IN THE MATTER OF:

THE LABOUR RELATIONS CODE

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UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION NO. 496

Complainant

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NORTHLAND PROPERTIES LTD.

Respondents

FILE NOS.: GE-03429, GE-03460

 

BOARD MEMBERS

J. Leslie Wallace - Vice-Chair
Jennifer Burns - Member
Larry Schell - Member

 APPEARANCES

For the Applicant: Robert Blair (Counsel), Cal Ploof

For the Respondents: Graham Rennie, Taj Kassam

 

REASONS FOR DECISION

I. Introduction

[1] Northland Properties Ltd. ("Northland" or the "Employer") is a company active in the western Canadian hospitality industry. It owns and operates Sandman Inn Hotels, various Moxie’s restaurants, and Denny’s restaurant franchises in western Canada. Unlike most hospitality companies, it acts as its own general contractor in construction of its facilities. It performs some of its construction work through its own employees, and as such is an employer engaged in the construction industry.

[2] In the summer of 2000, Northland was constructing a combination Sandman Inn and Moxie’s restaurant on a property on the south side of the city of Red Deer. The United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local No. 496 ("Local 496" or the "Union") attempted to organize Northland’s workforces on this project. It filed two certification applications for standard construction bargaining units of pipefitters and sprinkler fitters, respectively.

[3] The Board processed these applications for certification. The applications were contentious. They resulted in a supplementary investigation by the Board’s Officer, objections, and unfair labour practices filed by both the Union and the Employer. Another panel of the Board ruled on the objections, determined those employees entitled to vote, and ordered the ballot boxes sealed pending adjudication of the unfair labour practice complaints. This panel heard those complaints over four days. At the close of that hearing we gave a partial oral decision dismissing the Employer’s complaint, ordering the sprinkler fitter application to proceed to a count of the vote, and reserving on the remaining issues in the pipefitter application. This is our disposition of those remaining issues, together with our reasons on all matters before this panel.

II.   The Certification Proceeding and Filing of the Complaints

[4] In May 2000 Northland was engaged in completing construction of its Sandman Inn hotel, the first phase of the development of its property in south Red Deer. The structural envelope was complete and its workforce was rushing to complete the ductwork, piping, sprinklers and other mechanical work necessary to open the hotel by mid-July. It employed Denis Jolicoeur as its site superintendent and, reporting to Jolicoeur, Ron Price as its mechanical superintendent. Jolicoeur and Price supervised a mixed crew of pipefitters and sprinkler fitters, among others, performing the mechanical work.

[5] Mr. Price had hired or effectively recommended hiring several of the members of the crew. Price was a long-time member of the Union. Sometime in May 2000, Price became concerned or upset about the Northland job and apparently resolved to try to interest his crew in unionizing. There is broad agreement in the evidence we heard that on or about May 16, at morning coffee break, Price called the members of the pipe and sprinkler crews to the back of the Sandman Inn property. There he spoke to them in terms that he was not happy about Northland and their project, that the employees needed a union and that he would take steps to bring the union in. The meeting lasted only five minutes or so, following which Price told employees to return to their stations in twos and threes to avoid attracting Jolicoeur’s attention

[6] Mr. Price contacted Cal Ploof, an organizer for the UA local unions in Alberta. Mr. Ploof was familiar with the Sandman Inn project. He had already learned of it as a potential organizing target through a UA official who had a son-in-law on the site. Ploof’s initial inquiries in the fall of 1999 had led him to believe there was little interest in organizing. With Price’s phone call, Ploof revived his efforts to collect support. We heard, and we find, that Mr. Price’s involvement in the organizing drive was minimal. Mr. Ploof was the main organizer. Mr. Price’s role was limited to calling Mr. Ploof; holding the short workplace meeting described above; getting Mr. Ploof a list of employees; and occasionally encouraging employees to meet with Mr. Ploof off-site during breaks. On one or more occasions employees may have overstayed these breaks at these meetings. There was no evidence, however, that Mr. Price and Mr. Ploof conspired to use company time to conduct organizing and, as the meetings happened off-site anyway, nothing more need be said about them.

[7] By late May, Mr. Ploof had collected signed application cards from a number of the employees he had identified on the Sandman Inn site. Of the employees who signed, not all gave Mr. Ploof their required $2.00 payment directly. Employee Ryan Zoutman paid for four other employees. Mr. Ploof did not enquire about any repayment arrangements between Ryan Zoutman and the other employees. Shortly before the application date, Mr. Ploof, in discussions with fellow UA business representative Paul Walzack, learned that UA supporters on the Sandman Inn job had signed the wrong application cards. They had signed Local 488 cards, while the job site was just south of the union’s jurisdictional line and thus in Local 496’s territory. So Mr. Walzack obtained a supply of application cards from Local 496. Mr. Ploof approached employees to sign the new cards. He collected no new money but applied the payments already made to the Local 496 applications for membership. This task done, he submitted the two applications for certification on behalf of Local 496 on May 29, 2000.

[8] It is unnecessary to describe in detail the procedural disputes that characterized the processing of these certification applications. Initially the Union charged that the Employer had provided inaccurate information to the Officer and took untenable positions in its dealings with the Board, all with the intent to gerrymander the voters lists and undermine the Union’s chances of winning a certification vote. It argued that this constituted interference with trade union representation of employees, contrary to s. 146(1)(a)(ii) of the Labour Relations Code. At the opening of our hearing the Union withdrew this element of its complaint. We need therefore say only that after several exchanges of correspondence, conference calls with a vice-chair, a supplementary Officer’s report and a contested certification hearing, another panel of the Board (the "Lucas Panel") on July 13, 2000 found that the Union possessed 40% support in both units applied for and ordered representation votes. In so doing, the panel made several determinations about employees included and excluded from the bargaining unit. The important determination it made for our purposes is that Ron Price exercised managerial responsibilities on the site and so was not an employee in the bargaining unit. By this time, Mr. Price was no longer employed on the site.

[9] On June 14, 2000, only days after the Officer’s report on the certification application was released, the Union complained that Mr. Jolicoeur on behalf of the Employer had been canvassing employees to determine who were Union supporters, and was attempting to incite employees to withdraw their support of the Union. It framed these complaints as breaches of s. 146(1)(a)(ii) and 147(c) of the Code. It added the (subsequently withdrawn) s. 146(1)(a)(ii) complaint alleging gerrymandering of the voters list.

