[1980] OLRB Rep. February 216
1038-79-R Canadian Union of Fast Food and Service Workers, Applicant, v. The Great Canadian Pizza Company (Division of 401825 Ontario Limited), Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: Shalom Schachter and Graham MacIsaac for the applicant; Gary R. Clewley for the respondent; Marlene Graham and Frank Bottke for the objectors.
DECISION OF THE BOARD; February 6, 1980
This is a continuation of an application for certification. In an earlier decision the Board reviewed the origination of the applicant trade union and granted it status as a trade union. Pursuant to the direction of the Board, a representation vote was held on December 13, 1979. The applicant lost that vote by a margin of 5 to 3, but on the basis of the alleged misconduct or the part of the employer, together with certain irregularities in the manner in which the vote was held, now requests the Board to certify it pursuant to the Board's powers under section 7a of The Labour Relations Act, or alternatively, to order that a new representation vote be held, with corollary relief.
The evidence in support of this request was, in the main, presented to the Board through the person of Graham MacIsaac, the President and founder of the applicant. Mr. MacIsaac is an employee of the Great Canadian Pizza Company, and appears to be in his mid-teens.
The parties had previously attended at the Board's premises on November 22nd for a hearing in connection with the application. At that time they executed Minutes of Settlement with respect to a number of matters, including the withdrawal of a number of section 79 complaints filed by the applicant against the employer. One of the terms of settlement was that the employer reinstate four employees, including Mr. MacIsaac, and compensate them in an agreed upon amount. Mr. MacIsaac testified that he understood that the payment was to be made the next day, which was Friday. He told the Board that he attended at the employer's premises on Friday and asked for the cheques for himself and the other three employees. The employer, Mr. Domet, according to Mr. MacIsaac, asked him if he would accept a lesser amount than that agreed upon. Mr. MacIsaac flatly refused to discuss it. Mr. Domet then said that MacIsaac would have to wait until he, Domet, could contact his lawyer. In the meantime, Mr. Domet asked Mr. MacIsaac to come into his office. Already present in the office were Jim Crocker, whom Mr. MacIsaac alleged to be a bodyguard for Mr. Domet. While Mr. MacIsaac was waiting in the office, Mr. Domet's brother arrived as well. Mr. MacIsaac testified that Mr. Domet's brother called him a thief for taking the money, stated that all unions were corrupt, and then compared him to Jimmy Hoffa. Mr. MacIsaac received the three paycheques and left.
On cross-examination Mr. MacIsaac was very specific as to the time of day when all of this occurred. He testified that he first called Mr. Domet around 4 o'clock to inquire about the money, as he had not heard back from his lawyer. Mr. Domet at first refused to see him. Mr. MacIsaac persisted in trying to arrange a meeting before the banks closed, and finally arranged to see Mr. Domet at about 5:30 p.m. He specifically denied having attended at the employer's premises any earlier on that day, in particular, around the noon hour.
Mr. MacIsaac further testified that he attended the employer's premises on Monday to pick up his own cheque. Mr. Domet produced a cheque dated November 23, 1979 and asked Mr. MacIsaac to sign a receipt for November 23rd (the Friday). Mr. MacIsaac refused, and Mr. Domet then changed the date on the cheque.
Under the Minutes of Settlement, it was agreed that Mr. MacIsaac would return to work on November 30th. However, it turned out that Mr. MacIsaac had a prior commitment of which he was unaware, and he was excused at his request from working on that date. His first day back at work was in fact December 8th. Mr. MacIsaac's job is that of a delivery-driver and he spends a considerable amount of time at the employer's premises between deliveries. On the first night back of work, Mr. MacIsaac testified that he and Mr. Domet began to engage in idle talk about how the union got started. Mr. MacIsaac then asked Mr. Domet if he had anything to do with the petition. According to Mr. MacIsaac, Mr. Domet responded that he had talked to his lawyer and then to one employee, Gail McGarry, but that he did not force it. Mr. MacIsaac then carried on with his work. He testified that he later became curious as to whether or not Mr. Domet was talking to the other employees about the union. Accordingly, he came into the building where he could not be seen. He testified that he heard Mr. Domet say to Mr. Bottke, another employee, that until Mr. Bottke got his dollar back, he was still committed to the union. Mr. MacIsaac said that Mr. Domet saw him and asked him to come in. After Mr. Domet left, Mr. Bottke asked for his dollar back, to which Mr. MacIsaac said that it was up to all of the members. Mr. MacIsaac further testified that Mr. Domet returned a short while later, and in the ensuing conversation commented that the Ayatollah Khomeini was a communist. Mr. Domet then added that Mr. MacIsaac was a communist as well, and compared him to the Ayatollah. Mr. MacIsaac then entered into discussion with the other employees, who were on their break. These included Mr. Bottke and Mrs. Graham. Mr. Domet was also present. Mr. MacIsaac told the Board that he began talking about the union, whereupon Mr. Domet shouted that he did not want any talk about the union, that there wasn't going to be any union. Then, according to Mr. MacIsaac, he pushed Mr. MacIsaac up against the wall.
