BCLRB No.

B149/2011

BRITISH COLUMBIA LABOUR RELATIONS BOARD

2011 CanLII 49032 (BC LRB)

CERTAIN EMPLOYEES OF 24/7 TRAFFIC CONTROL LTD.

("Certain Employees")

-and-

24/7 TRAFFIC CONTROL LTD.

(the "Employer" or "24/7")

-and-

TELECOMMUNICATIONS WORKERS' UNION

(the "Union")

PANEL: Philip Topalian, Vice-Chair

APPEARANCES: J. Najeeb Hassan, for the Employer

Morley D. Shortt, Q.C., for the Union
Donna Macdonald, for Certain Employees

CASE NOS.: 61728 and 61743

DATES OF HEARING: July 6, 7 and 8, 2011

DATE OF DECISION: August 11, 2011

 -2- BCLRB No. B149/2011

DECISION OF THE BOARD

I. NATURE OF APPLICATION

2011 CanLII 49032 (BC LRB)

1 Certain Employees apply pursuant to Section 34 of the Labour Relations Code
(the "Code") for revocation of collective bargaining rights held by the Union with the
Employer.

2 The Union objects to the inclusion of a number of individuals on the tentative

voters' list. It objects to Dean Sharp ("Dean"), on the basis he is a manager, and to
Donna Macdonald because, according to the Union, she has acted as an agent of Adele
Walker ("Walker"), the owner of 24/7, from before the start of the decertification
campaign.

3 The Union objects to a number of other employees being included on the

tentative voters' list (the "recent hires"). Although these employees have been doing
work within the bargaining unit, and dues have been remitted to the Union on their
behalf, they did not sign Union initiation cards nor did they pay the required $5.00 fee.
Therefore, the Union says they are not Union members and are not entitled to vote on
the decertification application.

4 Initially, the Union also objected to the inclusion of Chris Musclow on the basis he
is not a member of the Union's bargaining unit. However the Union subsequently
withdrew that objection.

5 The Union objects to the application, alleging it is being directed by Walker,

contrary to Sections 6(1) and 6(3)(d) of the Code.

6 Alternatively, the Union argues the application should be dismissed because the
Employer has engaged in unfair labour practices, contrary to Sections 6 and 33(6) of
the Code, including discriminating against Sue Kelly ("Kelly") and her partner, Randy
Sharp ("Sharp"), because of their Union activities.

7 Certain Employees' application and the Union's complaints were consolidated for
the purposes of the hearing and this decision will deal with both.

II. BACKGROUND

8 The Employer provides traffic control services in British Columbia, under contract
to various clients.

9 When Walker started her business, certain customers required the Employer to
provide unionized employees to do traffic control work. Walker approached the
International Brotherhood of Electrical Workers ("IBEW") but was informed that union
was not willing to represent employees of flagging companies other than those to which
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it was already certified. Because of this, the Employer entered into a voluntary
recognition agreement with the Union in 2003. There was no new collective agreement
on expiration of the 2003-2005 collective agreement, but nothing turns on this. The
parties entered a renewal collective agreement in December 2007 with a two year term.

2011 CanLII 49032 (BC LRB)

The Union served notice to bargain in October 2009 and the parties entered into
negotiations for a renewal agreement.

10 Only two meetings took place, following which, in January 2010, the Employer
advised the Union negotiations would not continue until the Employer's return from
Arizona in April 2010.

11 In April 2010, the Employer advised the Union, Jay Sharun ("Sharun"), a
professional negotiator, would have conduct of negotiations. Sharun and Lee Riggs
("Riggs"), the Union Business Agent, exchanged telephone messages between April
2010 and June 2010 but no meetings were scheduled.

12 The parties are not presently engaged in collective bargaining. In February 2011,
the Union applied to the Board for mediation but no new agreement has been
concluded.

13 Riggs testified the Union's inactivity regarding negotiations with the Employer
between April 2010 and early 2011 was due to the fact he was "up to his neck" in Telus
negotiations.

14 Remon Hamac, of Advance Traffic Solutions, testified he approached Walker in

the Fall of 2010 and asked if she could train and supervise flaggers to fill contracts in an
area within 40 to 50 kilometers of Vernon.

15 Walker testified, as a result of Hamac's request, she hired a number of new

employees to service the contracts in the Vernon area. When she forwarded the payroll
information for the recent hires she says she forgot about the $5.00 Union initiation fee
and it was not paid. Walker testified the fees have since been remitted but agreed that
was not done until after the vote on Certain Employees application.

