3278-99-R United Steelworkers of America, Applicant v. Matcor Automotive Inc., and/or Matsu Manufacturing Inc., Responding Party.

3921-99-U United Steelworkers of America, Applicant v. A.R.G. Construction Enterprise Inc., Matcor Automotive Inc., Bernie Brunino, Ivo Distefano., Responding Parties.

APPEARANCES: David Doorey, Brando Paris, Gerry Doucet, Travis Kearns and Hikmart Bilal for the applicant; Gregory McGinnis and Bernie Brunino for the responding party.

BEFORE: Timothy W. Sargeant, Vice-Chair

DECISION OF THE BOARD; September 8, 2000

1. File No. 3278-99-R is an application for certification. File No. 3921-99-U is an application made pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging that the responding parties have breached sections 70, 72 and 76 of the Act.

2. Argument was heard at the hearing held on August 30, 2000 as to whether these files should be heard together. One of the contentious issues between the parties (though not the only issue) in the certification application (File No. 3278-99-R) is whether twenty employees allegedly paid by A.R.G. Construction Enterprises Inc. (“A.R.G. Construction”) are employees of the responding party. Such individuals are listed on Schedule “A” to the response. The responding party while not denying such individuals are paid by A.R.G. Construction maintains they are in fact maintenance employees of the responding party. These individuals are also the basis for the section 96 complaint. In essence the applicant in the section 96 application, File No. 3921-99-U alleges that the responding party “by bringing persons into the workplace who are not employees of the employer”, in the circumstances alleged, violated sections 70, 72 and 76 of the Act.

3. Having heard submissions of counsel, the Board ruled orally that such files should be heard together. The Board agreed with counsel for the union that concerning this dispute the underlying core issue was the same in both matters. The Board in the circumstances felt that it is more expeditious to hear both matters together.

4. Having made such ruling orally, counsel for the responding parties (same counsel in all instances) in regards to File No. 3921-99-U raised a preliminary objection that such application should be dismissed without a hearing as the application did not establish a prima facie case.

5. For the purpose of this motion it is useful to set out the alleged facts and particulars relied upon by the applicant. In Schedule “A” to the Application in Board File No. 3921-99-U the following facts and particulars are set out:

6. The Applicant ("Union") applied for certification ("Application for Certification") for a unit of employees of the Responding Party Matcor Automotive Inc. ("Employer") on February 7, 2000. [Board File No.: 3278 99- U].

7. The Responding Party A.R.G. Construction Enterprises Inc. ("ARG Construction") is a construction company operating in the construction industry out of offices at 111 Creditstone Road in Concord, Ontario.

8. The Respondent Bernie Brunino is the Human Resource Manager for the Employer.

9. The Respondent lye Distefano is an employee and site Supervisor of ARG Construction.

10. The Employer filed its Response to the Application for Certification on February 9,2000. The Employer attached to its Response a Schedule "A", listing 405 persons who the Employer asserted were its employees in the Union's proposed bargaining unit on the date of application for certification. The Employer objected under section 8.1 of the Act and asked the Board to dismiss the Application pursuant to Section 8.1.

11. There is no dispute about the appropriate bargaining unit. The parties are in agreement that only those employees of the Employer who were employed in the Employer's Brampton, Ontario facility, on the date of application for certification, with certain agreed exclusions which are not relevant to this application, are properly included for the purposes of the Section 8.1 objection.

Employer Pads List With Employees of Construction Company

7. The Schedule "A" included the following 19 names:

Amaral, Joe

Azeem, Mohammad

Carano, Sam

Casasanta, Sergio

Cescolini, Enrico

Cudini, Steve

Culmone, Mike

Disomone, Tony

Distefano, Ivo

Dos Santos, Adelino

Faro, Carlos

Feijo, Joe

Parise, David

Rizzi, Efrem

Romeiro, Joe

Sangregorio, Sal

Vierira, Nelson

Volpintesta, Marcello

Xavier, Joe

8. The Employer asserted in its Schedule "A" and submissions to the Board in the Application for Certification that the above-named persons were Full-Time Maintenance employees of the Employer on the date of Application for Certification in the Brampton facility of the Employer.

9. All but two of the 19 persons listed above attended at the Employer's workplace on February 14, 2000, the day of the representation vote, and cast ballots. Those who attended at the vote represented to the Returning Officer that they were the full-time Maintenance employees of the Employer referred to in the Schedule "A".

10. The 19 persons were challenged by the Union on the basis that they were not employees of the Employer in the bargaining unit.

