1665-80-R Employees' Association of Milltronics, Applicant, v. Milltronics Limited, Respondent, V. United Electrical, Radio and Machines Workers of America (UE), intervener.
BEFORE: Pamela C. Picher, Vice-Chairman and Board Members H. J. F. Ade and 0. Hodges.
APPEARANCES: Michael G. Horan and Norman Forrest for the applicant; J. P. Wearing and P. Day for the respondent; Susan Stewart, Art Jenkyn and J. Welch for the intervener.
DECISION OF VICE-CHAIRMAN, PAMELA C. PICHER AND BOARD MEMBER H.
J.F. ADE; October 22, 1981.
This is an application for certification for the employees at the respondent's plant. The applicant, the Employees' Association of Milltronics (hereinafter referred to as "the Association") is seeking to displace the incumbent union, the United Electrical, Radio and Machine Workers of America (hereinafter referred to "the U.E.").
The Board finds that both the Association and the U.E. are trade unions within the meaning of section 1(1 )(p) of the Labour Relations A ct. The Association was first given status as a trade union by this Board on July 28, 1977; its union status is not being challenged in this proceeding.
On July 28, 1977 the Association was certified by the Board to represent employees of the respondent in two separate bargaining units, one of plant employees and the other of office and clerical employees. Following certification, the Association and Milltronics entered into a collective agreement effective June. 1, 1978 through December 3 1, 1979 covering the employees in both bargaining units. During the open period of that agreement, on November 1, 1979, the U.E. applied to be certified to represent the employees in the respondent's plant, thus seeking to displace the Association's bargaining rights for the plant employees. Witnesses on behalf of the U.E. testified that the genesis of the U.E.'s displacement application was employee dissatisfaction with the then president of the Association, arising in part from his extended absences. The rest of the Association's executive then brought forward the U.E.'s application for certification. The U.E. won the representation vote ordered by the Board and was certified on January 15, 1980 as the exclusive bargaining agent for the plant employees. In March of 1980, the U.E. and Milltronics entered into a collective agreement effective January 1, 1980 through December 31, 1980.
The Association's bargaining rights continued for the office and clerical employees. On December 19, 1980 the Association and Milltronics entered into a one year agreement for these employees commencing January 1, 1981. Following the U.E.'s certification, the Association voted in a new president.
During the open period of the U.E.'s collective agreement the Association, by way of the application presently before the Board, again applied to be certified for the plant employees. By a decision dated November 21, 1980 the Board directed the taking of a pre-hearing representation vote among the plant employees. The vote taken on December 2, 1980 between the Association and the U.E. was won by the applicant Association.
Notwithstanding the outcome of the representation vote, the U.E. alleges that pursuant to the provisions of section 13 of the Act, the Association should not be certified. Section 13 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.
The U.E. maintains that the employer has rendered "support" to the Association through various acts dating back to the U.E.'s original quest for bargaining rights.
In the alternative, the U.E. argues that the Association's application should be dismissed because the true wishes of the employees were not expressed in the representation vote held on December 2, 1980. In support of this position, the U.E. relies on the company's failure to implement an award of a board of arbitration requiring employees to pay union dues or be dismissed.
We turn first to the U.E.'s claim under section 13 of the Act. The evidence may be divided into three categories; employer conduct preceding the first representation vote held between the U.E. and the Association in 1979, employer conduct following the U.E.'s certification and employer conduct during the campaign leading up to the second representation vote taken pursuant to the instant application.
In November of 1979, prior to the first representation vote between the Association and the U.E., the company issued numerous letters to employees reflecting its preference for the Association over the U.E. The U.E. argues that these letters demonstrate the extent to which the employer wanted to preserve its relationship with the Association and avoid a bargaining relationship with the U.E. In this manner, the U.E. argues, the employer demonstrated "support" for the Association for the purposes of section 13 of the Act. One typical letter expressed the following views:
November 26, 1979
Dear ...
Sometime in the near future, you may have the opportunity to decide by ballot whether we will continue to conduct our employee relationships as we have in the past or have the United Electrical Radio and Machine Workers of America act as the bargaining agent at Milltronics.
I sincerely believe you will be happier over the long run by working out your problems in the spirit of co-operation that we have always enjoyed. Your choice will be between the United Electrical Radio and Machine Workers of America and your Association. You will vote by secret ballot, no one but you will know how you vote. No card or anything else you may have signed forces you to vote for an American International Union. Nor will the fact of your membership in your Canadian Employees' Association require you to support it — You are free to choose as you wish.
In deciding how you will vote, I am sure you will study closely the pros and cons of outside representation. You have seen forceful examples of the unrest, violence, loss of pay and sales that strikes can cause. Our own city has had its share of losses due to strikes, Your Association has not been part of that record.
None of us want this kind of threat hanging over us, you do not need a lot of strangers to help you run your affairs at Milltronics. I urge you to vote "NO" to the International Union.
