Ontario Labour Relations Board
0493-81-R International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.), Applicant, v. Tri-Canada Inc., Respondent, V. Tri-Canada Employees' Association, Intervener #1. v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46. Intervener #2.
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members B. L. Armstrong and W. H. Wightman.
APPEARANCES: L. A. MacLean, S. Krashinsky, H. Carl Anderson and Lorna Moses for the applicant; J. P. Wearing for the respondent; M. G. Horan and Rudy Koslowsky for intervener #1; Susan Stewart for intervener #2.
DECISION OF R. O. MACDO WELL, VICE-CHAIRMAN, AND BOARD MEMBER B. L. ARMSTRONG; October 20, 1981
The name: "Tri-Canada Limited" appearing in the style of cause of this application as the name of the respondent is amended to read: "Tri-Canada Inc.".
This is an application for certification in which the applicant initially requested the taking of a pre-hearing representation vote. By an earlier decision reported in [1981] OLRB Rep. June 794 (and for the reasons more particularly set out therein), the Board deferred the taking of such vote until intervener #1 had an opportunity to prove its status as a trade union, and demonstrate its right to participate in the vote and appear on the ballot. A hearing for that purpose was held on July 17, 1981. The statutory definition of "trade union" reads as follows:
l—(l) In this Act,
(p) "trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.
For ease of reference, intervener #1 will hereinafter be referred to simply as the intervener.
Rudy Koslowsky, the president of the Tn-Canada Employees' Association, was the only witness to give evidence concerning its origins. Koslowsky has been an employee of the respondent for fifteen years, and in the Spring of 1981, he was a member of an employee "safety committee" which had also been in existence for some years and through which there had been periodic discussions with management about safety rules and working conditions. Ivan Lancaric, and Jerry Kakish the other first principals and officers of the intervener —were also members of that committee.
Koslowsky was quite candid about his views respecting trade unions. He told the Board that he "didn't like unions", he didn't think the employees in the plant needed a union, he was opposed to paying union dues, and he thought that he was better off with the existing system of individual bargaining between himself and his employer. This opposition to collective bargaining is long-standing and deep-seated, but prior to April of 1981 it had no concrete focus.
In April of 1981, Koslowsky learned that the Boilermakers' union might have an interest in representing employees of the respondent. The respondent was then contemplating acquiring another firm where that union was the bargaining agent, and there was apparently some concern that it would seek to extend its bargaining rights to the Tri-Canada operation. The respondent called a meeting of its employees to advise them of the potential acquisition, but, according to Koslowsky, there was no discussion of the Boilermakers' union. Koslowsky could not recall precisely how he had learned that the union had made a "successor rights" application, or that the application had subsequently been withdrawn as premature; but, in any event, he, Kakish and Lancaric, decided to do what they could to keep a union out of the plant.
The opposition to the union took several forms. Koslowsky called a meeting of employees in the company cafeteria immediately after work to discuss the situation and mobilize support for his position. Some forty employees attended. Koslowsky testified that the employer knew of the meeting but no managerial personnel attended or interfered because none had been invited. At that meeting he expressed his views about the desirability of maintaining the "non-union" status quo.
In addition to their personal lobbying against the introduction of a union in the plant, the three employees contacted a solicitor to explore ways of blocking any representation application which might subsequently be made. Two methods were mentioned: forming an employee association; and circulating a petition in opposition to the union. The latter method was the one which was selected, and a number of documents bearing the heading "we are opposed to joining a trade union at this time" were prepared and typed by Bob Harris (an employee in the respondent's production office) and subsequently circulated on company premises and company time by Koslowsky, Kakish and Lancaric. The anti-union documents consisted of envelopes which the employees were asked to sign and return, and a petition expressing opposition to joining a union. These were then retained by Koslowsky in case the Boilermakers' union later sought bargaining rights. Ultimately however, no such application was made, and nothing more was done.