11. On the day of the vote, an addition person, Adelino Caralho, appeared who the Employer had not included on the Schedule "A". Mr. Carahlo identified himself as a employee of the Employer and cast a ballot, which was challenged by the Union.

12. In its submissions in respect of the status disputes, the Employer admitted to the Board and the Union that the 20 above-named persons, including Mr. Carahlo, are in fact paid by ARG Construction. However, the Employer continued to assert that the 20 persons were, in fact and law, full-time Maintenance employees of the Employer at the Employer's premises in Brampton in 1999, 2000, and on the date of application for certification in particular.

13. The Employer has produced no records in support of its submission to the Board that the ARG Construction employees are in fact full-time employees of the Employer in Brampton.

ARG Construction Performs Construction Work At Employer's Site in 1997 and 1998

14. ARG Construction was contracted by the Employer in or about June 1997 to perform construction work at the Employer's premises in Brampton. The work involved the construction of an addition to the Employer's factory, a press shop. The contract was for an anticipated duration of one year from June 23, 1997. The Site Supervisor for ARG Construction was Ivo Distefano.

CAW Application for Certification

15. The Canadian Auto Workers (C.A.W.-Canada) applied for certification of the Employer in March 1998 [Board File No.: 4903-97-R]. At that time, ARG Construction employees were working on the site of the Employer performing construction work.

16. The Employer's position in its Response to the Application for Certification filed by the CAW-Canada was that the employees of ARG Construction were not their employees and that they should not be entitled to vote. The Employer included ARG Construction employees on a supplementary Schedule "A", along with other employees of temporary placement agencies.

17. Fifteen employees of ARG Construction cast ballots in the CAW-Canada representation vote.

18. The ballots cast by ARG Construction employees were segregated in the CAW-Canada application and were never counted.

USWA Application for Certification

19. Ten of the 20 persons who the Employer has identified as ARG Construction employees in the Application for Certification filed by the Union also cast ballots in the CAW-Canada application.

20. The factory addition constructed by ARG Construction was completed in approximately 1998, but in any event, before the Union's application for certification was filed in February 2000.

21. The Employer employs approximately 10-12 full-time Maintenance employees in its Brampton facility. Despite this fact, the Employer asserted in its Schedule "A" and again in its Submissions that 33 persons are employed full-time by the Employer in Brampton as Maintenance employees.

22. The 33 persons who the Employer has asserted are full-time Maintenance employees in its Brampton facility include the 20 employees of ARG Construction.

23. On the day of the representation vote, the employees of ARG Construction appeared at the Employer's Brampton premises, the cite of the representation vote. They were wearing new Matcor uniforms, They presented themselves to the Returning Officer, indicated that they were employees of the Employer in Brampton, and they cast ballots.

24. Some or all of the ARG Construction employees are members of construction trade unions. ARG Construction is a party to one or more collective agreements with construction trade unions in Ontario.

25. The ARG Construction employees are assigned to work on various projects and sites as required by the ARG Construction management. ARG Construction is not a temporary employment agency and is not in the business of providing temporary labour to industrial employers.

26. The Employer did not inform the Union or the Board at or before the vote that the 20 ARG Construction employees were employees of another company that is a construction company.

27. The Employer continues to maintain its position in the Application for Certification that the 20 ARG Construction employees should be included for the purposes of its Section 8.1 objection and that their ballots should be counted. The Employer continues to seek the dismissal of the Union's application pursuant to Section 8.1.

28. The Employer's Representative in both the CAW-Canada and the Union's applications for certification was the Respondent Bernie Brunino.

29. The Employer was represented by the same labour law firm in both applications for certification. The Schedule "A" to the Application for Certification was executed by Mr. Gregory McGinnis, Counsel for the Employer.

30. These facts were supplemented by additional particulars filed by the applicant in a letter dated August 29, 2000. In that letter the applicant relied upon the following further particulars.

Particulars Arising from Production of Documents

1. None of the 20 individuals who are paid by ARG Construction and who were added to the Schedule "A" by the Employer were working at the Employer's facility in Brampton on the date of the application for certification, February 7, 2000.

2. The Employer did nor have records for the ARG employees, and was dependent upon ARG Construction to provide records indicating where the ARG employees were working on the date of application for certification and during the six months prior to the application for certification.

3. The Respondent in the Section 96 Application, Ivo Distefano, did not perform any work for the Employer at its Brampton facility for the entire 6 month period for which documents were provided, that period being August 2, l999 until February 13, 2000.

