[1980] OLRB Rep. February 235
1654-79-R Reta Arlene Belim Bonnie Lee Stanistreet, Applicants, v.Canadian Union of Public Employees Local 2103, Respondent, v. 336496 Ontario Limited (operating Grove Park Lodge), Intervener.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: Jacques A. Emond, Reta Arlene Behm and Bonnie Lee Stanistreet for the applicants; Mario HikI and Jim Woodward for the respondent; P. B. Kane for the intervener.
DECISION OF THE BOARD; February 6, 1980
The name of the respondent is amended to read: "Canadian Union of Public Employees Local 2103".
This is an application for a declaration, pursuant to section 2(2) and 9(2) of The Hospital Labour Disputes Arbitration Act and sections 49(2)(a) and 49(3) of The Labour Relations Act, terminating the bargaining rights of the respondent trade union, Canadian Union of Public Employees Local 2103.
The application was filed with the Board on October 19, 1979, and re-filed on November 1, 1979. The respondent takes the position that the application is untimely.
The relevant statutory provisions are set out below. Section 2(2) and 9(2) of The Hospital Labour Disputes Arbitration Act read as follows:
"2.-(2) Except as modified by this Act, The Labour Relations Act applies to any hospital employees to whom this Act applies, to the trade unions and councils of trade unions that act or purport to act for or on behalf of any such employees, and to the employers of such employees.
- -(2) Notwithstanding section 53 of The Labour Relations Act, where notice has been given under section 45 of that Act by or to a trade union that is the bargaining agent for a bargaining unit of employees of a hospital to or by the employer of such employees and the Minister has appointed a conciliation officer, an application for certification of a bargaining agent of any of the employees of the hospital in the bargaining unit defined in the collective agreement or an application for a declaration that the trade union that was a party to the collective agreement no longer represents the employees in the bargaining unit defined in the agreement shall not be made after the day upon which the agreement ceased to operate or the day upon which the Minister appointed a conciliation officer, whichever is later, except in accordance with section 5 or subsection 2 of section 49 of The Labour Relations Act, as the case may be."
Section 49(2)(a) and 49(3) of The Labour Relations Act read:
"49.-(2) Any of the employees in the bargaining unit defined in a collective agreement may, subject to section 53, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit,
(a) in the case of a collective agreement for a term of not more than three years, only after the commencement of the last two months of its operation.
(3) Upon an application under subsection 1 or 2, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining urit have voluntarily signified in writing at such time as is determined under clause j of subsection 2 of section 92 that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated."
Section 53 of The Labour Relations Act adds nothing to the case at hand. The sole issue at present is whether or not a conciliation officer had been appointed, as of the date of the application. The respondent concedes that no such appointment had been made, but relies in its submission on the following chronology of events.
The previous collective agreement expired on July 1, 1979. That collective agreement was a product of arbitration under The Hospital Labour Disputes Arbitration Act. Mr. Hikl, on behalf of the respondent, explained to the Board that there was some problem relating to the expiry date of that agreement so, to be on the safe side, the union applied for conciliation on June 20, 1979. Based on certain objections by the employer, the Minister of Labour then referred the respondent's application to the Ontario Labour Relations Board for a determination pursuant to section 96 of the Act as to whether the Minister had the authority to make the appointment. In the meantime, certain of the employees at Grove Park Lodge filed an application for a declaration terminating the bargaining rights of the respondent (not the present application). Mr. HikI neglected to advise the Board that the respondent and the employer together agreed to defer the Board's dealing with the section 96 reference until the Board had made its determination on the application for termination. The latter decision was released by the Board on September 24, 1979, dismissing the application for termination (Board File No. 0346-79-R). The hearing for the section 96 reference was scheduled for September but was again adjourned, on the agreement of the parties, on the basis that the (employer had just retained new counsel. The actual hearing of the section 96 reference took place on October 25, 1979. In the meantime, as noted above, certain employees filed another application for a declaration terminating bargaining rights, being the present application. The Board's decision on the section 96 reference was issued on November 15, 1979, and the Minister moved expeditiously to appoint a conciliation officer within a few days subsequent to that (Board File No. 0740-79-M).
The respondent in its submission relies particularly on paragraph 11 of the Board's November 15th decision, which stated:
An an alternative argument counsel for the respondent contended that if the Board confirmed the Minister's authority to appoint a conciliation officer it should recommend that the Minister delay the appointment until the termination application is disposed of. In view of the mandatory nature of section 15(1) and for the reasons set out above relating to the prejudice occasioned by delay, the Board is of the view that an appointment made under section 15(1) is an appointment that, in the absence of an agreement of the parties to the contrary, should be made forthwith.