The remainder of Mr. MacIsaac's evidence dealt with the manner in which the representation vote was held on December 13th. On the day of the vote, the Returning Officer attending at the employer's premises for the purposes of conducting the vote invited Mr. MacIsaac, as the union's scrutineer, to go downstairs and inspect the arrangements for the vote. Mr. MacIsaac was shown an area just outside Mr. Domet's office which had been set up as a polling booth. At this point Mr. MacIsaac began to voice his concern to the officer about the presence of an individual named "Rocky" in the upstairs premises. The officer replied that that was not a matter which he could discuss, and that, if anything, it was a matter for the Board. [he officer asked whether Mr. MacIsaac was objecting to the place where the vote was to be held. Mr. MacIsaac replied that he was not. Mr. MacIsaac then testified that he entered the office of Mr. Domet, where the ballot box was situated, and was disturbed to find that Mr. Domet was the company's scrutineer. Mr. Domet and the Returning Officer were sitting side by side behind Mr. Domet's desk with the ballot box directly in front of them. The scrutineer for the objecting employees, Mr. Baxtead, was seated on the opposite side of the desk The only chair left for Mr. MacIsaac was off in one corner of the room. Mr. MacIsaac conceded that he voiced no objection to that arrangement, explaining to the Board that he tad been discouraged by his earlier attempt to raise an objection with the Officer. When the vote was over and the ballots counted, Mr. MacIsaac refused to sign the Board's usual form which indicates lack of objection to the manner in which the vote was held.
Respecting the vote, the applicant also complains that Gail McGarry, an employee who had openly declared herself as anti-union, was scheduled by Mr. Domet to be at work that evening while the vote was being held, whereas, according to Mr. MacIsaac, she normally works only the day shift. The polls were open from 4 to 8 p.m. Finally, the applicant objects to the continuous presence of the individual referred to as "Rocky" at the employer's premises while the vote was being conducted.
As a result of a comment being made by Mr. Domet in his evidence, the Board also permitted the applicant to adduce the evidence of Mr. Gino Toth with respect to an incident that took place in August of 1979. Mr. Toth has never been an employee of The Great Canadian Pizza Company, but was at the employer's premises one day and overheard Mr. Domet say to Mr. MacIsaac and another employee, Steve Ballentine, that anyone who supported the union would be fired.
The cvidence of the employer, Mr. David Domet, conflicts with that of Mr. MacIsaac on virtually every material point. Mr. MacIsaac had earlier left The Great Canadian Pizza Company on his own, and Mr. Domet testified that at that time he re-employed him, he was well aware of Mr. MacIsaac's views on unions, the two having had many friendly discussions about that and other subjects in the past. With respect to Friday, November 23rd, the day on which Mr. MacIsaac attended at the employer's premises to collect the monies owing under the Minutes of Settlement, he testified that Mr. MacIsaac first came to the premises around 12:30 in the lunch hour. According to Mr. Domet, Mr. MacIsaac accused him of breaking the agreement and lying and demanded his money at once. When Mr. MacIsaac ultimately returned at 5:30 in the afternoon, Mr. Domet indicated to him that he had the cheques for the other three employees ready but that it would take some time to look up the necessary deductions for Mr. MacIsaac. Mr. MacIsaac stated that that was no problem, that he would take the cheques for the other employees and return on Monday for his own. Mr. Domet testified that his only question to Mr. MacIsaac was whether one week's severance pay which bad been given to Mr. MacIsaac at the time of his termination could now be taken off the amount otherwise owing under the reinstatement agreement. He testified that Mr. MacIsaac replied, "Let's let the lawyers decide" and Mr. Domet said, "That sounds good". Mr. Domet explained that the back-dating of the Monday cheque was simply an attempt to reconcile his payroll records.
With respect to the December 8th "pushing" incident, Mr. Domet testified that he came upon Mr. MacIsaac upstairs in the shop persistently asking another employee, Mrs. Graham, what Mr. Domet had done to change her mind about the union. Because of the commotion, Mr. Domet asked Mr. MacIsaac to confine such discussions to non-company time. Mr. MacIsaac insisted that it was his right to discuss the matter, and began shouting examples of why the union was needed in the shop. Mr. Domet testified that Mr. MacIsaac pushed him two or three times, and pushed Mrs. Graham as well. Mr. Domet threatened to call the police if Mr. MacIsaac would not settle down, and ultimately Mr. Domet did so. Mr. Domet admits that he called Mr. MacIsaac a communist in the heat of the argument.
