Ontario Labour Relations Board
[1980] OLRB Rep. October 1437
0844-80-R United Plant Guard Workers of America, Local 1962, Applicant, v. General Motors of Canada Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. A. Ronson and H. Simon.
APPEARANCES: Chris G. Parliare and Watson Cook for the applicant; Edward J. McDermott and Pierre Comtois for the respondent; Vincent Vasey, James F. Stacey, Fred Maybee, Gary D. Cooper and Carl Carey for the objectors.
DECISION OF M. G. PICHER, VICE-CHAIRMAN AND BOARD MEMBER H. SIMON; October 16, 1980
This is an application for certification.
The applicant seeks bargaining rights for some 78 plant guards employed to maintain security at General Motor's South Plant in Oshawa. While the parties agree that the bargaining unit should be restricted to the South Plant, one employee came forward with an objection. James Stacey, a security guard not employed in the proposed bargaining unit but rather in General Motors' North Plant, some three miles away from the South Plant, submitted that plant guards in both plants should be seen as the appropriate unit for the purpose of collective bargaining. The guards in the two plants have the same employer and have in the past been on a common seniority list. However, few, if any, of the established criteria would support the conclusion that the two plants should be made into a single bargaining unit.
It appears that there is little, if any, interchange of employees between the two plants except in extraordinary circumstances such as occasional overtime. Given that fact, the geographic distance between the plants, the likelihood that the establishment of a two-plant bargaining unit would unduly interfere with the organization of an otherwise viable bargaining unit, and given the agreement of the employer and the union, the Board finds that all security guards employed by the respondent at its South Plant in the City of Oshawa, in the Regional Municipality of Durham, in the geographic limits of Bloor Street on the north, Phillip Murray Avenue on the south, Park Road South on the east and Stevenson Road on the west save and except sergeants and persons above the rank of sergeant, office and clerical employees, students employed during the school vacation period, all persons regularly employed for not more than 24 hours per week and all other employees, constitute a unit of employees of the respondent appropriate for collective bargaining. (Ponderosa Steak House, [1974] OLRB Rep. Nov. 7; Usarco Ltd., [1967] OLRB Rep. Sept. 526.)
In support of its application, the union filed 70 membership application cards. Applying the Board's 30 day rule there are 78 employees in the bargaining unit and one card filed must be discounted. Prior to the terminal date the Board also received a number of statements of desire filed individually and in groups by employees opposing the application. Only four of those objections, however, were by employees who had previously joined the union. The slight overlap between the objections and the membership evidence would not, therefore, cause the Board to inquire into the origination or circulation of any of the statements of desire, since they would not be sufficient, even if proved voluntary, to cause the Board to order the taking of a representation vote. One of the petitions, however, charged that a union organizer had obtained membership evidence by falsely misrepresenting that there would be a representation vote. On that basis the objectors submitted that a representation vote should be held. The Board therefore heard evidence in respect of that issue.
The membership application cards filed by the union were collected entirely by Mr. P. Dillon, a rank and file employee. The unchallenged representation of the union is that Mr. Dillon could not attend the hearing because of a serious illness which required his hospitalization. The union therefore called 3 other witnesses, including the president of the applicant union and two employees, to give evidence of the conduct of the membership campaign by Mr. Dillon.
Only three employees out of a bargaining unit of seventy-eight testified that they were in any way misled or confused by statements made by Mr. Dillon. Mr. Gary Cooper testified that before he signed a union membership card Mr. Dillon told him, in the company of two other employees, that there would be a representation vote on the question of union certification. The evidence also establishes, however, that Mr. Cooper was present at one of two union meetings held on July 27, 1980 attended by forty to fifty of the employees of the bargaining unit when Mr. Watson Cook, the president of the union and an individual experienced in applications for certification, explained that because the membership evidence greatly exceeded fifty-five per cent the prospect was that in all likelihood the union would be granted outright certification by the Board. That statement was made some four days prior to the terminal date, thereby giving ample time to any employee who wished to withdraw his support from the union the opportunity to do so. Cook's statement that there would be no representation vote met with no protest from any employee at the meeting.
Mr. Vincent Vasey testified that he was told in a restaurant by Mr. Dillon that there would be a representation vote taken. He admitted however that Mr. Cook was also present and then explained to him that in fact there would not be a representation vote if the union's strength exceeded fifty-five per cent. Given that correction by Mr. Cook, an experienced union official, the Board cannot put great weight on the evidence of Mr. Vasey that he was nevertheless confused, particularly when it was within Mr. Vasey's power to further check out Mr. Dillon's statement if he wished. Moreover, Mr. Vasey could not recall whether Dillon's statement about a vote was made before or after he signed a membership card.