16 The collective agreement contains a Union security provision. It provides:

UNION SECURITY

All present employees, as a condition of employment, shall remain

Union members in good standing, if they are already Union
members, and, if they are not, all regular and top rate employees
shall become Union members...and all new employees shall, as a
condition of employment, become and remain Union members in
good standing of the Union.

17 In order to be a Union member in good standing, an employee must fill out an

application form and submit it to the Union, together with a $5.00 fee. The Union
Membership Committee then votes on the application.
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18 Regarding remittal of dues to the Union, the parties stipulated that, until January
2008, the Employer was often late in paying the Union dues on behalf of employees.
However, beginning in January 2008, the Employer contracted with a payroll service
and dues have been remitted in a timely manner since.

2011 CanLII 49032 (BC LRB)

19 In Walker's absence, generally Dean would assume dispatch responsibilities,
notifying employees of available work. The general practice is to notify one of the
flaggers (they work in pairs) from each pair and have that person notify their partner
where and when they are required.

20 Dean may also assume other responsibilities in Walker's absence. In one case
an issue arose regarding a flagger. There is a dispute between the parties as to whether
she walked off the job or Dean told her to leave. The Union grieved and Dean
represented Walker in discussions aimed at resolving the grievance.

21 An e-mail from Dean to Riggs, dated March 2, 2009, regarding settlement of the
grievance was entered in evidence. It begins:

Dear Lee,

I am writing this E-mail to you, as Adele has no internet access

where she is right now and she would like to get this matter
resolved. Adele has directed me to contact you with a list of
conditions she feels must be met before Amanda can return to
work.

22 In April 2010 at the regular monthly Union meeting for Telus and 24/7 employees
in the Okanagan region, five employees of 24/7, other than Kelly, attended. Macdonald
was the first of the 24/7 employees to sign the sign-in sheet for the meeting, other than
Kelly. Macdonald testified she asked the Union representative who was attending the
sign-in sheet how she should sign-in. Macdonald says the representative asked who
she worked for and she replied "Adele Walker, 24/7" and was told to write the name of
her Employer on the sheet, which she did. Macdonald says the numbers on the sheet,
of which there were two beside her sign-in, were added by an unknown person
afterward and she had no intention of indicating Walker was there or that she was there
to represent Walker.

23 Macdonald testified she attended the meeting because she was concerned there
might be a strike. She said two employees of 24/7 had called her, worried because Kelly
had been talking about a strike vote. Although Kelly told Macdonald that was not what
she said, Macdonald decided to go to the April Union meeting. At the meeting, she
asked what the Union's proposals were for a new collective agreement. Riggs told her
that information was confidential and would not be disclosed.

24 At the meeting, according to Riggs, Macdonald said she did not think the Union
was treating the Employer fairly and the Union would bankrupt the business.
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25 Riggs testified that Tammy Conway, one of Macdonald's co-workers, was also
present and spoke loudly, saying "No way are we going on strike". He explained the
bargaining process to them but remained unwilling to disclose what the Union was
asking for.

2011 CanLII 49032 (BC LRB)

26 Macdonald testified she believed the Union was so busy representing Telus
employees that it did not have time to properly represent 24/7 employees. She said she
started to think about decertification in January 2011. She says she spoke with a friend
who was very involved in a union and also sought information from the Labour Relations
Board on how to proceed. Macdonald testified she received advice from several
quarters not to involve Walker in the decertification.

27 When questioned, in cross-examination by the Union, how she had obtained the
names and addresses of employees for the decertification campaign, Macdonald stated
she made a list by referring to her phone book, diaries and cell phone log. Walker
confirmed Macdonald had worked with virtually every other employee of 24/7 at one
time or another because Macdonald is a trainer. Because of this, Walker said she
assigns new employees to work with her. She also received assistance from Dean, who
has worked with most of the other employees, in compiling the employee list.
Macdonald denied having access to any Employer records or files in compiling the list.

28 The Union produced a record of hours worked by employees from December

2009 to April 2011, showing three employees had more hours in total than Kelly and
Sharp. However, Kelly acknowledged two of those (Macdonald and Dean) had more
seniority than either she or Sharp. The third, Kim McAleer ("McAleer") did not have as
much seniority as either but worked more than 300 hours more than either Kelly or
Sharp, during that period.

29 In cross-examination, Kelly acknowledged hours were very short towards the end
of the summer in 2010 and Walker suggested she and Sharp should apply for
employment insurance benefits for which they had enough hours to qualify, telling her
McAleer and another were doing so in order to allow employees who could not qualify
for benefits to continue to work. Kelly said they did not have to agree to the suggestion
but elected to do so.