Mr. Domet testified that the arrangements for the vote were made by the Returning Officer. He testified further that in a telephone conversation with the Officer the night before, Mr. Domet indicated that he was having trouble coming up with a scrutineer because of the time of the vote. The Officer replied, according to Mr. Domet, that as Mr. MacIsaac was going to scrutineer for the union, Mr. Domet could do so for the company. With respect to the seating arrangements for the scrutineers the next day, Mr. Domet testified that he had gotten an extra chair for Mr. MacIsaac and had placed it in the office. Mr. MacIsaac came into the office and sat down next to him but Mr. Domet asked him to move. Mr. Domet testified that he asked Mr. MacIsaac to do so in order to avoid any argument. Mr. Domet denies that any scheduling changes were made that day, or that he had asked "Rocky" to be present on the premises during the vote. He disclaimed any responsibility for initiating an employee petition, and for prompting Mr. Bottke to ask for his dollar back. He stated that he never compared Mr. MacIsaac to the Ayatollah Khomeini, nor referred to unions in general as communists. He testified that he had asked Mr. Crocker to attend the meeting with himself and Mr. MacIsaac in order to act as a witness, so that he could not afterwards be falsely accused of anything. He conceded that Frank Bottke's father had come to see him on an earlier occasion because Frank had signed a union card and had then become very concerned about it, but Mr. Domet testified that he simply told Mr. Bottke that it was "no big deal".
Another employee, Mrs. Marlene Graham, was called by the employer to give evidence with respect to the December 8th incident. She testified that she and Frank Bottke were working in the shop while Mr. MacIsaac was awaiting further deliveries. Mr. MacIsaac kept pressing Mrs. Graham to explain why she had changed her mind about the union, and Mr. Graham simply replied that she was tired of the whole thing and didn't want to discuss it. Mr. MacIsaac persisted and the situation developed into a shouting match between Mrs. Graham and Mr. MacIsaac, with Mrs. Graham trying to get Mr. MacIsaac to leave her alone. Mr. Domet then came upstairs and asked her what all the yelling was about. Mrs. Graham testified that she advised Mr. Domet that Mr. MacIsaac was arguing about the union and that she and Frank did not wish to talk about it. Mrs. Graham further testified that Mr. Domet then asked Mr. MacIsaac to please refrain from discussing the union during working hours, and that he emphasized the word "please". Mr. MacIsaac responded that it was his right to do so and Mr. Domet responded that it was not his right to do so when the other employees were working and did not want to discuss it. The matter then escalated into a three-way shouting match. It went on for some two or three minutes, according to Mrs. Graham, with Mr. MacIsaac leaning back against the shelf and Mr. Domet close in front of him, clenching his fists at his side. Mr. MacIsaac then put his hands on Mr. Domet's chest. Seeing the actions of both men, Mrs. Graham was concerned that there was going to be trouble and so attempted to intervene between the two. At this point Mr. MacIsaac swung around towards her, and his hand hit her shoulder. Mr. Domet told Mr. MacIsaac that if he did not stop, he would have to call the police. Mr. MacIsaac responded, "Go ahead, you haven't got the guts". Mr. Domet did call the police, and when the officer arrived, he asked Mrs. Graham if he wanted Mr. MacIsaac to stop talking about the union. Mrs. Graham replied that she did.
Mrs. Graham further testified with respect to the day of the vote that the person known as "Rocky" was a friend of hers, and had come to the shop that evening to drop his girlfriend off at work, and to thank Mrs. Graham for helping her the previous night. She testified that he left after about 15 minutes and that, while he did return later than night, it was well after the vote was completed. Mrs. Graham admitted that she had recently been given by Mr. Domet an extra shift to work on weekends, but she testified that that was because no one else wanted it, and that she really did not want it either because of family commitments.
The evidence of Gail McGarry was that she was working at The Great Canadian Pizza Company on Friday, November 23rd, at around 12:30 in the afternoon, when she saw Mr. MacIsaac arrive and go over to talk to Mr. Domet. She heard Mr. MacIsaac mention the agreed upon money, and state that he had come to collect. She heard Mr. Domet reply that he did not have the cheques ready and then had to discuss it first with his lawyer. Mr. MacIsaac then left, but phoned several times, before arriving again in the late afternoon. With respect to her shift on December 13th, voting day, she testified that she worked 11 to 7, as she has done every Thursday since she began. The other days of the week she works 11 to 5.