"A. E. Gillis"
Another letter dated December 11, 1979 provides as follows:
Dear ...
Over the past few weeks we have been working with members of your Association to negotiate a fair agreement that will ensure your security and provide reasonable wages and benefits for the next two years. The Ministry of Labour's appointed Conciliator, the Association Team and Management's Team honestly believed that we had bargained for the best possible contract. We feel that our efforts to re-classify the lower paid workers, our initiation of Labour/ Management talks on a regular basis, improvements of the grievance procedure along with the benefit and salary increases mentioned is a most progressive step forward.
One of the major needs in a Company, as in a family, is the need to communicate. With proper communication we can build the trust that is necessary for a good working relationship.
Over the past couple of years we have made changes and errors that have strained our lines of communication. Consequently, we have lost the trust of some employees. We believe that the Labour/Management meetings that are to be held on a regular basis will re-build this trust. We believe that we can all use these talks to "clear the air" and resolve problems before they become too big to handle. We ask you to give us this chance.
During the past few months our attempts to communicate with you have been restricted by the provisions of the Labour Relations Act. As an example, Milltronics cannot promise you anything, they cannot threaten you, intimidate you or even suggest how you should vote. In effect we can say nothing. But, on the other hand, the union can promise you anything [. H]owever. as you well know promises are not guarantees.
The paid organizers of this International Union and those at Milltronics who are helping them will come to you with promises and criticisms of Milltronics. The criticisms you should judge for yourself. You know more about Milltronics and its people than any paid organizer or any organizer from another plant working for the United Electrical Radio and Machine Workers of America could ever know.
We ask that you be very careful in your preparation and consideration for the vote on December 17th, how you vote will affect your working life for the future.
"A. E. G illis"
- Despite the employer's expressed preference for maintaining its bargaining relationship with the Association, the U.E. won the representation vote, thereby displacing the Association's bargaining rights in the plant. The letters do not contain threats or promises. They express, though, the employer's preference for maintaining its bargaining relationship with the Association. Clearly major portions of the letters fall within the free speech protection provided employers under section 64 of the Act. To whatever extent, if any, any segment of the employer's letters pass the bounds of protected expression, the employees, as a group, were not prevented from expressing their preference for the U.E. in the representation vote. (For cases indicating that standing alone, the mere expression of a preference for one of two competing trade unions would not constitute "other support" see R. v. Malone Winnipeg and Free Press Co. Ltd., 76 CLLC ¶114,046 (Manitoba Court of Appeal); Bonavista Cold Storage Co. Ltd., 57 CLLC 1 18,094 (Newfoundland L.R.B.); N.L.R.B. v. Corning Glass Works (1953), 32 LRRM 2136 (U.S. Court of Appeals, First Circuit) and N.L.R.B. v. Wagner Iron Works (1955), 35 LRRM 2588 (U.S. Court of Appeals, Seventh Circuit). No complaint was made by the U.E. about the employer's letters prior to the 1979 representation vote. The first time the U.E. raised the issue was over a year later when it lost the representation vote taken pursuant to the instant application.
II. Given the absence of threats or promises in the letters, the amount of time that has passed since they were written, the certification of the U.E. and the collective agreement that followed immediately thereafter, the Board cannot concluded that the 1979 letters are sufficient to trigger section 13 of the Act. At best the letters might lend colour to more recent events if those events otherwise demonstrate "support" for the Association.
Moving forward in time, the U.E. further complains that throughout its bargaining relationship with Milltronics the employer has exhibited a desire to rid itself of the U.E. and regain its relationship with the Association. The Board has carefully reviewed the testimony and documents and finds no evidence of "support" for the Association through the manner in which the employer conducted itself in its bargaining relationship with the UF.
The U.E. complained, for example, that the employer demonstrated a desire to rid itself of the U.E. by entering a one year rather than two year agreement with the U.E. In support of this argument the U.E. notes that prior to the 1979 representation vote won by the U.E., the employer had expressed a desire to have a two year agreement with the Association for both the plant and office bargaining units.
Prior to the U.E.'s application for certification the employer and the Association had entered joint negotiations for both the office and plant employees. With the U.E.'s application, the combined bargaining was served. For the office employees, the employer had presented two offers. One was for a one year agreement with a particular percentage wage increase and the other was for a two year agreement with a different percentage increase. The two packages were put to the employees by the Association and they voted in favour of the one year agreement. Ultimately, following that expressed preference, the Association selected the one year agreement. In these circumstances the Board can draw no adverse inference against the employer from the fact that the employer originally expressed a preference for a two year agreement but then entered into a one year agreement for the office.
For the plant employees, the U.E. made an initial request for a two year agreement. At that point, however, the company stated that it wanted a one year agreement and the U.E. consented. There is no evidence to suggest that the duration of the collective agreement was a matter of contention between the parties. Mr. Phillip Day, the supervisor of employee relations for Milltronics, testified that the company expressed a preference for a one year agreement because it was entering into a new bargaining relationship with a new union. Day testified that with a new union and a new contract the employer wanted to have a year to iron out initial wrinkles.