The third piece of testimony challenging Mr. Dillon's conduct came from Mr. John Gorman, a plant guard. Mr. Gorman decided, apparently without being approached by Mr. Dillon, that he wished to join the union. On a Sunday, in the company of two other employees he went to Mr. Dillon's house to sign a union membership card. Mr. Dillon did not initiate any discussion of a representation vote. Mr. Gorman's evidence discloses that he asked Dillon whether there would be a vote. In an obviously off-hand reply Dillon respondent that there would be no vote "if we get one hundred per cent signed up." The Board is not satisfied that Mr. Gorman could reasonably rely on anything in that comment, made as it was in such an obviously casual way by a rank and file employee.
As against these three isolated incidents there is substantial evidence from the union that Mr. Dillon did not engage in a pattern of misrepresentation among the respondent's employees. Mr. Frank Guypens, a plant guard, and Mr. Cook both testified that they were present when a number of membership cards were collected by Mr. Dillon. Their uncontradicted evidence is that Mr. Dillon did not make any statements to the effect that a representation vote would be held. The evidence of plant guard Ken Wood is to the same effect. Mr. Wood testified that Mr. Dillon told him as he heard Dillon tell other employees over a period of three weeks, that if membership reached between fifty and sixty per cent a vote would not be needed to obtain certification. Significantly, the evidence of Mr. Fred Maybee, an objector, confirms the evidence of the three union witnesses. He was approached by Mr. Dillon on July 24, 1980 and was asked to join the union. According to Mr. Maybee, Mr. Dillon said nothing about a representation vote.
In certification proceedings the Board must rely upon the membership evidence filed by the union. Because it is a form of hearsay evidence not disclosed to the employer and not subject to cross-examination the Board holds unions to a high standard of integrity in the quality of the membership evidence submitted. The burden is upon the union to satisfy the Board that each employee has signed the membership card tendered on his behalf and has paid any initiation fee that accompanies the membership application. Where, however, there are allegations that the union or anyone working on its behalf have committed irregularities not going to the validity of the signatures on union cards, the payment of the initiation fee or the truth of the Form 8 declaration concerning the collection of the membership documents, the burden of proof falls upon the party making the allegation. For example, a party alleging that membership evidence was obtained through coercion or intimidation has the burden of coming forward and establishing, on the balance of probabilities, that the conduct alleged in fact occurred.
In this case the burden is upon the objectors. The evidence to discharge that burden will necessarily be higher where, as in the instant case, the union has filed membership evidence in excess of seventy-five per cent of the bargaining unit. Because that evidence would, in the normal course, entitle the union to outright certification the Board would naturally require substantial evidence from which it could conclude that it cannot rely upon the membership evidence filed by the union or that it should order a representation vote.
The Board has in the past had numerous opportunities to review the standard to be applied in assessing the conduct of a rank and file employee, as opposed to a union official, in the collection of membership evidence, and the consequences that flow from irregularities established in the collection of membership evidence by an employee. In reviewing the standard applicable to an employee-collector the Board commented as follows in The Kendall Company (Canada) [1975] OLRB Rep. Aug. 611 at p. 619:
In all cases alleging improper trade union conduct the Board first begins by assessing the nature of the conduct – the test being would it deter the reasonable employee? If the answer to this question is in the affirmative the Board must go on to assess the possible significance of the conduct and in this regard the identities of those persons involved are very important. Where the action impugned is that of a responsible official of the trade union a single indiscretion may cause the Board to conclude that it cannot place reliance on any of the evidence of membership submitted by the union. Where the irregularity relates to evidence of membership procured by a person of lesser rank in the union organization, the actual cards involved may be disallowed and the weight to be given to the remaining evidence of membership will depend on the nature of the irregularity and the extent to which the objectionable practice was resorted to in the signing up of members. (See Webster Air Equipment Company Ltd. 58 CLLC ¶18,110; Walter F. Selck of Canada Ltd., [1964] OLRB Rep. June 138; Linhaven Home for the Aged, [1962] OLRB Rep. May 66.)
Although the foregoing comments were made in the context of allegations of intimidation, we are satisfied that they are equally applicable where fraud or misrepresentation is alleged. In the Kendall case the Board exhaustively reviewed the standards to be applied to different types of conduct by employees soliciting union membership. As that decision discloses, the Board has a particular concern with threats to the job security of employees in attempts to gain their support for a union, even when those threats are by a rank and file employee. On the other hand the Board has always sought to maintain a realistic appreciation of the need for free and unfettered conversation between fellow employees. In this regard, absent physical threats or threats to job security, the Board is careful not to place undue weight on a statement made by one employee to another on a subject in which neither of them is an expert, particularly when the recipient of the statement has every opportunity to check the statement's accuracy. (Green Giant of Canada Limited, [1973] OLRB Rep. June 376).
Threats to job security have, however, been strictly viewed as beyond the bounds of employee free speech. For example, in Walter F. Selck of Canada Ltd., [1964] OLRB Rep. June 138 the union's campaign was under the exclusive direction of a rank and file employee who collected all but three of sixty-two membership cards. In the face of unchallenged evidence that the employee-collector told two employees that they would lose their jobs if they failed to join the union the Board dismissed the application, concluding that it could not, in the face of that established unfair labour practice, rely on any of the membership evidence filed. Where, however, a statement made by one employee to another in the course of a union campaign does not threaten an employee's job security or otherwise disclose an unfair labour practice different considerations apply. The Board is reluctant to hold the rank and file employee to the standard of a trained lawyer, or to impose censorship on the casual conversation that inevitably flows between employees during a union campaign. To do otherwise, in the words of the Board at p. 623 of Kendall, "would be oblivious to human nature and result in artificial standards that would adversely affect the rights of all employees under the legislation."