[10] The next day the parties held a conference call with a Vice-Chair of the Board in which a supplemental Officer’s investigation was ordered. The day after that, June 16, 2000, the Union added to its complaint an allegation that Northland Vice-President Taj Kassam, who was present on the conference call, had shortly after that spoken to employees on the Red Deer jobsite and solicited their co-operation in opposing the Union. It contended that this constituted further violations of sections 146 and 147 of the Code. Northland denied any misconduct on Mr. Kassam’s part.

[11] On July 6, Northland filed its own unfair labour practice complaint. It alleged that Ron Price, acting on behalf of the Union, organized for the Union on company time and premises, contrary to s. 149(d); and threatened, intimidated and unduly influenced employees into support of the Union, contrary to s. 149(f). This complaint was deficient in particulars, a matter remedied only at the hearing of the complaint before this panel.

[12] The Board’s certification hearing took place on July 12 and 13, 2000. The representation vote proceeded on July 21 and the ballot boxes were sealed. On August 1, the Union filed further unfair labour practice complaints. It alleged that the Employer used its knowledge of the workforce and the information contained in the Officer’s two reports to ascertain likely Union supporters. It contended that between July 24 and 27 it laid off Ryan Zoutman, Sjohn Zoutman, Justin Turner and Dave Ellison for anti-union motives, contrary to s. 146(1)(a)(ii), s. 147(a)(i), (ii), and (viii), 147(b) and 147(c) of the Code.

[13] Finally, on August 24, 2000, the Union filed an unfair labour practice complaint alleging that on or around August 4, 2000, the Employer constructively dismissed pipefitter Korey Strom because he was presumed to be a Union supporter. It again alleged that this was contrary to s. 146(1), s. 147(a) and s. 147(b) of the Code.

 III. The Employer Complaints

[14] The Employer’s complaints can be easily dealt with. The Employer alleges that Ron Price unlawfully organized on company time and premises and intimidated and coerced employees into supporting the Union. It seeks to have the two certification applications dismissed, a two-year ban on further organizing of Northland employees by the Union, and costs.

[15] Mr. Price attended the opening day of our hearing. He sought to participate in the hearing. He wished to defend himself and his reputation against the allegations that the Employer made in its pleadings. The Board denied Mr. Price’s request. The Board grants party status to persons who are named as applicants or respondents in the pleadings, persons against whom a remedy is sought, and persons who have a demonstrable legal interest in the outcome of the proceedings and whose interest the Board has jurisdiction to adjudicate. In this case neither the Union nor the Employer named Mr. Price as a party. Neither side sought any remedy against him personally. Finally, Mr. Price possessed no interest in the outcome of the proceeding that the Board has the authority to protect or decide upon. The Board is not a court. The Board has only the powers that the Labour Relations Code gives it. Whether or not the Board can do anything to protect the reputation interest of a current employee, we see no way in which a person found by the Board to be a manager, and no longer employed by the employer in any event, can assert that interest in our proceedings. If at all, that interest may be asserted only in the civil courts.

[16] Returning to the Employer’s complaint, sections 149(d) and (f) of the Code read as follows:

149 No trade union and no person acting on behalf of a trade union shall

(…)

(d)  except with the consent of the employer of an employee, attempt, at an employee’s place of employment during the working hours of the employee, to persuade the employee to become, to refrain from becoming or to cease to be a member of a trade union;

(…)

(f) use coercion, intimidation, threats, promises or undue influence of any kind with respect to any employee with a view to encouraging or discouraging membership or activity in or for a trade union;

[17] However one wishes to characterize Mr. Price’s involvement in this organizing drive, there is no breach of s. 149(d) or (f) of the Code unless his actions were those of the trade union or he was a "person acting on behalf of a trade union". The Employer’s complaint fails on this point. First, Mr. Price was not an official of the trade union. He possessed no constitutional authority by which he could bind it. He therefore was not acting as "the trade union".

[18] Second, we reject the Employer’s argument that he was a "person acting on behalf of a trade union". It argues that this is so because he assisted the Union in the organizing drive, his acts benefitted the Union, and he would have been seen by employees to be acting for the benefit of the Union. In our opinion, however, acting for the benefit of a trade union is not the same as acting on behalf of the trade union. The trade union cannot be held responsible for the acts of every supporter or enthusiast. There must be some form of agreement or agency relationship between the trade union and the individual before the individual is deemed a person acting on the union’s behalf. At the least, there must be facts by which the individual plausibly holds himself out to employees as acting with the union’s authorization. A common example of a person who is not an official of a trade union but acts on its behalf is the volunteer organizer who circulates a certification petition with the Union’s authorization or knowledge. In this case, there is no credible evidence that the Union gave Ron Price any real or apparent authority to assist it in its organizing efforts. He did not sign employees into membership. He did not circulate a petition. Mr. Ploof was the only organizer. Mr. Price was, as Union counsel submitted, only a significant contact for the Union. Any assistance he gave — mostly encouraging employees to meet with Mr. Ploof off-site — was a freelance initiative.

[19] As the Employer’s complaints fail on this threshold issue, it is not necessary for us to decide whether the meeting Mr. Price called at the back of the Sandman Inn property constituted an attempt on company time and premises to persuade employees to join the union.

[20] Our finding on this issue also defeats the s. 149(f) allegation that Mr. Price’s conduct coerced, threatened, intimidated or influenced employees into taking out membership in the Union. We would note, however, that the evidence did not support the Employer’s complaint in any event. Most employees testified firmly that they were not intimidated and signed cards of their own free will. The only evidence to the contrary was some vague and, we regret to say, self-serving evidence by the two employees who publicly withdrew their support of the Union and who testified in this proceeding. We will say more about these employees’ testimony later; at this point it is enough to say that nothing in the evidence points to the conclusion that the membership cards collected by Mr. Ploof were anything but the voluntary expression of the signatories’ wishes, at least their wishes at the time of the signatures.

[21] For these reasons the panel orally dismissed the Employer’s complaints at the close of the hearing.