The Board found Mr. Day to be a credible witness and accepts his explanation. The company had not adopted a pattern of two year agreements from which it made a radical departure for the U.E.. From the circumstances surrounding the term of the UF's agreement, the Board finds no evidence of "other support" for the purposes of section 13 of the Act.
The U.E. further complains that the employer exhibited "other support" for the Association by the way it dealt with the U.E. throughout its tenure as bargaining agent for the plant employees. The U.E. maintains that the employer tried to frustrate the normal union/employer bargaining relationship by discouraging UF. union stewards from filing grievances and by refusing to allow employees to bump into the transducer department.
Day testified that the U.E. filed approximately sixteen written grievances. Four went to the fourth stage of the grievance procedure and two of those were referred to arbitration. One of the two referred to arbitration was withdrawn by the union and the other grievance relating to union dues proceeded through the arbitration process. The other twelve grievances were resolved either at the second or third stage of the grievance procedure. Testimony from U.E. witnesses reveals that a large number of those grievances were dropped by the union. From a record such as this, the Board cannot conclude that the employer deliberately sought to frustrate its bargaining relationship with the U.E.. Apart from the matter relating to union dues discussed in further detail below, there was no instance where the U.E. even argued to this Board that the employer took an unreasonable view of its rights under the collective agreement.
A number of grievances stemmed from the union's complaint that employees were not being allowed to bump into the transducer department. The U.E. acknowledges both that Mr. Day listened to their point of view during the grievance meetings and that the company was not violating the collective agreement by denying the employees the right to bump into the transducer area. The substance of the U.E.'s complaint as it relates to section 13 of the Act is that the employer refused to adopt what the U.E. believed was a valid suggestion for the resolution of their differences. The Board heard evidence from the company about the unique problems facing the transducer department at that time. From this unchallenged evidence the Board is fully satisfied that the employer's response to the union on matters relating to the transducer area was prompted entirely by bona fide business considerations and not at all by an attempt to undermine the credibility of the U.E.
Turning to the next period of time, the U.E. complains that the employer exhibited "support" for the Association during the campaign which preceded the representation vote in issue before this Board. On November 19, 1980, the company posted the following notice in the plant:
As a result of complaints from Supervisors regarding "campaigning" during working hours and a defjnite problem with productivity in the panel assembly area, P. G. Day met with the following:
D. D. Cassey N. Forrest Association President J. Welch Union Local President R. Head Union Negotiating Committee
The following points were outlined to the Association and Union personnel:
1Productivity is suffering because of campaign activity.
Individuals have been previously warned, (M. Legrow of the Union and B. Rudolph for the Association).
Supervisors have been instructed to enforce normal disciplinary rules regarding leaving work stations for other than acceptable reasons and for Union or Association activity during working hours.
The Company will not tolerate this counter productive effort, these kinds of activities must be confined to other than working hours.
It is common ground that prior to the meeting referred to in the above memorandum, both the U.E. and the Association were engaged in vigorous campaigns. Many discussions occurred on company time during which both Association supporters and U.E. supporters attempted to persuade employees to join their ranks. There is no evidence suggesting to the Board, however, that either in tolerating such discussions during working hours or in ultimately seeking to circumscribe them through the meeting and memorandum, the company displayed any imbalance in its treatment of the two competing unions.
The U.F. complains, though, that the employer showed favoritism to the Association during the campaign by not adequately disciplining Mr. Benjamin Rudolph for taking a fellow employee, Ms. Betty Chappell, away from her work station for approximately twenty-five minutes on October 21, 1980 to discuss the union situation.
To encourage Ms. Chappell to leave her work station Mr. Rudolph, quite unintentionally, used words that caused Ms. Chapell substantial personal upset because of an illness in her family. The U.E. acknowledges that Rudolph was directed by Day to apologize to Chappell for the incident. The U.E. claims, however, that the action taken by the company was solely responsive to Chappell's personal upset and not to the wrongdoing of taking an employee away from her work station for approximately twenty-five minutes to discuss the U.E. and the association. It is undisputed that when Ms. Chappell and her steward, Ms. Pat Condon, complained to Mr. Day about the incident he listened attentively, stated that Rudolph had been wrong and asked if an apology would be acceptable. Ms. Chappell agreed that it would. Day immediately convened a meeting of Rudolph and his supervisor for the purpose of informing Rudolph that his actions were unacceptable and directing him to apologize to Chappell. The Board accepts on the evidence that Rudolph was specifically informed that taking an employee away from her work station during working hours was unacceptable behaviour. Additionally, a verbal warning relating to the incident is recorded in Rudolph's file. The event does not therefore conform to the characterization place on it by the
U.E.
