The Elk Lake Planing Mill Employees Association v. Elk Lake Planing Mill Limited, 1981 CanLII 874

Ontario Labour Relations Board

[1981] OLRB Rep. April 446

2111-80-R The Elk Lake Planing Mill Employees Association, Applicant, v. Elk Lake Planing Mill Limited, Respondent, v. Lumber and Sawmill 'Workers Union, Local 2995, Intervener.

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.

APPEARANCES: F. Rovet, .1. Hoyles and M. Powell for the applicant; Michael Horan and Cal Millard for the respondent; Laurence C. Arnold and Norman Rivard for the intervener.

DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER F. W. MURRAY; April 6, 1981

1. This is an application for certification for employees of the respondent's Mill operation presently represented by the intervener. The bargaining unit is described as follows:

Al employees engaged in the Sawmill, Planing Mill, and Yard Operations of the Company, save and except foreman, persons above the rank of foreman, and office staff. For purposes of this Article, employees shall be al. those employed in the job classifications set out in the Wage Schedule attached to and forming a part of this Agreement, including those who are employed on job classifications which my be established and become part of the attached Wage Schedule during the term of this Agreement.

2. The applicant is a newly-formed employees' association, and accordingly was advised by the Board that it would be required to establish its status as a "trade union" within the meaning of The Labour Relations Act.

3. The respondent employer and the intervener Lumber and Sawmill Workers Union, Local 2995, have a mature bargaining relationship dating back a number of years. A lawful strike commenced in February of 1980, and that strike continues until the present. The operations of the respondent were initially halted entirely, but resumed some time in May of 1980. Certain bargaining-unit personnel, as well as other persons employed by the respondent, immediately crossed the picket line to man the Mill. From the limited evidence presented to the Board, it appears that the level of antagonism has been high throughout the strike. The company used a van and then a bus to transport personnel through the picket line, and employees at some stages remained inside the plant for full weeks at a time rather than cross the picket line on a daily basis. It is apparent that the present employees' association was formed amongst the employees who have chosen to continue working during the strike. The instant application for certification was filed in December 1980.

4. At the outset of the hearing, counsel for the intervener took the position that the Board, in the circumstances of this case, ought to treat the present application in the same way as it does an application for a declaration terminating bargaining rights. Since the effect upon the intervener is the same, and since the intervener and its supporters have no knowledge of what transpires within the Mill while they are on strike, counsel argued that the applicant should be put through a petition-type inquiry to permit the Board to be satisfied of the voluntariness of the employees' acts of forming and joining the applicant association. The Board refused to entertain the argument on the ground that no notice prior to the hearing was given that such a dramatic change in procedure was going to be suggested. In addition, the voluntariness of membership evidence is always material to the Board, so that considerable latitude is available to the incumbent trade union, if only in cross-examination, to pursue this line of inquiry when the applicant is establishing its status. As the present case demonstrated, the evidence relating to trade union status and that relating to the quality of membership evidence may well be intertwined.

5. The only evidence adduced by the applicant in support of its status was given by John Sucee, an employee hired by the respondent in a maintenance capacity in July of 1979. Mr. Sucee was assigned to the respondent's Heating Plant when he began, and appears to have been described by himself and others from time to time as the Heating Plant Supervisor. He began on salary, but was changed to an hourly basis once a rate could be established. Mr. Sucee's job did not exist at the time the most recent collective agreement was negotiated, and he has never been treated by the parties as falling within the bargaining unit. It is clear, however, from the evidence of all of the witnesses, including the intervener's President, Donald Boucher, that Mr. Sucee "supervises" only the Heating Plant apparatus itself, which is physically separate from the Mill, and does not supervise any other employees. The closest that he comes to the latter, according to the evidence of Mr. Boucher, is to notify the electrician (who is also not a member of the bargaining unit) when repairs are required to the heating plant. The Board has no doubt, based on the evidence, that Mr. Sucee at no time exercised "managerial" functions within the meaning of section 1(3)(b) of the Act. The perception by other employees of Mr. Sucee's status, however, and its effect upon this application, is substantially more complicated, and will be examined later in the decision.