IV. The "Non-Pay" Allegation

[22] At this point it is necessary to consider the Employer’s submissions about the membership evidence the Union supplied in support of its certification applications. Well after the Union had closed its case in chief, the Employer called two bargaining unit employees, Bill Chaput and Noel Urquhart, to testify. Their testimony canvassed several topics. One topic was the circumstances by which they signed Union membership cards. They claimed that they each signed two separate cards, the first before bargaining unit employee Ryan Zoutman and the second before organizer Cal Ploof. Both of them claimed that at no time did they pay $2.00 in support of their membership, as section 31(a)(ii) of the Code requires. The Union was able to recall Mr. Ploof, who testified that he personally signed up Messrs. Chaput and Urquhart twice, the first time after rejecting some signed cards given him by Ryan Zoutman. Mr. Ploof acknowledged that Messrs. Chaput and Urquhart did not advance him money. He indicated that Ryan Zoutman had paid for them, and that he assumed but did not confirm with Mr. Zoutman that this was a loan arrangement

[23] Whether Messrs. Chaput and Urquhart signed cards three times or only two, there was no contest that they have not, or not yet, paid $2.00 on their own behalf toward their membership applications. Messrs. Chaput and Urquhart did not testify about the precise arrangement, if any, between themselves and Ryan Zoutman — whether the $2.00 was a gift or a loan, or whether they knew about it at all. The Employer argues that the important fact is that the money was not paid by the applicants for membership on their own behalf; by itself, that warrants dismissing the certification application, or at least discounting Chaput’s and Urquhart’s cards.

[24] Although this evidence causes us serious concern about the manner in which the Union handled collection of the $2.00 payments in this case, we decline to entertain the Employer’s argument that we should treat the membership evidence as tainted. We agree with the Union’s criticism that the non-pay allegation was sprung upon it late and without fair notice. The first mention of any alleged defect in the membership cards came only at the end of the Employer’s evidence. There were no particulars of this element of the Employer’s case filed at any time. There was no hint of a non-pay allegation before the Lucas Panel, which concluded that the Union had 40% support (including Chaput’s and Urquhart’s cards) in the pipefitter bargaining unit. The Employer was silent before the Lucas Panel, despite knowing Chaput and Urquhart had attempted to revoke their memberships in the Union (of which more will be said later) and having ample opportunity to seek information from them about the circumstances of their membership applications. The Employer was silent for the first two days of our hearing, failing to put to Ryan Zoutman or any other employees in the bargaining unit questions about the collection of the $2.00 payments and whether it was a loan or not. In our opinion this worked serious unfairness upon the Union. Whether or not an Employer can even make a "non-pay" allegation after another panel of the Board has found 40% support within the bargaining unit — a question we leave open — it is incumbent on it to at least raise it in a fashion such that the fair hearing of the issue is not prejudiced. No such thing happened in this case, and so we dismiss this objection to the Union’s applications.

V.   The Union’s Complaints

A. Facts

[25] That leaves for consideration the Union’s unfair labour practice complaints. In general, the Union contends that the Employer from the outset engaged in overt attempts to determine which of its employees supported the certification application and to orchestrate opposition to the application. Once its inquiries and the Board’s processing of the certification application gave it enough information to identify the likely Union supporters, it proceeded to lay off those employees while retaining those who did not support the application and those who were willing to withdraw their support. The Union points to the fact that the employees who publicly opposed or disavowed the Union remained on the Northland payroll throughout these proceedings, whereas virtually every supporter lost his job. It asks us to draw the conclusion that this was the intended effect of the Employer’s actions.

[26] The Employer denies that it tried to intimidate employees or determine which of them supported the Union. It says that it, and Mr. Kassam in particular, knew of its obligations under the Labour Relations Code and attempted to conduct itself properly through the certification process. Northland denies any anti-union motive. It argues that the hotel was nearing completion when these events occurred, that layoffs were inevitable, and that it kept the members of its crew that had the most experience.

[27] The Board heard much conflicting evidence about what occurred during the certification process. Rather than set out all of this evidence, we have elected to simply state the facts as we have found them, together with some general comments on the quality of the evidence we heard and detailed discussion of a few points that were most problematic.

[28] The Union filed its certification applications on May 29, 2000. Project manager Denis Jolicoeur returned from vacation on June 2 to find the workplace in ferment over the prospect of certification. He learned of the Union’s applications almost immediately and began making inquiries of his employees about support for the Union within the workforce. In his words, he was "mad", "bothered" and "stressed" by the situation. The evidence indeed generally supports the view that Mr. Jolicoeur was in a state of high anxiety about the applications for weeks after he returned. We find that within a few days of returning, he asked Korey Strom whether he had signed a union card. He asked Dave Ellison the same question a week or so later. Mr. Jolicoeur’s memory failed him about these conversations, and we accept the employees’ testimony that they occurred.

[29] At the same time, Northland management was preparing its contribution to the Board’s investigation of the applications. On June 5 it provided the Board’s Officer with a list of 24 employees it claimed to be in the pipefitter unit on May 29. The list included eight employees working on a job in Calgary, four of whom had the surname "Baker". It also provided the Officer a list of 13 employees it claimed to be in the sprinkler fitter unit that day. All 13 employees had also been named on the pipefitter list. By letter, repeated in a letter to the Board from its newly retained counsel (who ultimately did not act for the Employer on these complaints), Northland purported to give the Board these names on a confidential basis, not to be shared with the Union.

[30] The Board did not accept this limitation, and followed its normal practice of sharing the results of its investigation with the Union in the Officer’s report. The Board’s Officer found 13 employees in the pipefitter bargaining unit and 6 employees in the sprinkler fitter unit. The Officer included Ron Price in the pipefitter unit. The Officer also found that the Union enjoyed less than 40% support in either unit. This finding would have clearly communicated to Northland that the Union had a maximum of five employees in the pipefitter group signed up, and a maximum of 2 employees in the sprinkler fitter unit.

[31] On June 13 the Union sent the Board a lengthy set of objections to the Officer’s report. Among other things, the objection letter maintained that the four Bakers were contractors rather than employees of Northland, and the four "helpers" identified as working on Northland’s Calgary job were not pipefitters by their prime function. From this it would have been clear to Northland that the Union likely had no support at all from the Calgary group. The Union objected to the inclusion of Rod White and Darcy Magnusson in their respective units, from which Northland could have fairly concluded that they were likely not Union supporters. If there had been any doubt in the Employer’s minds, the Union removed it by setting out the six pipefitters and three sprinkler fitters, all from the Red Deer job, that it claimed to be in the bargaining units. The Union identified Ron Price as being in the sprinkler fitter unit. So by June 13, the Employer had to have known that the Union had three to five supporters among its list of six pipefitters, and two or three supporters among its list of three sprinkler fitters. At that point, if not earlier, it would have known or strongly suspected that Ron Price, its supervisor, was among the Union supporters.

