Ontario Labour Relations Board
[1980] OLRB Rep. April 424
1850-79-R Retail Clerks Union, Local 206, Chartered by the Retail Clerks International Union, Applicant, v. Canterbury Foods Limited carrying on business as Crock & Block Restaurant and Tavern, Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: Ted Wohl and Les Dowling for the applicant; D. K. Gray, D. Mahy and M. Moran for the respondent; Don Robinson and Brad Coulter for the objectors.
DECISION OF THE BOARD; April 3, 1980
This is an application for certification.
The application deals, by agreement, with both a full-time and a part-time bargaining unit. Based on the membership evidence filed, the applicant would appear to be in a certifiable position with respect to the full-time unit, and in a "vote" position with respect to the part-time unit. The applicant, however, seeks to be certified without a vote for both units pursuant to the provisions of section 7a of The Labour Relations Act. There was filed with the Board, in addition a statement of desire in opposition to the applicant, which, if voluntary, would normally cause the Board (apart from the 7a application) to direct a vote to be held in the fill-time unit as well.
By letter dated January 15, 1980, however, the respondent filed with the Board an allegation that one of the persons for whom a membership card was submitted by the applicant failed to pay the $1.00 initiation fee. The Board, therefore, as a preliminary matter, conducted its usual inquiry into this allegation of "non-pay".
Miss Cynthia Dicerni, the employee involved, appeared pursuant to the Board's summons and gave evidence. She is employed essentially as a waitress in the respondent's restaurant in Burlington. She performs other functions as well when required, such as bar-tending, cashiering, and hostessing. When performing the latter‑most function, she is responsible for the general supervision of other employees on her shift, including assigning time cards, checking stations, and ensuring that work assignments are properly carried out. There are some 7 or 8 other employees who perform the same functions from time to time. Miss Dicerni his been employed by the respondent for approximately a year and a half. She acknowledged on cross-examination that her boyfriend is presently engaged in a training program as kitchen manager for the respondent, although she did not consider him at this point to be part of management. She further acknowledged that she had been involved in the origination of a "petition" against the applicant.
Miss Dicerni testified that on December 28, 1979 she received a telephone call from Mr. Bob Gibbon to meet him for coffee that evening. Mr. Gibbon's wife, Linda, works at the respondent's restaurant with Miss Dicerni. The three have played baseball together, and Miss Dicerni has been at the Gibbon's home in the past. Mr. Gibbon picked Miss Dicerni up and sought out a licensed restaurant. After one or two drinks, Mr. Gibbon brought up the subject of the Union. He indicated that the other employees were afraid to approach Miss Dicerni as they thought she was too close to management. He further indicated that they had enough people for the Union without her card but were still anxious to know that she was with them. Mr. Gibbon then discussed with Miss Dicerni the various reasons why he felt employees of the respondent needed a union. Mr. Gibbon began to explain the process of bringing a union in, and Miss Dicerni testified that she got the impression from Mr. Gibbon that the card was not to certify the Union, but simply to bring the matter to a vote to find out what people wanted. She acknowledged he said something about forty and fifty-five per cent. In any event, after three or four drinks, both returned to Mr. Gibbon's car in the parking lot. In the car Mr. Gibbon asked Miss Dicerni if she was interested in signing a card. She replied that she was, and he took some cards out of his briefcase. He tried to write the card up a couple of times, but had trouble with Miss Dicerni's name, so Miss Dicerni filled out the card herself and signed it in both places. She left only the amount of the initiation fee blank, along with the place for Mr. Gibbon's signature. Mr. Gibbon said, "You're supposed to pay a dollar, but don't worry about it". He then filled in the rest of the card.
The next morning Miss Dicerni attended a meeting with other staff members, including the manager, Mr. Chami, at the respondent's premises, and learned the significance of paying the dollar. She subsequently reported to management the transaction between herself and Mr. Gibbon. The day after her allegations were made public, Mr. Gibbon came into the restaurant while Miss Dicerni was working. According to Miss Dicerni, he accused her of "squealing" on him for not collecting the dollar and of saying that he tried to get her drunk, and also that he tried to get fresh with her in the car. Miss Dicerni indicated that he made it very uncomfortable for her to continue her work.
