[1980] OLRB Rep. September 1324
0363-80-R; 0412-80-R United Electrical, Radio and Machine Workers of America (UE), Applicant, v. Square D Canada Electrical Equipment Inc., Respondent, v. Square D Employees' Association, Intervener.
BEFORE: D. E. Franks, Vice-Chairman, and Board Members I. D. Bell and H. Simon.
APPEARANCES: Art Jenkyn, George Stevens and Bruce Schweitzer for the applicant; Keith Billings, Carl Sheppard and Dave Thomas for the respondent; Michael G. Horan for the intervener.
DECISION OF VICE-CHAIRMAN, D. E. FRANKS, AND BOARD MEMBER
H. SIMON; September 15, 1980
The name: "Square D Company Canada Limited" appearing in the style of cause of this application as the name of the respondent is amended to read: "Square D Canada Electrical Equipment Inc.
On May 16, 1980 the applicant, United Electrical, Radio and Machine of America (UE), applied for certification. The terminal date set for that application (Board File #0363-80-R) was May 27, 1980. Subsequently, on May 26, 1980 the intervener, the Square D Employees' Association, made a separate application for certification (Board File #0412-80-R). Having regard to section 92(3)(a) of The Labour Relations Act, these applications are hereby consolidated.
The Board finds that the applicant is a trade union within the meaning of section l(l)(n) of the Act.
The intervener, having applied for certification, is required to established its status as a trade union within the meaning of section l(l)(n) of the Act. The applicant alleges, however, that the respondent employer has violated section 12 of the Act and the Board is thus proscribed from certifying the intervener in this matter.
In order to establish its status as a trade union for the purposes of section l(l)(n) of the Act, the intervener adduced evidence concerning the formation of the Square D Employees' Association at a meeting at the Holiday Inn in Kitchener on the 22nd of May, 1980. The minutes of the meetings were filed with the Board as was a copy of the constitution adopted at that meeting. On the basis of the evidence before the Board concerning that meeting, the Board finds that the intervener has established its status within the meaning of section l(l)(n) of the Act.
The applicant alleges, however, that because of the employer's conduct in this matter, section 12 of the Act prohibits the Board from certifying the intervener as a bargaining agent. That section provides as follows:
"The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin."
- On the afternoon of May 13, 1980, Mr. David Thomas, the plant manager of the respondent, assembled the employees of the respondent at a meeting and read to them from a prepared text which was filed with the Board at the hearing. The text of his remarks reads as follows:
"A number of employees have indicated to me that they have been approached by union representatives. Some of these employees have questioned the reason for the company remaining silent on this issue.
I would like to say that prior to relocating into Waterloo, Company representatives came into this area to take a survey of wages and benefits. What has been established here is the result of this survey.
Lowest hourly rate is 5.19/hour
Higest hourly rate is 7.54/hour
How many companys in Waterloo can match these rates?
Square D pay 100% of OHIP
100% of Group Insurance Plan.
Have 12 stat. Holidays + an excellent vacation plan
Bereavement allowance
Jury Duty allowance
If employees feel that they have other problems or complaints they are certainly entitled to have these mutually resolved.
This could be achieved by (I) individuals meeting with their supervisor or manager (2) Employees forming an Employee Committee and (3) if neither of these were to satisfy the employees then a Union could be the answer. If employees feel that a union is the only answer to their problems then that is your right, but please make sure that the union selected is one that will act 100% on your behalf." (emphasis indicated in notes)
The evidence is that after finishing these remarks, Mr. Thomas added that he would answer no questions in relation to his statement. There is a substantial conflict between the evidence given by witnesses for the applicant and Mr. Thomas. A number of witnesses for the applicant say that Mr. Thomas added that if anyone wanted to talk to him about this matter, they could come and see him afterwards. Mr. Thomas, however, denies having made such an invitation.
Two days later on May 15th, the evidence is that a petition was circulated around the respondent's premises to the effect that a shop association should be set up by the employees. The Board heard evidence concerning the conduct of two employees involved with this petition.
The evidence of Sandra Pinkerton is that on the afternoon of May 15th, just before the afternoon break an employee, Fred Buck, approached the employees in her department at their work stations. He asked them to sign the petition in favour of a shop association. At the time when Buck was in the area, the foreman, Weber, was at his desk which is in the area. Her evidence is that Buck was with the group of employees for a sufficient length of time that Weber, the foreman, would have been aware of his presence. Weber, however, said nothing concerning this disruption of work in his area. The witness regarded this as an unusual event since as a foreman, he does not allow talking in his area.
