Canadian Union of Industrial Employees v. Anderson Metal Industries Inc., 1981 CanLII 815

[1981] OLRB Rep. April 415

2043-80-R Canadian Union of Industrial Employees, Applicant, v. Anderson Metal Industries Inc., Respondent, v. Group of Employees, Objectors.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members C. G. Bourne and B. K Lee.

APPEARANCES: Michelle Swenarchuk, Peter Dorfman and Ed Elliott for the applicant; Mark M. Orkin for the respondent; Oleg Borkowitchenko for the objectors.

DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER C. G. BOURNE; April 13, 1981

1. By decision dated January 21, 1981 in this application for certification, another panel of the Board directed that a representation vote be taken amongst the employees in the bargaining unit which was described as follows:

"All employees of the respondent in the Municipality of Metropolitan Toronto, save and except foremen, persons above the rank of foreman, office and clerical staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period."

The Board also appointed an officer to inquire into and report to the Board on the duties and responsibilities of Domingos Ramos whom the respondent claimed to be a foreman excluded by virtue of section l(3)(b) of The Labour Relations Act.

2. As noted in that decision, the parties met and agreed upon voting arrangements on January 16, 1981. It was common ground among the parties that they were duly notified (by letters from the Registrar and by Notices of Taking of Vote posted on the respondent's premises) that the representation vote would be held on Friday, January 30, 1981, from 3:30 p.m. to 4.30 p.m. in the respondent's lunch room. It was also common ground among the parties that they were duly notified of the following direction which was made by the Registrar pursuant to Rule 43(j) of the Rules of Procedure: "I direct all interested persons to refrain and desist from propaganda and electioneering from midnight of Monday, January 26, 1981 until the vote is taken".

3. Once the balloting had been completed, the respective scrutineers of the parties signed the Board's Certification of Conduct of Election by which they certified "that the balloting was fairly conducted and that all eligible voters were given an opportunity to cast their ballots in secret, and that the ballot box was protected in the interest of a fair and secret ballot". The respective representatives of the parties signed the Consent and Waiver by which they consented to an immediate counting of the ballots cast in the representation vote and waived any objection as to the regularity and sufficiency of the balloting. Accordingly, the ballots were immediately counted. Of the twenty ballots cast, ten were marked in favour of the applicant and nine were marked against the applicant. The segregated ballot cast by Domingos Ramos was not counted due to the dispute between the parties with respect to his inclusion in or exclusion from the bargaining unit. By letters dated February 3, 1981, the applicant advised the Board that it withdrew its objection to the respondent's exclusion of Domingos Ramos from the voters list and agreed with the respondent's contention that Mr. Ramos should riot be included in the bargaining unit.

4. The respondent and the objectors allege several contraventions of the Registrar's direction by supporters and representatives of the respondent including Peter Dorfman, the President of the applicant trade union. They request that the Board set aside the representa­tion vote and direct that a further representation vote be taken.

5. Mr. Dorfman was known by at least some of the employees of the respondent to be a representative of the applicant since he had distributed union leaflets to employees outside the shop during the organizing campaign (prior to the period covered by the Registrar's direction). Mr. Dorfman was also the collector on seven of the ten membership cards submitted by the applicant in support of this application. On January 30, 1981, prior to the commencement of the vote, he attended at the respondent's premises and met with Nelson Whitehead, the President of the respondent. Mr. Dorfman, who was to be a representative of the respondent for the purpose of witnessing the counting and tabulation of the ballots, asked Mr. Whitehead where he could wait while the representation vote was being conducted. Mr. Whitehead suggested that he wait in the lobby. After surveying the polling station in the respondent's lunch room, Mr. Dorfman went to the lobby in accordance with Mr. Whitehead's suggestion. About five or ten minutes after the voting began, Mr. Dorfman left his seat in the lobby and spoke through a swinging door to some of the employees who were standing in the adjacent room, waiting to enter the lunch room where the balloting was being conducted. There is no evidence concerning whether the swinging door was opened by Mr. Dorfman or by an employee, nor is there any evidence concerning what Mr. Dorfman said to them. Mr. Dorfman remained in the doorway for at least five minutes before he returned to his seat in the lobby. Mr. Whitehead and two other members of management were aware of the actions of Mi. Dorfman as they observed (from the nearby boardroom in which they were waiting during the balloting) the shadow cast on the floor by Mr. Dorfman as he stood in the doorway. Mr. Whitehead testified that he could hear Mr. Dorfman talking but could not make out whit he was saying. He also testified that he could hear other unintelligible voices which he presumed to be employees responding to Mr. Dorfman. It was his evidence that the "conversation lasted five or six minutes".

6. Two of the employees who testified on behalf of the objectors saw Mr. Dorfman standing in the doorway talking to employees who were waiting to vote. Although they did not know his name at the time, the witnesses knew that Mr. Dorfman was an official of the applicant trade union since they had seen him distributing leaflets outside the plant during the organizing drive. The witnesses were too far away from Mr. Dorfman to hear what he was saying to the employees.

