[1999] OLRB REP. MARCH/APRIL 208
1022-98-R; 1190-98-U International Brotherhood of Painters and Allied Trades, Local Union 1891, Applicant v. K. L. Drywall & Acoustics Inc., Responding Party
BEFORE: Janice Johnston, Vice-Chair.
APPEARANCES: Ronald Davis, Greg Smith and Sergio Pantarotto for the applicant Local 1891; no one appeared for the responding party.
DECISION OF THE BOARD; March 10, 1999
Board File No. 1022-98-R is an application for certification in which a representation vote was held on June 23, 1998. Board File No. 1190-98-U is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging a violation of sections 11, 70, 72 and 76 of the Act.
The application for certification was filed on June 12, 1998. By letter dated June 26, 1998 the applicant, the International Brotherhood of Painters and Allied Trades, Local Union 1891 (the "union") indicated that it wished to rely upon section 11 of the Act. In the letter the union took the position that due to the misconduct of the responding party, K.L. Drywall & Acoustics Inc. (the "employer" or the "company") when it became aware of the union's organizing campaign, the representation vote which was held on June 23, 1998 did not reflect the true wishes of the employees in the bargaining unit. The ballot box was sealed following the vote. The union filed the unfair labour practice complaint currently before the Board on June 29, 1998. Additional particulars pertaining to the unfair labour practice complaint and section 11 application were filed on September 21, 1998.
A hearing to deal with all outstanding matters was scheduled for January 6, 1999. At the commencement of the hearing at 9:30 a.m. no one was present on behalf of the employer. Accordingly as is its normal practice, the Board stood the hearing down until 10:00 a.m. to give the company an opportunity to appear. As no one had appeared on behalf of the employer by 10:00 a.m., the Board commenced the hearing at that time and heard the evidence and submissions of the union. No one appeared in the course of the hearing on behalf of the employer.
At the time of the representation vote, the ballots cast by two employees were segregated. The ballot of Mr. Denis Hebert was segregated as there was a dispute concerning whether or not he was at work on the date of the application. After the vote was held the parties agreed that he was not in fact at work on the date of the application and that his ballot should therefore not be counted. In addition, there was a dispute concerning the status of Mr. Darryl MacDonald. The submissions on file reflect that it was the position of the union that as Mr. MacDonald was not performing bargaining unit work on the date of the application, and as he was a foreman, he should be excluded pursuant to section 1(3)(b) of the Act. The employer took the position that Mr. MacDonald was not a foreman and that he was performing bargaining unit work on the application date.
After having heard the evidence and submissions of the union concerning Mr. MacDonald it is clear that Mr. MacDonald was not performing bargaining unit work on the date of application. Accordingly, his ballot will not be counted.
At the hearing, the union requested and I directed that the remaining three (3) ballots be counted. Accordingly, the hearing was adjourned briefly to allow a Labour Relations Officer to meet with the union to count the ballots. After the hearing resumed I was informed that three ballots were cast against the union and that none of the ballots were cast in favour of the union. The union next proceeded to make submissions with regard to its application pursuant to section 96 and section 11 of the Act. Before dealing with those submissions, it is appropriate for me to set out some of the factual conclusions I have reached as a result of hearing the evidence of the union.
The union applied on June 12, 1998 to become bargaining agent for:
All painters and painters apprentices in the employ of the responding party:
(1) In the industrial, commercial and institutional sectors of the construction industry in the Province of Ontario; and
(2) In all other sectors of the construction industry in O.L.R.B. Area 18 save and except non-working foremen and persons above the rank of non-working foreman.
CLARITY NOTE should be added to provide that Painters in the above bargaining unit include Drywall Tapers.
The Board ordered a vote by decision dated June 19, 1998 and the vote was held on June 23, 1998.
On June 12, 1998, Mr. Greg Smith, an organizer for the union, went to a construction project at the Borden Base Camp and spoke with the employees of the company. The foreman, Mr. Darryl MacDonald, approached Mr. Smith and in front of the employees demanded that Mr. Smith leave the site. Mr. MacDonald indicated that although the union could talk to the men when they were not working, he was not prepared to allow them to do so on his work site and directed Mr. Smith to leave the work site.
On June 15, 1998, Mr. Sergio Pantarotto, a representative of the union, and Mr. Smith visited the Borden Inn Hotel in Angus, Ontario where the employees of the company were staying while work was being performed at the Borden Base Camp site. The two representatives had been invited by the employees of the company to come to the hotel and speak to them. The union representatives met with three individuals in the hotel room of one of the employees. A few minutes after the meeting started Mr. MacDonald burst into the room indicating that, as the company was paying for the hotel