Hotels, Clubs, Restaurants, Tavern Employees' Union, Local 261 v. Fuller's Restaurant, 1980 CanLII 1000

[1980] OLRB Rep. September 1289

0150-79-R; 0153-79-R Hotels, Clubs, Restaurants, Tavern Employees' Union, Local 261, Applicant, v. Fuller's Restaurant, Respondent, v. Group of Employees, Objectors.

BEFORE: Kevin M. Burkett, Alternate Chairman, and Board Members F. W. Murray and O. Hodges.

APPEARANCES: Alick Ryder Q. C. for the applicant; C. E. Humphrey and M. Lalonde for the respondent; Michael Gordon, Carmen Fisher, Marion Eveline and Bonnie Bellefeuille for the objectors.

DECISION OF THE BOARD; September 30, 1980

1. These are applications for certification filed on April 23, 1979. These matters were first heard and consolidated by the Board on May 14, 1979. In a decision dated May 28, 1979 the Board found that the applicant union was a trade union within the meaning of the Act and having regard to the agreement of the parties found that

all employees of the respondent working at 809 Richmond Road, Ottawa, Ontario, save and except assistant managers, management train­ees, kitchen managers and persons above those ranks, office staff, per­sons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, con­stitute a unit of employees of the respondent appropriate for collective bargaining (hereinafter referred to as bargaining unit #1),

and that

all employees of the respondent working at 809 Richmond Road, Ottawa, Ontario, who are regularly employed for not more than twenty­-four (24) hours per week and students employed during the school vaca­tion period, save and except assistant managers, management trainees, kitchen managers and persons above those ranks, and office staff, con­stitute a unit of employees of the respondent appropriate for collective bargaining (hereinafter referred to as bargaining unit #2).

2. At the hearing held on May 14, 1979, the Board refused to consider a relevant and timely statement in opposition to the trade union because it did not, on its face, express clear opposition to the certification of the applicant trade union. By its decision dated May 28, 1979, the Board certified the applicant. The objectors sought judicial review of the Board's decision and by a judgement dated March 11, 1980, (reported at 80 CLLC ¶ 14,021) the Supreme Court of Ontario quashed the Board's initial decision. The Court held that the Board erred when it refused to allow the petitioners to call oral evidence to substantiate the desire of the petitioners to object to the union's certification. The Court did not expressly remit the matter back to the Board and an issue arose as to whether the proceedings had been quashed in their entirety, thereby requiring fresh applications to be filed, or whether only that part of the Board's deci­sion which was in error had been quashed, thereby requiring the Board to proceed with the ini­tial applications from the point at which the error had been made. In a decision dated June 2, 1980, [1980] OLRB Rep. June 828, the Board concluded:

"19. An order quashing an administrative tribunal's decision might defi­nitely dispose of a matter before that tribunal where the very subject matter of the proceeding is beyond the tribunal's jurisdiction as deter­mined by the Court or where a tribunal has so misconducted itself that a fair subsequent hearing cannot occur. Neither of these situations prevail in the instant case. Rather, the failure of the Court to remit the matter to the Board reflects the fact that the objecting employees did not seek this relief and the Court would have been satisfied that the matter could be con­tinued if this is what the applicant trade union wished. Moreover, the ab­sence of additional directives from the Court is a good indication that it did not think the Board needed to adopt a particularly different approach in continuing to deal with the outstanding applications. However, the Board has decided to change the composition of the panel out of an abundance of caution and given the representations of counsel for the objecting employees."

3. These matters were scheduled for continuation of hearing in Ottawa on August 14 and 15, 1980. The respondent company argued at the outset that because of the passage of time and the turnover of staff, the Board should dispense with the hearing of evidence into the vol­untariness of the petition and exercise its discretion under the Act to direct the taking of a rep­resentation vote. In rejecting the respondent's submissions, the Board ruled that because of the need for certainty and finality in certification matters and to guard against the prejudicial effects of delay, the terminal date is established under the Act as the date as of which employee desires are assessed for purposes of certification. The Board expressed its intent to put the par­ties in the position they would have been had the Board not erred in May, 1979.

4. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in bargaining units #1 (full-time bargaining unit) and #2 (part-time bargaining unit) at the time the application was made, were members of the applicant on May 2, 1979, the terminal date fixed for this application and the date which the Board determines, under section 92(2)0) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

5. In the absence of a relevant and voluntary statement of desire in opposition to certi­fication (a petition), the Board normally certifies without the taking of a representation vote where, as in this case, the union demonstrates membership support in excess of fifty-five percent of those in the bargaining unit. A statement purportedly in opposition to the trade union was filed with the Board in this matter. The statement bears the signatures of a sufficient num­ber of persons who also signed union cards, such that if there is no evidence of a reaffirmation of union support prior to the terminal date by those who also signed both union cards and the petition, and the petition is proven to be voluntary, the Board will direct the taking of a repre­sentation vote in both bargaining units. However, an employee in the part-time bargaining unit (bargaining unit #2) signed a statement revoking his signature on the petition (a revocation). The revocation was filed prior to the terminal date. It is relevant in that if it is proven to be a voluntary expression, thereby causing the Board to disregard the employee's signature on the petition, the number of persons evidencing opposition to the certification of the union as bar­gaining agent for the part-time employees will not be sufficient to cause the Board to direct the taking of a representation vote in the face of the more than fifty-five per cent membership sup­port evidenced by the union. The Board's usual practice in these circumstances is to hear evi­dence in support of the voluntariness of the revocation before considering the statement in op­position to the trade union. If the revocation is proven to be voluntary, the Board will then ex­ercise its discretion under section 7(2) of the Act and certify the trade union as bargaining agent of those in the part-time unit without a vote.

6. The names of those who signed the petition and of the person who also signed the re­vocation were divulged during the course of the judicial review. Mr. Dennis Dupuis, a part-time employee of the respondent at the time the applications were filed, signed the revocation. He is no longer an employee of the respondent and his whereabouts is unknown. Ms. Eleanor Dunn, a business agent with the applicant trade union, drafted and was present when Mr. Dupuis signed the letter reaffirming his support for the trade union. We are satisfied on her uncontra­dicted evidence that the statement of reaffirmation represents a voluntary expression of Mr. Dupuis' wishes and, accordingly, we hereby exercise our discretion under section 7(1) of the Act and certify the applicant trade union as bargaining agent for

all employees of the respondent working at 809 Richmond Road, Ottawa, Ontario, who are regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except assistant managers, management trainees, kitchen man­agers and persons above those ranks, and office staff.

7. Turning to the statement of desire in opposition to the trade union. The statement bears a sufficient number of signatures of those in the full-time unit such that if it is proven to be a voluntary expression of opposition to the trade union by those who signed, the Board will follow its usual practice and exercise its discretion under section 7(2) to direct the taking of a representation vote among those in the full-time unit. The onus is upon the objectors to estab­lish the voluntariness of the petition.

8. Miss Marion Eveline, Mrs. Bonnie Bellefeuille and Miss Carmen Fisher, all full-time employees of the respondent, testified in support of the voluntariness of the statement. Miss Fisher explained that she was approached on more than one occasion by the union organizer and agreed to sign a union card when the union organizer visited her residence. She testified that she was assured by the organizer that her card would be returned to her should she change her mind. She testified that a few days after signing she did in fact change her mind. It is her un­contradicted evidence that when she asked the organizer for the return of her card, she was re­buffed. She testified that from this point she assumed an active role in opposition to the trade union and enlisted the support of Miss Eveline. Miss Eveline works as a full-time cook at the restaurant and also as a full-time cook at an Ottawa hospital. She is represented by another un­ion at the hospital. She made known her opposition to the trade union from the outset. It is her evidence that she was approached by the president of the hospital local and told that if she con­tinued to oppose the trade union attempting to be certified at the restaurant she might lose her membership in the hospital local, which would result in her termination at the hospital. She in­formed her supervisor at the hospital of the conversation and was referred to the director of personnel. The director of personnel referred her to Mr. Gordon, who was retained as counsel for the objectors. Mr. Gordon had acted for a group of paramedical employees in their negoti­ations with the hospital.

