Service Employees Union, Local 204 v. The Corporation of the County of Simcoe
[1980] OLRB Rep. November 1696
1391-80-R Service Employees Union, Local 204 affiliated With A.F. of L., C.I.O., C.L.C., Applicant, v. The Corporation of the County of Simcoe, Simcoe Manor Home for the Aged, Respondent, v. Group of Employees, Objectors
BEFORE: M. G. Picher, Vice-Chairman, and Board Members E. C. Went and A. Hershkovitz.
APPEARANCES: Jeffrey Egner, Joe Aggimenti, Sharon Ball and Kathy Crane for the applicant; R. A. Werry for the respondent; Jean Andrews, Sharon Mac Donald and Pearl Stelmachowik for the objectors.
DECISION OF M. G. PICHER, VICE-CHAIRMAN AND BOARD MEMBER E. C. WENT; November 12, 1980
1. This is an application for certification.
6. A petition was filed in a timely manner in opposition to the application. The overlap of employees who signed the petition having previously signed union membership documents was such as to cause the Board to conduct its usual inquiry into the origination and circulation of the petition. Having regard to the evidence the Board is satisfied that the petition represents the voluntary expression of the wishes of the employees who signed it. In this situation the Board would normally seek the confirmatory evidence of a representation vote.
7. The union submitted that in the circumstances of this case the wishes of the employees could not be disclosed in a secret ballot vote, and that the Board should grant certification pursuant to section 7a of the Act.
8. The union's submission is grounded principally on statements attributed to Ms. Velda Lewis, the Director of Nursing in the respondent's home. The uncontradicted evidence of Mrs. Sharon Ball, an employee instrumental in the union campaign, is that Ms. Lewis and she are friends, and that they frequently have lunch together. On one occasion Ms. Lewis asked Mrs. Ball whether she supported the union. On receiving a positive response Ms. Lewis commented, in a conversational way, that a union presence in the home would lead to the introduction of punch clocks and a reduction in the flexibility of departure times that the employees enjoyed. Later in the day she also commented to Mrs. Ball that the employer would receive a list of employees who were members of the union. While this last statement causes the Board concern, we are satisfied that it was not intended as a threat and was recognized by the few employees who overheard it for the idle comment that it was. The next day Ms. Lewis apologized to Mrs. Ball, whose own evidence is that Ms. Lewis' comments were made in a matter-of-fact tone and not in a threatening way. Mrs. Ball expressed her own opinion that the Director of Nursing is indifferent about whether a union is established in the home. The evidence of Mrs. Ball and other employees called by the union contradicts the suggestion of the union that there was a widespread rumour among the employees to the effect that their employer would receive a list of all employees who supported the union.
9. The unchallenged evidence also establishes that at the time of their hiring interview at least two employees were asked by representatives of management what their views were about unions. When they responded that they didn't know much about unions they were told that was good because a union would not be welcome in the home. That kind of inquiry in a hiring interview can only be seen as intended to intimidate or unduly influence employees to refrain from exercising their rights under The Labour Relations Act. It easily creates in an employee the impression that the avoidance of union activity is an implied condition of his or her employment. It is a breach of sections 56 and 58(b) of the Act that cannot be condoned by this Board. We should, as far as possible, remedy any lingering effect that the employer's unlawful conduct in this regard may have on the employees in a representation vote.
10. The Board is satisfied that a representation vote can be taken in the circumstances of this case. The breaches of the Act by the employer that were established by the union are not acts which in the Board's opinion deprive the respondent's employees of the ability to freely express their wishes in a secret ballot vote. The fact that the section 7a application has not succeeded does not, however, foreclose the Board from making a remedial order designed to redress the employer's unfair labour practices.
11. The evidence of intimidation of two employees at the time they were hired, one in 1977 and the other in 1980, was not challenged or contradicted by the respondent. The employer's silence on this aspect of the evidence causes a natural concern about the extent to which other employees were subjected to the same kind of "orientation" when they were hired. Employees voting on an application for certification should not, because of their employer's undue influence, be left in any doubt about the legitimacy of being represented by a trade union or about any other rights which they have under The Labour Relations Act. We are satisfied that a remedial order is appropriate to advise employees of their rights and rectify the breaches of the Act committed by the respondent.
