Labourers’ International Union of North America, Local 527 v. Azores Concrete Ltd., 2000 CanLII 10721

Labourers’ International Union of North America, Local 527 v. Azores Concrete Ltd.

0508-00-R Labourers’ International Union of North America, Local 527, Applicant v. Azores Concrete Ltd., Responding Party.

0658-00-U Labourers’ International Union of North America, Local 527, Applicant v. Azores Concrete Ltd., Responding Party.

BEFORE: Inge M. Stamp, Vice-Chair, and Board Members G. Pickell and G. McMenemy.

APPEARANCES: Daniel Randazzo and Shawn McLaughlin for the applicant; no one appearing for the responding party.

DECISION OF THE BOARD; September 28, 2000

1. These are related matters. Board File No. 0508-00-R is an application for certification pursuant to the construction industry provisions of the Labour Relations Act, 1995 (the “Act”). A representation vote was held in this matter on May 23, 2000. Board File No. 0658-00-U is an unfair labour practice complaint alleging the employer violated sections 70, 72(a) and (c) and 76 of the Labour Relations Act, 1995, (the “Act”)

2. On September 27, 2000, the day scheduled for hearing these matters, no one appeared on behalf of the responding party, Azores Concrete Ltd., (“Azores” or the “employer”). The Board waited its customary half hour before proceeding with the hearing.

3. The Board’s Notice Of Hearing (Form B-84) is quite clear. Paragraph 3 states:

IF YOU DO NOT ATTEND THE HEARING, THE BOARD MAY DECIDE THE APPLICATION WITHOUT FURTHER NOTICE TO YOU AND WITHOUT CONSIDERING ANY DOCUMENT FILED BY YOU.

4. Further the Board’s Rules of Procedure state if a party does not file a response as required by the rules in an application before the Board that party is deemed to have accepted the allegations made by the other party. Rule No. 41.states:

41. If a party receiving notice of an application does not file a response in the way required by these Rules, he or she may be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing or consultation, if one is scheduled, and decide the case upon the material before it without further notice.

5. The Board’s (differently constituted) decision notes in paragraph 3 that the employer failed to file its response in the certification application. There are no replies filed in either matter before the Board.

6. Mr. Shawn McLaughlin, the union’s representative, testified as to his conversation with Mr. Herman Mendoza on the day of the vote. That conversation took place at the yard of Azores prior to the vote. Mr. Mendoza advised Mr. McLaughlin that his employees did not want the union and called one of his employees to confirm to the union representative that he did not want the union. The employee told Mr. McLaughlin that he did not want the union because “if the union came in Azores would close its doors.”

7. Mr. Mendoza freely admitted to Mr. McLaughlin that he did tell his employees that he would close the door if the union got in. Mr. McLaughlin testified as to his organizing campaign and that until there was a threat of the company closing its doors the employees appeared to be in favour of the union.

8. On the day of the vote one of the employees arrived in a company vehicle at the location of the vote, the other two employees were driven to the vote by Mr. Mendoza. Mr. Mendoza did not participate in the vote arrangements or sign off on the conduct of the vote or attend the Labour Relations Officer’s post vote meeting. The applicant union lost the vote.

Decision:

9. Sections 70, 72(a) and (c) and 76 of the Act provide as follows:

70. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

71. 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;

(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.

76. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

10. The relevant sections of section 11 provide as follows:

11. (1) Upon the application of a trade union, the Board may order another representation vote in the following circumstances:

12. An employer, employers' organization or person acting on behalf of an employer or employers' organization has contravened the Act.

13. The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.

14. 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.

(3) The Board may consider the results of a prior representation vote when making a decision under this section.

(4) Subsections 10(1) and (2) do not apply with respect to a prior representation vote if a new representation vote is ordered under this section.

(5) Without restricting its powers under section 96, the Board may do anything to ensure that a new representation vote ordered under this section reflects the true wishes of the employees in the bargaining unit.