6. The evidence discloses that Mr. Sucee was one of those employees who elected to cross the picket line in May of 1980 when the plant resumed operations. He was at that time assigned to various kinds of bargaining-unit work within the Mill. Passage through the picket line was, as Mr. Sucee testified, extremely difficult. As noted, the company provided first a van and then a bus to transport employees to work, and Mr. Sucee, as a former bus-driver, was assigned to operate these vehicles. Beyond this, Mr. Sucee considered himself touched by the strike in a distinctly personal way, as all the windows in his house were broken the first night the maintenance staff returned to work. Subsequently, the garage to his home was burned to the ground. with his car inside. In all, the damage which Mr. Sucee suffered to his house and personal property, and which he attributed to the strike, amounted to some $33,000.

7. In July of 1980, Mr. Sucee began discussing with Rejean Roy, the relief operator for the Heating Plant, the possibility of getting an injunction to at least reduce the level of picketing a:tivity. Mr. Sucee and two employees in the bargaining unit, Gil Rodrigue and Maggie Champion, attended the office of John Hoyles, a solicitor in New Liskeard, in this regard, but were advised that this was a matter for the company. Mr. Rodrigue then raised the possibility of the employees forming their own trade union, and Mr. Hoyles suggested they return to the Mill and ascertain how many of the employees would favour such a move. Mr. Sucee and the others did so, and found widespread support for the idea. Mr. Sucee advised Mr. Hoyles of this, and a meeting was arranged for the evening of August 7th, at the New Liskeard Town Hall. The meeting was announced to employees on the bus, by Mr. Rodrigue, one morning before the bus entered the company premises. There were no members of management on the bus at the time.

8. At the meeting on August 7th, Mr. Sucee introduced Mr. Hoyles, and Mr. Hoyles explained the purpose of the employees' association and handed out copies of the proposed constitution. After going over the constitution, Mr. Hoyles asked how many employees were in favour of joining the association on the basis of the proposed constitution, and all present indicated their approval. Each of the employees then signed an application for membership and paid their dollar. These represent the bulk of the cards submitted with this application. Officers were nominated and elected by secret ballot. The constitution was then ratified, and a resolution passed authorizing an application for certification.

9. The intervener asks the Board to decline to grant status to the applicant on the grounds that both the election of officers and the applications for membership preceded the formal ratification of the applicant's constitution, and were not confirmed afterwards, and cites in support a number of early cases decided by this Board. The Boards as early as the Hotel Dieu Hospital case, [1969] OLRB Rep. June 367, however, began to adopt a principle of "simultaneous occurrence , where, as here, the various steps necessary for the formation of a trade union took place at one and the same meeting. The Board's sole task is to ascertain whether the applicant is a "trade union" within the meaning of section l(1)(n) of The Labour Relations Act. (See CSAO National (Inc.), (1972) 1972 CanLII 563 (ON CA), 2 OR. 498 (C.A.); Associated Hebrew Schools of Toronto, [1978] OLRB Rep. Sept. 797; Canteen of Canada, [1978] OLRB Rep. Sept. 802.) So long as the intention and understanding of the particular parties is free from doubt and the necessary steps are taken to make the organization viable, the Board does not become unduly concerned over the precise sequence in which the steps are carried out. This would appear to make good industrial-relations sense, and avoids the sort of "chicken-and­egg" analysis now urged by the intervener. Contrary to the submission of the intervener, the Board finds nothing in the amended definition of "member" in section l(l)(j) of the Act which in any way restricts the Board to this approach.

10. In the present case, all of the employees present at the meeting of August 7th indicated their willingness to join the new association specifically on the basis of the proposed constitution, and then did so. That constitution sets out as its objects:

ARTICLE 3 - Objects

The prime objectives of the Association are as follows:

1. to serve the best interests of the employees, both with the Mill and among themselves and to regulate the relations between the employees and the Mill;

2. to organize all employees of the Mill who are not in supervisory positions, to settle disputes between employees and the Mill either through agreements procedure, mediation, conciliation or arbitration;

3. through the Bargaining Committee or any other committees authorized for the purpose to conduct negotiations between the Mill and the employees to achieve and maintain a high standard of living and security.