The other incident in relation to this petition involves Ken Lenhart. There is some dispute about Lenhart's status as an employee. The position of the respondent is that Lenhart is a lead hand. The applicant disputes this and claims that he is a foreman or is sufficiently close to being a foreman as to be perceived by employees as part of management. Mr. Thomas, in his evidence, denied that Lenhart is a foreman. This is supported by other evidence which confirms that Lenhart does not wear a distinctive jacket of a foreman and that he punches a time card. The respondent also tendered a description of the duties of lead hand, however, such a document is of little value since apparently it was never shown to Lenhart, although Lenhart on occasion been a lead hand in the respondent's Toronto operation.
On the other hand, the union called evidence to the effect that Lenhart regularly issues instructions to employees. In one particular area certainly, the employee who gave evidence had no contact with the person who is claimed to be the foreman in his area. His only contact with management had been with Lenhart. Lenhart has a desk as do the foreman. Certaintly, Mr. Lenhart has a unique status since it appears there are five foremen and he is the only lead hand in the plant. Indeed, the evidence of Mr. Lenhart's unique status is confirmed by Mr. Bruce Schweitzer who suggested that Mr. Lenhart has good connections since he goes to lunch with the foremen and comes back a half an hour late.
Of singular interest is an event which occurred while Mr. Lenhart was circulating the petition to form a shop association. The evidence of Stewart Dool is that on May 15th, just after lunch, Lenhart came to his area and called a group of employees together. In the course of discussions concerning the formation of a shop association, Joe Schaffer, who later became the president of the intervener, asked Lenhart what would happened if they did not sign the petition. Would management know that they were with the UE? Lenhart replied, yes they would know. Not surprisingly, all the employees in the area signed the petition to form a shop union. This evidence was not denied and in fact Mr. Lenhart was not called as a witness in this case.
On Friday, May 16, Lenhart and others called a meeting of the employees in the plant at noon hour. The meeting was held in the parking lot adjacent to the respondent's plant. The meeting was chaired by Lenhart and there was a substantial discussion concerning the formation of a shop association, as a result of which, a committee was struck. They in turn contacted a solicitor and the events of May 22nd, referred to in paragraph 4, resulted in the formation of the intervener association.
The Board also heard evidence of two subsequent events concerning the conduct of Joseph Schaffer and Randy Sacks after the formation of the intervener on May 22nd. The evidence of Bruce Schweitzer is that on May 23rd, in the afternoon, Randy Sachs spent a good ten to fifteen minutes talking to two employees in the presence of one of the foremen, Mr. Bierzniac, apparently, Bierzniac did not interfere with the discussions notwithstanding the recent instructions concerning such activity. In his evidence, however, Mr. Sachs denied that he engaged in any organizing activity for the intervener during working hours.
The other event concerns Mr. Schaffer, the president of the intervener, who was seen signing up an employee on the morning of May 26th. The employee was at her work station, however, there is some dispute as to whether the work day had started or not.
Section 12 of The Labour Relations Act deals with conduct of an employer. Counsel for the intervener suggests that there is no evidence whatsoever of any direct support by the respondent for the intervener association. He further points out that most of the events dealt with in the evidence relate to a time when the intervener trade union didn't exist. Counsel for the respondent points out that in an allegation under section 12 there is no onus on the employer to prove his innocence and that there was no clear evidence of management's knowledge of the events in question.
The applicant argues that the events must be taken as a whole and dealt with as a matter of timing and atmosphere.
Although Mr. Thomas's speech is a very carefully worded and guarded statement, there is no doubt that the employer's preference was made quite clear given the context of that speech. The opening remarks can only be interpreted as a reference of the organizing campaign of the applicant trade union. Thus, the concluding remark that the union selected should be one which would "act 100% on your behalf' can only reasonably be interpreted as a preference against the applicant UE and in favour of an employee committee. In his evidence, Mr. Thomas did not deny the emphasis of his remarks. In the circumstances then, the respondent employer made it quite clear to all the employees in its plant what its specific preferences and its dislikes were.