4. The following ARG employees, all of whom cast ballots in the representation vote, did not perform any work at the Employer's Brampton facility during the entire 6 month period for which documents were provided:

Adelino Caralho (walk-up)

Sam Carano (36)

Sergio Casantantra (37)

Tony Dismone (89)

Ivo Distefano (90)

Sal Sangregario (308)

5. The records indicate that some of the ARG employees performed unspecified work for various amounts of hours at the Employer's Brampton facility between December 27, 1999 and January 12, 2000. None of the ARG employees worked at the Brampton facility of the Employer after January 12, 2000 according to the documents provided. In other words, the latest that any ARG employee was performing work at the Employer's Brampton facility was 25 days prior to the date of application for certification.

6. The ARG employees were working on assignments for clients of ARG Construction other than the Employer on the date of application for certification and on every date after the date of application for certification for which documents were provided (up to February 13, 2000).

7. Since none of the ARG employees were working at the Employer's Brampton facility on the date of the application for certification (February 7th) or at any time during the week prior to the representation vote, the ARG employees would not have been exposed to the Board's Notice of Representation Vote posting.

8. Notwithstanding that the ARG employees would not have had access to the Notice of the Vote, at least 18 of the 20 ARG employees knew to attend at the Board directed voting station, on the date of the vote, and during the voting hours set by the Board. The Union asserts that the ARG employees were told about the time and location of the vote and told to cast a ballot by the Employer, and/or at least one of the other Respondents in the Section 96 application acting on behalf of the Employer.

9. Based on these alleged facts and particulars the applicant set out the following submissions in its application:

Submissions

30. The Union submits that the Employer and/or Mr. Brunino violated Sections 70, 72, and 76 of the Act by bringing persons into the workplace who are not employees of the Employer, adding persons to the list of voters and the Schedule "A" to the Response to the Application for Certification who are not employees of the Employer, requesting persons who are not employees of the Employer to cast ballots in the representation vote, and allowing persons, in acquiescence and without challenge, who are not employees of the Employer, to cast ballots in the representation vote.

31. The Union submits that the Employer and/or Mr. Brunino took these actions in whole or in part for the purpose of defeating the Union's application for certification by, inter alia, attempting to ensure that the Union did not have the appearance of 40 per cent card membership support pursuant to Section 8.1 of the Act.

32. The Union submits that the Employer and/or Mr. Brunino violated Section 70 by interfering in the selection or formation of the Union, when it and/or he knowingly made false and fraudulent statements to the Board and the Union that the employees of ARG Construction were full-time Maintenance employees employed by the Employer in its Brampton facility on the date of application for certification.

33. The Union submits that ARG Construction and/or Mr. Distefano violated Sections 70, 72, and 76 of the Act by encouraging, permitting, counseling, acquiescing in, or instructing employees of ARG Construction to attend at the workplace of the Employer and to cast a ballot in the representation vote in whole or in part for the purpose of assisting the Employer in defeating the Union's application for certification by, inter alia, attempting to ensure that the Union did not have the appearance of 40 per cent card membership support pursuant to Section 8.1 of the Act.

34. The Union submits that ARG Construction and/or Mr. Distefano violated Sections 70 of the Act by permitting, encouraging, assisting, or acquiescing in the Employer's fraudulent statements to the Board and the Union that the employees of ARG Construction were in fact full-time employees of the Employer in the Employer's Brampton facility on the date of application for certification.

35. The Union submits that Mr. Distefano violated Sections 70, 72, and 76 by knowingly misrepresenting to the Returning Officer and the Union that he was a full-time Maintenance employee of the Employer and entitled to cast a ballot and by casting a ballot in the representation vote of employees of the Employer.

36. At the hearing counsel for the responding parties carefully reviewed each alleged fact and submission set out in Schedule “A” to the Application. Counsel submitted that even if such facts and particulars are accepted as being true, such facts and particulars do not raise a prima facie case that the responding party has breached sections 70, 72 and 76 of the Act. In counsel’s submission the responding party in an application for certification is entitled to put forward its views as to what individuals it considers to be employees. It may not be right ultimately, but certainly it is entitled to submit its views. From a labour relations standpoint it makes no sense to have the parties in a certification application worry about who they include as alleged employees. One must keep in mind that the certification process is a swift process and the employer is required to file its list of employees within two business days of receiving the application. The system is that if the parties disagree about any individual, such individual is segregated. Status is then decided by the Board. In counsel’s submission taking a legal position as to the status of an individual or individuals has never been an unfair practice under the Act. While conceding there may be instances where an unfair labour practice arises concerning the list filed in Schedule “A”, the list filed by the employer in this instance is clearly not inappropriate. Based on the facts and particulars relied on by the applicant in this instance there is no prima facie support for such application. The issue of the status of the individuals in question will be determined in the certification application. In conclusion this application (File No. 3921-99-U) alleging a breach of sections 70, 72 and 76 is pointless and really a fishing expedition. The application should therefore be dismissed without a hearing.