12. The respondent is therefore ordered to cease and desist from interrogating employees or prospective employees with respect to their views on union representation, and to refrain from the imposition of conditions of employment, expressed or implied, that would intimidate or unduly influence employees from exercising their rights under The Labour Relations Act.
13. The respondent is further directed to post copies of the attached notice marked "Appendix" after it is signed by Edward Boynton, Administrator of the respondent, in conspicuous places on its premises in Beeton, where it will be reasonably accessible to all employees, including all places where notices to employees are customarily posted. The notice shall be posted forthwith until the representation vote is taken and reasonable steps shall be taken by the respondent to insure that the notices are not altered, defaced or covered by any other material. Reasonable access to the respondent's premises shall be given by the respondent to two representatives of the applicant to satisfy itself that this posting requirement has been complied with.
14. A representation vote shall be taken. All employees of the respondent in the bargaining unit on the 24th day of October, 1980 who do not voluntarily terminate their employment or who are not discharged for cause between the 24th day of October, 1980 and the date the vote is taken will be eligible to vote.
15. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
16. The matter is referred to the Registrar.
DECISION OF BOARD MEMBER AL HERSHKOVITZ:
1. Evidence was brought before the Board that at least two employees at the time of being interviewed for employment were questioned by management as to what their views were about unions. When they replied that they didn't know much about unions they were told that that was good because a union would not be welcome at the home. They were subsequently hired. It was further established that Ms. Velda Lewis was present at some of these interviews.
2. 1 concur with my fellow Board Members when they declare that the kind of inquiry in a hiring interview can only be seen as intended to intimidate and unduly influence employees to refrain from exercising their rights as set out in section 3 of The Labour Relations Act, which states that "every person is free to join a trade union of his own choice and to participate in its lawful activities" which is clearly a violation of sections 56 and 58 of the Act.
3. On the basis of this evidence, counsel for the applicant pointed out that this is a clear violation of the Act and asked that the Board grant certification pursuant to section 7a.
4. The majority of my fellow Board Members decided to deny this request.
5. 1 dissent from the majority decision in that I deem such action on the part of management as direct interference in the rights of the employees to the freedom to join a trade union of their own choice.
6. On the basis of the unchallenged evidence presented to the Board I would grant certification; however, failing that I concur with the Board's decision for remedial action to be taken.
7. In dealing with a petition filed by Jean Andrews, Sharon MacDonald and Pearl Stelmachowicz it was clearly established that Ms. Velda Lewis, Director of Nursing in the respondent's home did while having lunch with Sharon Ball and several other employees of the bargaining unit engage them in a discussion of their support of the union. On receiving an affirmative response, Ms. Lewis declared that the presence of a union in the home would lead to the introduction of the use of punch clocks and a reduction in the flexibility of departure time. In the presence of Edith Petley, Janice McKenzie and Heather, Ms. Lewis stated "that if you think this is confidential, it won't be. We will get the list of names that signed for the union." On October 10th Ms. Lewis phoned Mrs. Ball and stated that she wanted to apologize, that she hoped she didn't hurt her feelings and that she didn't realize that she intimidated her. When questioned about Ms. Velda Lewis' relationship with other employees, Mrs. Ball declared that there was a friendly relationship. Mrs. Ball's evidence was straightforward and credible.
8. It was alleged that the petitioners reiterated the statements made by Velda Lewis during their solicitation of signatures. Let me recapitulate the evidence as presented:
(1) The statement of Velda Lewis that time clocks would be installed.
(2) That there would be a reduction of flexible departure time.
(3) That the employer would receive a list of all union members.
(4) These statements were used by the petitioners during their solicitation of signatures.
(5) The expressed animus against a union coming into the home as stated by management during interviews of job applicants. Ms. Lewis was present during these interviews.
9. While my fellow Board Members minimize the seriousness of Ms. Lewis' statements based on Mrs. Ball's admission that she was on friendly terms with Velda Lewis, I submit that precisely because of this relationship Mrs. Ball and all others who were aware of these statements viewed them as serious since they came from a person who was a friend but nevertheless is in a managerial position and thus those statements would have considerable weight.
10. Because of the accumulated evidence I conclude that the employees will not be in a position to vote free of the fear of dire consequences. Furthermore, 1 would dismiss the petition as not disclosing the true wishes of the employees who signed it, and since there are sufficient cards signed voluntarily by the employees, grant a certificate.