It is evident that the sole purpose of this activity was to block the formation of an "outside", and clearly independent bargaining agent. There was no real interest in establishing a collective bargaining relationship with the respondent. When it became apparent that the Boilermakers~ union was not going to seek bargaining rights, Koslowsky, Kakish and Lancaric, were content to maintain the status quo. No attempt was made to form an employee association until some weeks later when Koslowsky learned that a second union the U.A.W. had expressed an interest in representing the respondent's employees, and was acquiring significant support among them.
Once again, the three employees contacted their solicitor, and at a meeting on June 2, 1980, it was decided that, this time, the appropriate vehicle to block the U.A.W.'s organizing drive was the creation of a rival "in-plant" employee association. This method of opposition, it might be noted, offers a significant advantage over the "petition" process which the union opponents had previously employed. A petition or other statement in direct opposition to a union's certification, is subject to Rule 48 of the Rules of Practice; and, in accordance with Rule 48(5), the Board will normally inquire into the circumstances surrounding the origination and circulation of the opposition statement, in order to satisfy itself that the employees who signed it, have done so voluntarily. The Board has, heretofore, not undertaken such inquiry in the case of opposition to an applicant trade union which takes the form of membership in or support of another employee organization.
A meeting for the purpose of forming an employee association was scheduled for June 4, 1981. The U.A.W. filed its certification application on June 3rd. Formal notice of that application was received and posted by the company on June 5th; but since the union s organizing campaign pre-dated the application, the campaign was common knowledge among employees in the plant, and union organizers were openly circulating leaflets outside the plant premises, it is not unreasonable to infer that the respondent was aware of the campaign prior to receiving formal notice.
II. Koslowsky admits that he viewed the formation of an "in-plant association" as a means to frustrate the U.A.W.'s organizing campaign. He had no idea how a trade union should be formed or what steps had to be taken to create a viable independent employee bargaining agency. Nor was there any intention to hold a meeting of the employees to discuss this matter, or solicit their input concerning the objects of the employee association, its dues structure, the selection and responsibilities of its officers, and so on. Koslowsky was well aware that the formation of a rival organization might well be a contentious issue among the employees, and for this reason, he decided to proceed surreptitiously, with only himself and his two colleagues initially involved. The structure, objects and internal organization of the association were left entirely to their solicitor to be dealt with in the constitution, or to be decided by the association's officers once the organization had been formed and the officers had been selected. These officers were Koslowsky, Kakish, and Lancaric themselves.
The meeting to form the association took place as scheduled on June 4, 1981 in the solicitor's office. Kakish, Koslowsky and Lancaric, were the only employees in attendance. Koslowsky testified that (contrary to what appears in the minutes) there was little discussion about the constitution or the steps which they were taking to form a trade union. The three employees simply accepted what their solicitor had drafted, and followed his instructions as to what must be done. The minutes were prepared in advance of the meeting, and the appropriate names were simply filed in as each step was completed with a "motion from the floor", "seconder", and vote or, in the case of the selection of officers, acclamation in the designated position. The entire procedure, of course, is somewhat artificial, since there were only three individuals taking part in the meeting. It was Koslowsky, Kakish and Lancaric, who ratified the constitution, became members, and selected each other for the various offices on the executive of the association. Koslowsky was selected as president and chairman of the negotiating committee; Lancaric is the vice-president; and Kakish is the secretary-treasurer. It appears that by virtue of Article 16.01 of the constitution these individuals will control the organization and constitute the Association's negotiating committee during the initial year of its operation. Once the officers were acclaimed, the meeting closed. The next day the three employees solicited virtually all of the membership evidence supporting an intervener's application for certification filed on June 9, 1981.
Counsel for the applicant contends that these steps taken by the three employees are insufficient to create a "trade union" within the meaning of section l(l)(p) of the Act. In his submission, the intervener is nothing but a "paper organization" without foundation or roots, and created solely to frustrate the U.A.W.'s organizing campaign not to engage in collective bargaining. The intervener, he argues, is a "mere shell", entirely controlled by individuals with no commitment to the object of collective bargaining which the intervener's constitution purports to be its primary purpose. All of the evidence, he asserts, points to this conclusion, including the early antipathy of the three employees to trade unions, their circulation of a petition against union representation, the expressed preference by Koslowsky, the president of the Association for individual bargaining, the absence of any activity to promote collective bargaining once the possibility of unionization by an outside organization had passed, the decision not to involve other employees in the formation of the Association, and clandestine meetings, and the willingness to leave all of the critical features of the Association's structure to their solicitor. Counsel submits that the Association is, in reality, no different from the anti-union petition which was previously created, and should be viewed as such. In his submission, it is not a trade union either desiring or capable of assuming the collective bargaining responsibilities governed by the Act.
