September 13, 2001
Directed to: McLennan Ross - Christopher Lane, JR Coatings Systems 2000 Inc. - Richard Hebert, Blair Chahley Seveny - Yvon Seveny, International Union of Painters and Allied Trades, Local No. 177 - Patrick Milne, Neuman Thompson - Anna Maria Moscardelli, Certain employees of JR Coatings Systems 2000 Inc. - Darcy Thomas
RE: Applications for revocation of the bargaining rights of International Union of Painters and Allied Trades, Local No. 177, Edmonton, Alberta brought by certain employees of JR Coating Systems 2000 Inc. affecting the International Union of Painters and Allied Trades, Local No. 177, Edmonton, Alberta - Board File Nos. RV-00774, RV-00775, RV-00776
[1] At the close of the hearing of these matters on September 10, 2001, the Board (Wallace, Basken, Currie) dismissed three applications filed by certain employees of JR Coating Systems 2000 Inc. (the "Employer") to revoke bargaining rights held by the International Union of Painters and Allied Trades, Local No. 177 (the "Union").
[2] This letter confirms the reasons the panel gave orally. In edited form, those reasons were as follows:
"These are three applications for revocation of bargaining rights by certain employees of JR Coating Systems 2000 Inc. The applications affect each of three bargaining units, being general construction, maintenance and non-construction painters.
We start by confirming our order given at the outset of the hearing that the applications for revocation of bargaining rights for the general construction and maintenance bargaining units are dismissed. The officer found no employees in either of these bargaining units. We adopt that finding.
We turn to the status of employees Darcy Thomas and Marco Boisvert, which was the main issue pursued by the petitioners. Both are excluded by name in Article 3 of the voluntary recognition agreement. Mr. Thomas was the spokesperson for the petitioners at our hearing. We have concluded that Mr. Thomas and Mr. Boisvert are outside the bargaining unit of employees represented by the Union.
The issue before the Board in this part of the case is, what is the bargaining unit for the purposes of this revocation application? As Union counsel pointed out, there is no certificate in force. The voluntary recognition agreement of March 20, 2000 is the only source of the Union’s bargaining authority.
The voluntary recognition agreement is not drafted with the greatest precision, and the words of Article 1 create some uncertainty. In our view, however, the best interpretation of the voluntary recognition agreement for purposes of this application is that the agreement puts Darcy Thomas and Marco Boisvert outside any bargaining unit represented by the Union. It allows them to do bargaining unit work in the shop, but by implication forbids them from doing other bargaining unit work unless (presumably) they join the Union as per the union security clause in Article 7.02 of the registration collective agreement.
As Messrs. Thomas and Boisvert are specifically placed outside the bargaining unit, their support for a revocation application will not be counted.
Even if Article 1 of the agreement were interpreted to create a notional bargaining unit larger than the group of employees to which the collective agreement applies, we would exercise our discretion to exclude these employees for purposes of this application. They are completely outside the operation of the collective agreement and so have no interest in the outcome of the application that is sufficiently tangible to justify them being counted in support of an application affecting representation rights.
That brings us to the principle in the April Waterproofing case and the application of the Board’s discretion under s. 52(1) of the Labour Relations Code.
The Orlovsky Painting case of this Board [Certain Employees of Orlovsky Painting (1972) Ltd. v. Painters, Loc. 177 [1995] Alta. L.R.B.R. 251] makes it clear that the principles adopted by the Ontario Labour Relations Board in April Waterproofing and subsequent cases are sound. It says that it is appropriate to apply the policy rationale of those cases in Alberta.
Orlovsky Painting also makes it clear that the best statutory source of authority for the Board to give effect to the April Waterproofing rationale is our authority under s. 52(1) to consider "any other relevant matter" in disposing of a revocation application. We accept the approach of that case and will apply it here to the extent that the facts and sound labour relations policy warrant.
In analyzing this case, we will follow the analytical framework argued for by the Employer’s counsel. First, what is our assessment of the Employer’s conduct in this case?
We find that the Employer has demonstrated an almost complete failure to abide by the provisions of its collective agreement with the Union. First, it has failed to make specific requests to the Union to dispatch employees to jobs that it has secured. At most there have been only general requests from time to time to "send us someone". Second, the Employer has failed to enforce the union security clause of the collective agreement against new employees when they hire on. It is not enough to accept employees’ protests that they do not wish to join the Union and thereafter treat the matter as only the Union’s problem.
