Universal Workers Union, Labourers’ International Union of North America Local 183 v. Bradford Sod Ltd.
File No.: 1364-01-R Date: November 23, 2001
Applicant: Universal Workers Union, Labourers’ International Union of North America Local 183 Responding Party: Bradford Sod Ltd.
Before: David A. McKee, Vice-Chair.
Appearances: Mark J. Lewis, Carlos Dionisio, Marcia Kredentser and Jaine Melo for the applicant; Gil Francisco for the responding party.
DECISION OF THE BOARD
1This is an application for certification brought pursuant to the construction industry provisions of the Labour Relations Act, 1995, S. O. 1995 ch.1 (the "Act"). This matter came on for hearing on October 26, 2001. At the hearing Mr. Gil Francisco was in attendance. He indicated that he was appearing for Bradford Sod Limited ("Bradford"). The applicant filed a Corporation Profile Report indicating Gil Francisco was a director and the president of Bradford. Mr. Francisco agreed that he was the person identified in the Corporation Profile Report.
2The applicant provided evidence that it had served a copy of the decision of this Board dated September 26, 2001 on Mr. Francisco. Although Mr. Francisco initially denied that Bradford had received any other material from the Board or the applicant other than the September 26, 2001 decision, he conceded that his partner and fellow director had done so. Accordingly, I am satisfied Bradford was served in a timely fashion with all relevant documents in this application.
3The parties agreed that the list of employees for the purpose of this application is as follows:
Lauro De Almeida Ricardo Perdiz George Cruz Jimmy Cruz Marcus Martin Jeff Wiffi
4The list attached to the decision of September 26, 2001 was one that had been filed in another application and had been incorrectly identified by the party filing it as being associated with this Board File Number.
5The only issue was the union's request for a second vote and other remedies pursuant to section 11 of the Act. Pursuant to the decision of September 26, 2001, the facts with respect to this application are as follows:
On August 16, 2001, the day of the vote, Santos arrived with all of the bargaining unit members in the van at the vote location, Francisco’s home. [The Board was not aware that it was a residence as the responding party had filed no response] When the bargaining unit members proceeded to get out of the van, Francisco and Santos both began to yell at the bargaining unit members. Francisco specifically stated that “if the Union gets in, tomorrow I will close the Company” and “There’s no way I will ever be involved with the Union. Even if the vote goes one hundred per cent for the Union I will shut down the Company and have nothing to do with the Union.” Francisco also went up to one of the bargaining unit members and said to him in Portuguese, “I know that you’re involved with the Union and tomorrow you won’t be working for me”. Santos was also yelling at the bargaining unit members and specifically was heard saying “if the Union gets in I am going to shut down the Company”;
Both Francisco and Santos, on their own behalf and on behalf of the Employer, continued to yell at the bargaining unit members from the time they arrived at the voting site. As a result of these actions, no bargaining unit member cast a ballot at the poll.
6Mr. Gil Francisco did not seek to have the Board reconsider this decision, and made no attempt to challenge the facts. On the basis of these facts the Board finds that Bradford has violated sections 70, 72, and 76 of the Act.
7Following the applicant's submissions as to remedy, Mr. Francisco asked for an adjournment in order to retain counsel. I denied this request. Given the refusal of Bradford to respond to this application in the manner required by the rules of the Board (or indeed in any manner except by a violation of the Act), and the clear terms of the decision of September 26, 2001, I concluded that if Bradford wished to retain counsel, it should have done so before the date for hearing. I did adjourn the hearing for half an hour so that Mr. Francisco could consult his partner or obtain whenever advice he was able to obtain during that time.
8Mr. Francisco also advised the Board that Bradford does not do any work in the winter time. By early November, it would have closed its operations and would not commence any form of work until the spring. At the time of the hearing only one of the six employees on the list remained working for Bradford, and he did not intend to offer employment to any of the other five in the spring.
9The parties did agree on a number of matters. The applicant and Bradford agreed that the Board should issue orders providing for the following:
(1) The Board would order a second representation vote.