It is significant to the U.E.'s section 13 claim that the incident occurred prior to the time when the company clamped down on both unions for campaigning during working hours. In these circumstances, even if Rudolph's conduct had gone undisciplined it would not indicate that the employer was bestowing a special advantage on the Association or seeking to create a situation which would enable the Association's campaigning to be more effective than the U.E.'s. There is not the slightest suggestion in the evidence that the employer was anything but even-handed in dealing with the problem of both unions campaigning during working hours.
The U.E. further complains that favoritism for the Association was displayed during the campaign when Mr. Norm Forrest, the president of the Association, approached Ms. Judy Welch, the president of the U.E., at her work station during working hours in late November of 1980. The U.E. emphasizes that this discussion occurred after the warning memorandum of November 19, 1980 and maintains that if Welch had been at Forrest's work area she would have been disciplined. The U.E. argues that in failing to discipline Forrest for speaking to Welch about union business during working hours, the employer gave "support" to the Association within the meaning of section 13 of the Act.
26.. It is common ground that the discussion which took place between Welch and Forrest concerned a proposal put forth by Forrest that he, as president of the Association, and Welch, as president of the U.E., should have an open debate so that all employees would have an opportunity to hear both sides of the issues before the representation vote on December 2nd.
The Association maintains that under section 2.5 of the collective agreement between the Association and employer covering agreement between the Association and employer covering the office employees, the president of the Association is entitled to spend one hour per day on Association business. Accordingly, the Association argues. Forrest's discussion with Welch was not something for which he deserved to be disciplined. Quite apart from his rights under that collective agreement, the Association further maintains that Forrest's conversation with Welch did not fall within the scope of the company's memorandum of November 19, 1980 because it was not "campaigning", but rather a neutral proposal that would benefit all employees equally.
Whether or not the collective agreement entitled Forest to speak with Welch during working hours and whether or not the conversation would fall outside the company's memorandum of November 19th, the Board is satisfied that the event does not reflect employer "support" for the Association. If Forrest was wrong for engaging in a non-working conversation during working hours, then so was Welch. Accordingly, if the company was in fact aware of their discussion, a conclusion which does not emerge from the evidence, the Board would view the company's failure to discipline as even-handed treatment of both the U.E. and the Association. The Board, therefore, draws no inference of employer "support" for the Association from Forrest's conversation with Welch in late November of 1980.
Another matter complained of by the U.F. is that Forrest distributed leaflets on a number of occasions during his working hours without receiving discipline from the employer. During the campaign, the two unions fell into a pattern for the distribution of literature. The U.E. passed out leaflets in the morning prior to the commencement of work and the Association, from virtually the same spot at the company's gates, distributed its literature at the end of the plant employees' working day.
Forrest and two other persons who on occasion distributed Association literature were office employees. While hours in the plant end at 4:15 p.m., the office hours continue until 4:30 p.m. To effectively distribute campaign literature to plant employees, Forrest left the office fifteen minutes early on a few occasions. The Board accepts the uncontradicted and documented evidence that by prior arrangement with their supervisor, Forrest made up all time lost from leaving the office early. The Association again argues that Forrest was acting within his rights under the office collective agreement as he could use an hour a day for Association business.
3 1. Whether or not Forrest was entitled under the office collective agreement to take time off to distribute literature, the Board cannot conclude that the employer gave "support" to the Association within the meaning of section 13 of the Act by allowing Forrest on occasion to leave the office fifteen minutes early. Forrest was not given a free benefit. By prior arrangement, he made up the time. Additionally, the evidence does not suggest that through this arrangement the employer gave the Association an edge in its campaign. More importantly, there is no indication in the evidence that the employer treated the U.E. less favorably than the Association as would have been the case if the employer had denied the same arrangement to a U.E. campaigner making a similar request.
Another ground of complaint raised by the U.E. is that the employer paid Forrest a day's wages when he went to a labour relations conference. On November 6th and 7th, 1980 Forrest attended a labour relations conference entitled, "Negotiating a Collective Agreement". The Association does not dispute that Forrest was paid for one of the two days.
While Forrest was the president of the union seeking to displace the U.E., he was also the president of the union that already held bargaining rights for the office employees. No matter what the outcome of the Association's application for certification for the plant employees, Forrest, in November of 1980, was on the brink of entering negotiations for the office employees. It is not surprising, therefore, that he would go to a labour relations seminar on the subject of negotiating a collective agreement. When Forrest initially requested permission to attend the conference, he asked the company to pay both the conference fees and his wages while away from work. The employer denied his request. Day testified, however, that upon reflection he decided that since Forrest and his associate were salary rated employees, they should be paid their wages for one day.
