Ontario Labour Relations Board

[1980] OLRB Rep. February 184

1630-79-R Canadian Union of Distillery, Brewery, Flour, Cereal, Soft Drink and Distillery Workers, Local Union 304, Applicant, v. The Clorox Company of Canada Ltd., Respondent.

BEFORE: Pamela C. Picher, Vice-Chairman and Board Members S. H. Lewis and J. A. Ronson.

APPEARANCES: J. C. Nelson, A. Dunsmuir, M. McNamee and W. Rannachan for the applicant; W. S. Gardner, Andrea Davidson, M. M. Trask, Barry Bevagua and John Kingston for the respondent.

DECISION Of' VICE-CHAIRMAN PAMELA C. PICHER AND BOARD MEMBER S. H. LEWIS; February 20, 1980

2. This is an application for certification.

3. An issue raised in this application is whether a local union is barred from applying for certification during the period of a bar imposed against any further applications by the national union of which the local is an affiliate.

4. In June, 1979, the Canadian Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers, (hereinafter referred to as "the National") filed an application for certification. Their membership strength was well over 55 per cent; ordinarily they would have been entitled to immediate certification. Certification was not forthcoming, however, because the Board determined that the respondent company was in the process of building up its workforce. In accordance with the Board's practice in a build-up situation, a representation vote was ordered to take place following the substantial completion of the buildup work force. This procedure would enable the new employees to participate in the decision as to whether or not they would be represented by the National. The vote was held on August 31, 1979. The National lost the vote and the Board, in further compliance with its normal practices, barred the National from making another application for six months (File No. 0567-79-R, decision dated September 19, 1979).

5. Within the period of the bar the applicant, Local 304 of the National (hereinafter referred to as "the Local"), applied for certification. The respondent company contends that in the circumstances of this case the bar against the National should apply to preclude the Local from making its application.

6. The evidence in this case clearly supports the conclusion, which is not disputed by counsel for the company, that the National and the Local are two separate entities. Each in its own right has been granted trade union status for the purposes of The Labour Relations Act. Each has separate officers, auditors, newsletters, strike funds, bank accounts, constitutions and by-laws. Assets of each are completely separate and distinct. No officer of the National is an officer of the Local or vice versa.

7. The Board has repeatedly recognized parent unions and their locals as separate entities and has regularly held that a bar against a repeated application for certification by one such entity is not a bar against an application for certification filed by its related union.

8. In Pinehill Auto Ltd., [1968] OLRB Rep. July 375, for example, the Board enter­tained an application for certification by one local of the Teamsters less than two months after entertaining an application for certification for the same employees made by another local of the Teamsters. In declining to impose a bar on the second application, as requested by the company, the Board stated at p. 375,

"The Board has always treated an international or national trade union as a separate and distinct entity apart from its locals and has also treated each local of a trade union as a separate and distinct entity. Accordingly, when a local of a trade union makes an application for certification for a unit of employees that another local of the same trade union has just previously unsuccessfully sought certification, the new applicant is in no different position than if the application had been made by an entirely different trade union or one of its locals."

Similarly in Swingline of Canada Ltd., [1971] OLRB Rep. Nov. 710, the Board refused to apply a six month bar imposed against one local to block an application for certification filed by a sister local. The Board recognized them as two separate entities and noted with approval that the membership cards in the second application were fresh so that the membership evidence was separate and distinct from the evidence in the first application.

10. The facts in another decision of the Board, Elm Tree Nursing Home, [1978] OLRB Rep. Nov. 984, are markedly similar to those in the instant case. The Board refused to apply against the International's application for certification a bar it had imposed against the local. In Elm Tree, the same person conducted the organizing in both campaigns. For the local's campaign the individual acted in his own right as the locals' organizing supervisor. For the subsequent campaign by the International, he acted as the International's agent. In dismissing the concern that the same person had carried out the organizing for both campaigns, the Board at page 987 said, "[o]nce we have concluded, as we have, that for the purposes of this Act Local 204 and the International are to be treated as separate entities, each with status as trade unions under the Act, the choice of the agent through which either entity acts becomes irrelevant to the entity's status".