Frank Bottke testified as well. He agreed that he had asked Mr. MacIsaac for his dollar back on December 8th, but denied that Mr. Domet had suggested that he do it. He also testified that Mr. MacIsaac gave him no reason for refusing to return the dollar. Mr. Bottke essentially confirmed the discussion that was going on between Mrs. Graham and Mr. MacIsaac about the union. He testified that when Mr. Domet showed up, he told Mr. MacIsaac he should not be talking about the union during working hours, that he was here to do his job delivering pizzas. Mr. Bottke testified that Mr. Domet and Mr. MacIsaac were "real close" and that he saw Mr. MacIsaac push Mr. Domet away, "to keep his distance". When the police officer arrived, he too was asked if he wanted Mr. MacIsaac to stop talking about the union.
Wade Domet, the brother of the owner, also gave evidence. He is not himself connected with the business, but visits the premises regularly to see his brother. He denies suggesting that Mr. MacIsaac was a thief or comparing him with Jimmy Hoffa.
The final witness for the company was Jim Crocker, the fourth party present at the discussion in Mr. Domet's office on November 23rd. He testified that Wade Domet did not actually call Mr. MacIsaac a thief, but that when he saw a pile of bills sitting on Mr. Domet's desk he asked his brother if the money should be left out. Mr. MacIsaac then asked Wade Domet if he was calling him a thief. According to Mr. Crocker, Wade Domet replied, "Well, I've heard something to that effect". Mr. Crocker could not recall any other conversation about unions. He testified that he had been asked by Mr. Domet to come down for that meeting in order to avoid an altercation. He denied, however, that he was in any way a security guard for Mr. Domet.
Mr. Crocker was a forthright and even-handed witness and the Board accepts his version of what took place in Mr. Domet's office on November 23rd. The remarks were, however, directed to Mr. MacIsaac not by David Domet, but by Wade Domet, who is not part of the management of the business. More importantly, the remarks were made with no other employees present, and therefore, apart from displaying an attitude, cannot be said to have affected the ability of the employees to express their true wishes.
In requesting the Board to certify under section 7a, the applicant relies on an alleged breach of the Minutes of Settlement as establishing the necessary violation of the Act, pursuant to the provisions of section 79(6). However, establishing a mere violation of the Act is not sufficient. The violation must be of such nature that the true wishes of the employees are not likely to be ascertained by way of secret ballot. The applicant alleges in particular a violation of paragraph 4 of the Minutes of Settlement, which reads:
"The employer undertakes not to interfere in any way shape or form with the proposed union certification drive. Furthermore the employer undertakes to conduct himself in such a way that no prejudice or unfairness in any way shape of form will be directed towards any employee."
Whether or not a violation of these Minutes has occurred, the Board does not find on the evidence which it accepts any conduct of the employer sufficient to prevent the true wishes of the employees from being ascertained. The Board would simply note that there appears to be nothing in the Minutes of Settlement which could reasonably be read as going so far as to permit an employee to campaign during working hours against the will of the other employees involved, to the point where a disruption of operations occurs. This the Board finds to have been the root cause of the incident which developed between Mr. MacIsaac and Mr. Domet on December 9th. In this regard, the Board accepts the evidence of Mrs. Graham and Mr. Bottke as the most plausible account of that entire incident. In general, the Board finds many of the allegations contained in Mr. MacIsaac's testimony non-supportable in the face of other credible evidence (even bearing in mind that the other witnesses called by the employer were all aligned in interest with him in one way or another). The Board is forced to conclude that Mr. MacIsaac's evidence to some extent suffers from the exuberance of youth, and his perceptions and recollections cannot wholly be relied upon. With respect to Mr. Domet's appellation of Mr. MacIsaac as "a communist", the Board is satisfied that the other employees would be able to place this comment in perspective.
The only remaining piece of evidence on which the union could base a request under section 7a is the threat by Mr. Domet to Mr. MacIsaac and one other employee in August. This, however, was not deemed sufficient in itself by the applicant to support a 7a request at that time, and the Board does not find it sufficient now. While the Board does not conclude that Mr. Domet accepted the union's organizing campaign with the equanimity that he suggested in his testimony, the fact remains that the evidence falls short of demonstrating such conduct by the employer as would make it unlikely that the true wishes of the employees could be ascertained in a representation vote. Accordingly, the Board need not go on to address itself to the difficult question, also under section 7a of the Act, of whether or not the applicant in this case has membership support adequate for collective bargaining.
The Board does, however, have certain concerns over the manner in which the representation vote on December 13th was conducted.
