of Peter Langer that Mike Simpson is a service manager and did not perform any bargaining unit work on the application date. Peter Langer's evidence disputes the assertions made by the responding party in its written submissions prior to the hearing that Mr. Simpson did any construction labourers' work on the application date. Having regard to the uncontradicted evidence before the Board I find Mike Simpson was not performing bargaining unit work on the application date and is therefore not eligible to vote.
The responding party in its written submissions asserts Jason McDonald at all material times was an employee of P. A. Builders, a carpentry construction company and received all of his pay cheques from P. A. Builders.
Again, the uncontradicted evidence from Peter Langer establishes that Jason McDonald was hired as a construction labourer by the responding party. He was hired by Mel Joudry in the responding party's site trailer in the presence of Peter Langer. The site superintendent told Jason to come in the next morning and start and if he worked out for the next couple of days he had the job. It is Peter Langer's evidence that he and Jason McDonald worked together and were supervised by Mr. Joudry. Peter Langer testified he was training Jason to be his replacement as he was planning on leaving. Jason McDonald was hired around the middle of August. According to Peter Langer Jason McDonald was not supervised by P. A. Builders. Their joint time card was filled out by the responding party's site superintendent, Mel Joudry. Peter Langer saw the time sheets showing his and Jason's hours.
Allan Bremner, Business Representative of Local 183, testified about his involvement in the organizing campaign and in particular about the section 11 allegations.
Prior to the notice being posted Jason McDonald had no reservations about talking to the union. He attended a meeting offsite with the union. After the notice went up and before the vote took place Jason McDonald became wary of talking to the union. It became difficult for the union to reach Mr. McDonald either by phone or at his home.
When Mr. Bremner talked to Jason McDonald at the jobsite Jason McDonald told him that he no longer worked for Carriage Hill Homes but he was supposed to be working for Perry, the framing contractor P. A. Builders. Jason McDonald advised Mr. Bremner that Mel told him he was working for P. A. Builders. The applicant attempted to serve a summons to appear at the hearing on Mr. McDonald but was unable to locate him.
Luis Torres, a business representative of Local 183, testified with respect to the time he spent on the application date on the site. He testified he saw Peter Langer and Jason McDonald perform bargaining unit work on the application date. Mr. Torres identified the photographs he took on the application date showing Mr. Langer and Mr. McDonald at work. He testified he was on site off and on for about 4 to 5 hours. Jason McDonald told Mr. Torres when they first met that he was working for Carriage Hill Homes. Luis Torres was on site on the application date to make sure there are employees working in the bargaining unit on the application date.
On the application date Mike Simpson arrived in a red van in the afternoon and went into the construction office. Luis Torres left the site around 4:30 p.m. He did not see Simpson come back out from the office. It is Mr. Torres' evidence that while he was on site Mike Simpson did not perform any construction labourers' work.
After the certification application and before the vote Luis Torres had a conversation with Jason McDonald. Jason was concerned about losing his job. Jason said he was hired by Carriage Hill Homes. Jason was confused. Mel Joudry now told him he was working for Perry. It was Luis Torres' evidence that Jason was not happy with this situation and was afraid of losing his job. Since that conversation Jason McDonald has not returned the applicant's phone calls. After the vote Mr. Torres talked to Jason McDonald who told him he was doing labourers' work for Perry (P. A. Builders).
The applicant submits the evidence is clear that Jason McDonald was hired by Carriage Hill Homes, the builder. He was hired by Carriage Hill Homes' site superintendent, Mel Joudry. Prior to the application Mr. McDonald had no reservation about speaking to the union. He believed his employer was Carriage Hill Homes. Then suddenly he is no longer an employee of the builder Carriage Hill Homes but an employee of the framer who is a subcontractor on the site.
The applicant asserts pursuant to section 72 and section 96 of the Act the onus in this case rests on the employer to show why Jason McDonald was no longer employed by Carriage Hill Homes. He was hired by Carriage Hill Homes' site superintendent to work as a construction labourer. After the application for certification was made and before the vote took place, Jason McDonald was told by Mel Joudry he did not work for Carriage Hill Homes, he was working for P. A. Builders. The responding party in its pleadings, filed prior to the hearing, takes the position that Jason McDonald worked for P. A. Builders at all times.