That is not to say, however, that a union can escape the consequences of irregular conduct by effectively placing its entire campaign in the hands of a rank and file employee. Where a person who is not a union official is charged with collecting all of the membership evidence and ii found responsible for a non-pay (Slough Estates, [1965] OLRB Rep. June 173) or a non-sign (Dominion Stores Limited, [1964] OLRB Rep. Dec. 447) the Board may conclude that it can rely on none of the membership evidence filed and dismiss the application. Alternatively, in the face of such conduct by a person other than a union official, the Board may conclude that the documentary evidence is "under a cloud that requires the confirmatory evidence of a representation vote." (Crock & Block Restaurant and Tavern, [1980] OLRB Rep. Apr. 424.) The same considerations apply when the conduct in question involves threats to employees' job security (see the Selck case, supra).
The Board's reluctance to restrict or limit talk that may flow between fellow employees during a union campaign should not, however, be taken as an indication that the Board will not scrutinize the statements of rank and file employees, particularly where it is clear that an employee charged with the collection of all the membership evidence has substantially misrepresented to employees to meaning of signing a union membership card. If the evidence establishes that an employee collector has repeatedly obtained membership evidence by telling employees that by signing a card and paying a dollar they are in effect endorsing an application for a vote on the question of union representation, or if the Board cannot be satisfied to what extent such a representation was made, the Board may be unable to place any reliance whatever on the membership evidence filed, or it may seek the confirmatory evidence of a representation vote. In each case, however, the Board must consider the evidence in the particular case before it to make that determination.
In the instant case the evidence discloses three isolated instances, during the collection of some seventy union membership cards, in which Mr. Dillon, a rank and file employee with no apparent experience in union organizing, made comments that suggested that a representation vote would take place. These were manifestly the kind of statements which could have been checked out by the employees to whom they were made. In fact in two of the three instances they were corrected by the union's president, Mr. Cook. In the third instance, involving Mr. Gorman, Mr. Dillon made a casual response that if all of the employees were signed up there would be no vote. That off-hand statement, albeit technically true, was obviously not intended to be relied upon as legal advice to Mr. Gorman. It would stretch reality to elevate that exchange to the level of a material misrepresentation that should weaken the union's otherwise overwhelming membership evidence in this case.
In this case there is substantial evidence from which to conclude that the two or three occasions Dillon indicated there would be a vote were in fact isolated incidents. While the evidence of both objectors and union adherents may be suspect because of its self-serving nature, the independent testimony of Mr. Maybee, an employee opposing the application is of considerable value. He testified that when Dillon solicited his membership he made no mention of the possibility of a representation vote. That evidence corroborates the testimony of Mr. Woods, Mr. Guypens and Mr. Cook that in the numerous occasions they observed they did not hear Mr. Dillon promise a representation vote as an inducement to obtain membership support. Moreover, the conclusion, on the balance of probabilities that Dillon didn't engage in misrepresentations beyond the instances proved is further corroborated by the reaction, or lack of it, at and after the employee meetings attended by forty to fifty employees, four days prior to the terminal date. At that meeting Mr. Cook clearly explained that there would not be a representation vote. If there had been a significant pattern of repeated promises by Dillon to employees about a representation vote it would not be unreasonable to expect a substantial protest in the form of an outburst of the employees at that meeting or by employee objections at the Board hearing either by personal attendance or through the more anonymous expedient of employee petitions. There was in fact no reaction at all at the employee meeting and nothing came to the Board except the objections of Mr. Cooper, Mr. Vasey and Mr. Gorman, such as they are. In these circumstances the Board must draw the inference most consistent with the evidence, namely that the incidents involving Cooper, Vasey and Gorman are isolated incidents which would not justify the taking of a representation vote.
This case must be distinguished from those in which the Board is faced with instances of irregularities involving employee collectors that stand without additional evidence to satisfy the Board that they were in fact isolated incidents. In those cases the Board may, through natural suspicion, place no reliance on the value of the membership evidence collected by the employee in question. Nor, on the evidence, is this case one where there has been a clear and widespread communication to employees indicating that a representation vote would be held (see Carleton University, [1975] OLRB Rep. Apr. 308). On the basis of the evidence before it the Board merely disregards the cards of Mr. Cooper, Mr. Vasey and Mr. Gorman on the basis that they freely withdrew their support of the union prior to the terminal date. That leaves the applicant with membership strength in excess of seventy per cent.
The Board therefore finds that on the basis of all the evidence before it 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 July 31, 1980, 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.
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER J. A. RONSON:
The dissent of Mr. Ronson will follow.