Once again, if the employer had been uneven in its treatment of the Association and the U.E. with respect to this conference, the Board would draw an inference adverse to the employer and the Association. There is no evidence, however, that the employer, for example, approached the Association to suggest attendance at the conference without making a similar suggestion to the U.E. The employer in fact took no initiative regarding the conference but rather reacted to an Association request. Notice of the conference was posted at the plant and a U.E. supporter could have requested to go. If the employer had received a request from a U.E. supporter to attend the conference but refused to bestow the same benefit given Forrest, the Board would draw an inference adverse to the company. No such request was made, however, The Board cannot conclude on the mere evidence that Forrest and another Association representative attended the conference under the arrangement set out above that the Association received "support" within the meaning of section 13 of the Act. The Association and the employer were in an ongoing and unchallenged bargaining relationship with respect to the office. A measure of accommodation between them therefore may be viewed as natural and of neutral effect with respect to section 13 of the Act. This is particularly true when, as in this situation, the employer has not exhibited unequal treatment in its dealings with the U.E. and the Association. In Smith Beverages Limited, [1975] OLRB Rep. Dec. 956, the Board commented that there is a natural spirit of cooperation that may develop between a trade union and an employer following certification which does not offend section 13 of the Act. At pp. 959-960 the Board said.
Before proceeding the Board would point out that the incumbent association has carried on a relationship with the respondent company as the certified bargaining agent of its employees for a number of years. A co-operative spirit may, and very often does, develop between the parties as a collective bargaining relationship matures which in no way lessens the union's effectiveness to represent the bargaining unit employees. The Board refers to such things as the use of company premises for meetings, the use of company offices by union officials, the movement within the work setting of union stewards, the interview of new employees by stewards and even dues check off. Prior to certification any of these manifestations of an on-going relationship could serve as a bar pursuant to section 12 [now section 13] of the Act. Subsequent to certification, however, these activities may be provided for in a collective agreement or may become part of an accepted practice between the parties but they in no way diminish or destroy the status of the trade union.
(See also Tri-Canada Inc., [1981] OLRB Rep. Oct. 1509 at para. 16.)
- The final matter complained of by the U.E. in support of its primary position that the employer gave "support" to the Association is its allegation that the employer bargained with the Association in a violation of section 67 of the Act. Section 67 provides as follows:
67.-(l) No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting. designed or intended to be binding upon the employees in the bargaining unit or any of them.
(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.
The U.E. maintains that subsequent to the Association's win of the representation vote on December 2, 1980 but prior to certification, the Association and the employer entered into negotiations on behalf of the plant employees.
- If the Association's win of the representation vote had not been disputed by the U.F., the Association would have commenced simultaneous bargaining with the employer on behalf of both the plant and office employees. Hoping to combine the bargaining and anticipating that the results of the vote would be confirmed by this Board, the Association initially sought to delay the office bargaining until the instant matter had been resolved. With the passage of time, however, and under pressure from the office employees, the union commenced separate bargaining. The following Letter of Understanding was posted at the Association's request:
LETTER OF UNDERSTANDING
It is understood between Milltronics Limited and the Employee's Association of Milltronics Limited that in any Collective Agreement, individual articles of agreement and other articles which would affect employees later certified to be represented by the Association, would, upon notice of such certification, be open to re-negotiation.
Notice of a request to re-negotiate specific articles shall be supplied to the Company in writing within thirty (30) days of receipt of the certification notice.
Date "Feb. 4/81" "Phillip G. Day"
Phillip G. Day, Supervisor, Employee & Community Relations
N. Forrest"
N. Forrest,
President, The Employee's
Association of Milltronics
Limited.
When the Association held bargaining rights for both the plant and office employees, the collective agreements for each were combined into one document. Forrest testified that in 1981 when the Association commenced bargaining for the office employees, the Association wanted to make it very clear to the employer that any provisions that were bargained for the office employees would not have a binding effect on the plant employees. The Association would clearly not have been bound vis-a-vis the plant employees by clauses negotiated for the office employees. The Board concluded from the evidence, however, that the Association was concerned about such a possibility as the collective agreements for the two units had previously been grouped into one document. Having reviewed the evidence, the Board is satisfied that statements made about the production workers by the Association and the employer during the course of bargaining for the office employees were limited to caveats from the Association to assure itself that if it did become certified for the plant employees it would not be restricted in negotiating for the office employees. Exchanges of this nature in the circumstances of this case do not constitute either a breach of section 67 of the Act or "support" within the meaning of section 13.
Stepping back from the details of the evidence, we note that this Association did not first develop in the shadow of the organizing campaign of an established, broader based union. In this regard it is clearly distinguishable from Square D Canada Electrical Equipment[1980] OLRB Rep. Sept. 1324 and Tri-Canada Inc., supra, at para. 22. The Association was originally certified by the Board in 1977 and entered into a collective agreement which operated for a year and one half before the U.E. sought to displace it in the plant. Contrary to the suggestion of the U.E., the evidence does not support the conclusion that the bargaining relationship the Association has developed with the employer is anything other than arms length.
For the reasons detailed above, the Board cannot conclude that the employer has rendered "support" to the Association. The Board therefore is not precluded from certifying the Association by virtue of the provisions of section 13 of the Act.
