Ontario Labour Relations Board
[1980] OLRB Rep. May 737
2342-79-U International Woodworkers of America, Complainant, v. G. W. Martin Lumber Limited, Respondent.
BEFORE: R. D. Howe, Vice-Chairman and Board Members B. Armstrong and E. C. Went.
APPEARANCES: James Hayes, R. Navarretta and T. Sweet for the complainant; S. A. Bjarnason for the respondent.
DECISION OF THE BOARD; May 29, 1980
This is a complaint filed under section 79 of The Labour Relations Act in respect of alleged violations of sections 3,56,58 and 61 of the Act.
The respondent operates at seven separate locations in Ontario. The applicant has bargaining rights for employees at five of these locations and has entered into a series of collective agreements with the respondent. This complaint arises out of the alleged misconduct of a foreman at the respondent's sawmill and wood chip facility in the Township of Harcourt.
The collective agreement dated May 16, 1978 between the parties contains the following provisions:
SCOPE AND RECOGNITION
2.01 The Company recognizes the International Woodworkers of America, Local 2-1000, as the sole collective bargaining agency for all employees of the Company in the Township of Harcourt, save and except foremen, persons above the rank of foreman, piece workers self-financing contractors and contractors, broker truckers, office and sales staff, two (2) lead log scalers, two (2) lead lumber scalers, and students employed during the school vacation period.
UNION SECURITY
4.01 All employees of the Company who at present are members of the Union shall remain members of the Union as a condition of employment, and will pay the regular monthly Union dues as set forth herein.
4.02 The Company agrees to deduct from all employees who have been hired by the Company after the signing of this Agreement and who have completed their probationary period, an amount equal to the current Union dues, as a condition of continued employment.
4.03 The Company will check off the regular monthly dues, initiation and other assessments authorized by the Union on the first day of each month. Such amounts will be remitted to the Secretary-Treasurer of the Union prior to the end of the month in which they were deducted, together with a list of employees from whom they were made and a copy of such list shall also be sent to the Chairman of the plant.
4.04 An employee shall have the right to revoke the above assignment of wages and membership in the Union during thirty (30) day period immediately preceding the expiration date of this Agreement. The notice to revoke such wage assignment and membership in the Union shall be given in writing to the Company with a copy for the Union.
DURATION OF AGREEMENT
27.01 The parties hereto agree that this Agreement shall be effective March 5th, 1978 until March 4th, 1980, and thereafter from year to year unless at least sixty (60) days' written notice of contrary intention is given by either party to the other party. The notice required hereunder shall be valid and sufficiently served, given or made at least sixty (60) days prior to the expiry date of any yearly period. Such notice required hereunder shall be given prepaid registered mail."
The complainant alleges that between February 5, 1980 and March 4, 1980, David Anderson, a foreman of the respondent at its Harcourt operation, approached employees and asked if they wanted to sign a document revoking their membership in the complainant and that, as a result of these approaches, thirty-one employees submitted revocation.
David Anderson is the foreman responsible for the lumber yard, dry kiln, and planer at the respondent's Harcourt operation. Kenneth Vaughan, a lift truck operator in the lumber yard, testified that about a week before the collective agreement expired on March 4, 1980, Anderson approached him and asked him if he would like to leave the complainant. Vaughan also testified that Anderson told him that he would probably be the only lift truck operator in the lumber yard left in the complainant if he did not sign out. Although Vaughan did not submit a revocation, he testified that he "figured that Anderson was trying to break the union". However, he also agreed in cross-examination that Anderson was a "fair man
Leo Scott, another employee supervised by Anderson, testified that Anderson asked him in February in the presence of other employees if he wanted to sign out of the complainant and told him that the respondent would protect him if he wanted to do so. Scott did not submit a revocation. In cross-examination, he agreed that Anderson is a "fair minded man".
One of the other employees who was approached by Anderson at the same time as Scott was Joseph Green, a labourer in the lumber yard. Green gave the following testimony: "Dave [Anderson] came in and asked me and a few other guys if we wanted to be out of the union. He said we'd be covered and everything in the same way as if we were in. I said I would drop out. I dropped out a week or so later ..." Under cross-examination, Green agreed that Anderson is a "fair foreman" and gave the following reason for submitting a revocation: "What's the sense of paying twelve dollars per month [as union dues] if you get the same protection without it?".
