2784-98-R Brick and Allied Craft Union of Canada, Applicant v. Kvaerner Jaddco, Responding Party v. International Union of Bricklayers and Allied Craftworkers; General Presidents’ Maintenance Committee for Canada; The Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers on its own behalf and on behalf of all its affiliated Locals; BACU Locals 1, 2, 4, 5, 6, 7, 10, 12, 20, 23, 25, 28, 29, and 31, Intervenors.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: L. Richmond and K. Wilson for the Brick and Allied Craft Union of Canada (“BACU”); D. Eady and G. Aitken for the International Union of Bricklayers and Allied Craftworkers (“IUBAC”); M. Gottheil for the IUBAC Provincial Council and the Locals; D. Jeffries for Kvaerner Jaddco.
DECISION OF THE BOARD; November 10, 2000
This decision is a further decision in this application for certification brought pursuant to the general provisions of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (the “Act”). In a decision dated June 14, 1999 the Board identified eight issues. To the extent necessary, issues (1), (2) and (3) have been dealt with in a decision issued September 15, 2000. This decision deals with the remaining five issues. The parties will be identified by the same acronyms or shortened names as were used in the September 15, 2000 decision.
The fifth issue was the question of an outstanding grievance with respect to the same work and the “alternative nature” of this application. At the hearing of this matter, Mr. Richmond indicated that his client had withdrawn the grievance. Although there was some discussion about the capacity of various individuals to take action with respect to the grievance, the applicant wished the grievance to be withdrawn and asserted that it had the right to file and withdraw the grievance. The employer consented to the withdrawal of the grievance. The IUBAC consented to the withdrawal of the grievance, provided that such consent was not deemed to be an admission of any fact or statement of the capacity of any party in the future. The one common theme among all of these parties is that the grievance no longer exists.
The fourth issue was the question of description of the appropriate bargaining unit. The Board finds that the appropriate bargaining unit is:
All bricklayers and bricklayers' apprentices, stonemasons, plasterers and improvers in the employ of the responding party at the Dofasco site in Hamilton, Ontario.
I reserve on the question of whether there is a collective agreement between the GPMC covering a single “all-employee” unit and the responding party or whether the one document constitutes a collection of collective agreements. On the facts of this case, I may not need to determine that.
This is an application for certification for a unit of bricklayers. The BACU seeks to displace the IUBAC as the bargaining agent of those bricklayers. It is therefore displacing bargaining rights, not a collective agreement. The bargaining rights, on the facts of this case, are held by the IUBAC rather than the GPMC. The displacement application is timely
If I am wrong on this point, the Board still retains a discretion with respect to the appropriate bargaining unit. Section 9 leaves most of the question of appropriateness to the Board’s discretion. Again, this decision is made in the context of the facts of this case which will be detailed in a later decision. If the Board were to accede to the IUBAC’s submissions, it would produce this result. This application originates from a dispute which, in its origins at any rate, was an internal fight within the Bricklayers Union. The IUBAC asks the Board to determine as appropriate a bargaining unit it never represented. If, as is possible but not probable, the great majority of persons employed on the application date happened to be bricklayers, and the Board was to order a vote in respect of all employees of the responding party (the great majority of whom would be bricklayers), and if the BACU were to be successful, it would produce an absurd result. The BACU would wind up with bargaining rights for employees it had no desire, and perhaps no capacity, to represent. Those employees have, one suspects, a much stronger identification with their own craft unions who they likely feel represented them adequately, than they do with the BACU. (I leave aside the issues of notice to those other trade unions, the relevant employees, and indeed the GPMC given its position set out in its intervention). To foist an unwilling trade union on a group of employees who have expressed no desire to be represented by anyone other than their own craft union, solely because of a rigid and mechanical application of Board jurisprudence (decided in entirely dissimilar circumstances) would be inappropriate.
