1038-81-R Ontario Public Service Employees Union, Applicant, v. Renaissance Homes Inc., Respondent, v. Group of Employees, Objectors.
BEFORE: N. B. Satterfield, Vice-Chairman and Board Members H. Kobryn and J. Wilson.
APPEARANCES: C. Paliare, P. Seville and M. Morgan for the applicant; J. Craddock and D. Wyatt for the respondent; M. Lane, L. Fletcher, G. Doucet, D. Farrell and R. Jones for the objectors.
DECISION OF THE BOARD; September 8, 1981
The name: "Renaissance Homes" appearing in the style of cause of this application as the name of the respondent is amended to read: "Renaissance Homes Inc.
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section l(l)(n) of The Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent in Oakville, Ontario, save and except the supervisor and persons above that rank, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied on the basis of all the evidence before it that 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 August21, 1981, 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.
Thus the applicant is in a position to be certified without need of a representation vote. In fact, the applicant filed a membership card on behalf of each of the employees of the respondent named on the list filed by the respondent as being employees falling within the bargaining unit described above. There were filed with the Board, however, five identical statements of desire in opposition to the application, each dated August 20th, 1981 and each signed by an employee who had previously signed an application for membership in the applicant trade union. These statements read as follows:
"In response to The Labour Relations Act Notice to Employees of Application for Certification and of Hearing between Ontario Public Service Employees Union and Renaissance Homes;
I, “. . .”, as an employee of Renaissance Homes, request a stop of all proceedings towards the certification of Ontario Public Service Employees Union as bargaining agent between the employees of Renaissance Homes and their employer John Farrell, Director of Renaissance Homes Inc.
After careful consideration I feel that I am capable of negotiating with my employer on my own behalf and therefore choose to do so."
If these statements are proven to express the voluntary wishes of the employees who signed them, it would normally cause the Board to exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote because the documents raise doubts as to whether the applicant continues to enjoy the support of more than fifty-five per cent of the employees in the bargaining unit when this application was made. Accordingly, the Board conducted its usual inquiry into the origin, preparation, circulation and filing with the Board of the five statements.
All five of the objectors appeared at the Board's hearing into this application and three of them, Robert Jones, Dan Farrell and Lee Fletcher testified. Jones was spokesman for the group. From their testimony and the evidence of witnesses for the applicant and the respondent the Board makes the following findings of fact.
Since mid-July 1979, the respondent has operated a group home for disturbed children called the Halton Shelter under contract from and on behalf of the Halton Children's Aid Society. The respondent's contract with the society expired June 30, 1981. The respondent has been operating the Shelter on a day to day basis under the same financial terms as had existed under the expired contract. The respondent and the society had attempted since March 1981 to negotiate a new contract for the operation of the Shelter but, as of July 1981 when the negotiations came to a standstill, they had been unsuccessful in coming to new terms. While neither party has given formal notice to the other of its intent to terminate the day by day arrangement, it appears that the owner of the respondent may have advised the Society on or about August 10th that it would have to cease operating the Shelter if they could not come to terms for a new contract.
Some of the testimony of the objectors and their submissions on the evidence suggest that a representative of the applicant misled employees as to the purpose and effect of their signing membership cards into the applicant. That clearly was not the case on the evidence. If there was any misleading at all, and the Board makes no finding either way, then it was done by some of the employees, including two of the objectors, who may have made misleading statements to other employees as a result of their own misunderstanding. The union representative was not present at the meeting when these statements were made.
The Board is satisfied with the manner in which the five documents were prepared, signed and filed with the Board, but for the purpose of determining the issue of voluntariness, the Board is concerned with the effect on their origin of various events which took place prior to the emergence of the documents.
On July 21, 1981, three employees, including two who are now objectors, met at their request with a representative of the applicant to discuss how to become represented by a trade union and the ramifications of representation. Seven employees met at the home of one of them on July 30th and each completed an application for membership in the applicant. The two who were not at the meeting later signed cards too. The union representative picked up the cards on August 4th and filed this application for certification on August 5th. The next day, eight of the employees, including the five objectors met with the Shelter supervisor to advise him that the employees were going to "unionize", that their action was not directed at him and that they wanted him to know before he received formal notice of their actions. It is not clear on the evidence that these employees knew that the application had already been made when they were speaking with the supervisor, but they fully realized that, since they had signed membership cards with the applicant, the supervisor would ultimately receive some form of advice or notice regarding their efforts to unionize. When the supervisor informed his superiors of what the employees had told him, he was asked to arrange a meeting with all of the employees of the Shelter. Accordingly, a meeting was held on the morning of August 11th attended by all of the employees, the Shelter supervisor, the owner of the respondent, Mr. John Farrell and his partner Mr. Dirk Wyatt, who is also a shareholder of the respondent. The meeting lasted for some three to three and one-half hours and a major part of the time was taken up with discussion of complaints and grievances from the employees. The respondent acknowledges that the employees at the meeting were told that it was opposed to a third party intervene in the relationships between the respondent and the employees because, in the respondent's view, such intervention would interfere with the respondent's wardship of the children assigned to the Shelter. The evidence does not reveal why the respondent thought the presence of a union would interfere with its wardship of the children but its concern seems to arise, in part at least, from its claim that one employee at the meeting expressed the expectation that the union would intervene on the employees' behalf directly with the Children's Aid Society. They were reminded that they still had time to change their minds about the union and advise it so. The respondent acknowledges, as well, that the possibility of the Shelter being closed or of the respondent withdrawing from its operation was put to the meeting in the context of the poor financial results from its operation and the difficulties that the respondent was encountering in negotiating contract terms satisfactory to it. The Board is satisfied on the evidence that no date for the potential closing was mentioned at the meeting. When an employee complained at the meeting that a 10 per cent raise granted this year had been inadequate, the respondent offered to intercede directly with the Children's Aid Society to see if it could obtain an immediate three per cent increase, negotiate a six month's contract with the Society and on renewal thereof seek a further eight per cent increase.