11. Counsel for the respondent in this case acknowledged the consistency of the Board's jurisprudence recognizing and respecting the separateness of parent unions and their locals. He alleges, however, that the conduct of the campaign was such that the Board should conclude that on August 31st the employees voted against the Local rather than the National. More specifically, counsel for the employer complained that the union campaign was so imbued with Local campaigning conducted on its own behalf rather than on behalf of the National and with misrepresentations made by the Local relating to which union, the National or the Local, would be voted upon on August 3 1st, that the employees were confused into thinking that the August 31st representation vote was a vote relating to the Local and not the National. Counsel argues, therefore, that the Local, in essence, has already been defeated and should not now be permitted to apply within the period of the bar imposed as a result of that vote.

12. Mr. William Rannachan is the Central Regional Director of the National. Mr. John McNamee, is the National's counsel, administrative assistant and director of education and research. Rannachan, with McNamee's assistance, did virtually all of the organizing preceeding the National's filing of its application for certification in June 1979. No one from the Local participated in the campaign until just prior to the August 31st vote.

13. Rannachan testified that he held two organizing meetings in June during which he, at one meeting, and McNamee, at the other, explained to the employees in attendance the structure of the National and its relationship with its locals. He explained, for example, that the application for certification would be filed on behalf of the National but that following certification the employees would have several options open to them: they could join an existing local, set up their own local or be serviced by the National. Rannachan testified that the employees indicated that they would make their decision after certification. The evidence further establishes that two letters to the Clorox employees were sent by Rannachan, on National stationery, advising them of two meetings relating to the application for certification.

14. Mr. Cameron Nelson is a business agent employed by the applicant Local. He holds no office in the National and is paid solely by the Local. Nelson testified that he became involved in the National's campaign a week or two prior to the vote in August. McNamee took over the campaign from Rannachan when Rannachan went into the hospital in late July. In the last weeks of the campaign preceeding the vote, McNamee went on his hon­eymoon and asked Nelson to take over for him. Mr. Nelson's participation consisted of the following: he attended a meeting with the company and one of the Board's Labour Relations Officer to make the voting arrangements; he chaired a meeting with employees on or about August 26th; he wrote a newsletter dated August 27th for distribution to the employees; finally, he attended at the vote as a scrutineer. Nelson testified that if Rannachan and McNamee had been available to carry the campaign to its conclusion, he would not have either chaired the meeting with the employees or written a newsletter. He further stated that if it had not been for their absence, he might not have become involved in the campaign at all.

15. At the meeting of employees on August 26th Nelson was given a copy of a letter which had been sent to employees by the company. Nelson stated that because the compa­ny's letter contained numerous assertions which he viewed as significant misrepresentations, he hastily drafted a newsletter to clarify the "errors". The letter had to be distributed to the employees prior to the imposition of the Board's 72 hour silent period which preceeded the representation vote. The newsletter, upon which counsel relies heavily to support his contention that the employees were confused about which union they were voting upon was printed on Local 304 stationery and reads as follows:

"August 27, 1979.

To: All Clorox employees.

Dear Fellow Workers:

1. I am writing to you at this time in order to clear up the misleading inferences and information Mr. Kingston has written you in his last two letters.

2. In his letter of August 22, 1979, Mr. Kingston wrote that the Union refused to agree that the vote be held on August 31, 1979, but, that the Registrar ordered it. He knows, that that is simply untrue.

3. The Union did feel that you (especially those of you new to Clorox) should have more time to make up your own minds about the Union. This is not a decision to be rushed into. However, when the Company insisted on the 31st the Union agreed.

4. In his letter to you of August 23, 1979, Mr. Kingston makes several misleading statements.

5. Initiation fees, as the 23 of you have already joined the Union know, are $1.00 not $100.00.

6. Union dues, at your present rates would be $3.00 per week. This Union has consistently negotiated contracts which provide its members many times the small amount of dues paid.

7. Take Diversey (Canada) Ltd.. Diversey is a Company which is about the same size in Ontario as Clorox. It manufactures chemicals and cleaning compounds as you do. Its plant is in Mississauga.

8. The major difference between you and the employee at Diversey is that last year they joined this Union. The Diversey general labourer will be earning $7.12 per hour on November 1st and that does not include what he/she will be getting as Cost of Living Allowance. With an anticipated 15¢ per hour Cost of Living Allowance, the general labourer will be earning $7.27 per hour. That is $1.12 per hour more than you will be earning even after your recent raises.

