[1980] OLRB Rep. December 1805
2204-79-R Teamster Local Union 132, Chemical Energy and Allied Workers Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse & Helpers of America, Applicant, v. PRC Chemical Corporation of Canada Ltd., Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and D. B. Archer.
APPEARANCES: Douglas J. Wray and Dennis J. Phillips for the applicant; Brian Burkett, R. E. Henson and B. Dorey for the respondent; C. J. Abbass and Jack Ryan for the objectors.
DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER J. A. RONSON: December 10, 1980
This is the continuation of an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.
Having regard to the agreement of the parties, the Board finds that all employees of the respondent in Metropolitan Toronto, save and except foremen, persons, above the rank of foreman, office and sales staff, persons, regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
The applicant filed acceptable evidence of membership on behalf of 22 of the 36 employees in the bargaining unit, and would therefore be in a normally certifiable position. There was, however, a timely statement in opposition to this application filed by employees in this matter, with sufficient overlap amongst those employees formerly signing membership cards as would cause the Board, should the statement be found to be voluntary, to exercise its discretion and order the taking of a representation vote. In addition, the respondent employer has filed charges with respect to the manner in which membership cards were obtained, and on that basis as well requests the Board to direct the taking of a representation vote. The Board, accordingly, heard evidence with respect to both of these matters.
Two employees, Mr. Ryan and Mr. McCullough, both gave evidence in support of the petition. Mr. Ryan's evidence was given first, with witnesses excluded. His evidence was quite precise, and contained a number of admissions not particularly supportive of the petition. Mr. McCullough, on the other hand, gave evidence on a later date, and was far less precise in his recollection. His evidence placed a gloss on the activities in question which put the petition in a far more favourable light, but which was inconsistent with much of Mr. Ryan's evidence. In the circumstances, the Board finds that it must discount the evidence of Mr. McCullough, and will assess the petition on the basis of the testimony of Mr. Ryan. There are, however, considerable problems raised by the evidence of Mr. Ryan.
Mr. Ryan is a truck driver in the bargaining unit, and was not approached to join the union. The posting of the Board's Form S (Notice to Employees of an Application for Certification) came as a surprise to him. The employees in the plant were engaged in the taking of inventory at the time that the Form 5 was posted. A number of employees were gathered around the bulletin board reading the Form when Mr. Dorey, one of the managers of the company, came by. Mr. Ryan stopped him and began a heated discussion over the matter of the union entering the plant. Mr. Dorey tried to calm Mr. Ryan down, and suggested that they go to his office. The two of them did so. Mr. Dorey's office is located with the other offices at the front of the building, and to get there the two men were required to walk through the length of the plant. In the office Mr. Dorey told Mr. Ryan that management couldn't help him, and Mr. Ryan returned to the shipping office at the other end of the plant, where he discussed with three other employees who worked there what to do. Mr. Ryan testified that both he and the others, and sometimes Joe McCullough alone, went back to Mr. Dorey's office a number of times that morning to ask for help. He further testified that Mr. Dorey finally, in exasperation, gave them the telephone number of the Labour Board. Mr. McCullough phoned the Labour Board, and the employees in the shipping office then drafted a petition. They removed the Form 5 notice from the bulletin board and took it to the shipping office to assist them. Mr. Ryan then took the handwritten petition to the front office where he asked one of the secretaries if she would type something for him, as he has done before. When he showed her the petition she remarked, "Oh, yes". Mr. Ryan returned a few minutes later to pick up the petition, and he and the other employees initially involved signed it in the shipping office. Mr. Ryan then gathered an additional four signatures from employees at various points around the plant before the noon hour.
In response to questions Mr. Ryan had arranged for a meeting to be called of employees in the cafeteria during that lunch period. At that meeting Mr. Ryan had with him a petition prepared by someone else and calling for the creation of a labour-management committee. This petition was to be presented to the company. Mr. Ryan told employees they could sign that petition if they wanted to, but if they wanted to get anywhere they should sign the other petition. Mr. Ryan later threw away that second petition, and continued after the lunch hour to sign employees on the original petition. Mr. Ryan testified that he did not see any management personnel around at any time when he was circulating the petition in the plant, either the first morning or thereafter, but admits that he did not really pay attention to that because there was so little time to get the petition in before the terminal date, Mr. Ryan then left work at 2 p.m. on the terminal date, March 4, 1980, to deliver the petition to the Board. He obtained the permission of his lead hand, Mr. Schultz, who was one of the employees, engaged in the origination of the petition. Mr. Ryan was in the front office with the petition just before leaving, when one of the office employees insisted on signing it, even though not part of the bargaining unit.