Following this meeting, the union representative was contacted by one of the employees and asked to organize a meeting of all employees. That same evening, August 11th, the representative met with six of the nine employees. After listening to the employees' comments about the meeting with the respondent earlier that day, and observing their uncertainty over the application, the representative advised the employees that they should decide individually whether they wished to be represented by the union and by 3 p.m. on August 13th notify an employee designated by the representative of their decision. They were told that the union would abide by the wishes of the majority of them, even if the decision was to withdraw the application. The result of the "vote" was 6-3 in favour of letting the application stand, although this final result came after two employees, one of them being an objector, changed their minds after originally indicating that they were in favour of withdrawing the application.
The respondent sent a telegram on August 17th, 1981 to all staff stating as follows:
"We regret to advise you that your employment is terminated fourteen days from this date, effective August 31".
The copy of the telegram sent to Jones indicates that it was sent at 10:24 p.m. on August 17th, although he first received the message by telephone around 9:00 a.m. on August 18th. Lee Fletcher told the Board that she received a telephone message about the telegram during the evening of August 17th and that same evening spoke to two of the other objectors about it. The respondent told the Board that the purpose of sending the telegram was to satisfy the statutory requirement of giving two weeks notice in writing to the employees in the event that the Society decided on short notice to either close the Shelter or replace the respondent as its operator. The employees had been given no indication, however, that their employment may continue beyond August 31.
- In the interval between the majority decision of the employees to continue with the application and August 17th, one of the objectors had sought legal advice on how to prevent the application from going ahead. On August 17th the five objectors agreed to meet the following day to discuss a course of action. They did meet on the morning of August 18th and prepared a typewritten notice to the applicant, signed by all five of them, which states as follows:
"As of Tuesday August 18, 1981 the staff members of Renaissance Homes (Halton Shelter) 1470 Bronte Road, Oakville, Ontario: would like you to stop all union activities on our behalf. We have not been pressured in any way, shape or form by the owners or the management of Renaissance Homes.".
One of the objectors delivered the notice to the union representative shortly after it had been signed and was told by the representative that this notice would have no effect on the application.
As a result of this application having been made during the strike in the Post Office, it was necessary for the Board to arrange to serve the employees individually with notice of the application. The employees and the respondent received the Board's notice on August 20th, the day before the terminal date for this application. On receipt of his notice Jones decided to prepare a statement in opposition to the application and, with the assistance of another petitioner, prepared the five identical documents described above. Their two statements together with that of a third objector were signed on the evening of August 20th and the other two were signed the next day, August 21st. Jones delivered the five statements to the Board later that day.
Whenever the Board is assessing statements filed by employees in opposition to an application for certification, the issue for the Board is one of voluntariness. Before the Board will give any weight to such statements in the context of the Board's exercise of its discretion under section 7 of the Act, it must be satisfied that such statements are voluntary. In this respect, the Board has disregarded such statements not only when their emergence has been influenced by actual involvement of the employer, but also where the employees who signed them may have been influenced by their reasonable perception that the employer was involved.
The Board's primary concern in the instant case is with the effect on the employees of the statements made by the respondent at the August 11th meeting and its telegram sent barely a week later advising the employees that their employment would be terminated as of August 31st. In the meeting the employer made its opposition to a union becoming involved at the Shelter quite clear. There is nothing unlawful in an employer being opposed, per se, to trade unions and expressing that opposition, as long as the employer's remarks are within the bounds of legitimate free expression and do not serve to intimidate or coerce the employees to whom they were addressed. But in the case at hand, the respondent's expressed opposition to having a union at the Shelter was coupled with its comments about possibly having to withdraw from operation of the Shelter and with its reminder to the employees that they still had time to change their minds and advise the union accordingly. Without deciding if the respondent's remarks made in the context of these circumstances exceed the bounds of free expression, the circumstances above serve to imply that the result which the respondent expected from the meeting was for the employees to change their minds. Then, within less than a week, the respondent sent the telegram notifying the employees that their employment would be terminated as of August 31st. Whether or not the telegram was sent for the purpose attributed to it by the respondent, coming so soon after the August 11th meeting, it would be difficult, if not impossible for the employees to divorce it from the respondent's statements at the meeting. Even if the respondent's statements and actions were put in the best possible light and no intent to influence the employees attached to them, taken in the context of the sequence of events starting with the employees advising the Shelter supervisor of their actions through to the signing of the five individual statements in opposition to the application for certification, the respondent's statements and actions, in the Board's view, were capable of unduly influencing the employees to repudiate their support of the applicant, thus thwarting free expression. In these circumstances, the Board concludes that the five individual statements made in opposition to this application are not a voluntary expression of the wishes of the employees who signed them. The Board, therefore, will not exercise its discretion under section 7(2) of the Act to direct that a representation vote be held.
A certificate will issue to the applicant.