9. The petition was drafted by Miss Fisher on Tuesday, May 1, 1979; the day prior to the terminal date and four days after the posting of the notice of hearing. Miss Eveline and Miss Fisher called a meeting of all of the employees of Fuller's for the evening of Tuesday, May 1st at Miss Eveline's apartment. Her apartment was located across the street from the restaurant. Employees were notified by word-of-mouth or by telephone. There is no evidence of employer involvement in the arranging of the meeting. Miss Fisher testified that the purpose of the meet­ing was to discuss the "pros and cons" of the trade union and for this reason the known union supporters were invited. Both Mr. Andy Konecny and Mr. Dwayne Benjamin, who testified on behalf of the union, were invited and attended at the meeting. Indeed, a union representative appeared and was allowed to enter and answer questions from employees. The evidence is that the meeting developed into somewhat of a "free for all" at times with everyone speaking at once. Concern was expressed by some employees to the reaction which might be expected from the company if the employees joined a trade union. Mention was made of the possibility of the company closing down or taking other reprisals. However, these comments were made by em­ployees and there is no suggestion that they were management inspired. After the discussion had run its course, Miss Fisher wrote the words

"Fullers [sic] Restaurant Richmond Rd. Ottawa

May 1/79

The undersigned people are petitioning the Hotels, Clubs, Restaurants, Taverns Employees Union Local 261."

on a sheet of paper and, with exception of two employees, those who signed the statement did so in Miss Eveline's apartment as the meeting was breaking up. The remaining two employees signed the statement the next morning in front of Miss Eveline's apartment. They could not at­tend at the meeting the previous evening and had arranged to meet Miss Eveline the next morn­ing. The union conceded that all those who signed the statement did so in the knowledge that they were signing a document in opposition to the certification of the applicant trade union.

10. Following the meeting Miss Fisher, Miss Eveline and a number of other employees who had been present went across the street to the restaurant. It is their evidence that they did so for the purpose of having a cup of coffee and something to eat. The union filed with the Board a statement signed by a Mr. Dennis Dupuis, the same employee who signed the revocation, which states that he saw both Miss Fisher and Miss Eveline enter the manager's office after re­turning to the restaurant and heard Miss Fisher say to the district manager who was in the res­taurant at the time, "We've done it." The statement was signed on May 1, 1979. Mr. Dupuis did not appear to testify and subject himself to cross-examination. As has been noted, he no longer works for the respondent, and the union explained that because of the passage of time it had lost track of Mr. Dupuis' whereabouts and consequently had been unable to advise him of the hearing in this matter. Both Miss Fisher and Miss Eveline denied that they had discussed the statement of desire with the district manager or anyone else from the management of the com­pany. They testified that it is not unusual for the district manager to be in the restaurant on any given evening. It is their evidence that employees of the restaurant regularly receive telephone calls in the restaurant office and that Miss Eveline received a personal call on the office phone after they returned to the restaurant following the meeting at Miss Eveline's apartment. While both girls went to the office, they deny that the district manager was present or that they dis­cussed the petition with him.