[32] A day or two on either side of the Union’s objection letter — the evidence does not identify the date precisely — Northland terminated Ron Price’s employment. The Union makes no claim that anti-union motive played a role in this decision, and so it is unnecessary to canvass the evidence that touches on Price’s termination.

[33] On June 15, by conference call, the Board directed that a supplemental report be prepared. Northland vice-president Taj Kassam was a party to that conference call from the worksite at Red Deer, where he was conducting a previously scheduled visit. That day, the entire pipe and sprinkler crew met with Mr. Jolicoeur and their foremen (Darcy Magnusson, Rod White and Gordon Muensch). One of them — Mr. Strom did not say whom —said words to this effect: "We just want this to go away, we want things back to normal. The truth is the best policy, and if you want to talk to Taj, he’s here."

[34] Mr. Kassam allowed that during that visit he spoke to several construction employees, including Strom, Chaput, Urquhart and Ryan Zoutman. He and Korey Strom agree that the two of them had two conversations that day, and that the topic of unionization came up at least once. Mr. Kassam’s version is that Strom told him he had had nothing to do with the union drive, to which Kassam advised him that he was not in a position to talk to Strom about that topic and he should go to the Labour Relations Board. Mr. Kassam did not inform us of the topic of his second conversation with Strom. Mr. Strom’s version is that he raised the topic of unionization with Kassam in his first meeting that day but left when Kassam told him he could not talk about it. But at the end of the work day, Denis Jolicoeur advised him to talk to Kassam again. Jolicoeur went with him to Mr. Kassam’s office, where he was finishing a meeting. Kassam spoke to Strom, and according to Strom told him that there was "a kind of letter" that he could write to the Labour Relations Board Officer that could "make it go away". Mr. Kassam denies saying such a thing. Though both witnesses testified firmly and were not shaken on cross-examination on that point, we prefer Mr. Strom’s version of these conversations, for two reasons. Mr. Strom, as a former employee of Northland, has no self-interest in testifying as he did. If anything, the fact that his father was and continues to be a Northland employee might give him an interest in testifying to the contrary. Second, the specific reference to a suggestion of "a kind of letter" to the Board Officer has the ring of truth when it is remembered that Chaput and Urquhart sent just such a thing to the Board’s Officer five days later.

[35] After June 15 the Officer conducted further investigations. At 8:00 a.m. on June 20 (according to the fax postmark), pipefitter Noel Urquhart, who had signed a Union card, sent the Board’s Officer a letter in which he purported to "terminate my decision to join the Union." He sent it from the Northland fax machine in service at the Red Deer site. Mr. Urquhart attributed his decision to the pressure that he had felt to sign up. He added the following paragraph:

Furthermore, I fully support Northland Properties in their venture to prevent this union from being formed. My decision is based on personal experiences with this trade, and I’m not willing to put my future plumbing career or my family in jeopardy because of local politics.

[36] Eleven minutes later, pipefitter Billy Chaput sent a letter to the Board’s Officer from the same fax machine. Mr. Chaput’s letter said that he too had changed his mind about union membership and wanted to revoke his membership. He indicated that he had approached Denis Jolicoeur, told him he had signed a union card, and now wanted nothing to do with it. Mr. Jolicoeur in his testimony acknowledged telling Urquhart and Chaput to contact the Board’s Officer. Mr. Chaput remembers differently. He said that Jolicoeur told him to contact Northland Human Resources Director Graham Rennie, who in turn told him to contact the Board’s Officer. Whatever the source of that suggestion, we find that Messrs. Urquhart and Chaput acted in accordance with a common understanding when they sent their letters eleven minutes apart from a company fax machine. Their testimony that they acted independently — which implies that the contemporaneous faxing of these letters from the same machine was just a staggering coincidence — is not credible. When combined with their demeanour on the witness stand and the inconsistent and improbable nature of some of their other answers, this causes us to seriously doubt their entire evidence, particularly their evidence that the decision to contact the Board to revoke their union membership was arrived at without influence.

[37] On June 23, 2000 the Board’s Officer issued the supplemental report. In it he found that there were ten employees in the pipefitter unit (including five of the six employees named by the Union in its objection) and seven employees in the sprinkler fitter unit, including three of the four Bakers, Ron Price (who had previously been counted as a pipefitter) and Troy Goodman from the Calgary job. Of great significance, however, the Officer found that the Union now possessed 40% support in both units and recommended that votes be conducted. This would have told Northland that the Union had either four or five supporters, not three, from its list of six in its objection letter. It would also have told Northland that, if the Union had no support in Calgary, then all three of the Red Deer sprinkler fitters — Ryan Zoutman, Dave Ellison, and Ron Price, whose managerial status was by then in dispute — had to be Union supporters.

[38] The Employer was certainly aware by this time that Chaput and Urquhart had been among the five Union supporters in the pipefitter unit. Adding this to its new knowledge of the overall level of Union support, Northland could have easily narrowed the field of Union supporters in the pipefitter workforce to two or three of: Justin Turner, Sjohn Zoutman, Korey Strom and foreman Gordon Muensch. The Employer subsequently argued that Mr. Muensch should be included in the sprinkler fitter unit, from which we infer that the Employer considered him unlikely to be a Union supporter (for in our experience employers otherwise rarely argue that a foreman should be included in a bargaining unit). In this way, Turner, Sjohn Zoutman and Strom could not help but be under very strong suspicion in any attempt by the Employer to ascertain who the Union’s supporters were.

[39] The supplementary report attracted more objections from both sides. The Union maintained its objections to inclusion of the Bakers and five other employees. The Employer objected that Ron Price should be excluded as a manager, Gordon Muensch included in the pipefitter unit, and that the change of heart by Urquhart and Chaput should result in their support not being counted. All these objections potentially affected the 40% threshhold support necessary to a representation vote, so the applications were scheduled for hearing in mid-July.