(2) The date of the vote would be on any date within one year of the date of this decision, to be selected by the applicant and to be held within five working days after the applicant gives notice to the Board and to Bradford that it seeks to have a second vote scheduled.
(3) The list of voters will be those six persons listed in paragraph 3 above.
(4) The place of the vote will be determined by the Board, and will not be Bradford's worksite or office.
(5) A notice should be sent to each of the employees in the bargaining unit with respect to the violations of the Act by Bradford and other remedies ordered by the Board.
10Bradford did not agree with two other matters requested by the applicant. First the applicant sought an order requiring Bradford to reimburse it for its costs in bringing this application. Second, and more importantly, the applicant requested an order from the Board requiring Bradford to observe the terms and conditions of the Landscaping Agreement (referred to in more detail below) until the date on which the second vote is held (other than with respect to the union security and dues deduction provisions).
11The request for costs is easily dealt with. This is not an appropriate case for costs. Simply because the employer has violated the Act is not a reason to award costs. The Board has no jurisdiction to award costs generally, and has only done so as part of a remedial order intended to “make whole” an injured party. Even in those circumstances, the Board has never awarded costs for legal expenses. It cannot be said at this point that the costs incurred by the applicant in this case are "costs thrown away". There will be no order for costs.
12The request for an order requiring Bradford to observe the terms and conditions of the collective agreement is more difficult. The collective agreement referred to by the applicant is what is often called a "standard industry agreement". It is not negotiated with an employer association. On the other hand, the union has signed an identical agreement with 40 other contractors engaged in landscaping work. The applicant led evidence that it has not signed a different collective agreement with any contractor in respect of landscaping work. It referred to the facts in Aloia Bros. Concrete Contractors Inc., [1999] OLRB Rep. April 127 as evidence of the applicant's determination never to sign a collective agreement which contradicts its "standard" agreement for a particular sector of the industry. Had the applicant been certified as a result of the first representation vote, its position in bargaining would have been that the Landscaping Agreement was the only collective agreement it was prepared to sign with Bradford.
13The applicant argued that this remedy was necessary as the Board’s remedial authority in other respects was insufficient to remedy the employer’s breaches of the Act. It is true, of course, that the Board may no longer certify a trade union as bargaining agent for a group of employees automatically. However, the comments in cases referred to by counsel about the effectiveness of a second vote remedy (Marsil Mechanical Inc., [1997] OLRB Rep. Sept 900; Pietro Electric Limited, [1997] OLRB Rep.June 527; Wal-Mart Canada, Inc., [1997] OLRB Rep. Jan. 141) were not statements that a second vote is never an effective remedy. In those cases the Board was turning its attention to a specific question which the statute, at that time, required it to address, namely: “on the facts before the Board in each case, would a second vote be an adequate remedy for the violations of the Act?” The Board does not find it an appropriate application of the Act to conclude that the only remedies which the Board may grant under the Act are invariably ineffective.
14The applicant's argument in favour of requiring Bradford to comply with the Landscaping Agreement is as follows. This employer has told its employees "if the union gets in, tomorrow I will close the Company" and “there is no way I will ever be involved with the Union. Even if the vote goes 100 percent for the Union I will shut down the Company and have nothing to do with the Union". There is no need in this case to speculate on what a reasonable employee would believe about such statements. The Board is aware that of the six persons in the bargaining unit, the applicant submitted membership evidence for the overwhelming majority of them. Further there is no dispute that, although the employees were brought from the job site to Bradford's office to vote, all six of them declined even to cast a ballot in the face of these statements. Clearly each employee believed the employer was serious about the statements, and each was intimidated to the extent that he refrained from exercising his right to cast a ballot in a representation vote.
15Counsel argued that the only way to demonstrate that what the employer stated on the day of the representation vote is incorrect, is to demonstrate to employees that the employer can manage to work within the terms and conditions of a collective agreement. In counsel’s words, "it is necessary to show these employees clearly and distinctly that this employer, like any other employer in this Province can be required by law to deal with a trade union, and conduct its affairs in accordance with the terms and conditions of a collective agreement". It is only compliance with the collective agreement, counsel asserts, that will persuade employees that the unlawful statements made by the employer, and which had such a compelling impact on the employees, were untrue.