We turn then to the U.E.'s alternate argument concerning the employer's response to an award issued by a board of arbitration relating to union dues.
In May of 1980, a dispute arose between the employer and the U.E. over the collection of union dues. Under the terms of the collective agreement in effect between the U.E. and Milltronics, all employees were required to pay union dues. It is common ground that five employees were not paying union dues thus giving rise to the policy grievance filed by the union. It is apparent on the face of the decision of the board of arbitration that prior to the arbitration, the employer had put before the offending employees dues authorization forms to be signed. The employer had not, however, further presented them with the alternative of "sign or be discharged" as requested by the U.E. The matter was not resolved in the grievance procedure and was processed through to arbitration. By a decision dated September 29, 1980, the board of arbitration held that the collective agreement placed upon the company an obligation to put employees to the choice of either paying dues or not retaining their employment.
The award did not bring an end to the dispute. On October 29, 1980, the company filed in the Supreme Court of Ontario notice of application for judicial review. On January 7, 198!, the Court issued an interim decision staying the execution of the award insofar as it required the discharge of employees for failing to pay union dues. Ultimately, in June of 198!, the Court upheld the award of the board of arbitration.
The employer as of the date of the representation vote on December 2, 1980 had not implemented the award. It had not in other words discharged any employee for failing to sign a dues authorization form. The U.E. maintains that the failure of the employer to discharge offending employees affected that outcome of the vote and that, accordingly, the Association's application for certification should be dismissed. The U.E. maintains that the average employee would have been aware of three critical factors: first, the clear language of the collective agreement requiring all employees to pay union dues; secondly, the award of the board of arbitration requiring the employer to present employees who were not paying dues with the choice of signing a dues authorization form or being dismissed; and thirdly, the fact that by the time of the vote the employer had not implemented this award. The union argues that an employee's awareness of these factors would cause a reasonable employee to feel that the U.E. was an ineffective bargaining agent.
The Board cannot conclude on the evidence that the employer's failure to discharge employees who had failed to sign dues authorization forms following the issuance of the award of the board of arbitration invalidates the representation vote taken on December 2, 1980. Well before the vote, on October 29, 1980, the employer applied for judicial review of the decision of the board of arbitration. Although the appeal was ultimately dismissed in June of 1981, the employer acted within its judicial rights in seeking review of the decision of the board of arbitration. If the average or reasonable employee may be presumed to have been aware of the three factors set out above, such an employee may also be presumed to have been aware of the employer's application forjudicial review. In light of these events, the Board concludes that the typical employee on the date of the representation vote would not conclude that the employer had brought the U.E. to its knees by failing to implement the board of arbitration's award. Instead, the Board concludes that the average employee would have recognized that there was an ongoing dispute between the employer and the union over whether the employer was required to discharge employees for failing to sign dues authorization forms. The employer's reluctance to discharge employees pending a final disposition of the employer's appeal was vindicated on January 7th, 1981 when the Court issued a stay of the implementation of the award insofar as it required the employer to discharge employees who had not signed dues authorization forms.
An additional branch of the U.E.'s argument is that if by the date of the vote the five offending employees had been discharged as required by the award of the board of arbitration, the outcome of the vote may have been quite different as there may have been five fewer votes for the Association. There were 93 employees on the voters' list; only 74, however, cast ballots. It is impossible for the Board to know at this stage whether any employees who had not signed dues authorization forms on December 2, 1980 cast a ballot in the representation vote. Accordingly, the Board cannot conclude that if the employer had discharged them for failing to sign dues authorization forms the outcome of the vote would have been different. At the time of the vote the U.E. neither challenged the right of any employee to vote nor disputed the overall validity of the representation vote on this ground. If it had done so then, in a timely fashion, the ballots in dispute could have been segregated. Having failed to challenge the right of certain individuals to cast ballots then we cannot accept the union's argument now.
To summarize the Board's findings, we conclude that the employer did not render "support" to the Association within the meaning of section 13 of the Act and that the employer's response to the award of the board of arbitration did not affect the validity of the representation vote.
The Board finds that all employees of Milltronics Limited at Peterborough, save and except foremen, persons above the rank of foreman, office and clerical employees, accounting staff, salesmen, professional engineers, product specialists, field service personnel and students, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied that not less than thirty-five per cent of the employees of the respondent in the bargaining unit were members of the applicant at the time the application was made.
On the taking of the pre-hearing representation vote directed by the Board, more than fifty per cent of the ballots cast were cast in favour of the Association.
A certificate will issue to the Association.
5 1. The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 days period.
DECISION OF BOARD MEMBER OLIVER HODGES;
I dissent. The majority decision recites the evidence from which the conclusion to certify the applicant Association is derived. However, there is certain other evidence which weighs heavily against certification. Taken altogether, I conclude that the application for certification should be dismissed.