Terry Sweet, the Chairman of the complainant's Harcourt bargaining unit, testified that he received thirty-one revocations, at least fourteen of which were from employees supervised by Anderson. When asked what effect the revocations had on the complainant, he testified: "This has made things a little more difficult for us to function. Whatever position we had, it has weakened us." He testified that during the previous set of negotiations in March of 1978, the respondent posted a notice in the lunchroom concerning the revocation clause and that two or three employees submitted revocations.
The respondent called six employees in the bargaining unit and two members of management as witnesses. Of the six employees, four (William Mitchell, Gary Burroughs, Richard Semple and Martin Smaglinskie) worked in areas not supervised by Anderson and testified that they had never had any discussion with Anderson concerning revocations. Larry Donaldson, another member of the bargaining unit, testified that he went to Anderson and asked him how to go about signing out of the union. In response to this inquiry, Anderson told Donaldson how to word the revocation. Donaldson later typed his revocation on his typewriter at home and submitted it to Anderson. When asked why he had approached Anderson concerning this matter, Donaldson stated: "I don't know why I'd go to Dave Anderson. He used to be a member of the union. I figured he'd have knowledge about it." Floyd Minne, the sixth bargaining unit employee called as a witness by the respondent, testified that although he was present when Anderson spoke to Scott and some other employees, he was unable to recall what Anderson said. When confronted in cross-examination with a document bearing his signature, purporting "to certify that Dave Anderson approached [Minnie] on company time to sign out of the union", Minnie testified that the signed statement was false. When asked why he had not told anyone prior to the hearing that the statement was false, he explained that it was signed at the urging of Leo Scott at a barn dance while Minnie was "so intoxicated that [he] did not know what [he] was doing and did not know whether [he] had signed it or not". Scott was not questioned concerning the circumstances under which this document was signed. By reason of the inability of Minnie to recall the events in question, the Board places no reliance on his testimony whatsoever.
The evidence clearly established that employees other than those who hold positions with the complainant are generally unfamiliar with the contents of the collective agreement; the decision of the respondent to discontinue its previous practice of sharing the cost of printing copies of the collective agreement for distribution to employees has apparently contributed to this dearth of information.
Anderson testified that he approached Scott, Minnie and three other employees who work under his supervision on February 29, 1980 and "told them that up until the fourth of March they could revoke their membership and dues by giving a signed copy to the company and the union." When asked to explain why he had done this, he said: "I did it because during the whole week I had guys coming up to me to ask how they could revoke their membership". He confirmed that he approached Vaughan "the same time as the others on February 29" but denied that he told Vaughan that he would be the only lift truck driver left in the complainant if he did not sign out. He further testified that he arranged for the office to prepare revocations for those employees who asked him to do so. During cross-examination, Anderson estimated that he spoke about revocations to all but twelve of the forty to forty-five employees in his areas in late February. He also indicated that he is one of the three members of the respondent's bargaining committee along with Grenville Martin who is the President and owner of the respondent. He testified that he could not recall discussing the revocations with Martin or any other member of management except Theresa Riley, the Personnel Manager to whom the revocations were delivered. Anderson also denied that he had told any employees that the respondent would protect them if they signed revocations.
Grenville Martin testified that the respondent had enjoyed a good relationship with the complainant for twenty-two years. He indicated that he did not know anything about Anderson's role in the matter until the day of the hearing but stated: "Administering the collective agreement is left to the Personnel Manager and the foremen. I live with the kinds of decisions which they make." He also testified that upon being informed by the Personnel Manager about the number of revocations, he phoned the President of the complainant three or four days prior to the first negotiation session to tell him about it because he was "afraid that it might be a complete collapse of the union". The reason given by Martin for his concern was: "We need stewards. We need people to handle the grievances." When asked in cross-examination if he thought that the revocations would weaken the complainant's position at the bargaining table, he stated: "The strength of the union does not enter into the picture at all during negotiations."
Counsel for the complainant submitted that regardless of motive, the uncontradicted evidence that Anderson approached certain employees on his own initiative to solicit revocations and prepared revocations for employees constituted evidence of a per se unfair labour practice falling squarely within the ambit of section 56. He also contended that it was impossible to believe that the respondent would not be aware of the impact which revocations would have on the complainant's bargaining position. He analogized the situation to employer support of an anti-union petition in a certification or termination application.
