Canadian Union of Public Employees v. Rygiel Home, 1980 CanLII 2990

[1980] OLRB Rep. March 354

1486-79-R; 1796-79-U Canadian Union of Public Employees, Applicant v. Rygiel Home, Respondent.

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. D. Bell and O. Hodges.

APPEARANCES: Mario Hikl and Peter Douglas for the applicant; Philip J. Wolfenden and Janice Johnston for the respondent.

DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER J. D. BELL;

1. The name of the respondent is amended to read: "Rygiel Home".

2. This is the continuation of an application for certification, together with a related complaint under section 79 of the Act. As the two matters raise the same issue, the Board has dealt with them on a consolidated basis.

3. In a decision dated November 19, 1979, the Board ordered a pre-hearing representation vote to be held amongst the employees in the voting constituency. That vote took place at the Home on December 6,1979, and resulted in a 60-60 tie. Since the union failed to win majority of the votes cast, the tie normally would result in the union's application for certification being dismissed. The union, however, now seeks to have the results of that representation vote set aside.

4. The union requests in the first instance that the Board exercise its discretion under 7a of The Labour Relations Act and certify it outright. In the alternative, the union asks the Board to direct the holding of a second representation vote. As a final alternative, in the event that the application for certification must be dismissed, the union asks the Board to refrain from following its usual practice of imposing a six-month bar to a further application for certification by the applicant.

5. The grounds upon which the union relies arise out of the settlement, prior to the vote, of a section 79 complaint filed by the union with respect to the discharge by the Home of an employee named Robin DiValentino. The main points of this settlement were that Mrs. DiValentino would not be reinstated, but would receive from the Home a certain sum of money characterized as "damages". The Home expressly denied any admission of liability in the Minutes of the aforesaid settlement. Most germane to the present issue, however, is paragraph 4 of the Minutes of Settlement, which reads as follows:

"The Union, the Grievor and the Rygiel Home agree that no notices will be written or circulated, save for Schedule "B" attached hereto, nor any oral communication be made to members of management or employees of the Rygiel Home, that would indicate a victory or defeat for either of the parties to this settlement pending the completion of the representation vote to be held on December 6th, 1979."

Schedule "B" reads:

"On November 28, 1979, the Rygiel Home, C.U.P.E. and Robin DiValentino reached a settlement respecting the complaint before the Ontario Labour Relations Board.

Ms. DiValentino agreed to resign from her employment, the Rygiel Home agreed to pay her a cash settlement and C.U.P.E. agreed to the withdrawal of the complaint."

6. The union complains that the Home violated the undertaking set out in paragraph 4 in that it issued to employees a campaign letter dated December 1st, 1979, which contained the following material paragraphs:

"Thirdly, you no doubt have been hearing repeatedly from the Union about how 'we, the Union, are the only ones who can provide you with job security'. Do not be fooled. This is just an attractive catch-phrase all Unions use in their attempt to attract new members. Rather than deal with such catch-phrases, the Home would ask you to consider the facts. We are undoubtedly operating the best facility of its kind in Canada, if not North America. We should all be proud of the reputation we have built for out Home. So long as we continue to provide the quality of service we have been, for our residents, we will continue to have parents who want their children to stay with us. In other words, you create and control your own job security every day, by the way you perform your job functions and care for our residents.

You all know this Home has an excellent record on this issue. we have never discharged or disciplined an employee in a discriminatory or unfair way. The Union suggests in one of its bulletins that Robin DiValentino was let go because of what it called 'victimization'. We ask you to consider, if this was so, why did so many of your fellow employees voluntarily come forth and agree to testify at the Labour Board in support of the Home's position? We believe it is because they too care about the Home and know that the Home's decision was not only a fair one, but the right one."

7. The union concedes that the Home's letter was generally restrained and innocuous, with the single exception of the second paragraph quoted above. That paragraph it alleges to be a clear violation of paragraph 4 of the Minutes of Settlement.

8. In support of its section 79 complaint and request under section 7a of the Act, the Union claims that the employer's conduct, referred to above, constitutes a violation of section 56 of the Act. That section reads as follows:

"No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, promises or undue influence."