7. Counsel for the respondent argued that Mr. Dorfman's actions during the voting period "irresistibly raise the presumption that Mr. Dorfman was engaged in electioneering and propaganda". He further contended that Board elections must not only be carried on in a fair and reasonable manner but must also be seen to be carried on in a fair and reasonable manner.

8. Counsel for the applicant submitted that the parties seeking to set aside the election had not discharged the onus on them to prove that the Registrar's direction was breached. It was her position that there was no evidence before the Board of electioneering or propagandizing. Accordingly, she submitted that it was unnecessary for Mr. Dorfman to testify before the Board.

9. Section 92(5) of the Act provides as follows:

"Where the Board determines that a representation vote is to be taken amongst the employees in a bargaining unit or voting constituency, the Board may hold such additional representation votes as it considers necessary to determine the true wishes of the employees.

In deciding whether to exercise its discretion under section 92(5) to direct a further representa­tion vote, the Board's concern is whether it can rely on the vote taken on January 30, 1981 as representing the true wishes of the employees. As stated in Armoured Floor Company Limited, [1978] OLRB Rep. Sept. 793, at paragraph 5, "the Board has indicated the kind of climate which it considers suitable for the exercise of an individual employee's personal choice in casting his vote in Wolverine Tube Division of Calumet and Hecla of Canada Ltd. 63 CLLC C 12,296 at 1228 wherein it refers to Rogers Majestic Limited D.L.S. 7-1382 as follows:

'Its primary object is to ensure that, so far as possible, the vote will be conducted in an atmosphere of calm and that the employees who are to participate in the vote shall not be subjected to partisan pressures and influences as the voting day approaches. The Board's view has always been that at that point the individual employees should be left free to make a purely personal decision as to how he should vote."'

10. Although Mr. Dorfman was not an employee of the respondent, as the representative of the applicant trade union for the purpose of counting and tabulating the ballots he had a legitimate reason for attending at the premises of the respondent at the time of the vote. However, the performance of that function did not require that he speak with employees who were waiting to cast their ballots. Mr. Dorfman was present throughout the hearing but he did not testify before the Board. In the circumstances of this case, the failure of Mr. Dorfman to give evidence which was within his power to give and by which relevant facts might have been elucidated, justifies the Board in drawing the inference that his evidence would have been unfavourable to the applicant's case or at least would not have supported it (see B & S Furniture Manufacturing Limited, [1980] OLRB Rep. May 645, at paragraph 11, and the authorities cited therein).

11. The mere presence of one or more trade union representatives in or near the polling area will not necessarily induce the Board to set aside a representation vote and order a further vote (see Neelon Steel Limited, [1965] OLRB Rep. Nov. 548). However, the instant case does not involve the mere presence of a representative of the applicant; it is a case in which the highest official of the applicant trade union spoke for at least five minutes through a partially opened door to employees immediately before they cast their ballots in the representation vote. Although there is no direct evidence before the Board that Mr. Dorfman breached the Registrar's direction, having regard to all of the circumstances including the absence of any explanation by Mr. Dorfman of his conduct, the Board is of the view that it is reasonable to infer that the direction was contravened in the present case. The Board is further of the opinion that in view of Mr. Dorfman's imprudent conduct, it cannot rely upon the representation vote as an expression of the true wishes of the employees with respect to their desire to be represented by the applicant in their employment relations with the respondent.

12. Accordingly, having regard to all of the evidence before it, the Board in the exercise of its discretion sets aside the representation vote in this matter and directs that a further representation vote be taken amongst the employees in the bargaining unit. All employees of the respondent in the bargaining unit on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.

13. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.

14. In view of our disposition of this matter, it is unnecessary for the Board to determine whether other contraventions of the Registrar's direction occurred, as alleged by the respondent and the objectors. However, the Board wishes to note for the future guidance of the parties that a number of the objectors' allegations appear to have been based on the mistaken belief that the Registrar's direction prohibited employees from speaking or communicating in writing on any subject from midnight of Monday, January 26, 1981 until completion of the vote. This misunderstanding of the effect of the direction may have resulted from the term "silent period" which is often used as an informal description of the period covered by the direction. However, it is clear from the wording of the direction that it does not prohibit all communication among employees; it only precludes propaganda and electioneering, in order to allow employees an opportunity for reflection during a period in which they wit not be subjected to persuasion.

15. The matter is referred to the Registrar.

DECISION OF BOARD MEMBER B. K. LEE;

1. Having read the decision of the majority, I dissent.

2. The facts as contained in the majority decision are not in dispute.

3. Regarding the applicant Union's position not to have Mr. Dorfman testify, I accept, in the circumstances of this case, the reasons put forward by counsel for the union for this determination. (see clause 8 of the majority decision).

4. There is no direct evidence of violation of the silent period or that the activities of Mr. Dorfman influenced the vote of any of the employees participating.

5. I find that the vote taken January 30th, 1981 represents the true wishes of the employees arid there is no justification to order another representation vote.