[1999] OLRB REP. NOVEMBER/DECEMBER 1010
0339-98-R Tom Lazic, Applicant v. International Brotherhood of Painters & Allied Trades - Local #1824, Responding Party v. Maureen McMahon, Intervenor
Construction Industry - Termination - Board dismissing termination application under section 63(16) of the Act where employer asked the applicant to file the termination application, assisted in the preparation of the applicant's submissions and promised to pay the applicant $1000 if he was successful in decertifying the union
BEFORE: John Morgan Lewis, Vice-Chair.
APPEARANCES: Tommy Lazic for the applicant; Joseph Russo, Ken Reid and Louje Lazic for the responding party; no one appearing for the intervenor.
DECISION OF THE BOARD; November 26, 1999
This is an application for the termination of hargaining rights, filed pursuant to section 63 of the Labour Relations Act, 1995 ("the Act"), seeking a declaration that the responding party ("Local 1824") no longer represents the employees in the hargaining unit for which it is the bargaining agent.
The employees who are affected by this application are covered by a collective agreement between the Intemational Brotherhood of Painters and Allied Trades and the Ontario Council of the Intemational Brotherhood of Painters and Allied Trades, and a Council of employers' associations consisting of The Ontario Painters Contractors Association, The Interior Systems Contractors Association of Ontario and the Acoustical Association of Ontario (the "collective agreement") which expired on April 30, 1998. This application was filed on April 23, 1998, and was found by the Board (differently constituted) to be timely. In its response to the application, Local 1824 alleged a breach of section 63(16) of the Act in that it claimed that Mike's Painting & Decorating Ltd. (the "employer") or a person acting on its behalf had initiated the application. In light of the allegations made, the Board ordered that a representation vote be held among the employees of the employer, but directed that the ballot box be sealed pending the outcome of these proceedings.
The Board heard this matter on November 8, 1999. The Board heard testimony from Tom Lazic who is the applicant, Lou Lazic, the applicant's father, and Ken Reid, a representative from Local 1824. No one from the intervenor participated in the hearing. In making the findings and reaching the conclusions set forth in this decision, the Board has duly considered all of the oral and documentary evidence, the submissions of counsel, and the usual factors germane to assessing evidentiary credibility and reliability, including the firmness and clarity of the witnesses' respective memories, their ability to resist the influence of self-interest when giving their version of events, the intemal and extemal consistency of their evidence, and their demeanour while testifying. The Board has also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence.
THE FACTS
The employer is bound to the collective agreement and operates as a small painting company primarily in the industrial, commercial and institutional sector of the construction industry in the Kitchener-Waterloo area. Maureen and Mike McMahon are married and are the owners of the employer. The applicant is a painter and a member of Local 1824. He has worked for the employer for a period of seven years with an extended break in service three years ago when he moved to British Colombia.
The Board first heard from Lou Lazic, the father of the applicant, who was called to testify by Local 1824. Mr. Lazic is a member of Local 1824 and is a painter by trade. Mr. Lazic had worked for the employer for approximately seven years but has not worked for them for the last two years. In 1995, prior to the expiry of the previous collective agreement, Mr. Lazic brought an application for termination of bargaining rights against Local 1824 with respect to the employer in these proceedings. Mr. Lazic testified that with respect to the 1995 application, he had been approached by Maureen McMahon to initiate the application. Mr. Lazic testified that because of his lack of proficiency in the English language, Maureen McMahon filled out the forms. As Mr. Lazic put it: "I brought the application but Maureen did the work". Local 1824 raised a challenge to that application under section 63(16) of the Act. Perhaps not surprisingly in light of Mr. Lazic's testimony, the Board dismissed that application on the grounds that it was initiated by the employer.
According to Mr. Lazic, some time after the Board's decision, he was approached by Maureen McMahon and Mike McMahon and was asked to initiate a second attempt to terminate bargaining rights with respect to Local 1824. Mr. Lazic agreed to do so but changed his mind a few months later. When he advised Maureen and Mike McMahon of his decision to not participate in the termination application, a meeting was arranged at the McMahon residence. Attending the meeting were Maureen and Mike McMahon along with Lou Lazic and Tom Lazic. At this meeting, Lou Lazic confirmed that he did not want to file the application for termination and explained that he felt his lack of proficiency in the English language would prevent him from successfully bringing the application. At this juncture, Maureen and Make McMahon confirmed that they were committed in their desire to get rid of Local 1824 and asked if Tom Lazic would file the application. Tom Lazic agreed to do so and Lou Lazic said that he would support his son in this endeavour
During his own testimony, Tom Lazic confirmed much of his father's evidence. Tom Lazic testified that his father had agreed to commence the application for termination and later changed his mind. Tom Lazic remembers attending a meeting at the McMahon residence but does not have any recollection of any conversation concerning the McMahons' wanting to get rid of Local 1824 and their request to have Tom Lazic file the termination application with the assistance of Lou Lazic. When cross-examined on this rather important point of evidence, Tom Lazic maintained that he could neither deny nor admit that the conversation took place in the manner presented by his father, as he had no recollection of the conversation.