Mr. Gibbon was summoned by the Board to testify as well. He holds no office in the applicant, and is employed at a company unrelated to the respondent. Mr. Gibbon has been very active in the United Steelworkers of America for a number of years, having held positions including member of the Education Committee of District 6 and, more recently, Chairman of Local 15506 of the United Steelworkers of America. He has participated in organizing campaigns for the Steelworkers in the past. As indicated, Mr. Gibbon's wife, Linda, is an employee of the respondent. Mr. Gibbon was a regular visitor to the respondent's restaurant in Burlington, usually to pick up his wife, and it was common for him to wear his Steelworkers' jacket to the restaurant. He testified that he had been approached over a year ago to start a union at the respondent's restaurant, but that he felt at that time that the employees there did not need a union. When approached again in October or November, he thought that there was by then a need for a union, and personally set out to make the selection. After approaching two other unions, he finally settled on the applicant union. He then became actively involved in a campaign to organize the respondent's employees during the month of November, and in fact used 10 days of his vacation for that purpose. He personally, however, signed only two cards as "collector". He indicated that he and his wife kept their oganizing material in a single briefcase, and that Mr. Dowling of the Retail Clerks Union picked up any cards and money collected either at their house or at the frequent meetings among the three. Mr. Gibbon testified he felt that he, as a non-employee of the respondent, should be the one to approach Miss Dicerni to sign a union card, as he was afraid she might report such an approach to management. On the evening in question, he spent a good deal of time explaining to Miss Dicerni the benefits of having a trade union, and the manner in which a trade union becomes certified. He indicated that while a representation vote was discussed as a possibility, there was no way that Miss Dicerni could have gotten the impression that that was all she was signing for. He insisted that he made it clear to Miss Dicerni that they already had enough cards to be certified, but that they were going for 100%. Upon returning to his car in the parking lot, Miss Dicerni agreed to sign a card. Mr. Gibbon tried twice to spell her name properly, and then gave Miss Dicerni a card to fill out herself. Mr. Gibbon testified he then filled in the dollar portion and signed the receipt, which he tore off and gave to Miss Dicerni. At this point, according to Mr. Gibbon, Miss Dicerni was rummaging in her purse for the dollar, which she then handed to Mr. Gibbon. He then drove Miss Dicerni home. He indicated that the others in the organizing campaign were amazed to learn that evening that he had been successful in signing her. When asked by counsel what he did when he subsequently learned of the allegations against him by Miss Dicerni, he responded: "Nothing I just remained friends with Cyndi". He at first categorically denied saying anything at all to Miss Dicerni about the charge, or even asking her what her charges were all about. He said he was not surprised by them as he had been "dealing with companies a long time". Subsequently in his evidence, however, Mr. Gibbon indicated that he might have asked Miss Dicerni if she was going to tell the truth about the charges. He still denied any heated discussion at the time, or that he was giving Miss Dicerni a hard time. Mr. Gibbon acknowledged having heard from others the allegation that he had tried to get Miss Dicerni drunk, but testified that he could not remember walking "directly" to Cyndi and saying anything to her about it. When asked again, however, he conceded that during the conversation "over the next two months", the subject "may" have come up, "maybe in a friendly relationship, but no direct beeline to her". Mr. Gibbon was then asked if he ever said in the restaurant: "I wish we could pay Doris $10.00 to keep her mouth shut?" Mr. Gibbon responded that it would take more than $10.00 to have Doris keep her mouth shut, then indicated he wasn't sure who Doris was, and that he did not recall making any such statement.
While, as indicated, Mr. Gibbon appears as collector on only two of the cards submitted by the applicant, his wife, Linda, appears as collector on an additional ten. Mr. Gibbon testified that a number of cards were signed in the presence of both him and his wife, and that these usually were signed at the Gibbon's house. He pointed out, however, that there was little discussion about the unions on those occasions, since people coming to his house were already committed to signing a card.