9. The Diversey employees received improvements totalling over 27% in their two year agreement last year. There was no strike -the employees simply worked together through the Union to improve their working lives.

10. On Friday you too can start to have a say in your working lives and can start to win improvements by working together.

11. Mr. Kingston talks about fines and special assessments. In the six years I have been with this Union, your Local has never fined anyone for any offence - in fact no one has ever been charged for an offence. Nor have there been any special assessment [sic] which the members have had to pay. Mr. Kingston is simply trying to mislead and frighten you.

12. Mr. Kingston writes about strikes. He states that a strike can be called by the executive. That is completely untrue. No strike can be authorized until a majority of you vote twice to strike.

13. If, however, a strike were to occur, strike benefits would be $100.00 per week ($40.00 from the National Union and $60.00 from the Local) and would be paid starting with the second week.

14. Just about everyone these days is in some kind of union, whether it is called an Association, Society, Brotherhood or Alliance. The difference is in name only.

WHY NOT YOU?

23. Unions were developed to bring people together so that their combined efforts could accomplish what is beyond the hope of an individual. One person is no match for an office manager. Remember, the manager is not alone. He has behind him employee relations experts, lawyers, economists and many others. They work as a team and the only way to balance their power is through team work by employees in a Union.

24. Unless there is some kind of pressure exerted through a Union, even sympathetic company executives cannot do all that is needed. The reason for this is simple. Company executives are required to keep costs down so that profits will be as high as possible.

25. Our local union has been accomplishing its goals of improving the working and living conditions of its members and protecting them from the unfair and unjust actions of their employers since 1902 -77 years.

26. You have already obtained a few of the advantages the Union can bring you. Last year, when there was no talk of Union, your raise was 5.5%. This year it is almost double that.

27. Ask yourself why the Company is so concerned about your joining the Union? Why are they willing to double the raise and promise you water fountains and coke machines etc?

28. The reason is simple. If you join the Union it will cost them money. The more you make the more it cost them. It is worth it for them to spend a little now to buy your votes if they can save it later.

29. To those of you who have just started at Clorox I would ask you to consider that before the new shift was added virtually every employee joined the Union. Right now the Company is trying to be very good to you so that you will vote against the Union. Ask some of the older employees about the way things were before the Union. If the Union is not voted in Clorox will most likely go back to the way it did things in the past.

30. You can have a say in your future. You can gain the strength to win real improvements and real security.

31. You can do so by voting for the Union on Friday.

Sincerely,

JCN:ds

J. Cameron Nelson

Barrister and Solicitor

Business Agent L.U. 304.

Mark "X" opposite your choice

IN YOUR EMPLOYMENT RELATIONS WITH

The Clorox Company of Canada Ltd.

DO YOU WISH TO BE REPRESENTED BY

Canadian Union of

United Brewery, YES

Flour, Cereal,

Soft Drink and

Distillery Workers NO

Local Union 304"

[original emphasis deleted

and new emphasis and

paragraph numbers added]

Counsel for the employer points to the sample ballot, the Diversey (Canada) Ltd. example and specific references to the Local in the newsletter as factors which would have confused an ordinary employee into thinking he was voting for the Local rather than the National.

16. Nelson readily admits that the sample ballot at the end of the newsletter was a mistake in that it depicts Local 304 rather than the National as the union upon which the employees would he voting. By way of explanation, which the Board accepts, Nelson testified that in his haste to get the newsletter out, he and his secretary used a sample ballot that the Local had previously used in one of its campaigns. His secretary whited out the irrelevant name and inserted "The Clorox Company of Canada Ltd.". They forgot, however, to also white out "Local Union 304".

17. Local 304 is the union certified as the bargaining agent for the employees at Diversey (Canada) Ltd. In paragraphs 7 through 12, Diversey is highlighted as an example of the benefits of unionization. Nelson indicated in his testimony that he mentioned at the meeting of employees c n or about August 26th that it was Local 304 that had bargaining rights at Diversey. Instead of referring to the union at Diversey as "Local 304", however, the letter uses the terms, "this union" and "the union". While some employees may have realized that the Diversey example was referable to Local 304 rather than the National, the Board cannot conclude on the totality of the evidence that this example was sufficiently misleading, standing either alone or together with the rest of the evidence, to cause the ordinary employee to be confused as to which union he would be voting for on August 31st.