A few weeks atter the meeting at the McMahons' residence, tom Lazic visited his tather who advised him to go to Toronto and pick up the necessary forms from the Board. This was the extent to which Lou Lazic assisted his son with the application for Lou Lazic would later decide not to assist his son in the application whatsoever.
On March 12, 1998 the applicant filed submissions in reply to the allegations of employer support put forward by the responding party. Apart from denying the allegation that the employer initiated the application, the applicant made a number of observations regarding his father and why he decided to not assist his son in bringing the termination application. Many of these observations are quite personal and sensitive in nature. Tom Lazic spoke to his father prior to the filing of the submissions because of their sensitivity. According to Tom Lazic, he felt that he owed it to his father to tell him of the submissions before he received a copy of them from the Board.
Mr. Lou Lazic testified that he asked his son why he wrote the submissions. In reply, his son stated that Maureen McMahon had written the submissions and that he simply re-wrote them in his own handwriting. When pressed further by his father, Tom Lazic stated that he would do whatever he had to do in order to keep his job. Lou Lazic also testified that in a later conversation, his son confided that Mike and Maureen McMahon had promised to pay him one thousand dollars if the application was successful.
Tom Lazic confirmed that he met with his father to discuss the contents of the submissions but denied that he ever stated that Maureen McMahon had written the submissions or that the McMahons had ever promised to pay him one thousand dollars. During cross-examination, Tom Lazic admitting to receiving assistance in completing Form T-20, which is the application for termination. Although Tom Lazic did deny that either Maureen or Mike McMahon assisted him, he refused to divulge the identity of individual who did assist him.
THE DECISION
- Section 63(16) of the Act provides as follows:
Despite subsections (5) and (14), the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.
- Section 63(16) of the Act gives the Board the discretion to dismiss an application for a declaration terminating bargaining rights if the employer initiated the application. The Board in Bytown Electrical Services Ltd., [1996] OLRB Rep. Sept/Oct. 721 discussed the kind of conduct that was contemplated by section 63(16) of the Act at paragraphs 108 and 109:
Under subsection 63(16) of the Act, if a termination application is initiated by the employer, the Board has a discretion to dismiss it... Initiation involves causing, originating or facilitating, the beginning of a process or event. What meaning should the concept, 'initiation', be given in the context of section 63 of the Act? Plainly if an employer prepares a petition to terminate a union's bargaining rights, summons his/her employees and requires them to sign the petition and then requires an employee to initiate a termination application, the employer initiates the decertification application. But that is an extreme and, hopefully, rare manifestation of improper employer interference in the contemplated process of employees freely deciding of their own initiative that they no longer wish to be represented by a particular, or perhaps any, trade union. Such direct, palpable initiation will in all likelihood be an unusual occurrence. But initiation can also occur indirectly, less palpably than in the example suggested, though no less effectively. There are gradations of employer conduct in relation to a termination application, along a spectrum, part of which will be improper and part of which will be acceptable behaviour. The Act determines that when an employer 'initiates' a termination application, the Board has a discretion to dismiss the application. There is a continuum of employer conduct, some of which will amount to 'initiation' some of which will not. How then is the distinction to be drawn?
We consider that the proper interpretation of the notion of 'initiation' is to determine whether the employer's conduct amounted to a significant or influential employer involvement giving rise to the termination application. In other words, if the application is founded in the conduct of the employer, then it can be reasonably concluded that the employer has initiated the application.
This approach has been followed by the Board in Tena quip Limited, [1997] OLRB Rep. July/Aug. 742 and Bancroft I.G.A., [1998] OLRB Rep. July/Aug. 543, and most recently in Fritz Electric Inc., [1999] OLRB Rep. Sept./Oct. 836 (File Nos. 0088-98-R, 0410-99-R, October 22, 1999).
Upon considering all of the evidence presented at hearing, the Board finds that the employer initiated the application for termination in the manner contemplated by section 63(16) of the Act. In making this finding the Board has assessed the contradictory evidence of Tom Lazic and of Lou Lazic and prefers the testimony of Lou Lazic. Tom Lazic' evidence was less than compelling as a result of his demeanour in testifying and his evasiveness in answering questions put to him in cross-examination. Accordingly, the Board finds that Maureen and Mike McMahon first asked Lou Lazic and later, Tom Lazic, to file the application for termination as they wished to get rid of the Local 1824. The Board also finds that Maureen McMahon assisted in the preparation of some if not all of the applicant's submissions in these matters and promised to pay to Tom Lazic the sum of one thousand dollars if he was successful in decertifying the employer. These activities are clearly prohibited by section 63(16) of the Act.
The Board has the discretion under section 63(16) of the Act to dismiss an application where the Board is satisfied that it was initiated by the employer. In Bytown Electrical Services Ltd., Tena quip Limited, Bancroft I. G.A. and Fritz Electric Inc., the Board held that where an employer initiated a termination application, the Board would ordinarily exercise its discretion to dismiss the application unless there are compelling reasons not to do so. In my view, no such compelling labour relations reasons exist in this case.
Therefore, the Board, in the exercise of its discretion under section 63(16), hereby dismisses this application.
The Registrar will 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.