[40] Within days of receiving the supplementary report, Northland commenced laying off members of its sprinkler fitter and pipefitter workforce. It laid off Ryan Zoutman and Dave Ellison from the sprinkler crew on June 26. Ellison and Zoutman were given vague reassurances that there might be work later when activity on the nearby Moxie’s restaurant started. Such work never materialized for them. Northland also laid off pipefitter Justin Turner, who was well known to be a family friend of Ron Price (and therefore a likely union supporter), on June 27. We find that Mr. Turner did not ask for this layoff, but had only asked for a short time off to visit his ailing grandmother.

[41] The layoffs happened during a period of great activity by the mechanical crews at the worksite. The hotel was scheduled to open in mid-July, but the schedule had been jeopardized by deficiencies in the mechanical work. Northland modified the opening plan to try to get two of the four floors ready for occupancy in time. It hired a Vancouver contractor to start remedial work in mid-June. All of Northland’s own pipefitters and sprinkler fitters were engaged in remedying these deficiencies and carrying out finishing work at the end of June, and Northland saw fit to bring in a Kelowna contractor to help fix the deficiencies when the Vancouver contractor could give the project no more time. Ryan Zoutman, Korey Strom and Justin Turner all testified that there was much more of this deficiency work to do at the end of June. Northland did not seriously undermine this evidence. It provided only vague evidence that the project as a whole was winding down and that layoffs were a reasonable expectation. This evidence did not grapple with the clear testimony that there was a rush of last-minute deficiency work. In our view the Employer wholly failed to establish that there was a genuine shortage of work that would justify layoff of the first group of employees. We heard no credible explanation for the layoffs that would not connect them to the pending certification application and the obvious likelihood that these three employees had signed union cards.

[42] Some time after this round of layoffs, pipefitter Sjohn Zoutman had a conversation with Denis Jolicoeur at the latter’s house. He testified that Jolicoeur told him that if his brother Ryan would "quit with this union stuff", he could come back to work. Sjohn Zoutman was not cross-examined on this statement, and in his own testimony Mr. Jolicoeur would say only that he did not recall such a conversation. As sketchy as was Mr. Zoutman’s evidence about this conversation, in the absence of a denial by Mr. Jolicoeur, we find that Jolicoeur indeed said words to convey that Ryan Zoutman’s support of a union might influence future employment prospects with Northland.

[43] The Lucas Panel of the Board held its hearing into the certification applications on July 15. It orally ruled that Ron Price was excluded as a manager, the Bakers were excluded as contractors, Gordon Muensch was included in the pipefitter unit, Calgary employee Troy Goodman was included in the sprinkler fitter unit, and the Chaput and Urquhart support counted for purposes of the 40% threshhold support (as they did not appear to testify about the signing of their membership cards). Thus the Union possessed the support necessary to a vote in both units. The Board ordered the vote to proceed, that the ballot boxes be sealed pending disposition of the unfair labour practice complaints, and that the remaining status disputes be treated as disputed ballots if those employees actually voted.

[44] The in-person vote occurred on July 21, 2000. Several disputed ballots were double-sealed. Mail-in ballots were distributed to employees not on the Red Deer site. Then, on July 29, Sjohn Zoutman was laid off. We have little information about this layoff. Mr. Zoutman felt that there was still work left that he could have performed, even though the work was slowing down at that point. The Employer’s witnesses did not offer any refutation of that testimony.

[45] On August 2, Korey Strom returned from several days of personal leave. Very soon he heard from one of his co-workers that while he was away, company official Bill Gagliardi had come on to the Red Deer site to fire him, but a number of his co-workers had "gone to bat" for him. Naturally concerned about this news, Strom talked to foreman Rod White the next day. White doubted the story, but offered to talk to Denis Jolicoeur about it. White returned to tell Strom that Jolicoeur had confirmed Gagliardi’s visit and that Gagliardi wanted to get rid of Strom because he was "union". According to Strom’s testimony, he then went to see Jolicoeur. Mr. Jolicoeur said, "Gagliardi thinks you’re union, but I know you’re not. I’ll go to bat for you. We got rid of them (expletive) bastards, but I’ll try to keep you." Strom was fatalistic; he told Jolicoeur he doubted there was much Jolicoeur could do. Jolicoeur commiserated, saying how he too was "tired of this shit" and was thinking of quitting. After this exchange, Strom packed up his tools and left, not to return. Mr. Jolicoeur’s memory of this exchange was sketchier. He testified that he had only heard about Gagliardi’s visit as a "rumour", that he encouraged Strom to ignore rumours, and that he didn’t recall telling Strom he knew Strom was not a union supporter because they had gotten rid of them all. But Mr. Jolicoeur allowed in cross-examination that it "could have happened", and so we have no difficulty believing Mr. Strom’s testimony that indeed the remark was made. Of course, as we have noted above, at least one of Strom and Sjohn Zoutman had to have been under suspicion as a Union supporter before this; and if Mr. Jolicoeur was of the view that Strom was not a union supporter because they were all gone, one can infer that he at least considered the recently departed Sjohn Zoutman to have been a Union supporter.

[46] Throughout this time, Billy Chaput and Noel Urquhart remained employed by Northland. They were still employed by Northland when our hearing commenced in September. As noted above, it was well known by the Employer that they had tried to recant their Union memberships. They were, as the Employer notes, also the two senior pipefitter apprentices in the workforce: Chaput was a fourth-year apprentice, Urquhart was starting his third year. Nevertheless, we find on a balance of probabilities that Chaput and Urquhart’s continued employment with Northland was motivated at least in part by their timely and public renunciation of union membership. If ability and not union membership was the operative factor behind Northland’s decisions to keep members of this crew, the company would not have been so concerned about Korey Strom, who by the evidence we heard was a good employee.

[47] These are the facts as we have found them. We now turn to the application of the Labour Relations Code to these facts.

B. Decision and Remedy

[48] Sections 146 and 147 of the Labour Relations Code say, in relevant part:

146(1) No employer or employers’ organization and no person acting on behalf of an employer or employers’ organization shall

(a) participate in or interfere with

(…)

(ii) the representation of employees by a trade union.