Section l(l)(p) does not prescribe any particular form which a trade union should take. There are no statutory criteria as to what is sufficient to constitute a "trade union" other than those contained in the definition itself. In particular, there is nothing in the legislation which prevents a small group of employees from forming themselves into a trade union, nor is there anything which prohibits a free and independent organization of workers who, by their own choice, have limited their collective activities to one company. That is precisely what the Board had before it in Ontario Hospital Association (Blue Cross) [1981] OLRB Rep. June 763, and in that case the Board found that a trade union had been successfully formed by only four employees. Indeed, save for the changes in the names, the union constitution and minutes of the founding meeting in the Blue Cross case, are identical to those used in the instant case. But this is hardly surprising. The solicitor who prepared them was the same in both cases, and there is nothing unusual or sinister about using a form of documentation which has already been approved by the Board (although the facts may contradict or "speak louder" than a particular form of words used in the constitution). One might well be doubtful about the depth of the three employees commitment to collective bargaining, or their ability to energetically, wholeheartedly, or effectively represent the interests of their fellow employees; but, a trade union's status does not depend upon the Board's assessment of its potential effectiveness as a bargaining agent so long as it is truly and fully independent of employer influence.
The bargaining process between employers and employees always implies, in addition to their common interest, some degree of conflict between the immediate economic interests of the bargainers the payer and receiver of wages. This conflict of interest will necessarily co-exists with their common interest in the welfare of the enterprise from which they both derive their income; and we do not mean to suggest that harmonious relations do not exist between employers and trade unions. But short-run conflicts of economic interest are inevitable, and if they are to be resolved through the process of collective bargaining, it is highly inappropriate for the agency which represents one party to the bargain, to be in any measure under the influence of the other. Collective bargaining by its very nature requires an arm's length relationship between the bargaining parties, and there are a number of statutory provisions designed to ensure that this is the case. These included the following:
1 -(3) Subject to section 90, for the purposes of this Act, no person shall be deemed to be an employee,
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
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.
An agreement between an employer or an employers' organization and a trade union shall be deemed not to be a collective agreement for the purposes of this Act,
(a) if an employer or an employers' organization participated in the formation or administration of the trade union or if an employer or an employers' organization contributed financial or other support to the trade union; or
(b) if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place or origin.
No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.
Sections such as these have been part of the legislative scheme since the first Labour Relations Act, and sections 13 and 48 are perhaps the most significant. Their effect is abundantly clear. The Board is prohibited from certifying any organization which has received employer support and such organization cannot conclude a valid collective agreement within the meaning of the Act. Section 46 permits the parties to a collective agreement to include a dues deduction provision or a provision allowing union officials to attend to union business on company premises or company time, but these exemptions involve commonly negotiated devices to promote the orderly administration of an established bargaining relationship, and it is significant that the Legislature considered it necessary to mention them specifically in order to remove any question concerning the potential conflict with section 48. There may be other forms of employer-employee cooperation in an established bargaining relationship which do not compromise the independence of the employee bargaining agency, and consequently do not raise the mischief which these sections were designed to avoid. Each case must be considered on its own facts.
As we have already noted, all three principals of the Employee Association were on a pre-existing employee committee, Koslowsky was permitted to hold a meeting in opposition to the Boilermakers' union on company premises, a petition was typed for him by an employee in the production office, and the petition in opposition to that union was freely circulated on company premises and company time. These incidents suggest, but do not by themselves prove, tacit employer support for Koslowsky's anti-union activities; and we cannot conclude that this evidence, in itself, is strong enough to support a finding of employer support for the employee association which was subsequently formed in face of the U.A.W.'s organizing campaign. Of much more significance in this regard is the incident of the "employee list" which Koslowsky obtained from Tony Malaca, the respondent's plant manager.