Two days later Lenhart, Sachs and perhaps others circulate a petition. In his evidence, Mr. Sachs was quite clear that the idea for a shop association came from Mr. Thomas's speech. This petition is circulated during working hours, in one instance certainly, in front of a foreman, and no response was made by the employer. In the other instance, Mr. Lenhart clearly informs a group of employees that the employer will learn of their intentions with respect to that petition. Mr. Lenhart is perceived by the employees to be related to the management of the respondent, and no denial of Mr. Lenhart's conduct is made either to the employees or for that matter in evidence before the Board. It is significant that Mr. Lenhart was not called as a witness and asked whether or not he was on a "frolic of his own". Taken as a whole, the events of the 15th of May in the employer's plant are a clear indication to the employees that the employer condones the formation of a shop association.
Lenhart's final act with relation to the association is to conduct the meeting in the parking lot on Friday, May 16th. Lenhart ceases to be involved with the intervener leaving it completely in the hands of Schaffer and Sachs.
Subsequently, after the formation of the intervener, Sachs and Schaffer are perceived by the other employees to be moving around the plant during working hours talking to employees.
We are of the view that the conduct of the employer in the week prior to the actual formation of the intervener was such as to create an atmosphere in the plant where the employees perceived a clear preference for a shop association rather than the applicant trade union. This is surely the natural consequence of Mr. Thomas's speech and the condoning by the foreman of the circulation of the petition in the plant during working hours. We find it hard to believe that in a plant of this size that the respondent was not aware of the atmosphere that was generated during the week in question.
Clearly, the events in the plant must be viewed in their totality. While it is clear that section 56 of the Act allows an employer to express his views, the speech to the employees set out in paragraph 6 above can only be interpreted as expressing a clear desire by the respondent to have its employees represented by a "shop association" rather than the applicant trade union. Having established this preference, the respondent allows Lenhart to circulate his petition for a shop association throughout the plant during working hours. To the employees in the plant, such an open condonation of Lenhart's behaviour becomes a clear indication to them that Lenhart — regardless of his employment status — is acting on behalf of their employer. Further, no attempt is made by the employer to dispel this impression. We are, therefore, prepared to find that the employer supported the creation of the intervener employee association.
Clearly, such support in favour of one trade union in preference to another falls within the meaning of "other support" within section 12 (see for instance the Trent Metals case, [1979] OLRB Rep. Aug. 827).
For the foregoing reasons, the intervener's application for certification is therefore dismissed.
With respect to the appropriate bargaining unit, the parties are in dispute over whether or not persons occupying the positions of Quality Control Technicians should be included in or excluded from the bargaining unit. The employer claims that the persons in this category have a community of interest with the engineering staff and should, therefore, be excluded from the bargaining unit. In view of the disagreement, the Board shall appoint a Board Officer to inquire into the appropriateness for inclusion into the bargaining unit of those employees in the disputed classification.
The Board has determined, however, that the applicant's right to certification cannot be affected by the Board's ultimate decision as to the inclusion or exclusion of the Quality Control Technicians. On the basis of all the evidence before it, the Board is satisfied that in either event 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 May 27, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)6) of The Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
Accordingly, the Board, pursuant to its discretion under section 6(la) of the Act and pending the final resolution of the composition of the bargaining unit, certifies the applicant as the bargaining agent for all employees of the respondent in Waterloo, save and except foremen, persons above the rank of foreman, office and clerical staff, sales staff, engineering staff, persons employed for not more than 24 hours per week, students regularly employed during school vacation periods and, pending the resolution of the dispute over the inclusion of Quality Control Technicians excluding as well the Quality Control Technicians.
A formal certificate must await the final determination of the appropriate bargaining unit.
DISSENT OF BOARD MEMBER J. D. BELL:
I do not agree with the decision of the majority of the Board to dismiss the intervener's application for certification.
The Square D Employees' Association has met the Board's criteria to establish its status as a trade union within the meaning of section 1(1)(n) of the Act. This took place at the meeting held by the employees at the Holiday Inn on May 22, 1980 with their solicitor in attendance.
There is no evidence before the Board of any employer participation in the solicitation for membership in the intervenor which, in my opinion, can be considered "other support" within the meaning of section 12 of the Act.
The Board is faced with the following question: "Who does have the support of the employees of Square D?" This question can best be determined by conducting a representation vote by secret ballot giving the employee a choice between the applicant, the intervener or no union.
I would direct such vote be conducted by the Board.