The Board's main concern arises out of the fact that Mr. Domet elected to act as his own scrutineer. The Board's concerns in this regard are aptly set out in the Scarborough Centenary Hosp ital Association case, [1979] OLRB Rep. April 350, para. 10:
"The registrar in giving his instructions regarding the taking of representation votes recommends that rank-and-file employees be employed in this task. The Board does not, however, insist upon this as a precondition to the taking of a valid vote. In that a scrutineer is the representative of a party at the vote, the choice of the scrutineer ought to be left to the discretion of that party. Having said this, however, the Board recognizes that the choice of a scrutineer may in certain situations improperly affect the ability of bargaining unit employees to freely indicate their true wishes in the representation vote, and that consequently the choice of a scrutineer may be a factor in having a representation vote set aside See J. R. Menard Ltd., [1972] OLRB Rep. Oct. 915."
As can be seen from the above passage, the parties are given both the right and the responsibility of their own choice of scrutineer. This is embodied in the "Registrar's Instructions Regarding Vote" mailed to the parties. In this case, the respondent places reliance on the fact that, as Mr. Domet claims, his choice of scrutineer was made with the active endorsement of the Board's Returning Officer. The Board has never, however, allowed a party to escape its own responsibiity by reliance on formal statements made by an officer or staff member of the Board (particularly since the perception or understanding of such conversations tends to be of a uniformly self-serving nature). In the choice of a scrutineer, only the party himself knows what his full options are, and what effect his presence at the vote, based on the full history of the matter, is likely to have on the freedom of the employees to express their true wishes.
Here Mr. Domet was faced with a real problem in the selection of a scrutineer, in that, apart from one newly-hired part-time employee, Mr. Domet was the only person in the organization who was not a member of the bargaining unit. Since the group of objecting employees were rpresented by a scrutineer with an intereset identical to Mr. Domet's, Mr. Domet could, out of an abundance of caution, have foregone his own right to have a scrutineer. Having elected not to do so, however, it was in Mr. Domet's interest to ensure that the arrangements for the vote were as even-handed as possible. Instead, at Mr. Domet's insistence (and for motives which the Board accepts as innocent), the union's scrutineer, Mr. MacIsaac, endcd up being seated in an area of the office removed from the specific point where the ballot box, the Board's officer and the other scrutineers were situated. This could cause employees to have an imbalanced perceptions of the conduct of the vote, and, bearing in mind the juxtaposition of Mr. Domet and the Board's officer, side by side, might raise doubts in employees' minds as to the very secrecy of the ballot itself. The Board is not suggesting that this was effected by design, nor that the conduct of anyone involved was "improper". But impropriety is not the issue. The issue is whether the Board can be satisfied, in all of the circumstances, that the Ballot accurately reflected the true wishes of the employees.
The board is mindful of the fact that Mr. MacIsaac, the union scrutineer, was the organizer and President of the applicant. As the Board noted in the Scarborough Centenary case supra, the presence of a high-ranking union official may offset the presence of a similarly-ranked management representative. In the present case, however, one must not lose sight of the fact Mr. MacIsaac remains a rank-and-file employee (as contemplated by the Registrar's instructions) and this factor limits both the impact which his presence might have on other employees in the unit, and the level of sophistication which the Board might expect from him. It is true that Mr. MacIsaac did not object to the seating arrangements in the office before the vote was counted. However, given his attempts to raise another matter with the Board's officer prior to entering the room, and the difficulty that a person in Mr. MacIsaac's position would have in understanding the difference between those matters with which the Returning Officer can deal, and those with which he cannot, limited weight can be placed on this failure to object in the circumstances.
Further, the evidence establishes that Mr. Domet had made the comment to certain bargaining-unit employees some four months previously that supporters of the union would be fired. The bargaining unit is small, and Mr. Domet the only member of management. In this case, Mr. Domet in every way personified the respondent's strong reaction to the union's organizing campaign. In contrast to the uninhibited atmosphere which the Board seeks to ensure by its 72-hour "silent period", it was Mr. Domet whom the employees encountered eye to eye as they came in to receive their ballot, and as they would be returning to place it into the ballot box. Considering all of this, together with the seating arrangements described above, the Board simply cannot be satisfied that the representation vote which took place on December 13, 1979, clearly reflected the true wishes of the employees in the bargaining unit. Accordingly, the results of that vote are hereby set aside and a new vote ordered in the bargaining unit described in the Board's decision of November 23, 1979.
All employees of the respondent in the bargaining unit on November 20, 1979 who do not voluntarily terminate their employment or who are not discharged for cause between November 20, 1979 and the date the new 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.