Koslowsky was carefully examined and cross-examined on all of the steps leading up to the formation of the intervener. Unfortunately, his evidence was unsatisfactory in some respects. Initially he denied that there had been any discussion with any member of management about any trade union; but he admitted that the respondent's management knew he was forming an employee association. Since, according to Koslowsky, the decision to do so was only taken on June 2nd, and involved only three employees acting surreptitiously, and on their own time, it is a little difficult to see how the respondent could have known about their intention unless it was told. Initially, Koslowsky told the Board that he had not discussed the association with Malaca, and that he [Kolowsky] didn't know whether on October 4th Malaca knew of his intention to visit a lawyer. On further cross-examination, however, Koslowsky admitted that he had told Malaca about his intention to form an employee association, and had asked for a list of employees and their telephone numbers to assist him. According to Koslowsky, he told Malaca that he needed the list because he was going to see a lawyer, and might need a list of names to compare with "certain applications" (which he expected to receive from his solicitor). Koslowsky told Malaca that he should have a list of employee names and telephone numbers in case he needed it, and, at the time, he assumed that Malaca was aware of the purpose of his visit to the lawyer. Koslowsky told the Board that he did not know the names of many of the employees in the bargaining unit, and had no access to their telephone numbers; but he denied that he subsequently made any use of this information in the intervener's organizing campaign. Malaca did not give evidence.
We find that Tony Malaca, the plant manager of the respondent, supplied Kolowsky with a list of the employees' names and telephone numbers, and further that when he did so, he was aware both of Koslowsky's role in forming an employee association and Koslowsky's intention to use the list for that purpose. But does this constitute "other support" within the meaning of section 13? In order to understand why it must, it is necessary to appreciate the tactical importance of this information.
As a practical matter, an employer, through his possession of employee names and addresses and phone numbers, as well as his ability to communicate fully with his employees on company premises, is ensured of a continuing opportunity (subject to section 64) to inform the employees of his views with respect to trade union representation. On the other hand, a labour organization without a list of employee names and addresses, with no automatic access to plant premises, and no right to conduct its activities on company premises or company time, ordinarily has no method by which it can be certain of reaching all of the employees, or even accurately determining their numbers (an important consideration when a union must organize a fixed percentage of the work force within a relatively short period of time). This is not to deny the existence of various means by which a union may be able to communicate with employees or forecast their numbers without possessing their names and telephone numbers. It is rather to say what seems to us to be obvious that a list of employee names and phone numbers can be of real assistance to an organizing union. Such information is simply not readily available from sources other than the employer. The names of some employees may be secured with the assistance of sympathetic fellow employees, but many employees may be unknown to their fellows or known only by first names or nicknames, and some employees will inevitably be on other shifts, or on layoff, or sick leave, and thus not readily reachable. In summary then, not only is this information important to the union, but in the absence of employer disclosure, it is extremely difficult to obtain.
In the Board's experience, employers are well aware of the tactical value of an employee list, and are usually extremely reluctant to reveal it (see for example the employer's position in: Extendicare Diagnostic Services Limited, [1981] OLRB Rep. Aug. 1134. Indeed, (and ironically in view of the evidence subsequently adduced) that is precisely the position taken by counsel for the respondent in the instant case when, at the opening of the hearing, a minor issue arose between the U.A.W. and the respondent concerning the identity of employees in the unit, and it was suggested by the Board that the matter could most readily be resolved by their joint perusal of the list submitted by the respondent with its reply to the application for certification. There is nothing exceptional about the position taken by counsel, but it serves to underline the tactical significance which he and most employers generally accord to this information. The Board itself has taken the same view in those cases where an employer's illegal conduct has significantly undermined a union's organizing campaign, and ordering the employer to provide a list of employee names, addresses and telephone numbers can help redress the damage done by the employer's illegal conduct and get the organizing campaign back on track. Finally, it might be noted that in British Columbia a series of legislative initiatives designed to facilitate trade union organizational efforts included a 1975 amendment (since repealed) permitting a trade union before commencing its organizing campaign to apply to the British Columbia Labour Relations Board for access to the employees' names, addresses and telephone numbers. (For an analysis of the policy underlying this section see: British Columbia Rail Company and Office and Technical Employees' Union. [1976] 1 Can. L.R.B.R. 470.)