11. If the evidence establishes that Miss Fisher and Miss Eveline informed the district manager that they had "done it" after returning to the restaurant following the signing of the petition, we would be hard pressed to conclude that the petition was other than management inspired. In this case, however, we must choose between the oral evidence of Miss Fisher and Miss Eveline (who were subject to cross-examination) and the signed statement of Mr. Dupuis who was not present at the hearing. Having regard to the passage of time, the Board allowed the statement to be placed in evidence. However, the Board is not prepared to accept the state­ment in preference to the oral testimony of the two witnesses for the objectors. This is especially so where, as in this case, the evidence establishes that the person who signed the statement upon which we are being asked to rely, attempted to secure a sum of money from the objectors prior to the initial hearing in return for his undertaking not to attend at the hearing. We are not satisfied on the evidence that either Carmen Fisher or Marion Eveline advised the district man­ager, or anyone else from the management of the company that they had successfully circulated a petition in opposition to the trade union.

12. In the course of the Board's examination of Miss Eveline, it was revealed that Mr. Ken Peskett was present at the employee meeting held at Miss Eveline's apartment to discuss the "pros and cons" of union representation. Mr. Peskett occupied the position of shift super­visor at the time and considerable evidence was led as to the nature of his duties and responsibi­lities. The union witnesses testified that they considered Mr. Peskett to be a managerial em­ployee with a significant measure of control over their employment relations. The objectors' witnesses described Mr. Peskett as a senior employee or "lead hand" type who performed du­ties which were also performed by other bargaining unit employees from time to time. The evi­dence establishes that on certain shifts Mr. Peskett was responsible for signing employees in, supervising employees, answering customer complaints and maintaining custody of the cash. He also cleaned tables, washed dishes and performed other bargaining unit work. The union witnesses maintained that he had the power to discipline or at least to recommend discipline. However, the specific incidents which were cited do not establish the authority of Mr. Peskett to discipline. For example, Mr. Dwayne Benjamin, who worked as a busboy, testified in sup­port of his contention that Mr. Peskett had the authority to discipline, that Mr. Peskett once told him not to mop in the front when customers were present. The objectors' witnesses de­scribed Mr. Peskett's function as "baby sitting"; a function also done by other bargaining unit employees from time to time. Mr. Peskett, although present at the employee meeting, did not play an active or leading role in the discussion which took place.

13. If it is found that Mr. Peskett occupied a managerial position or was perceived by the other employees as a managerial person, then his presence at the employee meeting at which the petition was signed may have had the effect of thwarting voluntary expression. The Board has long held that because of the responsive nature of the employer/employee relation­ship the involvement of a person perceived to be managerial in the preparation or circulation of a petition may impair the free expression of those who, after having signed union member­ship cards, change their minds and sign a statement opposed to the trade union. (See Re Leam­ington Vegetable Growers, [1974] OLRB Rep. June 402.) The evidence with respect to Mr. Peskett's duties and responsibilities falls short of establishing that he occupied a managerial position within the meaning of section l(3)(b) of the Act. The evidence with respect to the em­ployee perception of his role, however, is conflicting. The witnesses for the intervener main­tained that Mr. Peskett was not viewed as a managerial employee. The witnesses for the union, on the other hand, claim that he was seen as a managerial employee. We have resolved this con­flict in favour of the objectors. We are not satisfied on the evidence that Mr. Peskett would have been perceived by the employees generally as a managerial person with meaningful au­thority over their employment relations. Furthermore, the parties to this matter agreed to the description of appropriate bargaining units at the initial hearing in May, 1979 and these are set out in the Board's decision dated May 28, 1979. Their agreement in this regard was made at a time when the issue of Mr. Peskett's influence on the voluntariness of the statement in opposi­tion to the union had not been identified. The union agreed at that time that the line of mana­gerial exclusion should be drawn at the assistant manager level so that only "the assistant man­ager and persons above the rank of assistant manager" were excluded from the bargaining units. The union agreed to the inclusion of the shift supervisor in the full-time bargaining unit. To reiterate, we are not satisfied that the shift supervisor was perceived by the employees in the bargaining unit as a managerial person. Accordingly, the attendance of Mr. Peskett at the em­ployee meeting held on Tuesday, May 1, 1979 did not impair the free expression of those who attended.