Third, the Employer has paid its employees at rates higher than the registration collective agreement wage scale. Whether or not this was for valid business reasons — and we acknowledge the Employer’s claim that that was the case — the practice has the effect of creating a disincentive to employees to ever join the Union and thereby run the risk that the collective agreement wage rates will be enforced. In short, the practice creates a natural constituency for a revocation application.
Fourth, the Employer has never supplied the Union with specific, timely notification of the names of the employees it has hired. We note this Board’s case of Imperial Painting [Imperial Painting and Decorating Inc. [1997] A.L.R.B.D. No. 26, Board File No. RV-00575], in which failure to contact the Union in the hiring process was deemed a breach of the collective agreement that warranted application of the April Waterproofing principle. At best, the Union has learned of the identity of one or more of these employees by going to the Employer’s shop and asking specific questions about who a given employee was. The collective agreement does not contemplate that the Union will have to engage in a detective exercise before it can learn who the Employer is employing.
Finally, the Employer has filed "NIL" reports to the Union’s trust funds when it was employing employees and it was thus patently wrong to do so. We accept Richard Hebert’s evidence that part way through the time period at issue, he instructed the company’s bookkeeper to continue filing "NIL" reports in the future. That evidences an intention to continue misleading the Union in future about who the Employer is employing.
Overall, the Employer was not at all forthright with the Union about who was in its workforce. We do not believe that the Employer hired contrary to the collective agreement specifically to engineer a revocation application. But we do not read April Waterproofing and other cases as positively requiring such a thing before the Board will dismiss a revocation application. Intent to procure the revocation application is just one factor to consider. In this case, we consider that the Employer’s complete failure to observe the collective agreement had the effect of building a workforce that had no reason to join the Union, that was not forced to join the Union, and was being either actively or passively hidden from the Union in a way that prevented the Union from developing any ties with the employees. Overall, the Employer’s conduct in this case is sufficiently culpable to invoke the April Waterproofing principle.
Next we consider what impact the Union’s conduct has on this case. The cases are clear that the April Waterproofing principle will not be applied when the Union has abandoned, waived, or otherwise "slept on" its rights in a fashion that should disentitle it from objecting to the employee constituency that has applied for revocation.
These is no explicit abandonment of bargaining rights by the Union in this case. Further, in our view the Union did not waive or otherwise "sleep on" its bargaining rights in any way that should disentitle it from invoking the April Waterproofing principle. They key fact is, as Union counsel submitted, that this bargaining relationship is of relatively short duration. It was barely over a year old when the application was filed. In that respect, any delay by the Union in guarding its bargaining rights is much less than the cases that were submitted to us as precedent. Delays of several years without any attempt to grieve or otherwise enforce compliance with the collective agreement are typical in these cases.
We agree with Union counsel’s submission that we should not set the bar unreasonably high for trade union representatives when dealing with recalcitrant employers. No doubt, Mr. Milne in retrospect thinks he should have taken a harder line with this employer. But trade union representatives should have some latitude, especially at the start of a bargaining relationship, to secure voluntary compliance from a contractor by means short of threatening or filing a grievance. We do not think it appropriate to hold it against this Union that it has taken a softer approach in the first year of its relationship with this contractor. Nothing we heard convinces us that the Union was unreasonably lax in its dealings with this Employer, to the point that it has disentitled itself from objecting to this application.
At several points during our hearing, the Employer took issue with the Union’s apparent inability to supply it with employees qualified to its needs. In retrospect, maybe the voluntary recognition agreement was a bad bargain for this employer considering the specialized nature of the work it does; but that does not relieve it of the obligation to live up to its commitments to the Union.
Last, we consider the interests of the employees who would be affected by this revocation application. The key fact to this part of our analysis is that the employees other than Mr. Thomas and Mr. Boisvert, who are excluded from the bargaining unit, have relatively short tenures with the Employer. This is not a case like Orlovsky Painting, where the revocation petitioners had been employed for many years — some for over ten years — and so had powerful, long-standing employment interests at stake. Other than Thomas and Boisvert, the longest-serving employee, Ken Brunen, had between ten and 14 months’ service when the application was filed. Several employees had only one to three months’ service. In our view, these employees do not have such powerful interests in being able to bring this application that it should override the fact that they were hired and employed in serious violation of the company’s collective agreement.
For all these reasons, we consider that this is a case where the April Waterproofing principles are applicable. As a matter of our discretion under s. 52(1), then, we dismiss the revocation application for the non-construction bargaining unit."
[3] All three applications stand dismissed.
J. Leslie Wallace, Vice-Chair