In the circumstances the union asserts the only conclusion to be drawn from the viva voce evidence and the responding party's pleadings is that Jason McDonald was terminated from Carriage Hill Homes and put on the payroll of P. A. Builders. This was part of the builder's threat to subcontract out the labourers' work if the responding party gets certified. Mr. McDonald was hired by the responding party to take over from Peter Langer. There is no explanation why Jason McDonald was let go from Carriage Hill Homes. There is no explanation why the responding party made this other arrangement with P. A. Builders other than to intimidate Jason McDonald.
The applicant submits this is a case where certification pursuant to section II should be granted. In these circumstances there is a clear threat to the job security of Jason McDonald. The builder controls the work on site including the work of the subcontractors.
Based on the uncontradicted evidence before me, I find that Jason McDonald was employed by the responding party on the date of application. He was hired to replace Peter Langer. This contradicts the written submissions of the employer. As the employer chose not to participate I am left with the uncontradicted evidence of witnesses who were credible and forthright in giving their evidence. I am satisfied that based on the evidence before me the employer's conduct was designed to threaten Jason McDonald's job security. Jason McDonald was told he no longer worked for the responding party. This kind of intimidation is clearly in violation of the Labour Relations Act, 1995.
Section 72 of the Act provides as follows:
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
Section 96(5) provides:
(5) On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.
The Board in Maverick Mechanical Contractors Limited, [1996] OLRB Rep. Mar./Apr.289 set out the requirements under which certification under section 11 is granted as follows:
(1) the Act has been violated;
(2) as a result of the violations of the Act, a representation vote does not or would not reflect the employees true wishes concerning the application for certification;
(3) no remedy, including another vote, is likely to counter the effects of the violations of the Act in that respect;
(4) the union has membership support adequate for the purposes of collective bargaining.
By terminating Jason McDonald's direct employment with the builder, prior to the vote without any apparent reason or explanation, one must conclude it was a signal to employees that their continued employment with the builder may well depend on the outcome of their vote. If the builder can tell his framing subcontractor to put someone on the payroll for his own purposes he can just as easily have an individual removed from that payroll. The first precondition has been met. The employer has violated section 72 of the Act by refusing to continue to employ Mr. McDonald because of his union activity.
The second and third preconditions relate to the taking of the vote. I am satisfied that the responding party's contravention of the Labour Relations Act, 1995 destroyed the reliability of the ballot box as an indicator of the employees' true wishes. Jason McDonald was terminated from his employment with the builder because of his union activity. Jason McDonald was now working for a subcontractor to his former employer. Jason McDonald's job security is still at risk since the responding party controls the work of its subcontractors. The responding party is able to put persons on P. A. Builders' payroll for its own purposes. The responding party has shown its disregard for the Board's process by choosing not to attend the hearing and participate. In the circumstances, I am satisfied there is no other remedy that would make another vote any more reliable an indicator of the true wishes of the employees. Therefore the ballot box is to remain sealed. Preconditions two and three have been satisfied.
Based on the evidence filed I find the applicant has adequate membership support for collective bargaining.
All four preconditions having been met, the applicant is entitled to certification under section 11(1). The Board therefore:
(a) declares the responding party has violated the Labour Relations Act, 1995 and specifically section 72 by terminating Jason McDonald's employment because of his union activity;
(b) directs that pursuant to section 160(1) of the Labour Relations Act, 1995 a certificate will issue to the applicant trade union in respect of all construction labourers in the employ of Ventara Construction Ltd. c.o.b. as Carriage Hill Homes in all sectors of the construction industry in the County of Simcoe and the District Municipality of Muskoka, excluding the industrial, commercial and institutional sector, save and except non-working foremen and persons above the rank of non-working foreman;
(c) directs the Registrar to destroy the ballots cast in the representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period;
(d) the responding party is directed to post copies of this decision immediately, adjacent to the "Notice to Employees of Application and of Vote" posted previously. These copies must remain posted for a period of 30 days.