Universal Workers Union, Labourers International Union of North America Local 183 v. Alliance Homes Inc., 2001 CanLII 10116

Ontario Labour Relations Board

File Nos.: 3557-00-R, 3769-00-U Date: December 6, 2001

Between: Universal Workers Union, Labourers International Union of North America Local 183, Applicant v. Alliance Homes Inc. and/or Alliance Homes (Port Inc. and/or 1301466 Ontario Limited and/or Alliance Homes Inc. (MGMT.), Responding Party.

And Between: Universal Workers Union, LIUNA Local 183, Applicant v. Alliance Homes Inc. and/or Alliance Homes (Port) Inc. and/or 1301466 Ontario Limited and/or Alliance Homes Inc. (MGMT.), Responding Parties.

Before: John Morgan Lewis, Vice-Chair.

Appearances: Mark J. Lewis and Harold St. Croix for the applicant; Lisa S. Goodfellow and Alexander Troop for the responding parties.

DECISION OF THE BOARD

1. Board File No. 3557-00-R is an application for certification filed pursuant to the construction industry provisions of the Labour Relations Act, 1995 (the “Act”). The application was filed on March 2, 2001. The representation vote was held on March 12, 2001. The ballots cast in the representation vote were counted resulting in the applicant losing the vote by count of 5:2. The only issue remaining in dispute with respect to Board File No. 3557-00-R is the correct name of the responding party and the applicant’s request for a relief under section 11.

2. Board File No. 3769-00-U is an application pursuant to section 96 of the Act in which the applicant alleges that the responding party violated sections 5, 7, 72 and 76 of the Act.

3. In its decision dated April 20, 2001, the Board (differently constituted) directed that these matters be set down for hearing at the same time and before the same panel. A hearing was held on December 5, 2001. At the commencement of the hearing, counsel for the responding party objected to the late filing of additional particulars by the applicant on December 3, 2001. Counsel for the responding party requested that the Board refuse to admit the particulars and any evidence in support of them pursuant to section 38 and 42 of the Board’s Rules of Procedure. Having considered the submissions of the parties, the Board allowed paragraph 1 of the particulars to be filed and relied upon as they were found to be further elaboration of allegations filed previously. The Board further ruled that paragraphs 2 and 3 were not filed in a timely manner and could not be relied upon by the applicant.

4. The applicant brought a prima facie motion based upon the pleadings and documents filed by the responding party. The applicant takes the position that even accepting everything the responding party filed as being truthful, it’s actions disclose a breach of the statutory freeze provisions of the Act. The applicant advised that should the Board be prepared to accept its position that the filings of the responding party gave rise to a breach of the statutory freeze provisions, it would limit the relief it was seeking in these matters to the Board ordering a further representation vote. Counsel for the responding party consented to arguing this matter on a prima facie basis.

5. After hearing the submissions of the parties, the Board reserved its decision. The Board advised the parties that it would issue a bottom line decision to be issued to the parties today and that the hearing would continue on the following day. The Board finds itself able to provide brief reasons in addition to its bottom line ruling.

6. For the purposes of the prima facie motion, the pleadings which were relied upon are as follows and are deemed to be accepted by the applicant:

1. Paragraphs 10, 11, 12, 13, 14 of the response under section 96:

10. With respect to the issue of employee benefits, the Responding Party submits that it has had a benefits package available to all of its employees since October of 1998.

11. As a result of the organizing activity amongst the employees and the Applicant’s promise to obtain higher wages and benefits for the employees, it came to the attention of the Responding Party that some of the employees did not know that there was such a benefit plan already in place and that they were entitled to participate in it. This plan has always been available to any employee who has completed 3 months of service with the Responding Party. The Site Supervisors in the Beeton and Whitby locations have been on this benefit plan for some time. One employee in the proposed unit, Paul Lippett, was advised of the benefit plan some time ago, but he declined coverage because he already had benefits coverage elsewhere.

12. Individuals who were self-employed and, therefore, not on the Responding Party’s payroll and individuals who had not yet been employed for a period of 3 months would not have been eligible to participate in the benefits plan and might not have been aware of such plan.

13. As a result of the employees’ complaints about not having any benefits coverage, the Responding Party learned that there were some employees who were eligible but who were not aware of their right to the existing benefit package. The Responding Party did not give anything new to its employees at this time, but only learned that it was necessary to improve communications of existing benefits to the employees, which it did.

14. The responding Party submits that advising the employees of their existence rights when it became aware that the employees were not aware of those rights does not amount to a breach of any provision of the Act, but was business as usual.

2. Additional particulars filed with the Board on December 3, 2001:

3. Troop spoke to all of the employees, as described above, in meetings at each work site. These meetings took place on March 6 and 7, 2001 at the respective work sites.

4. Some of the employees raised the issue of benefits with Lippett, stating that the Union promised to provide them with a benefit plan. This is how it came to the attention of the responding party that some of the employees did not know that there was a benefit plan already in place. It is not known to the responding parties which employees did not know about the plan. The site supervisors who had already been participating in the benefit plan were Lippett and Glen Ludwig. Paul Lippett was advised of the benefit plan by Lippett.

