[1981] OLRB Rep. August 1174
2629-80-R;2630-80-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC: Applicant, v. Royal Hotel (Sault Ste. Marie) Limited, Respondent, v. Hotel and Restaurant Employees' and Bartenders' International Union and its Local 412, Intervener.
BEFORE: D. E. Franks, Vice-Chairman, and Board Members F. W. Murray and O. Hodges.
APPEARANCES: B. Fishbein and R. McArthur for the applicant; Robert Macpherson for the respondent; Raj Anand, Thomas L. Rees and Tina McGonegal for the intervener.
DECISION OF THE BOARD; August 10, 1981
By a decision dated May 29, 1981, another panel of this Board directed the taking of a representation vote in which certain of the employees of the respondent were given a choice between the applicant and the intervener with respect to who should represent the employees in the bargaining unit. That vote was taken on June 29, 1981. The ballots were counted with the result that of the 42 ballots cast, 25 of the 42 ballots were cast in favour of the applicant and the remaining 17 cast in favour of the intervener. The last day for the filing of statements of objections to the conduct of the representation vote was set by the rules as July 7, 1981.
On July 7th, counsel for the intervener trade union wrote to the Board requesting that the results of the representation vote be set aside and that a new vote be ordered. The basis of this request was two fold, one alleging a violation of the silent period directed by the Registrar, the other alleging the dissemination of misleading information. At the hearing in this matter, the intervener abandoned this second position and it is only necessary for us to deal with the matter of the violation of the silent period.
The relevant portion of the allegation contained in the July 7th letter by the intervener trade union reads as follows:
"Violation of the 'Silent Period'
On or about Saturday, June 27 and Sunday, June 28, 1981, Ms. Linda Taillefer, an employee of the respondent and a representative of the applicant who acted as scrutineer in the election, engaged in campaigning at a party at the home of one Stephen Yeung, inter alia, by attempting to persuade Ms. Laura McLelland and Ms. Karen Morettin to vote for the applicant."
Subsequent to the intervener's letter of July 7, 1981, counsel for the applicant, pursuant to section 47 of the Board's Rules of Procedure, requested particulars with respect to the incident referred to above. Particulars were given by the intervener in a letter dated July 22nd and in a letter dated July 29th from counsel for the intervener. This letter reads as follows:
"In further response to Mr. Fishbein's letter of July 16, 1981, and without in any way conceding the validity of his request for particulars contained in that letter, I am writing to supplement and clarify the first allegation made on behalf of the intervener in my letter of July 7, 1981, to the Board.
At the party at the home of Stephen Yeung on the evening of Saturday, June 27 and the early morning of Sunday, June 28, within the 72 hour period prior to the date of the representation vote held on June 29, Ms. Taillefer, an employee of the respondent and an organizer for the applicant, engaged in intimidation and attempts at persuasion of Ms. Laura McLelland, an employee of the respondent, in the presence of Ms. Karen Morettin.
Ms. Taillefer informed Ms. McLelland that she knew her to be a supporter of the intervener, and that if she attempted to vote, Ms. Taillefer would challenge her vote, and that Ms. McLelland's vote would no longer be secret. Ms. Taillefer also engaged in discussion with Ms. McLelland of the relative merits of the two unions as bargaining agent for the employees of the respondent. The effect of Ms. Taillefer's representations was that Ms. McLelland left the room to avoid Ms. Taillefer's harassment, and did not participate in the representation vote because of the threats made by Ms. Taillefer."
Counsel for the applicant at the hearing in this matter took strenuous objection to the fact that the letter from the intervener dated July 29th had substantially expanded upon the grounds listed in the letter of July 7, 1981. In the course of dealing with a preliminary motion by counsel for the applicant, counsel for the intervener acknowledged that his letter of July 29th could not be interpreted as expanding upon the allegation in the earlier letter, for instance, to the effect that his letter of July 29th alleged a violation of section 61 of the Act.
We are completely in accord with this view taken by counsel for the intervener. At this late date counsel's letter of July 29th cannot be taken to raise on a new source of complaint concerning the representation vote conducted by the Board. The only affect that can be given to the letter of July 29th is to expand upon the conduct of Ms. Taillefer as an attempt to persuade Ms. McLelland and possibly Ms. Morettin during a social event which occurred during the silent period.
This in turn led counsel for the applicant to make a preliminary motion at the Board's hearing to the effect that the conduct outlined in the letter of July 7th and as noted above expanded by the letter of July 29th did not give rise to the request which the intervener made in its letter of July 29th. That is, even if one were to allow as a fact in this matter, the conduct alleged in the letter of July 29th, that conduct does not of itself amount to a breach of the silent period imposed by the Registrar or this Board.
After hearing the representations of the parties in this matter, the Board at the hearing acceded to the request of the applicant and denied the request of the intervener to inquire into the alleged breach of the silent period. On the basis of the facts alleged in the intervener's letter of July 7, 1981, and other facts admitted to the Board on consideration of this preliminary motion, we cannot find that there has been a breach of the silent period as directed by the Registrar. To put the intervener's case in its very best, we have a situation which is clearly a social event not financed or participated in by the applicant trade union. In the course of that social event, Ms. Taillefer, who is an employee in the bargaining unit, discussed with two other employees in the bargaining unit, the vote which was to take place on the following Monday morning. Ms. Taillefer is not a paid union organizer on behalf of the applicant, but like Ms. McLelland and Ms. Morettin is an employee in the bargaining unit. We find it difficult to characterize a conversation between three employees in the bargaining unit on the Saturday evening prior to a representation vote as within the meaning of the term campaigning which is prohibited by order of the Registrar in a representation vote. Such an event occurring at a completely unconnected social event cannot be viewed as an organized attempt by a party to a representation vote to convince employees to vote in a certain way at that representation vote. Indeed, the very meaning of the term "campaign" connotes the notion of an organized attempt to achieve a particular end. Clearly, the events alleged by the intervener cannot be construed as an organized attempt to persuade other employees. In this regard, reference should be had to the Oxford Dictionary which sets out the following meaning of the word "campaign".
"1. Series of military operations in a definite theatre or with one objective or from taking the field to a temporary or final cessation of hostilities (the Burma, Moscow, 1704, -); organized course of action, esp. (Po1.) attempt to rouse public opinion for or against a policy, 2. v.i. Serve on or conduct a -; hence -er n. (old-er, person practised in adapting himself to circumstances)."
In view of the foregoing we are of the view that the conduct of Ms. Taillefer at the party on Saturday, June 27th cannot be construed as campaigning, and thus a violation of the Registrar's direction against campaigning during the silent period. Therefore, at the conclusion of the hearing, the Board dismissed the request by the intervener to inquire into the events of Saturday evening, June 27th as alleged in the intervener's letter of July 7, 1981.
Accordingly, on the taking of the representation vote directed by the Board more than fifty per cent of the ballots cast were cast in favour of the applicant.
A certificate will issue to the applicant.
The Registrar will destroy the ballots cast in the 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 day period.