16Mr. Francisco's response was a little assistance. He stated that he had been a member of Local 183 for nine years. He said his opposition to being bound to a collective agreement was based on his perception that he could not survive economically paying the wage rates set out in the collective agreement. In his submissions, he did not distinguish between Bradford being bound to a collective agreement and the Board issuing a certificate. If the applicant could demonstrate to him that it had successfully negotiated a subcontracting provision in its agreement with homebuilders (his major customers) requiring them to contract work only to unionized contractors, he would be "the first to sign a collective agreement". Frankly, these submissions, if anything, reinforce the comments of union counsel. Mr. Francisco sees the union as a threat to his economic well-being. If it were to his advantage to sign a collective agreement, he would do so without reference to his employees. So long as it is not, he is opposed to dealing with the union. He also indicated that he did not wish in the spring to rehire the five employees who are no longer working for Bradford at the present time. He stated that he had various complaints with their work habits, although none of these complaints caused him to discharge those employees, at least prior to the representation vote.
17The Board accepts, in part, the submissions of the applicant. The employer’s intimidation of employees was effective in persuading those employees not to vote. Its intimidation has interfered with the union’s lawful organizing efforts. It has interfered with the Board’s process and its obligation to conduct a free and fair representation vote, as required by a public statute, the Labour Relations Act, 1995. Some effective means of dispelling the intimidatory effect of those statements is required. Employees need to see that the Board’s process can be an effective one which can require the employer to comply with the law, and that the employer must, as a matter of law, and if it is the wish of employees in the bargaining unit, “deal with” the trade union they have selected as their bargaining agent.
18That is not to say that "dealing" with the union must inevitably mean signing a collective agreement. If the union had been certified, it is unlikely that it would have agreed to anything other than the Landscaping Agreement. It might have commenced a lawful strike. This might have had the effect of causing Bradford to sign the Landscaping Agreement. Bradford might have been able to continue to work during a strike. While no builder or general contractor is likely to tolerate a subcontractor whose labour disputes interfere with the progress of a job, the applicant’s evidence about the proportion of workers in the part of the industry in which Bradford works who are covered by the Landscaping Agreement was not such that the result is predictable with certainty. Bradford might have successfully continued to work during a strike. It might simply have ceased to perform work in Board Area 8 but continued to perform work elsewhere. None of these actions would have been unlawful. However, even in this scenario, Bradford would have been required to "deal with” the union in some fashion or other within the constraints of the Act.
19Nonetheless, these possible scenarios are not scenarios that have been or can be demonstrated to employees in the bargaining unit. They have heard their employer’s threats and have believed them. In this case, the membership support for the applicant was overwhelming. While employees often change their minds between signing a union card and the date of a representation vote, the fact that no employee even cast a ballot demonstrates the effectiveness of the employer’s threats.
20To require Bradford to apply the terms and conditions of the Landscaping Agreement to persons other than those who are on the list of voters may demonstrate something to those employees, if they become aware of it. However, such a request appears to the Board to go beyond what it is necessary to communicate to employees. It is indeed necessary to demonstrate that they have a right to choose whether or not to be represented by a trade union, and if so by which trade union. It is not necessary or appropriate to demonstrate that a trade union, simply because it has a standard industry agreement, may dictate the terms and conditions of employment to Bradford, especially without demonstrating the support of employees in bargaining unit. Even when certified, the union is not guaranteed any specific measure of success.
21In this case it is appropriate to make the following orders:
(1) When Bradford commences work in the spring, it shall offer employment to each of the six persons listed in paragraph 3 of this decision before it offers employment to anyone else. Those who accept this offer must be retained in employment in accordance with the terms of this order so long as there is work for them to perform until the date of the second representation vote.
(2) If they decline employment, Bradford must obtain from them statements to that effect in writing and provide a copy to the Board and to the applicant.
