Court File and Parties

File No.: 0185-01-R Date: September 14, 2001 Ontario Labour Relations Board

Warrington Kelvin, Applicant v. Universal Workers Union, Labourers’ International Union of North America, Local 183, Responding Party v. Javid Construction Management Limited, Intervenor.

BEFORE: Mary Ellen Cummings, Alternate Chair.

APPEARANCES: Warrington Kelvin and Ron Rupke for the applicant; John Moszynski and Jorge Vala for the responding party; no one appearing for the intervenor.

DECISION OF THE BOARD

1. This is an application to terminate bargaining rights in the low-rise portion of the residential sector of the construction industry.

2. The name of the responding party is hereby amended to Universal Workers Union, Labourers’ International Union of North America, Local 183 (the Labourers) and the style of cause is amended accordingly.

3. The issues left for determination at hearing were, first, the eligibility to vote of Warrington Kelvin, the applicant and the only employee. The Labourers submitted that Mr. Kelvin was not performing work in the bargaining unit for the majority of the application date, April 18, 2001. The Labourers also pleaded that the application had been initiated by Javid Construction Management Limited (the employer) and on that basis should be dismissed.

4. But first, a bit of background. After the Labourers made allegations that the employer had initiated the application, counsel for the employer asked the Board to direct the Labourers to particularize its allegations. The Board made the order on June 12, 2001, and the Labourers complied by letter dated June 22, 2001. The Labourers’ allegations are comprised of their April 20, 2001 response; a letter dated May 23, 2001 and the letter in response to the Board’s direction. Although I will detail the allegations later, put simply, the Labourers alleges that the employer contacted the Christian Labour Association of Canada (CLAC), met with representative Ron Rupke and planned a scheme to bring about this termination application. Mr. Rupke was invited to come to the job site, where Mr. Kelvin was introduced. Thereafter, it is alleged that Mr. Rupke prepared the termination application, with the knowledge of the employer, and that the employer permitted Mr. Kelvin to be absent from work, with pay, to deliver the application. The Labourers also allege that the employer promised Mr. Kelvin he would enjoy the same or better terms and conditions of employment after the termination application was successful.

5. On August 7, 2001, counsel for the employer wrote to the Board indicating that the employer would not be participating further:

Javid believes that this Application is a matter between the Applicant and the respondent Union. Accordingly, Javid takes no position on the application, and will not be participating in this matter any further. In particular, Javid will not appear at, nor participate in, the hearing scheduled for August 9, 2001.

6. However sincere those sentiments, the Labourers’ allegations of employer initiation do implicate the employer in the proceedings. That hearing date was adjourned on consent of the parties, and rescheduled for September 10, 2001.

7. At the start of the hearing, the Labourers brought two motions; to adjourn the proceedings to give it an opportunity to summons representatives of the employer and to seek production of documents; and to request an order preventing Mr. Rupke from representing Mr. Kelvin in circumstances where Mr. Rupke would also be called as a witness.

8. In support of its adjournment request, counsel for the Labourers submitted that the employer’s decision not to participate put the union in the position of having to call management representatives as its own witnesses, and to require them to bring relevant documents. The Board pointed out that the employer’s intentions not to participate had been made abundantly clear more than 5 weeks ago, in fact, before this hearing day was set. I declined to grant the adjournment request.

9. The issue with respect to Mr. Rupke is a bit more complex. Mr. Rupke attended the hearing to act as Mr. Kelvin’s agent. Mr. Rupke was not attending as a representative of CLAC. Counsel for the Labourers submitted that because significant allegations of misconduct had been made against Mr. Rupke, and he might testify, it was inappropriate that he also act as advocate. Counsel pointed out accurately that lawyers traditionally do not act as advocate and witness in the same proceeding. Counsel for the Labourers asked the Board to rely on its powers to control the participation of non-lawyers, set out in the Statutory Powers Procedure Act, and require Mr. Rupke to play one role or the other but not both. I declined to make the order. I concluded that participating in both manners could raise credibility issues with the potential to compromise Mr. Rupke’s and Mr. Kelvin’s position, but that was a risk that they were entitled to take.

10. After discussion with the parties about how to proceed, I directed them first to lead evidence and make argument about Mr. Kelvin’s status, that is, whether he was performing bargaining unit work for the majority of the application date. I directed the applicant to lead its evidence first. In the end, although counsel for the Labourers cross-examined Mr. Kelvin, the Labourers led no evidence.

11. Mr. Kelvin testified that he met with Mr. Rupke before the start of his workday, signed the termination application that had already been filled out for him, then started work. Mr. Kelvin normally works as a construction labourer. He testified that on the application date, he was working the entire day on a low-rise condominium project at Yonge and Sheppard in Toronto. He recalled preparing units for the municipal inspector to look at work in progress before drywall and plastering were started. In addition, Mr. Kelvin recalled cleaning up the units, both inside and out, removing debris and ensuring that nothing would distract the inspector or cause him concern. In preparing the units for inspection, Mr. Kelvin checked, for example, that holes in framing caused by the installation of electrical work were filled in, and if not Mr. Kelvin caulked them. Mr. Kelvin was not able to recall which units he worked on, nor to provide any more detail. Mr. Kelvin left work early, at around 3:00 (he normally works until 4:00) in order to deliver the termination application to the Labourers. Mr. Kelvin testified that he usually works without supervision, and merely informed the superintendent that he had to leave early, without telling him why.

12. Although Mr. Kelvin’s testimony as to his duties on the application date was not completely crisp, I was satisfied that he spent the majority of the day performing the work of the bargaining unit, and is therefore, entitled to bring this application and to vote.