Officers were then elected and authorized to proceed with the present application for certification. The Board on the evidence finds no reason to deny the applicant "trade union status based on the manner in which its organizing meeting was conducted. The Board finds that the applicant is a "trade union" within the meaning of section l(1)(n) of the Act.

11. In the alternative, the intervener argues that the applicant must be denied status as a trade union on the basis of section 12 as well as section 56 of the Act, essentially because of the involvement of Mr. Sucee in the applicant's formation. Those sections provide:

12. The Board shall not certify a trade union if any employer or employer's 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.

13. 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.

14. Mr. Sucee was a forthright and credible witness, and indicated that management, as far as he was aware, was given no knowledge of the organizing activities of the applicant. Mr. Sucee testified in fact that he had asked permission to borrow the company's bus the night of the organizing meeting in New Liskeard, without disclosing his purpose, and was refused. Mr. Millard, the plant manager, also was a candid witness, and testified that he became aware of the existence of the applicant only well after the fact, as a result of an indirect query by an employee who was opposed to joining any union. The evidence further fails to establish that any of the employees involved with the applicant, including Mr. Sucee, exercise managerial functions within the meaning of section 1(3)(b) of the Act. In short, there is no evidence that anyone who was in fact a member of management either directly or indirectly supported or participated in the formation of the applicant. It might be noted that as far as membership alone is concerned, eligibility for membership in the applicant is restricted by its constitution as follows:

All employees who are not employed in a managerial, supervisory, or confidential capacity who sign an application for membership shall be eligible for and shall be admitted to membership in the Association subject to acceptance by the Executive Board of the Association.

Thus even the inclusion as a member of an individual ultimately found to be "managerial" would not necessarily affect the actual "status" of the applicant (see 6'hildren's Aid Society, [1976] OLRB Rep. Nov. 651), so long as that individual was expelled from membership once his status was determined.

13. The difficult question before the Board is the perception which other employees would have had of Mr. Sucee's relationship to management, and the effect that that perception would in turn be likely to have had upon the voluntariness of the applicant's membership evidence. As the Board stated in St. Michael Shops, [1979] OLRB Rep. April 346:

….In an application for certification the Board relies on hearsay evidence in determining the membership support of an applicant union. It is not feasible for the Board to hear from each individual who signed a card to ascertain his true wishes or inquire into the circumstances under which he signed a membership card. For this system to operate effectively the Board must consider any substantial allegation which might cause the Board to doubt the reliability of the membership evidence.

14. While Mr. Sucee, as noted, was never treated as a member of the bargaining unit, the evidence falls short of establishing that his exclusion was the result of a general understanding or perception that he was "managerial". Rather, the basis for this, according to the available evidence, appears to relate to the unwritten exclusion from the coverage of the collective agreement of various types of "maintenance" personnel, which is the type of function Mr. Sucee was hired into. Neither Mr. Millard, the plant manager, nor Mr. Boucher, the intervener's president, were involved in the original negotiation of this exclusion from the production unit, and neither purported to have any clear understanding of its basis. Mr. Doucher himself could say little more than that an agreement had been reached, prior to his time, that certain maintenance personnel were not "covered within our jurisdiction". Both millwrights and electricians came to be excluded under this agreement, and there is no dispute that the electricians, at least, were never considered managerial. Mr. Millard appears to have elected to take advantage of the same flexibility with regard to the new position occupied by Mr. Sucee by retaining it as a staff (non-unit) position. The evidence relating to Mr. Sucee's exclusion from the bargaining unit does not, therefore, provide the Board with any significant guidance as to how Mr. Sucee was generally perceived.

15. Similarly, the Board is not persuaded that the action of Mr. Sucee in crossing the picket line from the beginning, or his assignment to drive the company vehicles, given his qualifications and prior experience, would cause employees to view Mr. Sucee as managerial. Nor does the Board regard Mr. Sucee's alleged protestation that he was a supervisor, at the time of crossing a hostile picket line, as the best evidence of either Mr. Sucee's or other employees' perception of his status. The real problem concerning Mr. Sucee is the fact that both he and the relief Heating Plant operator, Rejean Roy, wore white hats.