30 The Employer's bookkeeper prepared a Record of Employment ("ROE") in order

that Kelly and Sharp could apply for benefits. The date on each ROE is July 26, 2010.

31 Kelly also acknowledged she and Sharp had turned down work on a number of
occasions for "personal reasons" and, as well, she and Sharp refused to work for one
contractor, believing the supervisor ran its jobs in an unsafe manner.

32 The work log entered in evidence shows that on November 25, 2010, Walker
asked Sharp if he objected to less senior employees being dispatched and he replied he
and Kelly had employment insurance benefits and "if there wasn't enough work they
would stay home".
 -6- BCLRB No. B149/2011

33 Kelly agreed she and Sharp refused work from time to time, unlike most other
employees. Between August 9, 2010 and November 21, 2010, she and Sharp either
turned down work or requested time off for a total of twelve days and Sharp turned
down one additional day when Kelly worked, according to the Employer's work log

2011 CanLII 49032 (BC LRB)

entered in evidence. Both turned down work, including overtime work, on three
occasions in December 2010.

34 Kelly also testified she had seen employees working overtime shifts on
weekends when she and Randy were available but had not been called. However, no
particulars were provided regarding these instances. Bi-weekly payroll records for the
period December 11, 2009 through April 15, 2011 were introduced in evidence. An
examination of these records shows no consistent pattern. Often Kelly and Sharp had
more overtime hours than employees junior to them in seniority. Sometimes they did
not. This is true whether looking at the early records or the most recent records.

35 Kelly testified Sharp had not been called to work for the two days she had
attended the hearing. The Employer objected to this evidence on the basis of relevance.
In any case, Kelly acknowledged in her evidence she and Sharp worked as a team and
do not generally work with anyone else.

III. POSITIONS OF THE PARTIES

36 The Union argues there is circumstantial evidence sufficient to support a finding

that Walker interfered with the administration of the Union and was involved in the
decertification campaign. This evidence includes the sign-in sheet for the Union meeting
held on April 20, 2010 on which Macdonald had written her own name followed by that
of Walker and the notation 24/7.

37 The Union submits the Employer committed an unfair labour practice and
improperly interfered with the true wishes of employees by dispatching employees who
do not support the Union before other, more senior employees, contrary to the
provisions of the collective agreement and by providing more favourable compensation
to those employees, contrary to Sections 6(1) and 6(3) of the Code. In particular, the
Union says the Employer singled out Kelly and her partner, not dispatching them in
accordance with their seniority rights and labelling them as troublemakers.

38 The Union also alleged the Employer paid a premium to employees who did not
support the Union, in the form of expenses. No particulars of any such payments were
provided.

39 In failing to observe the seniority rights of Kelly and her partner the Union says
the Employer has interfered with the right of employees to freely make their own
decision regarding decertification and constitutes a further breach of Section 6(3)(d) of
the Code.

40 The Union says the votes of seven recently hired employees should not be
counted because, although each has worked for a number of months and has paid
 -7- BCLRB No. B149/2011

Union dues in respect of their earnings, they did not sign Union application cards and
pay the Union's $5.00 initiation fee. Accordingly, although they may be employees, they
are not Union members and are not entitled to vote on the decertification application.

The Union argues that the participation of Dean in the decertification campaign

2011 CanLII 49032 (BC LRB)

41
constitutes improper interference for the purposes of Section 33(6) of the Code because
he is a manager.

42 The Union made additional allegations, including an allegation that Walker

wrongfully stalled negotiations in order to give the employees time to decertify and
contravened Sections 6 and 33(6) of the Code by threatening to go bankrupt due to the
Union's wage demands.

43 Certain Employees deny the Employer had any involvement whatsoever in either
the decision to pursue decertification of the Union or the decertification campaign. The
representative of Certain Employees maintains it was solely on her own initiative, and
based on her dissatisfaction with the Union that she decided to initiate the
decertification campaign.

44 Macdonald denies Walker had any role in her decision to seek decertification of
the Union nor in the campaign to do so.

45 Macdonald denies the suggestion of the Union that her aim was to have IBEW
certified to represent the employees, stating she was familiar with IBEW from her
previous membership in that union and was aware IBEW represented employees of
certain of the Employer's customers. However, she said she was aware no other union
could be certified in the ten months after a successful decertification application and
IBEW was only one possible option after that time.

46 Regarding Walker, the Employer denies both the allegation she instigated or
participated in the decertification campaign and the allegation she discriminated against
Kelly and Sharp because of their Union activities or for any other reason.