Counsel for the respondent, on the other hand, contended that the essential ingredient of a violation of section 56 is the use of coercion, intimidation, threats, promises or undue influence and that Anderson was merely advising the employees of their rights as he was entitled to do under the freedom of expression granted to employers by section 56. He also argued that the respondent did not stand to gain anything by this activity because the complainant remains the bargaining agent regardless of the revocations and that Anderson's involvement in the preparation of the revocations did not "taint" these documents.
In resolving the conflict in the evidence between the testimony of Vaughan and Anderson it is more reasonable to believe that Anderson forgot than he had told Vaughan that he would probably be the only fork lift operator left in the complainant that to impute falsehood to Vaughan's testimony. (See Sopinka and Lederman, The Law of Evidence in Civil Cases (Toronto: Butterworths, 1974)). Also, in resolving the conflict between the testimony of Scott and Anderson, we note that Green's testimony substantially corroborates that of Scott in relation to the "protection" to be provided by the respondent to persons who signed revocations. While Anderson may not have used the word "protection", we find that he did assure employees present at that time that they would suffer no adverse effects if they signed revocations.
Section 56 requires the Board to maintain a delicate balance between the right of a trade union to be free of unlawful employer interference with its administration and the right of an employer to freely express his views. Section 56 seeks to protect the right of employees to select a trade union without interference by their employer. It also seeks to protect from employer interference the administration of a trade union and the representation of employees by a trade union. The Board has long recognized the "responsive nature" of the relationship between an employee and his employer and the "natural desire [of an employee] to want to appear to identify himself with the interests and wishes of his employer" (see Piggot Motors (1961) Ltd. (1962), 63 CLLC ¶16,246). Where there is evidence of employer interference, the Board in accordance with its legislative mandate has consistently refused to certify a union which employees may have joined as a result of such employer influence (see, for example, Coons Heating & Sheet Metal Limited, [1978] OLRB Rep. June 525) and has consistently refused to give any weight in certification proceedings and termination proceedings to petitions or statements of desire which employees may have signed as a result of such influence.
Interference with a trade union by a foreman is treated as interference with the trade union by the employer unless it is proved that the employees concerned knew or ought to be deemed to have known that the actions of the foreman were done by him not in support of but contrary to the interests of the employer (see Metal Textile of Canada, [1971] OLRB Rep. Nov. 694, paragraph 9; and Veres Wire Industry Ltd., [1976 OLRB Rep. July 337, paragraph 2). In the present case, there is no evidence which would bring the situation within this exception.
Although it is not possible to provide a definitive statement of all of the types of activity which will constitute a breach of section 56, the Board finds that Anderson, a person acting on behalf of the respondent interfered with the administration of the complainant by using promises (of protection or no adverse effects) or undue influence to obtain a revocation by Joseph Green of check off of dues of the complainant and membership in the complainant. Anderson's statement to Vaughan that the latter would probably be the only lift truck operator left in the union if he did not sign out also constituted use of undue influence by Anderson. Thus, we find that a violation of section 56 has been established.
Coercion, intimidation, threats, promises or undue influence are not essential elements of every violation of section 56. Mere interference by an employer or person acting on behalf of an employer with the administration of a trade union or with the representation of employees by a trade union is sufficient to constitute a breach of section 56 (see Winson Construction Limited, [1976] OLRB Rep. Nov. 714; 77 CLIC ¶16,064), particularly where the conduct of the employer affects the internal affairs of a trade union to such an extent as to threaten the existence of the trade union as a viable bargaining agent (see A. N. Shaw Restoration Ltd., [1976] OLRB Rep. Sept. 504). Anti-union animus on the part of an employer is not essential to a finding of illegality under section 56; the legality of employer conduct under this section depends upon the consequences flowing from the conduct rather than the underlying motive (see A.A.S. Telecommunications Ltd. and Zipcall Ltd., [1976] OLRB Rep. Dec. 751, paragraphs 30 and 31). Therefore, the Board finds that Anderson also interfered with the administration of the complainant contrary to section 56 by initiating discussion with employees of the respondent concerning revocation of check off of dues of the complainant and membership in the complainant. While it may be permissible for a person acting on behalf of an employer to reply to an inquiry by an employee as to whether the latter has a right of revocation by referring him to the relevant provision in the collective agreement or to prepare a revocation form on the initiative of and at the request of an employee, it is a violation of section 56 for a person acting on behalf of an employer to initiate discussion with an employee concerning revocation of check off of trade union dues or revocation of trade union membership. Similarly, it is a violation of section 56 for a person acting on behalf of an employer to prepare, on his own initiative or on the initiative of the employer, such revocation for signing by an employee. As provided in section 3 of the Act, every person is free to join a trade union of his own choice and to participate in its lawful activities. The choice of joining or resigning from a trade union is a personal choice to be made by each employee on his own initiative. The initiation of discussion by a foreman or other person acting on behalf of an employer with employee about revocation of trade union dues check off or trade union membership, particularly a~ a time when the trade union is about to engage in collective bargaining with the employer, is very likely to undermine the trade union's bargaining position and could threaten the very existence of the trade union as a bargaining agent. Consequently, such conduct is prohibited by the Act.