14. The notice of hearing in this matter was first posted at the employer's premises on Friday, April 27, 1979; four days prior to the employee meeting held at Miss Eveline's apart­ment. A meeting of employees was called by the company on the afternoon of Friday, April 27th. There was no prior notice of the meeting, although Miss Fisher testified that she had heard rumours in advance that Mr. Fuller would be visiting. The restaurant was closed from 2:00 p.m. to 5:00 p.m. Mr. Stan Fuller, the owner of the restaurant, who operates from an office in Vancouver, along with management representatives from both the Toronto and Ottawa of­fices of the respondent were present. This was not the first time that Mr. Fuller had taken part in an employee meeting at the company's Ottawa restaurant, nor was it the first time the restau­rant had been closed for an employee meeting. The evidence establishes that the restaurant had introduced a "specials promotion" and the first two to two and one-half hours of the April 27th meeting were taken up with discussions concerning the menu, the method of preparation and the mechanics of the incentive system as related to "specials". The company was offering the waitresses credit for a certain number of miles per special ordered (other employees were to be credited with a proportionate number of miles) which could be exchanged for air fare equiva­lent to the number of miles acquired. Sometime after 4:00 Mrs. Bonnie Bellefeuille asked Mr. Fuller to comment on the "union business"1 The evidence of all witnesses (both union and ob­jectors) establishes that Mr. Fuller said that one way of dealing with employment problems was to bring in a union. He told the employees he could say no more and one of the persons with him read a prepared statement to the effect that the company could not become involved but advised employees to read the posted notices carefully. The employees then asked if they could have a few minutes to discuss the matter. The company officials withdrew but returned ten minutes later to advise that the restaurant was being reopened to the public.

15. Again, having regard to the responsive nature of the employer/employee relation­ship, this Board has held that a "captive audience" meeting held by management during the course of a union organizing campaign may serve to thwart free expression. This is so where the employer, relying upon his position of economic dominance, uses the employee meeting to threaten, coerce, or create unjustified concerns in the minds of his employees with respect to job security. (See New Ontario Dynamics Limited, [1975] OLRB Rep. Nov. 845 for a review of the Board's jurisprudence on this area.) While the Board has traditionally looked with suspi­cion upon the holding of an employee meeting prior to the circulation of a petition against the trade union, not all such meetings are found to have the effect of thwarting free expression. In G. T. E. Sylvania, [1979] OLRB Rep. July 663, the plant manager addressed the company s em­ployees following notice of an application for certification, asked the employees to carefully consider because it affected all of them, and expressed disappointment that they considered it necessary to formalize the employer/employee relationship by joining a trade union. The Board found that these remarks were within the bounds of legitimate free expression and did not intimidate or coerce the employees who attended. The Board in this case is being asked by the union to conclude that the meeting called by the company on April 27th had the effect of thwarting free expression so that the signatures which were subsequently affixed to the state­ment of desire do not represent a voluntary expression of those who signed.

16. We are satisfied that the meeting which was held on company premises on April27,

1979 was called by the company to deal with the "specials promotion". Similar types of meet­ings had occurred in the past. The question of unionization was raised by an employee some two hours after the commencement of the meeting. The company did not initiate the discussion and the comments made by Mr. Fuller and the content of the prepared statement were well within the bounds of legitimate expression. (See Re G. TE. Sylvania, supra.) In this case the company said no more than that a union was one way to deal with employment problems and suggested to employees that they carefully read the posted notice. The time given to the em­ployees at the end of the meeting to discuss the matter privately did not affect the subsequent ability of the employees present to make a free choice. There is no evidence that the company had established a liaison with anti-union supporters. The company responded to an employee request and allowed all employees (both those for and against the union) to meet privately for a few minutes. We are satisfied that the meeting which took place on April 27th on company premises and during working hours did not have the effect of undermining the voluntariness of the statement of desire.