The Form 8 filed with the Board in this application in support of the membership evidence was signed by Mr. Les Dowling, and accordingly Mr. Dowling was also summoned to testify before the Board. He advised the Board that he was an organizer with the Retail Clerks Council in Ontario at the time of this campaign, and had been so for approximately three years. His involvement with this union (and its predecessors) dates back some 26 years. He testified that he had stressed the importance of the dollar with all of the individuals involved in this organizing campaign, and reminded them from time to time at subsequent meetings. Mr. Dowling testified he really had contact with only two people on the organizing committee, Linda and Bob Gibbon. He stated that they were the "key" people in the organizing campaign with Crock & Block, and that the two of them worked "as a team". Mr. Dowling did not know the extent to which other persons were assisting the Gibbons. He indicated the whole campaign began with the contact by Bob Gibbon. Mr. Dowling was aware that Mr. Gibbon held some office in the Steelworkers, at the plant level, but certainly not on a full-time basis.
The respondent called Patricia Whitfield to testify. Miss Whitfield has been a bartender at the respondent's restaurant for approximately two years. She testified that Mr. Gibbon was frequently in the restaurant, talking to other employess, and that he, his wife, and another employee named Kevin were obviously the main individuals involved in the union campaign. She testified that at one point she heard Mr. Gibbon say to Kevin: "I wish we could pay Doris ten bucks to keep her mouth shut". She did not hear the rest of the conversation, and couldn't tell whether Mr. Gibbon had made that statement solely for her benefit or not. She stated that it struck her as strange that that was the only statement which she really heard clearly.
The respondent also called Barbara Horth to give evidence. Miss Horth has been employed by the respondent as a hostess for approximately a year and a half. She as well confirmed that Bob Gibbon appeared to be the "strongest" among the union proponents. She testified with respect to a conversation between Mr. Gibbon and Miss Dicerni which took place in front of the bar in the restaurant during the latter part of January. She heard very little of what was said, other than the word "union", but indicated that Miss Dicerni looked surprised and upset. She stated that Mr. Gibbon raised his voice a few times, and that he was "furious about something". It should be noted that the respondent delivered notice of Miss Dicerni's "non-pay" allegation on or about January 15, 1980.
The applicant called Linda Gibbon as a witness. She testified that she confirmed with her husband on the evening of December 28th that he had obtained a signed card and a dollar from Miss Dicerni. The card and the dollar were left in the Gibbon's mailbox for Mr. Dowling to pick up.
Finally, the applicant called David Newhouser as a witness. He is a part-time employee in the respondent's restaurant. He testified that shortly before New Year's he had been having a discussion about the union with the respondent's manager, Mr. George Chami, and that Mr. Chami then called Cyndi Dicerni over and said that she would deny anything he, Mr. Chami, had said to Mr. Newhouser. According to Mr. Newhouser, Miss Dicerni nodded. Mr. Chami then left. Mr. Newhouser acknowledged that Miss Dicerni had heard none of the rest of the conversation, and that she did not say anything in response to Mr. Chami's statement to her, other than nod. Miss Dicerni's explanation of the incident was that Mr. Chami's statement had taken her by surprise, and she had nodded in the expectation of hearing what it was all about.
The parties were in agreement that the Board had first to decide who was telling the truth with respect to the allegation of non-pay, and, if the Board decided that it was Miss Dicerni, then the Board had to decide what effect this incident should have on the rest of the applicant's membership evidence.
In deciding the credibility issue, the Board must be cognizant of the fact that Miss Dicerni was admittedly an active petitioner against the applicant, as well as the timing of the disclosure to her of the importance of paying the dollar. Notwithstanding this, the Board found Miss Dicerni to be a sincere, straightforward and believable witness. In addition, Miss Dicerni appeared to be an intelligent and careful individual, and the Board, on balance, finds the fact of her leaving blank on her receipt the amount of money which she was paying to be more consistent with no mention having been made of the dollar, than with Mr. Gibbon's version. Further, the Board finds Miss Dicerni's explanation of the Newhouser incident to be credible in the circumstances in which it occurred. Mr. Gibbon, on the other hand, was flippant and evasive in much of his testimony, and rarely volunteered anything that was not self-serving, unless asked very specifically, sometimes for the second or third time. His initial evidence with respect to his reaction to Miss Dicerni's charges, that he "just remained friends with her" and never discussed the charges, is not only difficult to accept in itself, but was contradicted by Mr. Gibbon on cross-examination, and, it would appear, by the evidence of Barbara Horth. The Board is not in a position to make any conclusive determination with respect to Mr. Gibbon's motive for failing to insist on the dollar from Miss Dicerni, other than to note that Mr. Gibbon clearly regarded it as a personal triumph to succeed in obtaining Miss Dicerni's signature on a union card.