The relief requested in the complaint included a cease and desist order, an order nullifying or revoking the revocations, and an order requiring the respondent to compensate the complainant for all monies lost as a result of the respondent's unlawful activities. At the hearing, counsel for the complainant conceded that it would be "heavy handed" for the Board to purport to nullify or revoke the revocations and, accordingly, withdrew the request for this remedy, but added a request for an order that the respondent post a notice prepared by the Board concerning the Board's disposition of this case and an order that the respondent convene a meeting of all employees concerning same. Counsel for the complainant emphasized the need for a "make whole" order to restore the complainant to its previous position.
The evidence falls far short of establishing that all of the employees who signed revocations did so as a result of Anderson's words or actions. As contended by counsel for the respondent, many of the revocations were submitted by employees who worked in areas outside of Anderson's area of supervision or by employees who did not have any discussion with Anderson concerning their revocations. Nor does the evidence satisfy us that Anderson's words or conduct served as a catalyst which gave rise to all or most of the other revocations. In fact, many of the revocations are dated prior to February 29, 1980, the date on which Anderson approached seven employees on his own initiative, of whom only one submitted a revocation. On the evidence before this Board, only the revocation by Joseph Green has been proved to have been at least partially occasioned by the words or conduct of Anderson. Thus, this is not an appropriate case for a "make whole" order; compensation must be limited to a sum equal to the dues which would have been received by the complainant from Joseph Green (for the period from the effective date of Joseph Green's revocation to the date of this decision) if Joseph Green had not signed the said revocation. Nevertheless, the complainant is entitled in the circumstances of this case to the following relief pursuant to section 79 of the Act:
ORDER OF THE BOARD
(a) The Board declares that the respondent, through foreman David Anderson, violated section 56 of The Labour Relations Act by using promises and undue influence concerning revocation of check off of dues of the complainant and membership in the complainant, and by initiating discussions with employees of the respondent concerning revocation of check off of dues of the complainant and revocation of membership in the complainant.
(b) The respondent and all persons acting on behalf of the respondent are directed to cease and desist from using promises or undue influence concerning revocation of check off of dues of the complainant or revocation of membership in the complainant, and are further directed to cease and desist from initiating discussion with any employee of the respondent concerning revocation of check off of dues of the complainant or revocation of membership in the complainant.
(c) The respondent is directed to pay to the complainant a sum equal to the dues which would have been received by the complainant from Joseph Green (for the period from the effective date of Joseph Green's revocation to the date of this decision) if Joseph Green had not signed said revocation, together with interest on this sum to be calculated in the manner described in Hallowell House Limited, [1980] OLRB Rep. Jan. 35.
(d) The respondent is directed to post copies of the attached notice marked "Appendix", after being duly signed by a representative of the respondent, in conspicuous places in the respondent's lumber yard, dry kiln and planer at its Harcourt operation, where they are likely to come to the attention of the employees, and to keep the notices posted for sixty consecutive working days. Reasonable steps shall be taken by the respondent to ensure that the said notices are not altered, defaced, or covered by any other material. Reasonable physical access to the premises shall be given by the respondent to a representative of the complainant so that the complainant can satisfy itself that this posting requirement is being complied with.
(e) Notwithstanding the provisions of any collective agreement, the respondent, at the written request of any employee in the bargaining unit at Harcourt for which the complainant holds bargaining rights, shall deduct from the wages of the employee the amount of regular dues of the complainant payable by members of the complainant and remit said amount to the complainant forthwith.