 

147    No employer or employers’ organization and no person acting on behalf of an employer or employers’ organization shall

(a) refuse to employ or to continue to employ any person or discriminate against any person in regard to employment or any term or condition of employment because the person

(i)  is a member of a trade union or an applicant for membership in a trade union,

(ii) has indicated in writing his selection of a trade union to be the bargaining agent on his behalf,

(…)

(viii) has exercised any right under this Act;

(b)  impose any condition in a contract of employment that restrains, or has the effect of restraining, an employee from exercising any right conferred on him by this Act;

(c)  seek, by intimidation, dismissal, threat of dismissal or any kind of threat, by the imposition of a pecuniary or other penalty or by any other means, to compel an employee to refrain from becoming or to cease to be a member, Officer or representative of a trade union;

[49] The facts as we have found them above lead inevitably to the conclusion that Northland here committed serious violations of these sections of the Code. The shadow of employer influence and interference in the collective bargaining wishes of its employees is a long one in this case. Jolicoeur’s agitation after returning to find certification applications had been filed; his questions to employees about who had signed cards; the Employer’s reluctance to abide by the Board’s normal process of disclosing employee names to the Union while investigating the application; the employee meeting of June 15, ending with an invitation to talk to Mr. Kassam; the foreman’s comment that "the truth is the best policy" (an invitation to confess if ever there was one); the suggestion that an employee in the unit could write a kind of letter to the Board’s Officer to make the situation better; the gross improbability that two employees on the same small crew, sending letters to the Board’s Officer to revoke their memberships eleven minutes apart on the same company fax machine, were acting independently and on their own initiative; and Mr. Urquhart’s letter reference to putting his career in jeopardy and supporting Northland in its "venture to prevent this union from being formed": all these things point to the conclusion that a conscious Employer campaign to sabotage the Union’s certification drive was underway from an early date.

[50] We found above that Mr. Jolicoeur, the senior representative of Northland on site, enquired of employees whether they had signed membership cards. This ferreting out of information that the Code goes to pains to keep confidential, is itself interference with representation of employees by a trade union, contrary to s. 146(1)(a)(ii). Similarly was Mr. Kassam’s suggestion to Korey Strom that he could write a letter to the Board to make the problem go away (which we find to be a solicitation to renounce union membership), a breach of that section.

[51] The most serious breaches of the Code in these facts, of course, were the layoffs of bargaining unit members. The suspicious timing of the layoffs, the Employer’s state of knowledge about where support for the Union lay, the Employer’s failure to give any satisfying business rationale for the layoffs, and Mr. Jolicoeur’s telling comment that "we got rid of all those … bastards" satisfies us that Northland laid off Ryan Zoutman, Justin Turner and Dave Ellison because it believed them to be members of, or applicants for membership in, the Union. The evidence of Sjohn Zoutman’s layoff is less compelling. But in the absence of any cogent explanation from the Employer, we find that his relationship to Ryan Zoutman, the Employer’s knowledge that at least one of he and Korey Strom had to be Union supporters, and (again) Mr. Jolicoeur’s comment about getting rid of Union supporters, warrant a conclusion that he was laid off for anti-union motives.

[52] We are unable to reach the same conclusion about Korey Strom’s departure from Northland. Though he was in imminent danger of being terminated because of Bill Gagliardi’s views that he was "union," it remains the case that he left the workplace on his own initiative. Jolicoeur and other members of the workforce were willing to "go to bat" for Strom, and we do not think it a foregone conclusion that he would have been fired, even if his prospects were not good. Strom’s terms and conditions of employment were not altered in such a way that we might conclude he was constructively dismissed. In our view, Strom’s departure must be treated as a quit rather than a fresh instance of a tainted termination by Northland.

[53] The layoffs of Turner, Ellison, Ryan Zoutman and Sjohn Zoutman are breaches of s. 147(a)(i) and s. 147(a)(viii) of the Code, which overlap on these facts. They also comprise breaches of s. 146(1)(a)(ii) and s. 147(c) of the Code because they were part of the general campaign of interference and intimidation against those in its workforce who might favour collective representation. They are not, however, breaches of s. 147(b). That section prohibits attempts by employers to impose prior restraint on employees’ collective bargaining rights by making them execute a so-called "yellow dog" contract: see Buchanan Lumber Ltd. [1986] Alta. L.R.B.R. 136. No such prior restraint features in this case. The Union did not seriously pursue this characterization of the facts in its argument, and we confirm that no breach of that subsection exists on these facts.

[54] We arrive at the issue of remedy. The Union sought reinstatement of the terminated employees with back pay, and alternatively a compensation order. It asked for an order certifying it for any unit in which it did not possess 40% threshhold support, subject to a representation vote: see Spray Lakes Sawmills [1990] Alta. L.R.B.R. 407; and for a second representation vote if it fails in either of its certification applications. Finally, it sought an order for damages for the additional expense to which the Union was put in prosecuting its certification applications in the face of the Employer’s misconduct.

[55] At a minimum, this case calls for a compensation order for the laid-off employees. The evidence from which we might fashion a compensation order, however, is scant. The order should ideally compensate the laid-off employees for work they lost between the date of their actual lay-off and the date they would have been laid off for a genuine shortage of work without any anti-union motive at play, less monies earned in mitigation. There was little evidence before us of the progress of the mechanical work on the Sandman Inn project, no doubt in part because the Employer’s position was that there was no more work for the employees to do when they were laid off. We have rejected that position and accepted the employees’ testimony that each one of them still had work to do on the project when they were let go. Our task, on the meagre evidence we have, is to quantify how much work they actually lost. We have drawn inferences and conclusions from the evidence there is. While we acknowledge that any finding must be imprecise, it must be noted that the best evidence about the progress of the project would have been in the hands of the Employer. If an employer takes a position that leads it not to adduce detailed evidence of the project’s history, it cannot be heard to complain if the Board rejects its position and must make its remedial order on less than complete evidence.

[56] Exhibit #23, entered by the Employer, lists layoffs by date at the Red Deer site. New hires are not listed; only overall numbers of construction employees at two-week intervals, are stated, so it is impossible to conclude that the layoffs reflect a lack of work in any particular trade. The list does tell us that two of the three mechanical foremen were laid off late in August 2000. Gordon Muensch was laid off August 25, 2000. Darcy Magnusson was laid off August 31, 2000. This is a reasonably reliable indicator of when the main mechanical work on the site was completed. As such, this evidence sets the outside boundary of the compensation award.