On the basis of this passage, the respondent argues that the Minister ought to have made the appointment of the conciliation officer retroactive to some earlier date, and that this Board ought therefore to treat the appointment as having been so made.
It would appear, however, that the respondent has misread the quoted passage from the Board's November 15th decision. The termination application being referred to at that point in time was the present application (the other application having been disposed of), and immediately following release of the Board's decision under section 96, the Minister did, in fact, move forthwith to appoint a conciliation officer. Any delays up to that point in time were in fact, as the Board contemplated in the second sentence of para. 11, the product of the agreement of the parties, including the respondent. In any event, it is highly questionable, at best, whether the Minister could ever make the appointment of a conciliation officer "retroactive", and there is no question at all that this Board lacks the jurisdiction to "deem" such to have been the case. The Legislature has set out in express terms the extent of the "open period" during which an application for a declaration terminating bargaining rights, inter alia, may be brought, and the lack of appointment of a conciliation officer is clearly more than a "technical irregularity" falling within the Board's remedial powers under section 103 of the Act. The present application, therefore, is timely.
The Board received in conjunction with this application a statement of desire signed by 23 of the 25 employees in the bargaining unit. That statement does not specifically state that the signatory employees no longer wish to be represented by the respondent trade union. Rather, the statement on its face simply calls for a representation vote to be taken. There is no direct provision in the Act for such a request. However, having regard to the fact that the respondent trade union already has bargaining rights, the Board is prepared to treat the employees' request as a statement that the employees no longer wish to be represented by the respondent trade union. If found to be voluntary, therefore, the Board would take the statement as signifying that not less that 45 per cent of the employees in the bargaining unit no longer wish to be represented by the trade union, and would direct that a representation vote be taken.
Before proceeding further, it is necessary to review the decision of the Board dated September 24, 1979, in which the previous application for a declaration terminating bargaining rights was dismissed. None of the parties in the present application took the position that the Board is prevented from considering the findings of fact set out in the Board's prior decision. The only argument put forward was that those facts must be read as applying only to the time at which they occurred.
In its prior decision, the Board found that the dominant role in the application clearly was played by Mrs. Rosemary LaForme. The Board noted that an even earlier application for decertification had been dismissed on the basis that the owner of the Lodge himself, Mr. Viveen, had been instrumental in the origination and circulation of the statement of desire. The Board had to consider whether there was any carry-over effect which would similarly taint the second application. One of the things the Board expressed concern over was the fact that the statement of desire before it had at one point been left unattended on the counter of the medication room. That problem does not arise in the present application. Clearly, however, the major concern to the Board was the role of Mrs. LaForme and her relationship to the Viveens, coupled with certain threats attributed to Mr. Viveen. In paragraph 7 of its decision the Board found as follows:
“... On April 24, 1979 an employee was approached to sign the petition during her working hours. As well, shortly after she signed the petition, LaForme told her that it was a good thing she had signed because if she hadn't the full-time employees would be fired. At a meeting of non-union supporters on May 7th, LaForme, the primary spokesman at the meeting, told the gathering that she knew Mr. Viveen and his ways and that if they didn't go along with him he would make it hard on them and make them want to quit their jobs. As well, the Board accepts the evidence that Mr. Viveen was deeply involved in all aspects of a termination application and attendant petition which was circulated approximately a year before the instant petition. It was admitted by LaForme that she helped circulate the first petition. The Board further accepts the evidence that Viveen suggested LaForme's name to the prime mover of the first petition as someone who would be willing to help."
Also in paragrah 10 of its decision, the Board found as follows:
“There was uncontradicted evidence from a number of witnesses that LaForme spent a great deal of time in the Viveens' office and that she was particularly friendly with them. The Board accepts that LaForme's duties as the nurse in charge of the afternoon shift would necessitate frequent discussions of a business nature with the Viveen's. The Board draws from all the evidence, however, that LaForme was reasonably perceived by employees as having a rlationship with the Viveens that extended beyond that which usually exists between the ordinary employer and employee...”
Final y, while not normally a problem, in light of the special circumstances existing at the Lodge the Board in its September 24th decision expressed concern over the fact that the petition was signed on the premises of the Lodge itself.