37. Counsel for the union submits that the test is whether it is clear and obvious assuming all facts are proven that there is no prima facie case. An application should not be dismissed because it raises a novel issue. In this instance where it is alleged that several parties acted in concert to defeat the union’s application for certification, the union will obviously not be able to gain knowledge of the conversation between various responding parties. All the union can rely on is what it observed. Thus, for example how did 18 of the individuals in question, who according to the responding parties’ production had not worked at the employer’s premises on the day of application, (and at best some months before), show up for the vote in new Matcor Uniforms. This raises a number of factual issues that need clarification. The position of the applicant is not that the responding parties took a position based on certain facts; the complaint is rather that the responding parties in essence made up facts and intended to rely on such facts to defeat the union application. Counsel submits that where such information is basically within the respondent’s knowledge then “very little evidence is required to satisfy the evidentiary burden when it rests upon the party lacking such knowledge” (see Guaranteed Insulation ’77 Limited; [1981] OLRB Rep. Oct. 1394 at paragraph 16). The real question is whether the responding party stepped over the line by making a dishonest assertion. The allegation is that the responding party employer has wrongfully padded the list. This is an issue that the Board should consider, and it should not be dismissed on a prima facie basis.

38. In reply counsel for the employer alleged that in essence the applicant is alleging fraud. To show a prima facie case there must be facts and particulars pleaded that would amount to fraud if proven. It is not enough to allege suspicion and rely on such suspicion. The employer has no property in any witness. There is just no particulars alleged that the twenty individuals in question were directed or spoken to by any of the responding parties. In conclusion the responding party submits the application should be dismissed without a hearing.

Decision

11. Section 70 of the Act states:

12. 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.

13. Section 72 of the Act states:

14. 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.

13. Section 76 of the Act states:

14. 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.

15. To dismiss an application on a prima facie basis the Board must be persuaded that even if all the facts are assumed to be true, the application does not in any way establish a breach of the Act. While it may sometimes be difficult to draw a line between a fishing expedition (as alleged by the responding parties) and a serious complaint, the Board in this instance understands the concern of the applicant. Under the speedy process in a certification application, a union may well be concerned with an improper attempt by the employer to pad the list of employees. The question may be, as counsel for the union submits, where that line is crossed.

16. In regards to allegation that the responding parties have breached section 70, the issue is whether or not the employer has improperly added individuals to Schedule “A” solely to defeat the union’s application for certification. While it may be ultimately determined that indeed the employer has not done so in this instance; to dismiss this application on a prima facie case the Board must be satisfied that there is no basis on the facts pleaded to support such an allegation. In this instance the Board agrees with counsel for the union that the issue is not purely a legal issue as to the status of the A.R.G. employees. In the Board’s view the applicant’s pleadings do raise a prima facie factual concern as to whether or not the employer’s motive in adding such persons to the list was to “interfere with the formation, selection …of a trade union” within the meaning of section 70 of the Act.

17. In regards to the allegation that the responding parties have breached sections 72 and 76 of the Act, the Board agrees with counsel for the employer that the pleadings on a prima facie basis, even assuming all the facts and particulars pleaded are true, do not demonstrate that the respondents have refused to employ a person, discriminate against a person or impose contractual terms of employment on a person because such person was a member of a trade union. Further there are no pleadings that on a prima facie basis demonstrate that the respondents have threatened dismissal, or made any other kind of threat to compel a person from becoming a member of a trade union. Equally, there are no pleadings that on a prima facie basis demonstrate that any person sought by intimidation or coercion to compel any person to become or refrain from becoming a member of a trade union.

18. Thus, having fully considered the pleadings and the submissions of counsel, the Board is not prepared to dismiss the application in Board File No. 3921-99-U on a prima facie basis in regards to an alleged breach of section 70 of the Act. The Board, however, would dismiss this application on a prima facie basis in regards to an alleged breach of sections 72 and 76 of the Act.

“Timothy W. Sargeant”

for the Board