[57] The evidence leads us to the following other points:

• This employer did not observe traditional craft divisions in assigning work to these employees. Whatever conclusions may be drawn about the availability of work within certain trades, it does not follow that employees performing that work would necessarily have been laid off immediately when that work ran out.
• The first two floors of the hotel opened for occupancy on July 15. The sprinkler system had to be tested and operational by then, so this would appear to be the outside limit of the availability of pure sprinkler fitter work.
• The third floor opened for occupancy on August 18. The fourth floor opened just before our hearings commenced on September 19.
• From Korey Strom’s testimony, there was still deficiency work to be done when he left his job on August 3.
• Chaput and Urquhart continued to work at the site all through August.
• From Sjohn Zoutman’s evidence, there had been a definite decline in the amounts of deficiency work available before he was terminated on July 29.
• By the end of July, the Vancouver and Kelowna contractors and their crews had been doing a good portion of the deficiency work for about eight weeks. We cannot conclude that these crews would not have been hired but for Northland’s anti-union layoffs. The deficiency work was greater than normal on such a project, and it appears to have been a reasonable business decision to retain the contractors to try to meet the deadlines for opening the four floors to guests.
• Northland did not simply substitute the contractors for its employee workforce. Those members of the mechanical crew who were not laid off were assigned to work alongside the contractors. The laid-off employees could reasonably have expected to keep working alongside the contractors. The effect of their continuing to work, however, would have been to shorten somewhat the length of time before the work was completed. In other words, Northland accomplished its anti-union layoffs to some extent at the price of lengthening the delay before the mechanical work was completed. When we consider the amount of work that the laid-off employees lost, we must consider that the work thereby would probably have run out sooner than it did.
• Nothing in the evidence leads us to believe that Turner, Ryan Zoutman, Sjohn Zoutman, or Ellison were such superior employees that they could reasonably expect to be among the last of the mechanical tradespersons laid off.

[58] Taking all these factors into consideration, we believe that it is most likely that Ryan Zoutman, Justin Turner, and Dave Ellison would have been laid off in any event shortly after the sprinkler work ran out on July 15. They would probably have spent about another week doing cleanup and odd jobs in support of the pipefitter work still ongoing on the third and fourth floors, but no more. We set their layoff date for purposes of compensation as Friday, July 21, 2000, on which date three other employees were laid off the project.

[59] Of Sjohn Zoutman, we believe that the most likely date for him to be laid off was Friday, August 18, 2000, the date of the opening of the third floor. At that point there would have been very little pipefitter work to be done; it was only one week before pipefitter foremen began to be laid off. And we again consider this a reasonable layoff date in part because three other employees were laid off on August 17 or 18.

[60] The Employer will pay to the Union on behalf of Ryan Zoutman, Dave Ellison, Justin Turner and Sjohn Zoutman their straight-time wages for all days they would normally have been scheduled to work, from the date they were laid off to the dates we have set above. The amounts paid shall exclude statutory withholdings and amounts earned in mitigation of loss during the applicable period.

[61] We direct that the Employer pay interest on these amounts at rates set by the Judgment Interest Act, R.S.A. 1980, c. J-0.5, as amended, from August 18, 2000 (for Sjohn Zoutman) or July 21, 2000 (for the others). Interest is payable from those dates to December 26, 2000, which is 90 days after the conclusion of our hearing. We decline to award interest beyond this date, which is the Board’s target date for release of written reasons in the usual case. The parties shall attempt to agree on the exact amount of compensation payable under this formula. The Board retains jurisdiction to resolve any dispute over amounts that cannot be resolved.

[62] In our opinion, immediate reinstatement to active employment is not an appropriate remedy. This case involved employment in the construction industry. The project was virtually finished by the time our hearing was completed. The wronged employees did not lose continuous work by the Employer’s breach of the Code. This is especially so because Northland carries out only those construction jobs necessitated by the building plans of its corporate group, and so is active in the industry only intermittently. Instead, these employees lost the opportunities to work on future Northland jobs, where their experience would normally give them a preference. We infer that but for such an order, the Employer’s anti-union animus would operate to make sure that these employees were not among the employees hired. We therefore consider that the remedy that best rectifies the wrong is a partial reinstatement order — an order that these employees be offered work with Northland if and when it becomes available, for a reasonable period of time after this decision is issued.

[63] To that end, we will make an order that Northland must offer each of Justin Turner, Ryan Zoutman, Sjohn Zoutman and Dave Ellison employment on all construction projects in Alberta that Northland performs as a construction employer. This order will be subject to a proviso that the job or jobs are ones for which the individual employee possesses by training and experience the minimum qualifications that are required. In case the number of these persons so qualified exceeds the jobs available, Northland will be required to offer the qualified persons the available jobs in rotation. This order will be effective for a period of one year. It will apply to suitable jobs that henceforth become available on any current or future Northland project that is active within the one-year period.

[64] Of the other remedies sought, a Spray Lakes Sawmills order is inapplicable in this case. In Spray Lakes Sawmills, supra, the Board granted a representation vote without the existence of 40% threshhold support for the Union because the unfair labour practices had stalled the organizing drive just short of 40% support. In this case the Board ordered representation votes because it found that the necessary support existed.

[65] The more applicable remedy that the Union seeks is a Stuve Electric order, after IBEW, Loc. 424 v. Stuve Electric Ltd. [1989] Alta. L.R.B.R. 272. In that case the Union possessed the necessary threshhold support to get to a vote, but employer unfair labour practices tainted the fairness of the vote. The Board ordered the first vote vacated and a second vote to be held among the same employees. If we were to make a Stuve Electric order, we would direct a second vote in the pipefitter unit if the Union is unsuccessful in the one for which the ballot box remains sealed (for the Union succeeded in becoming certified for the sprinkler fitter unit).

[66] We are not persuaded to make a Stuve Electric order in this case. In that case, the unfair labour practices committed by the employer were blunt threats of workplace closure directed against the whole workforce. Those threats clearly created a chill across the entire workforce that made it impossible to achieve a fair vote on the Board’s usual timeline for a vote. In this case, the unfair labour practices were attempts to solicit employee disclosure of who had supported the union, coupled with terminations of likely union supporters. One termination, of Sjohn Zoutman, occurred after the vote was held. All the terminated employees here received an opportunity to vote, and as the result in the sprinkler fitter application showed, the terminations might well have had no effect at all on the result. The one way in which it might be argued that the Employer’s actions would have affected the outcome of the vote is that the Employer arguably procured a change in allegiance from Noel Urquhart and Billy Chaput. We have suspicions that that is the case, but we have no evidence sufficiently solid that we feel comfortable making that finding. No doubt the Employer tried to take advantage of their change of heart by helping them to try to renounce their membership. Very likely the Employer rewarded them for their change of heart by keeping them employed after the vote had been taken. But we are unable to find on the evidence before us that the Employer actively procured their decisions to stop supporting the Union, by threats, promises or otherwise. That being so, we are unable to conclude that the Employer’s unfair labour practices so undermined the fairness of the vote that a second vote is required to rectify the wrong.