In assessing the voluntariness of this petition, the extent of the contact between the petitioners and the front office, arid in particular Mr. Dorey, does raise in the Board's mind some question of the participation of management in its actual origination. To find that management was behind the petition, however, would require the Board to disbelieve the evidence of Mr. Ryan, and it is unnecessary for the Board to go this far. As the Board has stated, particularly in the Morgan Adhesives case, [1975] OLRB Rep. Nov. 813, while the actual involvement of management in a petition would be fatal to it, the mere perception of such involvement may be fatal as well, since the only issue before the Board on this inquiry is the voluntariness of the persons signing. In the present case, Mr. Ryan begins by complaining loudly to Mr. Dorey about the union, in circumstances which would draw this occurrence to the attention of other employees, and Mr. Dorey and Mr. Ryan are then observed by the other employees proceeding together to Mr. Dorey's office. Thereafter Mr. Ryan and1! or his fellow petitioners can be seen making several trips through the length of the plant to Mr. Dorey's office, and at the end of these visits a petition against the union emerges and is circulated through the plant by Mr. Ryan himself. The logical inferences of management involvement which employees would draw from this scenario are inescapable. In light of all the evidence, the Board is not satisfied that the petition submitted in this application represents a voluntary change of heart on the part of those employees who signed, and the Board finds that it can be given no weight.
There are, however, charges made by the respondent going to the reliability of the applicant's membership evidence itself which must be dealt with.
The evidence of Mr. Moses Concelos is that he was asked at the end of work on Friday, February 21st, by George West, an employee who had been organizing for the union, if the latter could come to his apartment that night. Mr. Concelos indicated that he was not interested in signing for the union but that, apart from that, George was welcome to drop up. George in fact visited Mr. Concelos' apartment that night about 7 o'clock, along with two other employees organizing for the union, Wayne Garrod and Tony Shivprasad. Also present at the apartment that night were Mario Machado, another employee of the respondent, and Mr. Concelos' wife, who was in bed in another room. Mr. Machado is the brother of Mr. Concelos' wife, and is now married to his sister. Both men had at the time been employed with the respondent only a few months, and obtained their jobs through Mr. Concelos' uncle, a supervisor there.
All witnesses agree that the meeting was cordial and lasted approximately half an hour. Mr. Concelos served wine, and topics other than just the union were discussed. When the union was discussed, however, Mr. Concelos again expressed his reluctance to sign a card, and his testimony of what then occurred is as follows:
"Wayne told me if I didn't sign it, someone in the plant might not like me, someone might throw bolts and nuts into my batches (that is, the material that I make) and Tony said if the Plant Manager finds that out he might not like you and fire you.
The applicant's witnesses deny that anything of this sort was said. They admit, however, to having consumed a substantial amount of alcohol that evening. Prior to attending at Mr. Concelos' apartment, the three union supporters stopped at a tavern and drank beer for about an hour-and-a-half, and then consumed an additional glass or two of wine at the apartment. Mr. Shivprasad indicated that by the time the group left the tavern, he was "in the mood" for more drinking. Mr. Concelos testified that he discussed the statement with Mr. Machado after the others left the apartment, and Mr. Machado indicated that "the way they said it, it sounded like they meant it".
It is agreed that Mr. Concelos by the end of the meeting still refused to sign, and indicated he was concerned the company might find out. Mr. Garrod then suggested that if Mr. Concelos had any questions, he could meet with Mr. Phillips, the union organizer, the next night. Mr. Concelos did that. The meeting took place at a tavern, and 9 or 10 employees were present. It appears the meeting lasted some one to two hours, and a wide range of topics Was discussed. The matter of the threat was never raised, and Mr. Concelos signed a union card. That card was, incidentally, one of those the Board refused to accept, as being defective on its face, in its decision of May 26, 1980, [1980] OLRB Rep. May 749.
In the Board's view, Mr. Concelos was the most credible of the four witnesses. Mr. Machado signed a card at the meeting in Concelos' apartment, but was less than candid about the point at which that occurred. As for the applicant's witnesses, Mr. Garrod was evasive about his reasons for attending at Mr. Concelos' apartment that evening, and his evidence became contradictory in this regard. He also testified that Mr. Concelos would have seen the three union supporters together in the car when he invited them to drop up, but the evidence of Mr. Shivprasad appears to contradict this. Mr. Shivprasad himself appeared to be less than candid with counsel for the respondent as to the extent of his own participation in the campaign, and gave evidence which contradicted that of both Mr. Concelos and Mr. Garrod. Given, as well, the evidence of drinking by the two witnesses of the applicant that evening, the recollection of Mr. Concelos as to what was said at the meeting appears in any event to be the most reliable.