That this is a displacement application is extremely relevant. Obviously great weight must be accorded to events related to the employer, which may be seen to influence employee perception of the applicant Association or of the incumbent trade union. It is well documented by the evidence in this case that the respondent strongly favours the Association. Paragraph 9 of the majority decision makes that plain. That evidence must be underscored by the additional facts that those offensive letters to employees were on company letterhead and that the President of the respondent signed them.
Paragraphs 10 and 11 of the majority decision indicate that no weight is accorded to the letters signed by the company President as set out in paragraph 9. However, it is my opinion that the content of those letters, dated only a year before the present application, would have been vividly remembered by employees. Indeed, given the evidence of the incumbent trade union with its first collective agreement, it would be unusual if the employees failed to recall those letters without a "The Company President said so" recollection. The Association activity preceding the vote in the present application would serve to revive the influence of those letters. Whether challenged at the time they were distributed or not, those letters exist unchanged and continue to show the true face of the respondent. There is no evidence that the displacement of the Association by the U.E. in the first contest with the Association caused the respondent to change its spirit of ardent, overt and substantial support of the Association. There is absolutely no evidence nor any disclaimer by the Association at any time that the respondent support was unwelcome in any respect whatsoever. Having won certification in that first contest with the Association, it would have been counter productive for the U.E. to litigate the propriety of the respondent's support for the Association in that campaign. The U.E. was then proceeding to negotiate a first agreement and it would have been silly to harass the respondent while attempting to develop a harmonious bargaining relationship.
The majority in their decision, (paragraphs 20 and 21,) see the notice posted by the respondent on November 19th, 1980 as absolution for the support given to the Association up to that time in the present case. In fact, the notice posted by the respondent could not purge the minds of employees of what they already had seen of the free wheeling campaign activity of the President of the Association during his normal working hours. How could that happen without the support of the respondent? The answer is that the evidence discloses that the respondent did co-operate with the Association in its campaign to displace the incumbent U.E.
The majority decision (paragraphs 29, 30 and 31) excuses the accommodation made by the respondent which allowed Association President Forrest and other office bargaining unit employees to leave work on several occasions before their normal quitting time of 4:30 p.m., so that they could meet the plant bargaining unit employees coming off the day shift at 4:15 p.m. and hand out Association propaganda. The "other support" clearly evident in this accommodation is that the Association organizers "made up" their lost time during lunch breaks and by overtime. In paragraph 31 the majority of the panel hypothesizes that they would see the issue differently if the U.E. had been refused a like accommodation, had the U.E. made such a request. The fact is that the U.E. did not require special company approved arrangements to meet plant employees. The postulation of the speculative case by the majority of this panel is no justification for their line of reasoning condoning the make up of lost time utilized for campaign activity by the Association. This is a particularly relevant consideration in the circumstances of a displacement campaign. These facts alone are sufficient to trigger the sanction called by section 13 and require a dismissal of the application.
The provision in the Association collective agreement covering the office bargaining unit allowing company paid time during working hours for attending to Association business cannot by any reasonable interpretation be taken for purposes other than servicing the office bargaining unit. Would the respondent allow the Association President under this provision to assist in the organization of an Association of employees of some other employer? And if that did happen, would this Board still consider this Association a trade union? Considering the majority decision in this case, the answer would be "yes". but in my opinion, the use of company paid time by the President while on Association business cannot have extended to campaign activity in the plant bargaining unit without attracting the sanction against "financial support" as required by section 13 and therefore dismissal of the application is required.
The majority observes (paragraph 34) that there is no evidence that the employer approached either the U.E. or the Association with regard to the labour relations conference offered by the University of Guelph and held on November 6 and 7, 1980, and therefore "other support" for the Association is not to be inferred. It appears to me, however, that the correct view of this matter requires the Board to find that there was an onus upon the respondent to offer the same attendance accommodation to both the Association representing the office bargaining unit and the U.E. representing the plant bargaining unit. There is no evidence that the respondent discharged that onus. Exhibit 25 is the announcement of the conference apparently posted by the respondent. It was introduced by counsel for the applicant through Mr. Forrest, President of the Association; it says in part:
"WHO SHOULD ATTEND
This workshop is for people in management and labour who are concerned with or responsible for the preparation, negotiation and day-to-day administration of the collective agreement. Experienced negotiators and those with a strong interest in employer/employee relations will also find the workshop of practical value."
Presumably, this Board is to understand that the respondent approved of attendance by its employees at the Guelph conference. Having agreed with the Association representing office employees to an accommodation for paid time off to attend the conference, it appears reasonable that the U.E., representing the plant employees, would be entitled to be advised and offered the same opportunity. Indeed, the respondent had an onus to do so if the "financial support" sanction of section 13 was to be avoided. There is no evidence that the respondent discharged this onus to deal with the applicant and the incumbent in an even handed manner in this matter. Having failed to show that it had dealt with both bargaining agents in a like manner, I conclude that "financial" and "other support" by the respondent was accepted by the applicant to its advantage in the plant bargaining unit contest and as a consequence certification must be denied as required by section 13 of the Act. In making this finding I am mindful of the testimony of Henry Osak regarding the conversation initiated with him while at work by Association President Forrest with regard to joining the Association, on Wednesday November 5, 1980. Forrest told Osak that the Company was sending himself to a course at Guelph to learn how to negotiate contracts, "and they would be sorry they sent him because he would learn so much about it". Osak was unshaken in this testimony when cross-examined by counsel for the applicant.