The important point is that the Board, weighing all of the evidence, finds that the "non-pay" did take place. The Board must now decide the consequence which flows from that. The applicant takes the position that the Board, based on its previous decisions, need go no further than to reject those cards (being two) on which Mr. Gibbon is shown as collector. The respondent, on the other hand, argues that the circumstances of this case are such that the Board can place no reliance on the evidence of membership filed, and accordingly must dismiss tae application.
The Board notes at the outset that it finds nothing improper or remiss in the conduct of Mr. Dowling, the Retail Clerks Council organizer. Mr. Dowling appears to have properly instructed his organizers at the outset, and to have made the necessary inquiries prior to subscribing his name to the Form 8 declaration. On the other hand, there can be no doubt from the evidence of Mr. Dowling and other witnesses that the campaign was "run" by the Gibbons. It is clear that Mr. Gibbon was not inexperienced in these matters, and indeed it was he who did the initial shopping to select the appropriate union. From then on, as Mr. Dowling indicated, he and his wife worked as a team. Mr. Dowling had no direct contact with any other employee organizer; all membership evidence was funnelled through the Gibbons. As to the extent of Mr. Gibbon's improper conduct, the Board finds, having regard in particular to Miss Dicerni's acknowledgement that the percentages forty and fifty-five per cent (as she recalled it) were in fact discussed, that whatever Miss Dicerni's understanding of the conversation was, there was no active misrepresentation on the part of Mr. Gibbon. The only misconduct before the Board, therefore, is the single instance of non-pay. The Board is concerned, however, about the obviously dominant role which Mr. Gibbon played in the entire campaign.
The Board's basic policy with regard to irregularities in membership evidence has been set out in the Webster Air Equipment Co. Ltd. case, 58 CLLC ¶18,110 in particular in the following passage:
"It is obviously a practical impossibility for the Board to interview each employee on whose behalf documentary evidence of membership is filed in a certification proceeding, in order to ascertain whether he has personally signed the application for membership and whether he has paid on his own behalf the dues or fees which the receipt accompanying the application purports to acknowledge… In the normal course, the Board accepts such representations at their face value. However, since the Board is compelled to rely to such an extent on evidence which, by the very nature of things, is not subject to examination by the parties to the proceedings (see section 72(1) of The Labour Relations Act) it must be very circumspect in accepting it and it must insist on the highest standards of integrity on the part of those who submit such evidence. Any attempt to mislead the Board or any failure to make full disclosure of all material facts must weigh heavily against an applicant. In dealing with this situation, the Board has made a distinction between two types of cases: (i) where the action impugned is that of a responsible officer or official of a union, and (ii) where the action is that of a supporter or canvasser on behalf of an applicant who occupies an inferior office or no office in the union. In so far as the first of these is concerned, the Board said in the RCA Victor Company case, (1953) CCH Canadian Labour Law Reporter, Transfer Binder, ¶17,067, C.L.C. 76-412, that, even where only a single card is defective and it is submitted with the knowledge of such responsible officer or official, 'the Board may come to the conclusion that it cannot place reliance on any of the evidence of membership submitted by the union'. Where the irregularity relates to evidence of membership procured by a person of lesser rank in the union organization, the Board has taken the position that the card in respect of which the irregularity is established is disallowed and the weight to be given to the remaining evidence of membership will depend on the nature of the irregularity and the extent to which the objectionable practice was resorted to in the signing up of members."