16. White hats are not necessarily indicia of authority in a particular plant. In the present case, however, it is clear that at least some of the employees attached significance to the wearing of a white hat. The evidence of Mr. Millard was that millwrights, for example, used to wear white hats, but he changed their hats to red when Mr. Boucher complained to him that the millwrights were behaving as if they had the right to give orders. The millwrights did, however, continue to be excluded from the unit. Mr. Millard testified that one of the more senior millwrights, Fred Pritchard, felt he had suffered some loss in status when his white hat was taken away, so Mr. Millard allowed him to keep it. Mr. Millard further testified that he probably should have changed the hat colour of Mr. Sucee and Mr. Roy in the Heating Plant at the same time as the millwrights', but his only thought at the time, based on Mr. Boucher's complaint, was to avoid confusion in the Mill. From all of this the Board must conclude that employees' perception of Mr. Sucee, while not necessarily managerial, would have at least been ambiguous in nature. While it is clear on the evidence, that Mr. Sucee had no actual authority over employees in the Mill or was otherwise exercising managerial functions, it is difficult to quarrel with the submission of counsel for the intervener based on all of the facts enumerated in this decision that employees would reasonably perceive that "Mr. Sucee was very closely associated with Management and indeed occupied some supervisory petition" (in the sense of having at least some responsibilities beyond those of rank-and-file employees).

17. What, then, is the consequence of this perception of the reliability or voluntariness of the applicant's membership evidence? In determining this question, the Board must bear in mind the pivotal role which Mr. Sucee played in obtaining the membership evidence submitted by the applicant. But the Board must, at the same time, not lose sight of the full context in which the present application arises.

18. The intervener submits that whether or not Mr. Sucee was indeed "managerial", employee perception of his status is sufficient to cause the Board to dismiss this application. The intervener cites in particular Veres Wire Industry Limited, [1976] OLRB Rep. July 337 as a case in support of this proposition. Whatever be the merits of that submission, Veres Wire does not go that far. Veres Wire was a case in which the impugned individual was in fact, after an examination into his duties and responsibilities, found to fall on the "managerial" side of the line. That individual was the direct supervisor of the bulk of employees in the unit, and the Board noted at paragraph 7 therein: "He is ~ foreman in the true sense as contemplated under section l(3)(l,) of the Act" and "shown to be 'the boss' of a vast majority of the members of the appropriate bargaining unit". Where, however, the individual is in fact not "managerial", he is, prima facie, exercising his lawful rights under The Labour Relations Act, and the sole issue before the Board is whether the individual's participation must be said to have undermined the voluntariness of the acts of others. In this regard, the Board finds the reasoning of A. N. Shaw & Sons (Eastern) Ltd., [1980] OLRB Rep. Oct. 1347, to be apt. That case involved an application for a declaration terminating bargaining rights, which, incidentally, is the kind of case the intervener has urged the Board to analogize with the present one. There the petition in support of the application was originated and circulated by the working foreman, who at all times provided the only supervision of the members of the field crew which made up the bargaining unit. While the individual in that case, a Mr. Foley, was a member of the bargaining unit, he, unlike Mr. Sucee, clearly exercised significant supervisory responsibilities over his fellow employees, and in that sense stood in a special relationship both to employees in the unit and to management. The Board put the test as follows:

19. In assessing the voluntariness of the statement of desire, we are unable to accept the proposition that Mr. Foley stands in the same position as any other employee in the bargaining unit. Because of his supervisory functions, Mr. Foley's active involvement with the statement of desire raises concerns which would not exist if he were other than a working foreman. However, we also do not believe that his involvement with the statement of desire must invariably result in a finding that it cannot be given any weight. Rather, what is required is an examination of all of the surrounding circumstances and an assessment of whether other employees would likely have viewed Mr. Foley as acting on behalf of, or with the support of management, or whether they would likely have perceived him as a bargaining unit employee seeking only to further his own self-interests.