In making its findings of credibility, the Board is mindful of the fact that Mr. Concelos had expressed great concern over the possibility that the company might find out if he were to sign a card. His uncle was, as noted, a supervisor in the company, and had been responsible for getting him the job. The Board concludes from the evidence that the company did find out, through Mr. Machado, that both he and Mr. Concelos had signed cards, and that the company at the same time heard from Mr. Machado the report of the intimidating statements. Mr. Concelos was then, in effect, confronted with this by the company.
Notwithstanding this, the Board accepts the evidence of Mr. Concelos that the statement was made. The Board further finds that the statement was an intimidatory one. The Board is not satisfied, on the other hand, that the statement caused Mr. Concelos to sign the card. That, however, is really an incidental issue. A statement of that type might well have greater coercive effect on an employee who did not have an uncle in management to go to if his work was being sabotaged, and is not the sort of statement which this Board countenances as an organizing practice. The question before the Board therefore is the effect to be given to this single reported incident of impropriety, in the light of the role which Mr. Garrod and Mr. Shivprasad played in the overall campaign.
Mr. Garrod testified that he, Shivprasad and West were the organizers in the campaign, and Mr. Garrod appears as the collector on every one of the cards collected. On the other hand, the comment was made in the context of an evening of drinking, and there is no other evidence of irregular organizing conduct before the Board. In considering whether the incident in question can be concluded to have been an isolated one, the Board recognizes that the alcohol factor may have contributed to the lack of judgment exhibited that evening. But even taking that into account, the Board cannot be satisfied the other cards were not procured in the campaign in a similar social context.
The Board has, on many occasions, expressed its concern over the integrity of membership evidence, given the hearsay nature of the evidence upon which the Board normally relies. See, most recently, General Motors of Canada Limited, [1980] OLRB Rep. Oct. 1437 and Crock and Block Restaurant, [1980] OLRB Rep. April 424. The question which the Board must determine whenever an irregularity becomes apparent is the extent to which doubt is cast upon the remainder of the membership evidence. In Reliance Electric, [1979] OLRB Rep. Nov. 1107, which also dealt with an intimidating statement, the Board said:
... if there is evidence that an employee who approached employees with cards and acted as a collector utilized such a threat, it would be reasonable to discount all of the cards for which that individual acted as the collector.
While the Board may, in an appropriate case, go beyond this (e.g. Crock and Block, supra; Walter E. Selck, [1964] OLRB Rep. June 138), such a question does not arise here, as Mr. Garrod was the collector on all of the cards filed. Conduct as evidenced here on the part of the applicant's chief organizer has to be a matter of concern to the Board. In the circumstances, the Board is not satisfied that it has before it sufficient voluntary evidence of membership to grant outright certification to the applicant, and accedes to the request of the respondent that a representation vote be conducted amongst the employees of the bargaining unit as defined in paragraph 3.
All employees of the respondent in the bargaining unit on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to 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.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBERS, D. B. ARCHER:
The facts as set out in the Chairman's majority decision are not in dispute. It is agreed everyone who was claimed by the union as members had met the Board's standards for membership, i.e., signed a membership card, paid a dollar on their behalf and countersigned the receipt. Discounting the petition as the majority has done (and I agree with the decision that it should be disallowed), we come to the meeting between three union members and two prospective members at a Mr. Concelos' apartment.
There are contradictory statements, but we have the evidence of a family relationship between Mr. Concelos and his brother-in-law. Mr. Machado, both of whom received their jobs through the intervention of Mr. Concelos' uncle who is a supervisor at the plant. From their testimony, it is obvious that this relationship bothered and influenced them. At this point Mr. George West, an employee supporting the union, is told by Mr. Concelos that he can drop in at his apartment after work. Mr. West, along with two other employees, spent an hour-and-a-half at a local tavern then proceeded to Mr. Concelos' apartment and it is here that the alleged threat is made after Mr. Concelos had brought out a bottle of wine. It is difficult to sort out what was actually said. Mr. Concelos had some difficulty, not insurmountable, with the English language and Mr. West and his companions were in a jovial mood. I am quite convinced that whatever words were uttered they had no effect, certainly not on any other employee, and none in my opinion on the two prospective members. Even accepting the words at face value, it is difficult to know whether the threat was aimed at union or company. Only the company could fire and we are to believe that if somebody sabotaged Mr. Concelos' batch Mr. Concelos would be fired and not the person causing the damage. The whole story in my opinion is too vague and farfetched to believe. A simpler explanation is that Mr. Concelos and Mr. Machado signed cards willingly — Mr. Machado before the so-called threat was uttered and Mr. Concelos some time later then became frightened believing they somehow had let down their uncle, the supervisor, and, after a search by the company, were unearthed as two employees who had been coerced.
In view of all of the foregoing circumstances, I would give no weight to the allegation and would have certified the union.