47 The Employer says there is no evidence, even of a circumstantial nature, that

would lead to the conclusion Walker was involved in any way in the decertification
campaign.

48 As to the Union's allegation the Employer did not assign Kelly and Sharp hours to
which they were entitled by virtue of their seniority, the Employer says the only reason
Sharp and Kelly did not have more hours is that they chose not to work; electing to
collect unemployment benefits for which they qualified.

49 The Employer denied that employees who did not support the Union received
any premium or benefit.

50 Walker specifically denied ever saying Kelly and Sharp were troublemakers.
 -8- BCLRB No. B149/2011

51 Regarding Dean, the Employer says first that he is not a manager. He does not
function as such although he may be viewed as a manager by other employees. If he
does exercise some management functions, the Employer says he should not be
disqualified from his right to participate as a bargaining unit member solely because he

2011 CanLII 49032 (BC LRB)

may occasionally do so.

52 Regarding the failure to have the recent hires sign application forms and pay the
$5.00 initiation fee to the Union, the Employer says this was an oversight, nothing more.
Furthermore, the Employer submits the Union had access to payroll records, seniority
lists, and had information regarding the employees on whose behalf dues were being
remitted. The collective agreement does not state it is the Employer's responsibility to
have new employees sign Union application forms and, not having raised the issue
earlier, through the grievance process or otherwise, the Union should not now be
permitted to defeat the true wishes of employees by barring the recent hires from voting.

IV. ANALYSIS AND DECISION

53 I will first deal with the objection of the Union to Macdonald and Dean. In
Macdonald's case, the Union alleges improper interference and that the application for
decertification is being directed by Walker and/or Macdonald and Dean as persons
acting on behalf of the Employer.

54 The Union acknowledges the case in support of its allegations is largely

circumstantial. However, the Union argues there is sufficient evidence upon which to
base a conclusion Walker is behind Certain Employees application to decertify.

55 The Union points to the sign-in sheet for the April 2010 Union meeting as
evidence Macdonald considered herself to be a representative of Walker. The Employer
argues the evidence of Macdonald clearly demonstrates this to be false. In any case,
the Employer points to the lapse of almost ten months between that meeting and the
decertification application, saying in that context the sign-in sheet cannot assist the
Union's case.

56 The Union alleges Walker wanted her employees to decertify the Union and join
the IBEW because one of her major customers (PEI, a subcontractor of Fortis BC Inc.)
has a collective agreement with IBEW and wants IBEW certified flaggers to do its work.

57 I find no merit in the Union's allegation the Employer deliberately frustrated

negotiations in order to encourage employees to decertify the Union. Although there
was evidence of delay in negotiations, the evidence shows that the Union was equally
responsible, certainly following Walker's return from Arizona, for not pursuing
negotiations. As to the allegation Walker said she would go bankrupt, and others, no
particulars were put to Walker for her to deny or to confirm. Nor was Macdonald cross-
examined about the statement she is alleged to have made at the April 2010 Union
meeting that the Union's demands would bankrupt the Employer. Therefore, although I
have considered the Unions allegations in their entirety, I do not consider it necessary to
deal with them any further, as there is no evidence upon which to conclude Walker
 -9- BCLRB No. B149/2011

made any comment to Macdonald regarding the Union's bargaining proposals or their
impact on her business.

58 Regarding the allegation she encouraged decertification because she wanted to

have the IBEW certified, Walker testified she was shocked when she became aware of

2011 CanLII 49032 (BC LRB)

the decertification application, through notice from the Board in February 2011, because
she did not know what impact decertification might have on her business. Although
most customers no longer required her to provide unionized employees, sometimes
customers do impose such a requirement. While the IBEW would be the preferred
union, Walker testified she continues to believe IBEW will not agree to provide
representation to employees of any flagging companies other than those to which they
are already certified. This was what she had been informed when she first went in
search of a union to represent her employees and she has no reason to believe IBEW
has changed its position.

59 Macdonald was steadfast in her denial she had any discussions whatsoever with
Walker regarding decertification.

60 Macdonald agreed she considered the IBEW to be a union employees should

consider once the freeze period following decertification ends, but she testified this was
only because she had previously been an IBEW member rather than because, as
suggested by the Union, that was what Walker wanted.

61 The Union also relied on an alleged close relationship between Macdonald and
Walker. However, the evidence did not provide any support for the Union's allegation.
Macdonald testified she considered Walker to be a very good employer but stated they
had a "good but distant" relationship. She said she had only been to Walker's home to
deliver company paperwork and once for a company party. This testimony was not
contradicted by any of the Union's witnesses.