11. By threatening to close down the business if the union comes in, the employer has violated the Act. The employer by his conduct has engaged in intimidation and coercion resulting in the representation vote being unlikely to reflect the true wishes of the employees. Pursuant to sections 11 and 111(5) of the Act the Board orders a second representation vote. The bargaining unit description and the voter eligibility are set out in the Board’s decision of May 18, 2000.

12. As the employer has chosen to totally disregard the Board’s proceedings and has chosen not to appear at the hearing dealing with these matters, the applicant’s request for relief is unopposed. The evidence of the employer’s willful misconduct is before the Board and is uncontradicted. In the circumstances the Board grants the remedies the applicant has requested.

13. The Board therefore:

14. declares the employer, Azores Concrete Ltd., has violated sections 70, 72(a) and (c) and 76 of the Labour Relations Act, 1995;

15. directs Azores Concrete Ltd. to cease and desist from any and all violations of the Labour Relations Act, 1995;

16. directs Azores Concrete Ltd. to post at its current jobsites and its shop the attached notice to all of its employees stating the Board’s findings and declarations in these matters, and setting out the employees’ rights under the Labour Relations Act, 1995;

17. directs the attached notice be posted at the employer’s current jobsites and shop where it will come to the attention of employees affected by these applications. This notice is to remain posted until the second vote takes place;

18. directs that a second representation vote shall take place. This representation vote shall take place within six months of the date of this decision. The timing of this second representation vote shall be at the discretion of the union. The applicant union will notify the Board in writing when it wishes this second vote to take place. That written notice shall trigger the five days’ notice for the holding of the vote.

19. In addition to the above posting the Registrar of the Board is directed to send a copy of this decision to the employees affected by this decision to the addresses provided by the applicant.

20. These matters are referred to the Registrar and the Manager of Field Services.

21. This panel is seized with these matters.

“Inge M. Stamp”

for the Board

Appendix "A"

The Labour Relations Act, 1995

NOTICE TO EMPLOYEES

Posted by order of the Ontario Labour Relations Board

THIS NOTICE HAS BEEN POSTED AND SENT TO EMPLOYEES IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING. THE ONTARIO LABOUR RELATIONS BOARD HAS DETERMINED THAT AZORES CONCRETE LTD. VIOLATED THE LABOUR RELATIONS ACT, 1995. AS A RESULT, THE BOARD ORDERS AZORES CONCRETE LTD. TO INFORM YOU OF YOUR RIGHTS.

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

TO JOIN A TRADE UNION OF HIS OR HER OWN CHOICE AND TO PARTICIPATE IN ITS LAWFUL ACTIVITIES;

TO CAST A SECRET BALLOT IN FAVOUR OF, OR IN OPPOSITION TO A TRADE UNION IF THE ONTARIO LABOUR RELATIONS BOARD DIRECTS A REPRESENTATION VOTE;

TO ACT TOGETHER FOR THE PURPOSES OF COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY AND ALL OF THESE THINGS.

THE ONTARIO LABOUR RELATIONS BOARD:

1. DECLARED THAT AZORES CONCRETE LTD. VIOLATED SECTIONS 70, 72(a) AND (c) AND 76 OF THE LABOUR RELATIONS ACT, 1995.

2. ORDERED AZORES CONCRETE LTD. TO CEASE AND DESIST FROM ANY AND ALL VIOLATINS OF THE LABOUR RELATIONS ACT, 1995.

3. DIRECTED A SECOND VOTE TO BE HELD AT A TIME AND PLACE TO BE DETERMINED BY THE UNION.

4. DIRECTED AZORES CONCRETE LTD. TO PROVIDE THE UNION REPRESENTATIVES WITH A SUITABLE ROOM TO MEET WITH THE EMPLOYEES DURING WORKING HOURS.

5. DIRECTED AZORES CONCRETE LTD. TO REFRAIN FROM INTEREFERING WITH OR RESTRAINING OR COERCEING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS UNDER THE ACT.

This is an official notice of the Board and must not be removed or defaced.

DATED this 28th day of September, 2000.