The impact Forrest made on Osak in this encounter during Osak's regular working hours has a sequel. Forrest is employed in the purchasing department of the respondent "in the front office". He advised Osak that he could get in touch on Monday when Forrest would have returned from the Guelph course. On Monday, as required by his janitorial duties, Osak was vacuuming the front office carpets during the office lunch hour which Forrest was taking at his desk. Forrest asked Osak whether he had thought over their Wednesday discussion. Replying in the affirmative Osak asked for an Association application form, which Forrest gave to him (Exhibit I). It is not filled in by an applicant, but the signature of "Hamilton" was on the form as collector when Osak accepted it with the intention of joining the Association. Osak knew Hamilton as an hourly worker. Forrest advised him "to complete and return the form to himself the next day with $1.00 in cash no l.O.U.'s." This intrusion into the regular working time of Osak went on for about 20 minutes. Osak testified that because of it he did not get all the carpets vacuumed. Further consideration caused Osak to change his mind and he did not join the Association nor return the application form to Forrest. The evidence of Forrest is that he had no other application forms pre-signed by a collector in his possession when he gave Exhibit 1 to Osak.
The majority in paragraphs 20, 21, 22, 23 and 24 sets forth their reasons and conclusions in dismissing the incumbent allegation of favouritism by the respondent toward the Association. Unlike the majority, I see the Rudolph-Chappel affair as indicating that Rudolph was quite sure of tacit freedom to campaign for the Association during working hours without fear of discipline by the respondent. Rudolph appeared to have the same kind of assurance as Forrest in the matter of campaign activity. The November 19th, 1980, posting of a notice by the company cannot expunge the effect of earlier campaign freedom for the Association which the evidence indicates to me is "other support" extended to the Association by the respondent.
The majority in paragraphs 41, 42, 43, 44, 45 and 46 deals with and dismisses the incumbent's allegation of "other support" for the Association evidenced by the refusal of the respondent to enforce the collective agreement requirement that employees authorize dues check-off as a condition of continued employment. However, as I see the evidence the effect of the protracted litigation of a very plain and simple requirement of the collective agreement by the respondent was to embarrass the incumbent and encourage employees in the plant bargaining unit to join the Association. I perceive that to have been the intention of the respondent, and therefore "other support" within the meaning of section 13.
Payment of dues by all employees in a bargaining unit is now required by law when requested, but there were decades of struggle against management condonation of the "free rider" who took the benefits won by the trade union but who refused to pay dues to support the bargaining agent. The respondent demonstrated an inexcusable atavism in this matter, with obstruction of the incumbent trade union and support for the applicant Association as the clear result.
The rationale of section 13 (formerly section 12) of the Act was outlined in one of the earliest cases involving that section. In Edwards & Edwards Ltd., 52 CLLC ¶ 17,027 it was stated:
"The unfair practice sections of the Act, including section [56] which prohibit the type of employer conduct referred to in section [12], are, in large part, designed to safeguard the freedom of employees to join and to bargain collectively through the trade union of their own choice which is granted in section 3. That purpose is furthered by the provisions of section [12] which places upon the Board the obligation to satisfy itself that no employer has meddled in the affairs of an applicant for certification. The section is clearly aimed at 'company-dominated' trade unions which are not entitled to be certified, on the theory that a trade union fostered by an employer cannot be considered as having been freely chosen by employees. The section designates conduct by means of which an employer might seek to confine the broad right conferred by section 3 and is therefore to be called into play where that purpose appears. We consider it is intended to be applied where employer activities are of such a character or are of such proportions that it is reasonable to infer that the employees have not exercised a free choice in the matter of selection of a bargaining agent, or where an employer has given material assistance to a trade union in connection with its organizational cvr other activities; where, in other words, the particular applicant is not truly the chosen bargaining agent of the employees concerned. It is argued that because of its explicit language, section [12] need only be literally construed and mechanically applied. We suggest that it can properly be interpreted only by reference to what is its obvious intent: to prohibit the certification of any trade union which, because of the nature of its relationship with an employer, is not qualified to act on behalf of employees in their relation with their employer."
The rationale expressed in Edwards & Edwards, supra, is clearly applicable to the facts and circumstances of the present case.
- Considering all of the evidence and in the particular circumstances of this case, I find the Association to be the willing beneficiary of "financial" and "other support" coming within the sanctions imposed by section 13. 1 therefore find that the applicant Association may not be certified, and consequently the application must be dismissed.