5. The self-employed individuals at the time were Geordie Hedley, Dan Ressler, Paul Lippett and Wayne Stephenson. The individuals who had not been employed for a period of three months who might not have been aware of the benefits plan were James Ligas and Phil Murphy.

6. None of the employees really complained about not having benefits coverage but they raised it as an advantage that the Union could provide to them in a conversation with Lippett.

3. Additional particulars raised by the parties at hearing:

a) Geordie Hedley was paid as a subcontractor and commenced working with the responding party on or before December 29, 2000;

b) James Ligas was paid as an employee and commenced working for the responding party on or before December 17, 2000;

c) Paul Lippett was paid as a subcontractor and commenced working for the responding party on or before September 22, 2000;

d) Phil Murphy was paid as an employee and commenced working for the responding party on or before December 18, 2000;

e) Ryan Phillips was paid as an employee and commenced working for the responding party on or before October 10, 2000;

f) Dan Ressler was paid as a subcontractor and commenced working for the responding party on or before November 26, 1999;

g) Wayne Stephenson was paid as subcontractor and commenced working for the responding party on or before June 11, 1999. He subsequently was paid as an employee effective the pay period ending March 23, 2001. Mr. Stephenson asked to be paid as an employee because he needed benefit coverage. The responding party advised Mr. Stephenson to be eligible he had to be paid as an employee. Forms were sent to Mr. Stephenson with regard to benefit coverage on April 12, 2001 but the effective date for coverage was dated March 12, 2001. The responding party did not request permission from the applicant with respect to Wayne Stephenson changing his status to an employee.

7. The applicant alleges that the responding party breached section 86 of the Act when it advised its employees on March 6 and 7, 2001 of the existence of a benefit plan which had been in place since October 1998. Section 86 of the Act is often referred to as the “statutory freeze” provision and reads as follows:

86. (1) Where notice has been given under section 16 or section 59 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees,

(a) until the Minister has appointed a conciliation officer or a mediator under this Act, and,

(i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or

(ii) 14 days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board,

as the case may be; or

(b) until the right of the trade union to represent the employees has been terminated,

whichever occurs first.

(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until,

(a) the trade union has given notice under section 16, in which case subsection (1) applies; or

(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.

8. The present case involves the application of section 86(2) – a freeze that applies when an application for certification is pending before the Board. In determining the content of section 86(2) of the Act, it should be noted that this provision operates in addition to the unfair labour practice sections which prohibit behaviour that is motivated by anti-union animus. By way of contrast, a breach of section 86(2) does not require a finding of anti-union animus to establish a breach of the Act. The freeze captures something that other unfair labour practice provisions do not; bonafide a business behaviour that is not motivated by an anti-union animus considerations. Section 86(2) is intended to limit unilateral action on the part of the employer that is the starting point in establishing a collective bargaining relationship with its employees.

9. Local 183 asserts that the conditions of employment, rights and privileges of the employees of the responding party were altered on March 6 and 7, 2001. The alteration occurred when the responding party advised its employees of the existence of the benefit plan. None of the employees (with the exception of Paul Lippett) were aware of the benefit plan until the responding party advised them on March 6 and 7, 2001.

10. The responding party maintains that it was simply exercising its right of free speech to correct a misunderstanding its employees had with respect to the existence of the benefit plan. The responding party asserts that it did not amend conditions of employment as the benefit plan had existed since October 1998. When speaking with its employees on March 6 and 7, 2001, the responding party was merely verifying the employees’ conditions of employment which then existed.

11. Upon considering the submissions of the parties, the Board finds that the responding party violated section 86(2) of the Act when it advised its employees on March 6 and 7, 2001 of the existence of the benefit plan. By bringing the existence of the benefit plan to the attention of the employees, the responding party was effectively amending their conditions of employment as well as their rights and privileges. The employees did not, in effect, have a benefit plan until such time as it was brought to their attention. In the eyes of the employees, the benefit plan was something new to them as of March 6 and 7, 2001.

12. The existence of a benefit plan is a significant condition of employment. Four of the individuals who cast ballots were paid as employees and were eligible or would soon be eligible to receive benefits at the time of being advised of the plan’s existence by the responding party. Mr. Stephenson went as far as to amend his status as an employee immediately after the representation vote in order to secure benefits. As a result of this violation of the Act, the Board finds that the true wishes of the employees were not ascertained and the representation vote held on March 12, 2001. Accordingly, pursuant to section 11 of the Act, the Board directs that a second representation vote take place in order to determine the true wishes of the employees in the bargaining unit as to whether they want to be represented by Local 183 for the purposes of collective bargaining.

13. The hearing in this matter is to recommence on Friday, December 7, 2001. The Board directs the Manager of Field Services to meet with the parties on the morning of December 7, 2001 to determine a suitable vote arrangements can be agreed upon by the parties. Failing their agreement, the Board will reconvene the hearing to address any outstanding matters.

“John Morgan Lewis”

for the Board