(3) Bradford shall, during the time of their employment, pay to these six persons at least the lowest wage set out in the Landscaping Agreement, being $18.54 per hour (plus 10% vacation and holiday pay) at the present time, rising to $18.99 per hour (plus 10% vacation and holiday pay) on May 1, 2002. These amounts shall be decreased by the amount of working dues set out in Article 32 of the Landscaping Agreement.
(4) Bradford shall pay to the United Way or such other registered charity as it chooses an amount equal to the working dues that would be payable if Article 32 of the Landscaping Agreement applied to these employees.
(5) The Bradford shall supply to the applicant a copy of the Statement of Earnings for each of the six of employees immediately upon payment to them of their wages, and proof of its payment to the United Way or other registered charity.
(6) To the extent that Bradford employs these six individuals, or any of them, and no other employees, on a particular site where the applicant has a collective agreement which would require the direct or ultimate source of Bradford's business to contract or subcontract work only to a contractor in contractual relations with the applicant, the applicant is directed not to enforce that subcontracting clause with respect to Bradford's contract.
(7) On two occasions before November 1, 2002, the applicant may, if it chooses to do so, require the employer to permit it to address employees of Bradford, on the job during working hours, for which time the employees are to be paid by Bradford, for a period not to exceed 30 minutes on each occasion. If Bradford is unable to arrange to hold this meeting on a job site, it shall do so at another convenient location during working hours, and shall supply transportation to and from the site to facilitate this meeting.
Some explanation of the rationale for this order is required.
22It is not appropriate to require the terms and conditions of employment to be observed with respect to all persons who work for Bradford other than these six. There is nothing that needs to be demonstrated to them. The focus of this order is on the rights of the union and the employees entitled to vote in the representation vote which have been violated.
23The question of whether the union would have achieved a collective agreement is inevitably speculative. Given the level of membership support, the likelihood that the union might have been successful in the representation vote is not small. On the other hand, whether the union could have successfully concluded a collective agreement with the employer, with or without a strike, is much harder to ascertain. It is however certain that the applicant would not have agreed to any collective agreement containing terms different from those in the Landscaping Agreement. Indeed, Mr. Francisco’s submissions indicate he too understood this industry reality.
24The remedies are designed to achieve two ends. First, by setting a wage rate the orders will be a form of compensation to the employees for the violation of their rights under the Act. In Baron Metal Industries Ltd. [2001] OLRB Rep. May 553, the Board considered the proposition that employees were entitled to damages, particularly in respect of the loss of the opportunity to negotiate a collective agreement, see paragraphs 160-164, although damages do not need to be so narrowly defined in this case. In addition the setting of a wage rate by the Board by way of an order to which the employer must adhere for a period of time will in part demonstrate that the employer may be required to conform to the rule of law.
25It is also appropriate to require some compliance with a standard set by the Board to demonstrate to the employees that their employer may not dictate their decision about collective bargaining. Since the rate is one taken from the applicant’s standard collective agreement, it provides some redress to the applicant. In selecting this rate, the Board has looked at what the applicant hoped to achieve, but about which there was no guarantee of success. The appropriate balancing of the chances of both winning the representation vote and the likelihood of successfully persuading Bradford to sign the collective agreement is that set out above. While the wage rate does not include any form of benefit payment and is therefore not complete compliance with the terms and conditions of the Landscaping Agreement, partial compliance is likely sufficient to remedy the employer’s violation of the Act. The lowest wage rate was selected as, given the nature of the work undertaken by Bradford, this would appear to be the applicable wage rate for these employees in any event. To specify a rate adds certainty to the order.
26The Union did not seek to have dues deducted and paid to it from these wages. However, it is appropriate to recreate the real wage rate payable under the collective agreement. Accordingly the wage rate will be reduced by the amount of the regular union dues that all employees working under the collective agreement are required to pay. The employer should not profit from this reduction, and therefore the Board orders that this amount be paid to the Greater Toronto United Way, or such other registered charity as Bradford chooses.