It is clear that the possession of a list of employee names and phone numbers is a significant asset to an individual contemplating the formation of a trade union, and in the absence of any explanation from Mr. Malaca, we must conclude that he was actively seeking to assist Koslowsky in his efforts to form the intervener. It is hardly likely that he would have done the same for a truly independent union such as the U.A.W. (certainly counsel's reticence with respect to the list is the more usual employer reaction), and we cannot find on the evidence that the support was given either inadvertently, or by an individual in a managerial capacity acting on his own, and contrary to the employer's interests. On the contrary, the fact that the employee list was so readily given to the intervener raises precisely the kind of question concerning its independence to which section 13 is directed. And where, as here, the intervener has no previous bargaining history, and was formed in secret, by a small group of union opponents, in the shadow of another union's organizing campaign, it is incumbent upon those employees, and the particular responsibility of the Board, to ensure that section 13 is not contravened. This does not mean that union opponents may not react to an organizing campaign by forming another employee organization. It is simply that if they do so — and especially in circumstances similar to those in the instant the Board must give careful consideration to any evidence suggesting a non arm's length relationship with the employer, and to any allegations or evidence respecting the voluntariness of the employee organization's membership evidence.
We find that the employer support given by Malaca to the intervener offends the prohibition in section 13, and prevents the Board from certifying the intervener. The intervener's application for certification is therefore dismissed.
In view of the foregoing, it is unnecessary to finally decide whether the intervener is a "trade union" within the meaning of the Act.
It appears to the Board on an examination of the records of the applicant and the records of the respondent that not less than thirty-five per cent of the employees of the respondent in the voting constituency hereinafter described were members of the applicant at the time the application was made.
Having regard to the agreement of the parties, the Board directs that a representation vote be taken of the employees of the respondent in the following voting constituency:
All employees of the respondent in Mississauga, Ontario, save and except foremen, persons above the rank of foreman, office and sales staff and those employees presently represented by the Plumbers & Steamfitters Union Association Local 46.
Those entitled to vote shall be all employees of the respondent in the voting constituency on June 12, 1981, who have not voluntarily terminated their employment or who have not been discharged for cause between June 12, 1981 and the date the vote is taken.
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.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
The question as to whether employees should be free to choose between not being represented by any association, or being represented by a locally formed association or being represented by an association with broader national or international ties is not at issue. Clearly freedom of association must mean quite literally that employees must be free to make any of the above choices and the role of the Board is to ensure as best as it can that the choice does reflect a decision freely made by the employees.
Finding that the provision of a list of names and addresses of employees by an agent of the employer to a group of organizers seems to me to take us a step beyond the intent of the Act in terms of the role of the Board. Nor is it my experience that employers necessarily are as secretive about this type of information as the majority have found. There is an understandable reluctance to make available such information if they have reason to believe it would be used in a manner it considered improper such as for sales solicitation, or if the numbers of persons involved were so large as to imply a significant time and cost burden to produce such lists.
Alternatively, in my experience some employers do provide such information to individuals or groups of employees for purposes such as charity canvassing and social events. One wonders if the Board decision might have been different in this case if the evidence had been that the employees had misled the Plant Manager as to their intended use of the list? Does this decision leave employers in the position of having to refuse to divulge such information for any purpose? Does it preclude giving such information with respect to any individual employee?
These questions aside, my main concern is that the ultimate decision of each of the individual employees who joined in support of the employee's association did so without knowledge as to how the organizers for the association had come by their name and that their decision to join the association was a matter of free choice. These employees were at arm's length from the employer and the absence of any allegations is indicative of the membership evidence being voluntary. For the Board to interfere with that freedom of choice seems to me to break new and uncertain ground.
On balance, I believe the rights and interests of individual working people should take precedence over those of institutions and I would have granted status to the employees' association. Given the decision of the majority it is likely that, if their will persists, the employees will be back before this Board at a future date.