18. There are approximately three direct references to the Local in the text of the newsletter (see paragraphs 14, 19 and 26). Nelson testified that the reason he referred to the Local at certain points in his letter was because some of the misrepresentations in the company's original letter related to locals rather than the National. Nelson indicates, for example, that the reference in paragraph 19 to strike money payable by the Local flows from the erroneous statement in the employer's letter that "[m]aximum benefits payable during a strike are $40.00 per week ...". Additionally, Nelson testified that the reference in paragraph 14 stating that "your Local has never fined anyone ..." stems from misleading statements made in the company's letter concerning disciplinary and expulsion procedures which were alleged to emanate from local union by-laws. Apart from clarifying misrepresentations, Nelson admits that he was, to some extent, campaigning on behalf of his own local in hopes that following a successful vote for the National, the employees would exercise their option of transferring their allegiance to Local 304. We note, for example, paragraph 26 which tells employees how long "our Local union" has protected its members from unfair labour practices.

19. The employer's complaint about the Local's application is rooted in its perception of the Local's participation in the National's campaign. The employer does not complain about the conduct of the Local's campaign for the instant application. We note that the instant application is supported by fresh membership evidence in the name of Local 304. In asserting that the bar against the National imposed following its loss of the August 31st representation vote should be imposed against Local 304, counsel for the employer relies solely on the allegation that the employees were so confused and mislead by Nelson's newsletter and general rhetoric promoting Local 304 during the last weeks of the campaign that they thought they were voting for Local 304 on August 31st rather than the National. Counsel emphasized that Nelson's participation had particular impact because it occurred in what he described as the "dying moments of the campaign".

20. Having evaluated the campaign in its entirety, from June through August, the Board is not persuaded that Nelson's statements on behalf of Local 304, his erroneous sample ballot or his several references to the Local in the newsletter would have confused employees into thinking that they were in fact voting for the Local rather than the National. A careful review of the newsletter written by Nelson reveals that all references to voting upon and joining the union, save the sample ballot, are to "the union" rather than "the Local" (see, for example, paragraphs 2,3, 5, 28, 29, 30 and 32). At the outset of the campaign, the evidence establishes that Rannachan and McNamee carefully explained the structure of the union to the employees and emphasized the clear separation between the National and the locals. The evidence supports the conclusion that from the beginning the employees realized that several options would flow from joining the National, one of which was to join a local if they so desired.

21. Employees signed union cards in the name of the National; they received two newsletters from Rannachan on National stationery; they voted on August 31st on a ballot which set forth the National, not the Local, as the entity to be voted upon. To decide that the employees were so confused by Nelson's presence in the campaign and his newsletter that they thought they were voting for Local 304 instead of the National, would require the Board to conclude that the employees couldn't retain clear explanations given by Rannachan and McNamee about the union's structure, coudn't remember what union they actually joined, couldn't recognize a mistake in the newsletter and couldn't read and comprehend the ballot they actually cast on August 31st. Having confidence in the intelligence of the average employee the Board is simply unwilling to draw such conclusions.

22. For the reasons given above, therefore, the Board concludes that the six month bar it imposed against the National does not operate against the Local. The application is, therefore, timely.

23. Having regard to the agreement of the parties, the Board further finds that all employees of the respondent at Bramalea, Ontario, save and except supervisors, foremen, persons above the rank of supervisor or foreman, sales and office staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.

24. 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 the bargaining unit at the time the application was made, were members of the applicant on November 30, 1979, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.

25. A certificate will issue to the applicant.

DECISION OF BOARD MEMBER J. A. RONSON:

1. It is the usual practice of the Board that a "time bar" of six months be imposed against an unsuccessful applicant for certification where a representation vote has been held and the applicant fails to obtain the necessary majority. The rationale can be found in: the Watson Manufacturing Company of Paris Limited [1968] OLRB Rep. Aug. 441, at para 5; Campbell Soup Company [1968] OLRB Rep. Feb. 1091, at para 17; and The Bristol Place Hotel [1979] OLRB Rep. June 486, at para 6.