The Board then concluded:

11. Employees would have been well aware of Mr. Foley's supervisory role, particularly in assigning work. They would also likely have been aware of the fact that he was responsible for making reports to management concerning their work performance. It is also reasonable to assume that the other employees would have known that notwithstanding his status as a working foreman, Mr. Foley, like themselves, was a union member within the bargaining unit. The evidence does not suggest that Mr. Foley did anything to' indicate to the employees that he was acting on behalf of management. To the contrary, his case in favour of terminating the respondent's bargaining rights was based upon his view that union representation had acted to restrict the work available to himself and others. Along with the other employees he had been laid off for five or six weeks under circumstances where he felt he need not have been, and he blamed the existence of the collective agreement for this fact. When all of these considerations are taken into account, we feel that the other employees would more likely have regarded Mr. Foley as acting in what he perceived to be in his own interests rather than acting on behalf of management.

12. In the present case, the Board is prepared to assume that the employer would welcome the instant application, and that employees on either side of the picket line would recognize this as well. From the evidence, however, it appears that management remained wholly uninvolved with the steps preceding the application, and, more importantly, that Mr. Sucee and the other organizers did nothing to suggest to employees the contrary. Mr Sucee appears to have prudently gone out of his way to avoid making his activities the subject of management's knowledge, or carrying out these activities in any significant way on company premises, so as to suggest any connection with the employer. Mr. Sucee had reasons of his own, described earlier, for taking initiatives to displace the intervener as bargaining agent, and these reasons without doubt would be well known to other employees working in this small-town Mill. In the circumstances of this case, the Board does not find that the various indicia relied upon by the intervener to demonstrate Mr. Sucee's "close association" with management would be such as to destroy the ability of the employees in the bargaining unit to elect on their own to join or not to join the applicant association. In fact, one could say in this case that all of the employees at work in the Mill had chosen in an overt way to associate themselves with management, rather than with the intervener, in choosing to work during the strike. The present situation had become polarized well before the present application was spawned, and the lines were clearly drawn.

13. Having regard to the fact that Mr. Sucee never did exercise supervisory functions over anyone and so could not have been observed by other employees doing so, to the care which Mr. Sucee took to divorce and indeed conceal the applicant's activities from management, to Mr. Sucee's own patent reasons for initiating the action that he did, to the existence of an apparently "technical" category of exclusion from the bargaining unit which would explain or at least obscure the reason for Mr. Sucee's treatment as staff, and to the visible polarization already in existence in the Mill, the Board does not conclude that Mr. Sucee would have been perceived by other employees as either a member of management, or acting at its behest (cf. More Groceteria, [1980] OLRB Rep. July 1033). More precisely, the Board is not persuaded that the participation of Mr. Sucee in the activities of the applicant casts such a cloud on the membership evidence before the Board as to cause the Board to discount it entirely. Rather, if the necessary forty-five per cent of employees in the bargaining unit were members of the applicant on the terminal date of this application, the Board is of the view that all employees ought to be given the opportunity to indicate, by way of secret ballot, whether they wish to be represented by the applicant or the intervener in their employment relations with the respondent.

14. The Board notes that the dates of April 8 and 9 have been set aside for the continuation of this matter, as required. The sole remaining issue, however, would appear at this point to be the identification of those persons who were employees in the bargaining unit on the date this application was filed. The Board accordingly appoints an officer to meet with the parties on April 8th, and April 9th if necessary, to attempt to settle the list of employees in the unit, and, as well, if the applicant appears to enjoy the necessary forty-five per cent membership support in the existing bargaining unit, to settle the arrangements for the taking of a representation vote.

DECISION OF BOARD MEMBER B. L. ARMSTRONG;

1. I dissent.

2. The majority has, in my view, placed an inappropriate emphasis on the actual nature of Mi. Sucee's position with the employer, and on the actual steps he took to keep the applicant's activities from management.

3. It is, I suggest, clear on the evidence that Mr. Sucee has a high profile in the workplace which necessarily created an appearance of managerial status. The polarization of the employees at the time of the applicant's formation, coupled with the general perception of Mr. Sucee as being in some way managerial, could not help but create the impression that the Association was inspired or sanctioned by the employer.

4. Since I cannot find the membership evidence in the case at hand to be voluntarily obtained, I would dismiss the application without a vote.