13. I then directed the parties to proceed to the allegations of employer initiation and required the Labourers to proceed first. Counsel for the Labourers asked the Board to exercise its discretion and accept all of the facts pleaded by the Labourers as true, and decide this matter without regard to the response filed by the employer. The Labourers rely on Rules 41 and 45 of the Board’s Rules of Procedure and the Board’s power to control its procedures, as set out in sections 110(16) and 114(1) of the Labour Relations Act. Rules 41 and 45 provide as follows:

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.

42. Where any person has been notified of a hearing or consultation in the way required by these Rules and fails to attend (in the case of an oral hearing or consultation) or to participate (in the case of an electronic hearing), the Board may decide the application without further notice to that person and without considering any document filed by that person.

14. I expressed doubt at counsel for the Labourers’ submission that the Board was entitled to accept all the facts it alleged as true as against both the applicant and the employer. While the applicant, because of the nature of this case, may be affected by the consequences of the Board making findings as against his employer, I conclude that any exercise of the Board’s discretion would be only as against the absent party.

15. I explained to the applicant and his representative the nature of the Labourers’ motion, and the particulars of the facts the Labourers rely on, set out in its response and letters to the Board dated May 23 and June 22, 2001. I advised the applicant that I thought the Labourers had succeeded in pleading an arguable case, and that it would be prudent for him to lead evidence. The applicant’s representative indicated that neither he or the applicant intended to testify, but wanted to enter a document. The applicant’s representative wanted to enter a copy of the collective agreement with markings from the Collective Agreements Library to counter the Labourers’ submissions that the applicant received a copy of the collective agreement from the employer. I declined to accept the document. The Board concluded that since the applicant was available to testify about how he got the collective agreement, it was inappropriate to choose a less reliable way to introduce that evidence. Further, I concluded that even if I were to accept that the applicant had received a copy of the collective agreement from the Collective Agreements Library, that did not necessarily answer the Labourers' assertion that he had received one from the employer.

16. Mr. Kelvin’s representative submitted that the Board ought not to accept the Labourers’ facts, or to draw any kind of adverse inference from the employer’s failure to participate. He argued that the Labourers could have led some evidence, and Mr. Kelvin should not be put in a position where if he testified all he could do was deny the allegations.

17. After hearing submissions from the parties, I dismissed the application because I concluded that it had been initiated by the employer, contrary to section 63(16). Section 63(16) reads:

63. (16) Despite subsections (5) and (14), the Board may dismiss the application if the Board is satisfied that the employer or a person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.

18. In reaching my decision, the Board exercised its discretion and deemed all the facts alleged by the Labourers to be true as against the employer. The reasons for making such a direction, a practice the Board utilizes regularly, is to ensure fairness. A party against whom allegations have been made cannot avoid addressing those accusations by simply declining to participate. The irony in this case is that it was employer’s counsel who sought the particulars that ultimately assisted the Labourers to make their case. But in any event, the Board reached its decision relying on the following deemed facts.

19. Mr. Kelvin was the only employee in the bargaining unit. Mr. Pat Spagnolo Construction Manager contacted CLAC around April 2001 and proposed a scheme to bring about this termination application. Mr. Spagnolo met with Mr. Rupke where the scheme was outlined. When Mr. Rupke came to the job site, Mr. Spagnolo or the site superintendent identified Mr. Kelvin to Mr. Rupke. The termination application was completed with the knowledge and consent of the employer. Further, Mr. Kelvin was promised by Mr. Spagnolo or the site superintendent that he would continue to work for the employer under the same or better terms and conditions of employment after the termination application was successful.

20. Mr. Kelvin was permitted to leave work with no loss of pay to deliver the application to the Labourers although I note he testified that his employer did not know why he left early. Mr. Kelvin also testified that the termination application was not prepared by him.

21. The deemed facts, accompanied to some degree by the evidence Mr. Kelvin gave in the course of testifying about how he spent the day of application, satisfy me that the employer initiated the application. Mr. Spagnolo instigated the application by calling CLAC, then engineered Mr. Kelvin’s introduction to CLAC and Mr. Rupke. Mr. Kelvin did not prepare the application but merely signed the documents given to him by Mr. Rupke. Mr. Kelvin left his work during regular hours to deliver the application, and suffered no loss of pay for doing so.

22. In Tenaquip, [1997] OLRB Rep. July/Aug 7 at paragraph 34, the Board characterized one type pf employer interference in a termination application that we will consider particularly significant:

34. But awareness of employee utilization of company resources and even the tacit employer support for the application that goes with that awareness may not, by themselves, be sufficient to conclude that the company has initiated this application. Rather, before concluding that an application was employer initiated, one would typically expect to characterize that employer's conduct as an early and material involvement in or giving rise to or otherwise significantly facilitating the application.

23. The facts in the case before me certainly satisfy that test. The entire application was inspired and originated by the employer. It made the contact with CLAC, then facilitated the connection between CLAC and Mr. Kelvin. To ensure Mr. Kelvin’s participation, it promised him the same working conditions he enjoyed with the benefit of the Labourers’ collective agreement. A more classic example of an employer manufacturing a termination application would be hard to envision.

24. The Labourers have more than made out a case of a breach of section 63(16). Having done that, it was incumbent on Mr. Kelvin to answer that evidence. He chose not to do so, which is of course, his right. However, the Board is left with uncontradicted evidence of employer initiation. On that basis, the Board dismissed the application for termination.

25. Since Mr. Kelvin is the only employee in the bargaining unit, there is no point to order a posting of this decision in the workplace.

26. The Registrar is directed to destroy the ballot cast in the representation vote within 30 days of the date of this decision, unless within that time period one of the parties writes to the Registrar requesting that the ballot not be destroyed.

“Mary Ellen Cummings”

for the Board