The union relies in particular on the closing words of the section dealing with "undue influence". The union claims that the impugned paragraph would surely have influenced employees in the way they voted, and that such influence was "undue" because it was a violation of the self-imposed restrictions contained in paragraph 4 of the settlement. A prior bulletin issued by the union did indeed refer to the firing of Mrs. DiValentino as "a clear case of victimization", but the union argues that the Home lost all rights to respond to that charge when on November 28th it signed the Minutes of Settlement, with full knowledge of the union's prior bulletins.

9. The employer takes the position that there was nothing in its letter of December

1, 1979 that was misleading or improper or in violation of the Minutes of Settlement, and that in any event the union is now prevented from raising this matter as a result of having signed the Board's waiver of objections following the vote and prior to the counting of the ballots. On this latter point, however, the Board notes that the waiver of objections refers only to "the regularity and sufficiency of the balloting". Accordingly, it would not preclude the union from raising the present matter, which had nothing to do with the actual manner in which the vote was conducted.

10. In order to succeed in having the results of the vote set aside, the union must persuade the Board that the employees were somehow prevented from expressing their true wishes in the secret ballot. The Board finds (and indeed the union concedes) that the Home's letter of December 1, 1979, standing alone, would fall within the parameters of acceptable employer response to propaganda efforts by the union. For a broad statement of those parameters, see the Board's decision in Alcan Building Products, [1971] OLRB Rep. Dec. 806, especially at paragraphs 6, 7 and 8. In support of its position, however, the union argues that the Home's design in raising the renowned DiValentino case (and hence its settlement) was to convey to employees the message that the union had been unable to protect one union supporter, Mrs. DiValentino, and would be unable to protect others as well.

11. The Board finds that the intimidating construction which the union seeks to place upon the paragraph in question, while imaginative, is not likely one which would have occurred to the employer or, more importantly, to the employees of the Home. As with most compromises, the terms of settlement or the section 79 complaint could arguably be put forward as a victory for either party, and it is precisely this sort of debate which the parties in paragraph 4 of the Minutes of Settlement sought to exclude. The Home, for example, ended up paying money as "damages" to an employee about whom it had taken the position that it had every right to discharge. The reference to the settlement alone, particularly as obliquely as here, would not in the Board's view necessarily impact one way or the other upon the other employees of the Home. There is, in fact, no reason to assume that such an oblique reference to the settlement would trigger in the minds of employees any more than a recollection of the notice which was posted (Schedule "B"), and which both parties had agreed was a neutral statement of the settlement.

12. The union's position that there was a violation of the Minutes of Settlement really depends on the Board finding, as counsel for the union has urged, that the parties had agreed that they would approach the vote without any reference to the DiValentino case. Though the union may have preferred such an agreement, these are not the words to which both parties subscribed their signatures in the settlement. What was proscribed was, specifically, any communication "that would indicate a victory or defeat for either of the parties to this settlement". We do not find the Home's letter, and in particular the paragraph in dispute, to be in breach of this agreement. Nothing contained in that paragraph can be said to be dependent upon that settlement for its support. The entire paragraph could have been written in precisely the same terms had the settlement not taken place. While reference to the DiValentino case, in point of fact, may well have been equivalent to a reference to the settlement itself, there is, as the Board had indicated, nothing in the employer's letter which would indicate that the settlement was a victory or a defeat for either party. We find that it would have been open to the union to respond to the Home's reference to the DiValentino case in the same manner, and the union did not suggest at any time during the hearing that it was denied the opportunity to do so.

13. The union argues further that the paragraph to which it objects was misleading in its reference to "so many of your fellow employees" voluntarily coming forth and agreeing to testify at the Labour Board in support of the Home's position. The Board has no evidence on which to determine whether or not this statement is true, or is in any way misleading. But more importantly, it is simply a statement of fact, the accuracy of which employees could, with little difficulty, ascertain for themselves prior to the vote. See again the Alcan Building Products case, supra.