62 I find that evidence does not establish Walker played any role in either the
decision to start a decertification campaign or in the furtherance of that campaign. The
totality of the evidence, circumstantial or otherwise, is insufficient to lead to such a
conclusion.

63 Regarding Dean, the Union argues his participation in the decertification

campaign constitutes improper interference because he is a member of management.
In support of this assertion, the Union relies on the uncontested evidence that Dean
generally dispatches when Walker is away.

64 The Union also relies on the involvement of Dean in the grievance process
following an incident which occurred on February 18, 2009. The evidence regarding that
incident indicates Dean acted only as a messenger between Walker and the Union. The
Union understood this to be the case as evidenced by Riggs' statement to Dean in a
February 24, 2009 meeting that "this is not a grievance meeting, there is no employer
present".
 - 10 - BCLRB No. B149/2011

65 Nonetheless, Dean did fill in for Walker on a regular basis when Walker was
absent and Walker testified employees view Dean as management.

66 The evidence regarding Dean's role in the decertification campaign is that when
Macdonald raised the issue of decertification with him he told her to make sure Walker

2011 CanLII 49032 (BC LRB)

was not involved. According to Macdonald, his only other involvement was to take the
decertification forms to his family (two other members of the Sharp family are members
of the bargaining unit). This evidence was not contradicted.

67 The Employer cited Overwaitea Food Group, a Division of Great Pacific

Industries Inc., BCLRB No. B174/96 ("Overwaitea"), in support of its argument that
although a member of the bargaining unit may be a manager, it is not necessarily an
unfair labour practice for that person to participate in a decertification campaign.

68 The evidence in the present matter, similar to that in Overwaitea, is Dean is the
second in command to Walker, although his management role is not as clearly defined
as that of Machan, the manager in Overwaitea. Also, as in the case of Machan in
Overwaitea, Dean neither initiated the decertification campaign nor, I find, did he
participate in any aspect of it as a representative of management. He simply provided
limited assistance in the form of advice to Macdonald (at her request) and provided
decertification forms to members of his own family. I find these activities do not, in the
circumstances, constitute an unfair labour practice.

69 Improper interference, for the purposes of Section 33(6) of the Code,

encompasses a much broader range of activities than those constituting unfair labour
practices: C-Tron Systems Corp., BCLRB No. B39/95. However, even where activities
may amount to improper interference for the purposes of that Section, if, objectively
viewed, the impugned actions or statements would not lead to the conclusion that a vote
would not disclose the true wishes of the employees, the vote will be counted.

70 I find the limited activities of Dean in providing information about decertification to

Macdonald, at her request, and in taking decertification forms to members of his family
working for the Employer are not such that the vote is unlikely to disclose the true
wishes of the employees.

71 Regarding the Union's objection to the votes of the recent hires who had not filled
out an application for membership in the Union, nor paid the required initiation fee,
Section 33(2) of the Code provides:

(2) If a trade union is certified as the bargaining agent for a unit and
not less than 45% of the employees in the unit sign an application
for cancellation of the certification, the board must order that a
representation vote be conducted within 10 days of the date of the
application or, if the vote is to be conducted by mail, within a longer
period the board orders.

72 Section 33 does not require that the employees be union members in order to
participate in a decertification application. It requires them to be employees in the
 - 11 - BCLRB No. B149/2011

bargaining unit. The recent hires were working for the Employer doing work of
employees the Union is certified to represent. Dues were being remitted to the Union on
behalf of these employees. While they had not complied with the requirement of the
Union's constitution and by-laws to apply for membership and pay the requisite fee, that

2011 CanLII 49032 (BC LRB)

does not mean they are not employees in the bargaining unit. As employees in the
bargaining unit, they are entitled to vote on the decertification application. Had the
Union objected to their continued employment in contravention of the requirements of
the collective agreement, it could have raised the matter with the Employer. It did not do
so.

V. CONCLUSION

73 The Union has failed to establish, on the balance of probabilities, that any unfair
labour practices were committed by Walker, Dean, or Macdonald in connection with
Certain Employees application.

74 The Union has also failed to establish any improper interference such that it is
unlikely the representation vote will disclose the true wishes of the employees.

75 The recent hires are employees included in the bargaining unit as are Dean and
Macdonald. They are entitled to have their votes counted.

76 The Union's complaints and objections are dismissed. The votes will be counted.

LABOUR RELATIONS BOARD

"PHILIP TOPALIAN"

PHILIP TOPALIAN
VICE-CHAIR