We turn now to the present application. This application was filed by Mrs. Reta Behm and Mrs. Bonnie Stanistreet. Both are Nurses Aides and members of the bargaining unit. Mr. Behm is a close friend of Mrs. LaForme. She assisted Mrs. LaForme in the prior application, anti attended with her at the hearing of that application. Mrs. Behm testified that when Mrs. LaForme received the Board's decision in the earlier application, she asked Mrs. Behm to get together a meeting of the other employees. Mrs. Behm testified that she herself had been receiving numerous inquiries from the other employees who had been awaiting the results of the Labour Board hearing. Mrs. Behm testified that she and Mrs. LaForme discussed the place for a meeting, and they decided upon the Lodge itself as being central in a largely rural community. Mrs. Behm believes it was her own idea to use the Craftsroom, which is a recreational lounge area used both by residents during the daytime and by employees in their off hours. It has been used in the past for employee functions such as baby showers, and Mrs. Behm was not aware of any employee having had to ask permission for such use. The meeting was set for 7:00 p.m. September 30th, two days after Mrs. LaForme received the Board's September 24th decision. There were four employees on duty on the evening shift that night, and Mrs. Behm explained that they attended the meeting on their break. Mrs. Behm did not know whether the Viveens were in the Lodge that night or not. The meeting lasted for some two and one-half to three hours. Mrs. LaForme began by reading the Board's decision out to everyone. She then said words to the effect that she had done all she could, and it was up to the employees to do what they wanted from there on. When asked whether they could start over with a new application, Mrs. LaForme replied that they could if they wanted to, but that she would not get involved herself. Mrs. LaForme then passed the Board's decision around the room for everyone to read. It was decided to write to the Labour Board, and Mrs. Behm took down the comments of the various people at the meeting. She wrote them up in a letter, which she then read back to the meeting. She prepared a heading for the list of employee signatures to go with the letter, and stated that anyone who wanted to sign could sign. All 23 of the employees present signed the list. Mrs. LaForme was present throughout the discussion and participated in it to the same extent as the other employees, although Mrs. Behm could not remember any specific comment by Mrs. LaForme. Mrs. LaForme was the thirteenth person to sign the list. Mrs. Behm then made copies of the letter and the list in town and sent the originals to the Labour Board.
Mrs. Stanistreet also testified in support of the application. Her evidence essentially confirmed Mrs. Behm's account of the September 30th meeting, although Mrs. Stanistreet was more positive in her recollection that Mrs. LaForme contributed nothing to the discussion following her opening remarks. Like Mrs. Behm, Mrs. Stanistreet could not say whether the Viveens were at the Lodge that evening.
One collateral aspect of Mrs. Behm's evidence should be commented upon. Mrs. Behm got the clear impression, from a comment made to her on the street by one of the employees supporting the union, that the union had received notification of the Board's September 24th decision several days in advance of Mrs. LaForme. The Board makes every effort to ensure that notification of its decisions goes to all parties at the same time. Owing to administrative oversight, however, gaps in the notification process, on occasion, do occur. If such occurred in the case under discussion, the Board expresses its apology.
Mrs. Delarge, the President of the Local, gave evidence on behalf of the respondent trade union. However, she did not demonstrate sufficeint first-hand knowledge to contradict the evidence of Mrs. Behm that no permission was required for employees to use the Craftsroom at the Lodge. Nor was Mrs. Delarge's account of the incident of December 19th, wherein Mrs. Behm suggested to Billy Viveen, son of the owners, that she would have to take over in Mrs. Viveen's absence, sufficient to establish that Mrs. Behm exercised management responsibilities, or was perceived in that way. The evidence was equally consistent with Mrs. Behm's explanation of this as being a standing joke amongst the employees at the Lodge. The Board also accepts Mrs. Behm's explanation that it is part of her duties as a Nurse's Aide to initially oversee new or returning staff members. The Board therefore has no reason to doubt any of the evidence presented to it by either Mrs. Behm or Mrs. Stanistreet.
The presence of Mrs. LaForme throughout the origination and circulation of the statement of desire raises a real problem, however. The Board has always been sensitive to the particular vulnerability of employees arising out of the employer-employee relationship. As stated in th Pigott Motors (1961) Ltd. case,63 CLLC¶16,264:
"There are certain facts of labour-management relations which this Board has, as a result of its experience in such matters, been compelled to take cognizance. Jx1e of those facts is that there are still some employers who, through ignorance or design, so conduct themselves as to deny, abridge or interfere in the rights of their employees to join trade unions of their own choice and to bargain collectively with their employer. In view of the responsive nature of his relationship with his employer, and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously vulnerable to influence, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act. It is precisely for this reason, and because the Board has discovered in a not inconsiderable number of cases, that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence in a form and of a nature which will provide some reasonable assurance that a document such as a petition, signed by employees purporting to express opposition to the certification of a trade union truly and accurately reflects the voluntary wishes of the signatories."
and in the Peel Block Co. Ltd. case, 63 CLLC ¶16,227:
“... It is a function and duty of this Board to be vigilant and scrupulous in its concern to protect the fundamental rights of employees to make their own choice, as distinct from the choice of their employer, on the matter of selecting or rejecting a bargaining agent."