[67] The last remedy sought is compensation for extraordinary expenses incurred by the Union in organizing this workforce and attempting to seek certification in the face of this employer’s opposition. There is precedent for such "make-whole" orders in other jurisdictions: see, e.g., USWA v. Radio Shack (1979) 80 C.L.L.C. 16,003 (O.L.R.B.); Kidd Brothers Produce Ltd. [1976] 2 Can. L.R.B.R. 304 (B.C.L.R.B.); Echo Bay Mines Ltd. (1996) 102 di 91 (C.L.R.B.); and National Bank of Canada [1982] 3 Can. L.R.B.R. 1 (C.L.R.B.), affd. in part [1984] 1 S.C.R. 269, 9 D.L.R.(4^th) 10. We see no basis in principle why a union should never be compensated for wasted expenditures in organizing employees or retaining counsel to combat employer subversion of a certification application. If the wasted effort and expenditures are not too remote and are a direct and predictable result of the unfair labour practices, it stands to reason that they may be compensated by a Board remedial order. In our opinion, however, this is not a suitable case for such a remedy. Such enhanced compensation orders appear to have been reserved for examples of egregious unfair labour practices carried out on a repeated or protracted basis. This passage from the Canada Labour Relations Board’s decision in Echo Bay Mines, supra, gives a flavour of the circumstances where such an order has been considered appropriate (at 117):

The union has expended time and expense in carrying on the campaign which the employer has resisted and frustrated from the outset and effectively chilled. Consequently, much of the cost of the union’s organizing campaign has been effectively "wasted" due to the unfair labour practices of the employer. This waste of expenditure is no more graphic than in the expenses that the union had to pay to the employer to attend at the Lupin mine site, pursuant to Board orders, for the purposes of its organizing campaign. It is only reasonable therefore, in the circumstances … that the employer reimburse the union for all of the costs of transportation, sleeping accommodation and meals incurred by the union as a result of its representatives’ attendances at the Lupin mine site, and pursuant to the terms of the order set forth below, we so direct.

A similar casual [sic: causal?] relationship exists in the present case between the employer’s unfair labour practice, its consequences and the remedy provided below with respect to the union’s representational costs to prosecute the present complaints. Although the Board does not ordinarily require the employer to reimburse the union for its representational costs in unfair labour practice complaints, it has done so exceptionally in the past (see: National Mobile Radio Communications Inc. (1989) 79 di 11 (CLRB No. 765)) and will continue to do so in circumstances, as is the case here, where the employer’s conduct is repeated and purposive.

The repetitious, egregious and intentional conduct of the employer which is in clear breach of the Code, has compelled the union to file and prosecute repeated complaints before this Board. The employer’s conduct, particularly in the Crowley matter, cannot be countenanced and must be unequivocally rebuked. In the circumstances, the union ought not to be required to absorb the costs of the employer’s purposive breaches of the Code; those should be borne by the employer, and pursuant to the terms of the order set forth below, we so direct.

[68] The unfair labour practices the Employer has committed in this case, though serious enough, cannot be characterized as "egregious" or "outrageous". They do not exhibit the characteristics of repetition or duration that figure in the cases where make-whole compensation orders have been given. We decline to make such an order. The Employer must note, however, that its conduct in this organizing drive was offensive to the values of the Labour Relations Code and that this may well count against it for evidentiary or remedial purposes if it continues to actively oppose efforts by its construction employees to seek trade union representation.

[69] Accordingly, we make the following declarations and orders:

• We find and declare that Northland Properties Ltd. interfered with the representation of employees by UA, Local 496, contrary to s. 146(1)(a)(ii) of the Labour Relations Code; that it refused to continue to employ Justin Turner, Ryan Zoutman, Sjohn Zoutman and Dave Ellison because they were applicants for membership in a trade union, contrary to s. 147(a)(i) of the Code; and that it sought by its actions to compel employees to refrain from becoming or to cease to be members of a trade union, contrary to s. 147(c) of the Code.
• We direct that the Employer pay to the Union on behalf of Ryan Zoutman, Dave Ellison and Justin Turner their straight-time wages for all days they would normally have been scheduled to work, from the date they were laid off to July 21, 2000. The Employer shall pay to the Union on behalf of Sjohn Zoutman his straight-time wages for days he would normally have been scheduled to work, from date of layoff to August 18, 2000. The amounts paid shall exclude statutory withholdings and amounts earned in mitigation of loss during the applicable period. We direct that interest be paid on these amounts at rates set by the Judgment Interest Act, R.S.A. 1980, c. J-0.5, as amended, from August 18, 2000 (for Sjohn Zoutman) or July 21, 2000 (for the others). The parties shall attempt to agree on the exact amount of compensation payable under this formula. The Board retains jurisdiction to resolve any dispute over amounts that cannot be resolved.
• We direct that for a period of one year from the release of these reasons, Northland shall offer each of Justin Turner, Ryan Zoutman, Sjohn Zoutman and Dave Ellison employment on all construction projects in Alberta that Northland performs as a construction employer, provided that the job or jobs are ones for which the individual employee possesses by training and experience the minimum qualifications that are required. Where the number of these persons so qualified exceeds the jobs available, Northland shall offer the qualified persons the available jobs in rotation, in the following order: Turner, Ryan Zoutman, Sjohn Zoutman and Ellison. In order to avail themselves of this remedy, these individuals must provide current resumés and contact information to Northland. We also retain jurisdiction over implementation of this portion of the remedy.

[70] Subject to resolution of any of the disputed ballots that still remain in dispute, the representation vote in respect of the pipefitter bargaining unit may be counted.

ISSUED and DATED at the City of Edmonton in the province of Alberta this 27^th day of November, 2001 by the Labour Relations Board and signed by its Vice-Chair.

J. Leslie Wallace, Vice-Chair