27The requirement that the employer offer to reemploy these persons and to pay a wage rate fixed by the Board is also the most meaningful, tangible remedy the Board can provide. In dealing with intimidation, the tangible element of the remedy is important. Bradford is a subcontractor, likely at the very bottom of a chain of contractors holding contracts and subcontracts flowing down from the builder. It will have little, if any, control of the job site, hours, sequence or methods of work, and the presence or absence of union agents on the site. Like many subcontractors, the only issue of control which is visible and meaningful to employees is the ability to hire and fire, and to set wage rates. It is only in that area that a “tangible” demonstration of the statutory limits of the employer’s control over employees can be demonstrated.
28The employees in the bargaining unit need to be advised of this order. The union is directed to supply the addresses of the employees set out in paragraph 3 of this decision to the Board if it has them and if Bradford has not already provided them. The Board will send out the notice attached to this decision as Appendix “A” to each of the six employees.
29To summarize, the Board makes the following orders:
(1) The Board orders that a second representation vote be held among employees in the bargaining unit.
(2) The date of the representation vote will be on any date within one year of the date of this decision, to be selected by the applicant. The applicant shall notify the Board after notifying Bradford, and shall provide a certificate of delivery of its notice to Bradford to the Board. The Board will endeavour to hold the representation vote within five working days after the applicant gives notice to the Board and to Bradford that it seeks to have a second vote scheduled.
(3) The list of voters will be:
Lauro De Almeida Ricardo Perdiz George Cruz Jimmy Cruz Marcus Martin Jeff Wiffi
(4) The place of the vote will be determined by the Board, and will not be Bradford's worksite or office.
(5) When Bradford commences work in 2002, it shall offer employment to each of the six persons listed in paragraph 3 of this order before it offers employment to anyone else. Those who accept this offer must be retained in employment in accordance with the terms of this order so long as there is work for them to perform until the date of the second representation vote.
(6) If any of those six persons declines employment, Bradford must obtain from him a statement to that effect in writing and provide a copy to the Board and to the applicant.
(7) Bradford shall, during the time of their employment, pay to these six persons at least the lowest wage set out in the Landscaping Agreement, being $18.54 per hour (plus 10% vacation and holiday pay) at the present time, rising to $18.99 per hour (plus 10% vacation and holiday pay) on May 1st 2002. These amounts shall be decreased by the amount of working dues set out in Article 32 of the Landscaping Agreement.
(8) Bradford shall pay to the United Way or such other registered charity as it chooses an amount equal to the working dues that would be payable if Article 32 of the Landscaping Agreement applied to these employees.
(9) Bradford shall supply to the applicant a copy of the Statement of Earnings for each of the six employees immediately upon payment to them of their wages, and proof of its payments to the United Way or other registered charity.
(10) To the extent that Bradford employs these six individuals, or any of them, and no other employees, on a particular site where the applicant has a collective agreement which would require the direct or ultimate source of Bradford’s business to contract or subcontract work only to a contractor in contractual relations with the applicant, the Board directs the applicant not to enforce that subcontracting clause with respect to Bradford’s contract.
(11) On two occasions before November 1, 2002, the applicant may, if it chooses to do so, address employees of Bradford, on the job during working hours, for which time the employees are to be paid by Bradford, for a period not to exceed 30 minutes on each occasion. Bradford is directed to comply with this request upon written notice from the applicant. If Bradford is unable to arrange to hold this meeting on a job site, it shall do so at another convenient location during working hours, and shall supply transportation to and from the site to facilitate this meeting.
(12) The Board directs the applicant to provide it with the addresses of the persons listed in paragraph (3) above within 30 days of the date of this decision. The Board will provide a copy of the attached notice to the employees.
30This application is adjourned for a period not to exceed one year. If during that time the applicant requests the Board to hold a second representation vote, the Board will endeavour to do so within five working days of the request. If no request is made during that year, this application will be deemed to be dismissed without further notice to any party at that time. I am not seized of any further matters in this application.
“David A. McKee” for the Board