See also CCH Canadian Limited, [1975] OLRB Rep. Jan. 19, which involved an application for termination of bargaining rights.
The Board has before it, in the present case, a cogently-worded statement of desire signed by almost the full complement of the bargaining unit. The Board must still be satisfied, however, that the motivation behind such a statement was of a truly voluntary nature; that is, as the above cases indicate, that the employees are not simply identifying themselves with the choice of their employer, out of fear of antagonizing their employer, or fear of reprisal, or for whatever reason. This is a fundamental duty which the Board owes to the employees themselves, and is made a pre-condition under section 49(3) of The Labour Relations Act to its power to direct the holding of a representation vote.
As the Pigott Motors case, supra , makes clear, so vulnerable are employees to employer influence that the influence need not even be created by employer design. The Board in a long line of cases has refused to accept as voluntary a statement of opposition to a trade union signed in circumstances where the employees could reasonably believe that their failure to sign would come to the attention of management. In the Morgan Adhesives of Canada Limited case , [1975] OLRB Rep. Nov. 813, for example, the Board stated at paragraphs 30 and 31:
"30. The finding of the Board is not intended to imply collusion or other conscious or deliberate improprieties on the part of either the objectors and/or the respondent company. There is no evidence before the Board which would support such a finding.
31 ... The evidence taken as a whole however, supports the inference that the employees of the respondent company would logically have assumed that management supported the petition, albeit in a tacit manner and that the names of those refusing to sign the petition would become known to management."
In carrying out its statutory duty, the Board is at the same time conscious that it must not be overprotective of employees' interests to the point where its evidentiary requirements become an unwitting trap for those very employees trying to express themselves. At all times a balance must be struck. There was, however, nothing ambiguous in the findings of the Board with respect to Mrs. LaForme on the previous application. The Board concluded that Mrs. LaForme was "reasonably perceived" by the employees as having a special relationship with the owners, and, as noted in the Morgan Adhesives case, supra, it it is the perception of the employees that is critical in assessing the voluntariness of their actions. See also Dad's Cookies Ltd., [1976] OLRB Rep. Sept. 545 especially paragraph 18; Leamington Vegetable Grower's Co‑operative Limited, [1974] OLRB Rep. June 402; Link Manufacturing Ltd. (unreported), Board File No. 48682-53-R In addition, it was Mrs. LaForme herself, in April and May of 1979, who communicated to the other employees the likely consequences of failure to oppose the union. Particularly in the absence of any intervening circumstance, such as a collective agreement, to indicate to employees a change in management's attitude, it cannot be assumed that the effect of those statements, made some five or six months previously, would be spent. Having regard, therefore, to all of the Board's comments in the earlier decision, it is impossible to be satisfied now that the employees at the September 30th meeting, attended by Mrs. LaForme, would have no concern that their views would subsequently become known to management, and perhaps result in reprisals.
It would have been perfectly reasonable for Mrs. LaForme to have called a meeting, as she did, to advise the other employees of the results of the prior termination application, and then to have left when the discussion turned (as it did almost at once) to a fresh termination application. But she stayed. In the circumstances, her right to be present as a member of the bargaining unit was overridden by the Board's comments about her, as set out in the very decision which she had just read aloud. That should have been evident from a fair reading of the Board's decision (whether or not particular individuals may have agreed with that decision).
As the Board stated in dealing with a not dissimilar problem in the case of Hoffman Concrete Products Limited, [1976] OLRB Rep. Feb. 35, at paragraph 8:
"The evidence that Kevin Hoffman signed the petition is not in itself sufficient to cast doubt on the petition even assuming him to be a regular employee like everyone else. The misfortune is that at the planning stage of adopting strategy to frustrate the applicant's organizational campaign, employees in attendance at the meeting appreciated the conflict that might ensue to their prejudice. Mr. Hoffman ought to have either offered to disqualify himself from the meeting or he should have been invited to leave. Instead he particpated in the meeting where the origination of the petition was spawned... ."
- Similarly, Mrs. LaForme's presence has made it impossible for the Board to be satisfied that the statement of desire before it represents a voluntary expression of the wishes of the employees. The Board has no alternative but to dismiss the application.