This statement of principle was expanded upon very helpfully in the Inco Limited case, [1966] OLRB Rep. Jan. 698 at page 731:
"It is important to keep in mind the reasoning behind these statements of principle which have been referred to so often in the Board's jurisprudence. The basic question dealt with in every case of non-pay or non-sign or other irregularity is the weight that ought to be given the evidence of membership in the circumstances of the particular case. In matters of this kind the Board is not concerned with penalizing a union but rather with representation. See Echlin-United of Canada Ltd., O.L.R.B. Monthly Report, May, 1965, p. 9; The Hydro Electric Commission of the City of Hamilton, (1958) C.C.H. Canadian Labour Law Reports, Transfer Binder, '55-'59, ¶18,120, C.L.S. 76/617. Keeping this in mind, what is intended by the statement in the Webster Air Equipment case that'... even where only a single card is defective and it is submitted with the knowledge of such responsible officer or official, 'the Board may come to the conclusion that it cannot place reliance on any of the evidence of membership submitted by the union."? Clearly, what the Board is saying is that the entire evidence is suspect because, having regard to the dependence of the Board on the documentary evidence submitted, how can it rely on any evidence of membership which such an officer or official has either personally obtained or which was obtained by others in association with him or under his direction. However, we point out that the Board did not say that this result follows in every case where a single defective card is submitted with the knowledge of a responsible officer or official. The words used are 'the Board may come to the conclusion' (emphasis added) and obviously whether it does or does not will depend on the facts of the particular case.
Again, when dealing with a case involving 'a person of lesser rank in the union organization' the same basic question must be considered, that is, the effect of the irregularity or irregularities on the other evidence of membership submitted in the case. If such a person was not responsible for other canvassers or collectors the Board, depending on the circumstances, may merely disallow the card in question or may reject all of the cards signed up by such a person and then deal with the case on the basis of the remaining evidence. If such a person was responsible for the acts f others in the campaign, then the cards signed up by such other persons may also be suspect. See, for example, Hershey Chocolate of Canada, Limited case, O.L.R.B. Monthly Report, May 1963, p. 73, Thomas Dellelce and Company Limited case, O.L.R.B. Monthly Report January 1962, p. 341, Max Factor and Company case, O.L.R.B. Monthly Report, February, 1964, p. 616."
The precise issue in the Inco case was essentially the same as here, though the facts themselves differ substantially. The Inco case involved a bargaining unit with thousands of employees (as compared to 67 in the present case), together with a large number of collectors. The Board stated in the Inco case, however, at p. 732, "the cornerstone of the intervener’s argument is that the voluntary organizers were given, in effect, sole responsibility for the campaign". That is essentially the situation in our own case. The intervener union in the Inco case argued from there that such "turning over" of the campaign to non-officers of the union was sufficient to place the case in category (i) of the Webster Air Equipment principle ("responsible union officers"), rather than category (ii) ("rank-and-file employees or officials of lesser rank"). To hold otherwise, the intervener argued, would be to permit the organizing union to "put their hands in their pockets" while improper acts were committed by others. In support of that proposition, the intervener in Inco relied upon Dominion Stores Limited, [1964] OLRB Rep. Dec. 447 and Slough Estates, [1965] OLRB Rep. June 173, as does counsel for the respondent in the present case. The Board in Inco also considered the Walter E. Selck of Canada Limited case, [1964] OLRB Rep. June 138.
In the Walter E. Selck of Canada Limited case, supra, the Board discovered One non-pay, some irregular dating of receipts, and also some threats of discharge for those who refused to sign union cards, all of which emanated from a rank-and-file employee named Angel. The applicant union relied on the fact that Mrs. Angel held no office in the union. The Board noted, however, that Mrs. Angel essentially ran the campaign on behalf of the applicant, taking leave of absence from her work to do so. In dismissing the application, the Board stated:
"Having regard to the prominent role performed by Mrs. Angel in the organizational campaign, we find that the improprieties revealed in this case cast such serious doubts on the union's evidence of membership that we are unable to place any reliance on it."
- In Dominion Stores Limited, supra, a union steward named Cloutier signed the name of another employee together with a receipt showing a dollar had been paid. Cloutier was in fact the collector on all the cards submitted with the application. In addition, the Board indicated its dissatisfaction with the lack of inquiries made by the union officer who attested to the membership evidence. In dismissing the application, the Board commented:
"It may be that the onus relating to the conduct of the shop steward is not as exacting as that which rests upon the paid union official. In the instant case, however, Cloutier was given the full responsibility for organizing the employees for which the application was made."