The limited geographic scope is appropriate given the nature of the collective agreement. Reitzel Heating and Sheet Metal Ltd. [1988 ]OLRB Rep Dec. 1310 was a case that involved diminishing the scope of bargaining rights for certain purposes rather than expanding them. I shall issue a further decision setting out my reasons for these decisions with respect to the bargaining unit description in greater detail.
The eighth issue was the order of the parties on the ballot which was ultimately counted. The IUBAC asserted that the Board’s practice was to place the incumbent union first on the ballot and accordingly requested a new vote on the basis that its name had not been placed in that position. There is no Board practice with respect to the position of unions in a “two-union vote”. The Board has at various times adopted informally the practice of tossing a coin, using alphabetical order, or other expedients. There is no significance whatsoever to any previous practice, nor is there any significance to the order of the names of parties on the ballot. The Board declines to do anything in respect of this issue.
The IUBAC withdrew one of its two “unfair labour practice” allegations. It maintained its allegation that “certain of the intervenor’s members were told to sign membership applications for the entity or they would not be allowed to continue to work for the employer”. The IUBAC asserted that these statements were made by Kerry Wilson (Business Manager of Local 1) or by the job steward. This allegation posits the proposition that employees loyal to the International Union were forced to sign cards in the BACU against their wishes in order to remain at work and that these cards were not true expressions of the employees.
The Act does not require that test. The Act requires that an applicant submit “the appearance” of membership of at least forty per cent of the bargaining unit. The true test of the wishes of employees is a representation vote. Here, employees had a clear choice between the IUBAC and the BACU in a secret ballot vote. There is no reason to disregard the wishes of employees as expressed in that ballot.
The sixth and final issue in this application is the notice issue with respect to notice given to employees. The facts are complicated and regrettable. The application was filed on November 16, 1998. The employer filed its response November 18, 1998 as it is required to do by the Board’s Rules of Practice. On November 18 the Board sent the responding party the Notice to employees which advised employees of the application and of the fact that a vote would be held shortly. The employer was directed to post the Notice forthwith in a location where employees were likely to see it. Kvaerner Jaddco did not do this.
On November 19 the Board ordered that the vote be held on Monday, November 23. A notice of vote was sent with this decision at the end of the day on November 19. There is no notice of posting of this notice to employees received from the responding party , presumably because of the decision which issued the next day.
On November 20 the Board cancelled the representation vote which had been ordered the day before. The reasons for doing so related to interventions filed after the response was received by the Board. A new vote date was set for November 24, 1998.
In accordance with its usual practice, the Board generated a notice to employees advising them of the vote set for November 25, 1998. The notice is dated November 24, 1998. The Board’s staff began to send this notice to various parties by facsimile copier commencing at 3:05 p.m. Kvaerner Jaddco did not receive its copy of the notice until 5:11 p.m.
Kvaerner Jaddco faxed to the Board at 9:38 a.m. on November 25 the Advice of Posting, advising that the notice had been posted in accordance with the Board’s directions. No Advice of Posting was received from the BACU. No complaint about the short notice was received from any party until after the vote had been held.
Kvaerner Jaddco ran two shifts for bricklayers on November 25 and had done so since November 16, at least. The shifts ran from 7:00 a.m. to 5:30 p.m. and 7:00 p.m. to 5:30 a.m. For whatever reason, the Board set the time for the vote at 4:30-7:00 p.m. on Wednesday, November 25.
Kvaerner Jaddco was unable to advise the Board at the hearing in November of 2000 of the time at which the notice was posted. Given that the Notice of Posting was received by the Board from Kvaerner Jaddco at 9:38, the Board cannot assume that it was posted at any time much earlier than that.
The Notice was posted in an entirely appropriate location. Dofasco required persons employed by Kvaerner Jaddco to enter through a specific entrance. This entrance was used as the “brass shack” to control the admission of persons to the work area, recording of time worked and so on. All employees would have passed by the notice where it was posted on their way to work or on their return from work, had the Notice been posted while they did so. The location of the posting was a considerable distance from the blast furnace on which the work was being done.