14. For the above reasons, therefore, the union's request to set aside the results of the pre-hearing representation vote held on December 6, 1979 is denied, and the application for certification, together with the section 79 complaint, are hereby dismissed. The only remaining question is whether or not the Board ought to impose its usual six-month bar with respect to any subsequent application for certification brought by this applicant. With the rejection of the union's other submissions, the only ground remaining to support this request is the closeness of the vote. The employees' wishes having been fairly tested, however, the Board is of the view that this is not sufficient ground to depart from its normal practice, and accordingly exercises its discretion to impose the usual bar.

15. The Board will not entertain an application for certification by the applicant with respect to any of the employees of the respondent in the voting constituency within the period of six months from the date hereof.

16. The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of 30 days from the date of this decision, unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30-day period.

DECISION OF BOARD MEMBER O. HODGES:

1. I dissent.

2. The majority has taken a very narrow view of paragraph 4 of the Minutes of Settlement and the wording of the Home's offending letter. The majority's position is that there is nothing in the letter "that would indicate a victory or defeat for either of the parties to this settlement" and thus it does not constitute a breach of paragraph 4 of the settlement which prohibits any communication to that effect.

3. It is desirable that when interpreting and applying an agreement to restrict freedom of communication, a narrow rather than a wide approach should be taken. However, the majority's interpretation here has been too narrow. It ignores the purpose of the settlement, which was to eliminate electioneering on either side on this issue. An interpretation which is so narrow as too frustrate the purpose of a settlement provision must be rejected.

4. I find that the offending employer letter to employees can reasonably bear the construction placed upon it by the union. The circumstances of this case are that the discharge of Robin DiValentino, her subsequent complaint to the Board, and the resulting settlement are well-known among the employees of the Home. The majority's use of the description "the renowned DiValentino case" rightly indicates the significant impact that this one has had in the minds of the employees at the Home. In this context, the Home's reference to Robin DiValentino's discharge combined with their rhetorical question,

"... if this was ["victimization"] why did so many of your fellow employees voluntarily come forth and agree to testify at the Labour Board in support of the Home's position? We believe it is because they too know that the Home's decision was not only a fair one, but the right one",

is bound to be perceived by the average employee as an assertion of employer victory regarding that whole dispute, including the settlement. It seems incongruous for the Home to pointedly draw attention to employee support for its position in a dispute with the union if it did not at the same time intend to thereby claim victory over the union. Finally, the use of the words "so many" of the employees is biased and misleading and cannot be characterized as a statement of fact; clearly "so many" is intended to support the Home and to discourage employee support for the applicant union in the election only days away.

5. I do not see the relevance of the majority's statement that "nothing contained in that paragraph can be said to be dependent upon the settlement for its support." The question is not whether the settlement supports the Home's assertion. The question is whether the Home's statement indicates a victory in regards to the settlement. This statement claiming strong employee support for its position certainly would not be considered to be independent of the settlement in the employees' minds under these circumstances, and would be perceived as an assertion of victory over the union.

6. Thus I find the Home violated the undertaking set out in paragraph 4 of the Minutes of Settlement, and by doing so used undue influence constituting interference with a trade union contrary to section 56 of the Act. I further find that the negatively persuasive effect of the employer's undue influence has prevented the employees' wishes from being fairly tested and is sufficient to invalidate the representation vote in these circumstances where the vote was a 60-60 tie. The results of the pre-hearing representation vote should be set aside.

7. The question of what remedy to apply now arises. Here again I emphasize the closeness of the vote. Although I find that the union has failed to establish that "the true wishes of the employees.., are not likely to be ascertained" by a vote and thus are not entitled to a section 7a certification, I do find that their true wishes are likely to be ascertained by a second vote held in an atmosphere where the employer is not seen to be claiming vindication in regards to the DiValentino termination. A second vote is preferable to exercising the Board's discretion not to impose the six-month bar to a further application for certification by the applicant for the simple reason that it will expedite the proceedings of this matter to have a second vote rather than begin again with a whole new second application for certification.

8. For the above reasons I would order that the results of the first vote be set aside and direct that a new representation vote be held.