- After a careful review of the above two cases, together with the Slough Estates, supra, the Board in the Inco case concluded that they did not go so far as to establish the proposition that the organizing union, by turning over responsibility for its campaign to non-officers of the union, thereby automatically assumes responsibility for their actions. The Board found, therefore, that the collectors in that case still fell within the second category referred to in the Webster Equipment case. At page 732 the Board stated:
"While it is true that some of the collectors received some expense money and further, that in the case of the Girards each had acted before for Mine Mill, one some years ago as a paid organizer in a particular campaign, nevertheless, during the present campaign, all were employees of Inco, had never held office in the union, and did not receive money for lost time. In our view, these collectors fall within the category described by the Board in the Webster Air Equipment case, supra, as 'persons of lesser rank in the union organization'."
In disposing, however, of the Slough Estates, Dominion Stores and Walter E. Selck Limited cases, the Board made some elucidating observations on the Webster Air Equipment Limited principle, pointing out in effect that the two categories, and in particular the consequences of improper acts by an individual in either of the two categories, are not mutually exclusive. In other words, while the Board is more likely to reject entirely the applicant's membership evidence where the person involved is a "responsible union officer", the Webster case itself stated only that this may be the result, and the Board need not do so in every case. On the other hand, the consequence of improper conduct by persons falling outside this category is also a matter of fact in each case, depending in particular on the connection between that individual and the remainder of the membership evidence. As noted above, the Board in Inco pointed out: "If such a person was responsible for the acts of others in the campaign, then the cards signed up by such other persons may also be suspect".
Applying these principles to the case before us, we note that the organizing campaign was initiated and controlled by, at most, the two Gibbons acting as a team. Mr. Dowling of the Retail Clerks Council had no contact with anyone else in the campaign, and all membership evidence was funnelled through the Gibbons. In the circumstances, it is impossible for the Board to be free from doubt concerning the membership evidence filed in this application. On the other hand, Mr. Gibbon acted on his own as collector on only two of the cards, and there is no evidence whatever suggesting improper conduct on the part of Mrs. Gibbon or any other collector.
Mr. Gibbon is still a voluntary organizer, and not a "responsible officer" of the applicant, and it must be borne in mind again that the purpose of the Board's policies in this regard is not to punish (Inco case, supra). As stated as well in the Emmanuel Forest Products Limited case, 119771 OLRB Rep. Feb. 37: "The primary issue in any certification proceeding is the ability of the Board to rely on the documentary evidence filed". The present case falls short of those involving an actual officer of the Union, or someone acting as collector on all of the cards submitted, but is also a long way removed from those involving persons performing a clearly minor role in the campaign.
On balance, the Board is not persuaded that it must reject totally the membership evidence filed by the applicant, as in some of the cases referred to above. However, as has been said in other cases:
"The membership evidence submitted in this case is under a cloud and requires the confirmatory evidence of a representation vote."
(e.g. Echlin-United Canada Limited, [1965] OLRB Rep. May 91; Hydro-Electric Commission of Hamilton, 58 CLLC ¶18,120.)
The Board is mindful of the fact that the applicant intended ultimately to lead evidence in this case in support of its request that the Board exercise its discretion under section 7a of The Labour Relations Act to certify the applicant without a vote. As the Board noted in Cantor Bakeries, [1978] OLRB Rep. April 281, however, in dealing with the section 7a request before it: "One of the factors which the Board must consider in assessing the membership support of the applicant at the time of the hearing is the quality of the membership evidence filed in support of the application".
For all of the foregoing reasons, therefore, the Board directs that a representation vote be held amongst the employees in both bargaining units, defined by agreement of the parties as follows:
"all employees of the respondent at Burlington, Ontario, save and except Assistant Managers and persons above that rank, Kitchen Managers, Bookkeepers, Management Trainees, persons regularly employed for not more than 24 hours per week, and students employed during the school vacation period (hereinafter referred to as bargaining unit #1)."
"all employees of the respondent at Burlington, Ontario regularly employed for not more than 24 hours per week and students employed during the school vacation period, save and except Assistant Managers and persons above that rank, Kitchen Managers, Bookkeepers and Management Trainees (hereinafter referred to as bargaining unit #2)."
All employees of the respondent in both bargaining units 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.
Since the most that the statement of desire in opposition to the applicant filed in this matter could produce is a representation vote, it is not necessary for the Board to make any further inquiry into the origination or circulation of that statement.
The matter is referred to the Registrar.