2. The imposition of such a bar against a local union does not prevent a sister local from applying for certification for the same employee within the time period. Pinehill Auto Ltd. [1968] OLRB Rep. July 375; Swingline of Canada Ltd. [1971] OLRB Rep. Nov. 710.

3. More recently the Board has held that the imposition of such bar against a local union does not prevent the international (of the same union) from applying for certification for the same employees within the time period. Elm Tree Nursing Home [1978] OLRB Rep. Nov. 984. Now, as a result of this case, the imposition of such a bar against a national union will not prevent one of its locals from applying for certification for the same employees within the time: period. The mere fact that the same organizers have been involved in both applications is not a governing consideration.

4. As matters now stand, the imposition of a time bar against a national or international union or one of its locals will have little or no practical effect on that particular union, as the prohibit: on problem can be easily solved. Whether this is fair to the small "independent" union, the employees or the employer, in view of the reasoning behind the imposition of a bar, remains a matter for future reflection.

5. The Board considers membership in a local union as being prima facie evidence of membership in the national or international. The union's evidence in this case was that all members in good standing of all locals were also members of the National. Whether a vote against the National is also a vote against all its locals is a question I need not attempt to answer in this case since I am convinced by the evidence that on August 31, 1979 the employees voted explicitly against both the National and Local 304.

6. Mr. Rannachan testified that at the outset of the first campaign by the National he explained care fully to the employees the options open to them once the National was certified; they could become part of an existing local; they could form their own local; or they could remain simply members of the National and be serviced by it. The practicality of the third option is questionable in view of his testimony that he is a member of Local 304 and that, to his knowledge, all members of the National are also members of its various locals.

7. Mr. Nelson, the business agent for Local 304, admitted that during his involvement in the first campaign, he took advantage of the opportunity and tried to convince the employees to join Local 304 after the certification vote. At the meeting of employees on August 26, 1979, as one of his "selling points", he explained to the employees that it was Local 304 that had negotiated a collective agreement with Diversey (Canada) Ltd., a company that had dealings with Clorox.

8. As I understand the argument of counsel for the employer, the involvement of Local 304 in if e first organizing campaign resulted in the employees voting against not only the National bit also Local 304. An examination of the letter of August 27, 1979 by Mr. Nelson (set out in paragraph 15 of the majority decision) reveals:

(a) it is written under the letterhead of Local 304;

(b) save for para 19 of the letter, the words ‘National’ or ‘National Union’ are conspicuous by their absence;

(c) the terms ‘this Union’ and 'the Union' are used interchangeably to refer to Local 304 when the contract with Diversey (Canada) Ltd. is referred to in paragraphs 7, 8 and 12 of the letter. (At the employees' meeting on August 26th, Mr. Nelson told them that the Diversey contract was with Local 304);

(d) in paragraph 14 of the letter, Local 304 is referred to as ‘.... this Union, your Local ...’ The only way a Clorox employee can interpret such a reference is that Local 304 will be ‘your Local’ after the vote;

(e) in paragraph 19 of the letter the employees are told that they will receive $60.00 per week as strike benefits from ‘the Local’. This statement of existing practice must refer to Local 304. How does a Clorox employee interpret this information in view of the three options open to him or her? Again, I believe, it is that Local 304 will be his or her local after the vote;

(f) the sample ballot in the letter indicates a vote for or against Local 304;

(g) Mr. Nelson signs the letter not as a representative of the National, but as business agent for Local 304;

(h) the letter from Local 304 is the last communication to the group of employees prior to the vote.

9. Bearing in mind that the employees were told that there were three options open to them if the National was certified and faced with the intrusion of Local 304 in their campaign, I do not feel that the employees differentiated between the National and Local 304. I have no hesitation in concluding that the majority of Clorox employees voted against:

(a) the National;

(b) the locals of the National and specifically Local 304; and

(c) forming a separate local of their own.

I would hold that the applicant in this matter is bound by the bar placed by the Board on the National, or alternatively, that the application is untimely and should not be entertained so long as the bar against the National remains in effect.