17. Custody of the petition was given over to Miss M. Palmateer after the last signature had been affixed to it. Miss Palmateer signed an affidavit filed by the objectors in support of its application for judicial review of the Board's initial decision which states that she mailed the statement to the Board. Miss Eveline testified that she received the registration slip from Miss Palmateer prior to the initial hearing. The registration slip was filed in evidence. Miss Palma­teer no longer works for the respondent company and did not appear to testify. The objectors explained that although they had discovered Miss Palmateer's new place of work shortly be­fore the hearing, she was absent on vacation. A message was left with her new employer and Miss Palmateer, while still on vacation, called Miss Eveline two days before the hearing but re­fused to divulge her home address. In these circumstances, the objectors maintain that they could not subpoena Miss Palmateer and asks the Board to rely on her signed affidavit. The un­ion argues that the onus is upon the objectors to establish the voluntariness of the petition and asks the Board to find that the gap in the evidence relating to the custody of the petition from the time it was handed over to Miss Palmateer after all of the signatures had been obtained, is fatal.

18. The Board has held that the requirement for first-hand evidence of the "circum­stances surrounding the origination, preparation and circulation of a statement of desire places an onus on those wishing to establish the voluntariness of the statement to call evidence of how each of the signatures was obtained as well as evidence detailing the physical prepara­tion and the actual delivery of the document to the Board". (See Formosa Spring Brewery. [1974] OLRB Rep. Oct. 696.) Because the onus is on the petitioners to satisfy the Board as to the voluntariness of the statement, and because the signing of a statement against the union after signing a card in support represents a sudden change of heart, any gap in the evidence from preparation to delivery to the Board may prove fatal in any given case. It is for this reason that the Board has put petitioners on notice as to the extent of the evidence which may be required. A gap in the evidence relating to the delivery of the statement to the Board when considered in conjunction with other gaps in the evidence relating to custody of the document or in conjunction with evidence suggesting company involvement may cause the Board to find that it has not been satisfied as to the voluntariness of the statement. The Board, however, has never rejected a petition simply for the reason that it lacked first-hand evidence of the delivery of the document. The issue is one of voluntary expression and if the Board is satisfied that the origination and preparation of the statement is free of employer interference and is further satisfied that each of the signatures has been obtained in circumstances which would not thwart free expression and where, as in this case, a legitimate reason exists for the absence of the person who mailed the petition, the Board would be hard pressed to find that it had not been satisfied as to the voluntariness of the statement. The Board was faced with a gap in the evidence relating to delivery in Weston Bakeries Limited, [1979] OLRB Rep. Dec. 1309 (a termination of bargaining rights case) and in refusing to reject the petition filed in support of that application pointed out that there was "no suggestion that the petition may at some point have fallen into the hands of management" and further, "that the deficiencies in the evidence with respect to the matter of custody occur subsequent to the obtaining of all the signatures on which the Board is relying and the evidence does not disclose that the petition was being handled so loosely as to have given employees the impression that it might at some point come to the eye of management". Similarly, in this case the evidence before the Board, when considered in its entirety, satisfied the Board that the petition is a voluntary expression of those who signed. The lack of first-hand evidence of its delivery to the Board does not alter this result. Even if we were to assign no weight to Miss Palmateer's affidavit, therefore, the result would not be to undermine the petition.

19. Having regard to all of the foregoing we are satisfied that the statement of desire rep­resents the true wishes of those who signed it and accordingly we hereby exercise our discretion under section 7(2) of the Act and direct the taking of a representation vote among those in the full-time unit. Those eligible to vote are all employees of the respondent working at 809 Rich­mond Road, Ottawa, Ontario, save and except assistant managers, management trainees, kitchen managers and persons above those ranks, office staff, persons regularly employed for not more than twenty-four (24) hours per week and students employed during the school vaca­tion period as of the date hereof and who do not sever their employment or who are not dis­charged for cause between the date hereof and the date of the taking of the vote. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employ­ment relations with the respondent.

20. The matter is hereby referred to the Registrar.