What this means in terms of the Board’s Notice is that if the notice was posted anytime after 7:00 a.m. on November 25, no one on the first shift would have seen it on their way to work. Similarly, persons arriving for the second shift would not see it until just at the point where the poll was closed.
In its response to the application, the responding party indicated that it believed 97 persons were entitled to vote in the representation vote. The applicant estimated that there were 84 such persons. There may be some question with respect to those who were on lay-off at the time. Nonetheless, there were in the neighbourhood of 90 persons employed in the voting constituency as of the application date. By November 25, this number had shrunk to about half that. Eleven persons voted.
It is possible to blame everyone for what they did or did not do after the fact. Kvaerner Jaddco did not post the first Notice to Employees of an upcoming representation vote. The IUBAC made no attempt to ascertain that the posting had been effected, nor indeed to complain about the manner of posting until after the vote was over. The BACU did not return an advice of posting or advise the Board of any problems. Given the low turnout, it would appear that neither union took any steps to advise members of the voting constituency of the vote, or at least to ensure that their supporters appeared to cast a ballot.
The Board does not undertake to ensure personal service of notice of the vote to each member of a voting constituency. It relies to a great extent on the parties to inform the persons who are eligible to vote, or at least their own supporters (see Guelph Wellington Association for Community Living, Board File No. 3681-99-R, August 25, 2000). Further, no party should “profit” from their failure to take steps required of them by the Board’s Rules, nor should any party be prejudiced by the default of another opposed party.
However, the Board is not without blame as well. The employer received its fax at 5:11 p.m. No attempt was made to reschedule the vote. The time of the vote made it difficult for anyone on the second shift to cast a ballot. More importantly, the combined effect of all of these facts is that it is more probable than not that no member of the voting constituency received notice of the vote until the Labour Relations Officer set up a polling station at the work area in Dofasco. Even then, only those at work on November 25 at 4:00 p.m. (i.e. the first shift) would have been aware of this. It was alleged by the IUBAC that at least one person received notice only in that fashion.
In the circumstances, we have no option but to order a second vote. This decision turns on the facts of this case which, to the Board’s knowledge, are unique in the Board’s history and, hopefully, will remain so.
The vote will be held on Tuesday, November 21, 2000 from 4:00 p.m. to 7:00 p.m., subject to any submissions by any of the parties as to date and time, and the notice requirements dealt with below. It will be held at 51 Wentworth Street South, Hamilton, Ontario. The Dofasco project is long since completed. The Kvaerner-Jaddco office in Burlington was suggested, but no employee has any continuing contact with that location, and few if any of them have likely ever attended there. This is a contest between the IUBAC and the BACU, in which Kvaerner-Jaddco has remained scrupulously neutral. Both unions claim to be the true representative of bricklayers in Hamilton in general, and these employees in particular. It is therefore appropriate to hold the vote on the site which both groups claim a right to control, and which all of these employees no doubt regard as “their” union hall. As both the IUBAC and BACU claim a right to control access to the property, we presume the two of them can arrange access for the purpose of the conduct of the vote. Both unions are to be permitted to have the same number of representatives at the poll for at least as long as the Board officer conducting the vote is present in the building.
Notice will be provided by the Board by ordinary mail. The IUBAC and the BACU are directed to provide the Board with the last known addresses of each person whose name appears on the list of employees submitted with the response. These addresses are to be delivered to the Board’s offices by 12:00 noon on Tuesday, November 14, 2000 on self-adhesive labels and in alphabetical order with one photocopy for the Board’s use. The IUBAC may instead submit a list of names and addresses by facsimile copier by that time.
The persons entitled to cast a ballot will be the persons who would have been entitled to cast a ballot on November 25, 1998. Any person whose right to cast a ballot in this vote is challenged, shall have their ballot segregated in a manner which does not reveal the identity of that individual. There will be no order sealing the ballot box. Further, there will be no order requiring any exchange of information between the two unions.
I remain seized of this application.
“David A. McKee”
for the Board