[1982] OLRB Rep. April 519
1309-81-R; 1329-81-U Leonard Kitchen, Complainant/Applicant v. United Food and Commercial Workers International Union and its Local 417, Donald Dayman, Devin Corporon, Gary Haycock, Art Miller, Steve Gibbs, Beth Gibbs, Gerald Rochleau, Allen Rosburgh, Respondents, v. Beatrice Foods (Ontario) Limited Malcolm Condensing Company Division, Intervener.
BEFORE: Mr. G. Picher, Vice-Chairman, and Board Members F. W. Murray and B. L. Armstrong.
APPEARANCES: W Challis for the applicant / complainant; James Hayes and D. Dayman for the respondents; C. Eames and G. Weir for the intervener.
DECISION OF THE BOARD; April 22, 1982
The Board hereby directs that the above application/complaint be and the same are hereby consolidated.
This is an application for the termination of bargaining rights and a complaint under section 89 of the Labour Relations Act alleging violations of sections 68, 70,72(4), 72(5) and 72(6) of the Labour Relations Act. The complaint alleges that the respondent union and its officers have violated the voting rights of employees in the taking of a strike vote and in a vote to ratify a collective agreement. It also alleges that they have intimidated and coerced employees into voting to accept a proposed collective agreement as a means of defeating their rights under the Labour Relations Act. The complaint requests broad relief, the effect of which would be to nullify a subsisting collective agreement between the respondent union and the intervener and to make timely the application for the termination of the union's bargaining rights. That application would be untimely if the collective agreement stands.
In September of 1980 the respondent union was certified as bargaining agent for the employees of the intervener in the village of St. George. The intervener's plant, involved in the production of dairy products, employs some 43 persons in the bargaining unit.
Negotiations for the first collective agreement concluded with the signing of a memorandum of settlement on June 16, 1981. The memorandum was made subject to ratification by the parties. On June 21, 1981, the respondent union conducted a ratification vote in respect of the proposed collective agreement. At that time, on the advice of its counsel, the union s officers did not allow employees who were not members of the union to vote. That resulted in a complaint under what was then section 79 of the Act being filed with the Board, a hearing for which was scheduled on August 12, 1981. At that hearing the union admitted, and the Board accepts, that it had erroneously excluded non-members from the ratification vote on the basis of mistaken legal advice. It appears that there was some uncertainty as to the meaning and application of the then recent amendments to the Labour Relations Act (Bill 89) which first extended the right to vote in ratification ballots to all employees under what is now section 72(5) of the Act. The complaint was settled, the union agreeing, among other things, to conduct a new ratification vote on Sunday August 23, 1981 in which all employees would have the opportunity to vote, with a posting to that effect to be made in the plant from August 17, 1981. The union also agreed to allow the complainant's solicitor to attend the ratification meeting to ask questions and make comments on behalf of his clients.
The conditions of settlement were carried out. The Board is satisfied on the evidence that the union meeting, held at the Jolly Baron Inn in Brantford on August 23, 1981, afforded all employees the opportunity to attend, to ask questions and raise issues and to vote on the ratification of the proposed collectived agreement. The union allowed the solicitor for the complainants, all of whom were known as opponents of the union dedicated to its removal from the plant, to attend, ask questions and make statements at the meeting. While the witnesses for the parties differed in their appraisal of the thoroughness of the discussion and explanation of the proposed contract, the Board is satisfied that the employees were given every reasonable opportunity to understand what they were voting on. During the course of the meeting Mr. Donald Dayman, the union s representative, advised the members of the bargaining unit that if the ratification vote did not pass the union would then put a strike vote to those in attendance. The ratification vote was taken by secret ballot in circumstances which satisfy the Board that the choice of an individual employee could not be identified. In the result 20 ballots were cast against ratification and 14 in favor. On the strike vote that was then taken 29 ballots were cast in favor of strike action and 5 ballots were opposed.
Much evidence and argument was directed to the significance of these two votes. The theory of the complainants is that the union's first wish was to have the contract accepted; by reaching a collective agreement the union would foreclose the possibility of a timely application to terminate its bargaining rights. Having been certified on September 11, 1980 and with conciliation and a no Board report behind it the union would be vulnerable to such an application on the anniversary date of its certification pursuant to the provisions of section 61(6) of the Labour Relations Act. Alternatively, if no collective agreement were concluded but a lawful strike were commenced before the anniversary date a termination application could not be timely for a further period of six months pursuant to the provisions of section 61(3)(a) of the Labour Relations Act. The complainants submit that the union did not have the popular support of the employees, that it knew that they did not want to have a collective agreement or a strike and that it deliberately manipulated the ratification and strike vote procedures to intimidate and coerce employees into accepting the terms of a collective agreement.
That is a conclusion which, in our view, is extremely difficult to draw from the evidence before the Board. Before dealing with the evidence it should be stressed that intimidation and coercion are the elements which must be established to make out a violation of the Act by the union. There is nothing unlawful in a trade union using normal vigilance and alert planning to preserve and protect its bargaining rights; in our view the timing of a ratification or a strike vote to coincide with the approaching anniversary of certification is a reasonable union business practice predicated on the scheme of the Act. We do not see how a union can be faulted for exercising prudence in the timing of its affairs in a way that maximizes its own interests.
Counsel for the complainants submits that the events giving rise to this complaint can be appreciated only once it is accepted that the employees in the bargaining unit do not want the union to represent them. To this end he sought to adduce a petition, filed in support of the termination application, expressing the desire of some 24 employees that they no longer wish to be represented by the trade union. He also sought to adduce in evidence a separate petition signed by 28 employees stating that they do not want to strike. Counsel for the union did not object to the "no strike" petition being admitted in evidence. He did oppose, however, the Board hearing evidence of a a petition of non-support for the union other than in a timely termination application.
The use which counsel for the complainants wished to make of these petitions was fairly convoluted. In the event that the section 89 complaint should fail, causing the termination application to be untimely, he requested the Board to admit the termination petition as a basis to reconsider its certification of the applicant in September of 1980. His main submission, however, was that the termination petition should be admitted for the purposes of the section 89 complaint to establish that on August 23, 1981, the date of the ratification and strike votes, the union did not have the support of the employees in the bargaining unit. He submits that that conclusion is vital to his allegation that the employees were manipulated, coerced and intimidated by the union.
The Board has grave concerns with both the policy implications and the logic underlying the submission of counsel for the complainants. To deal with his arguments in our view it is most expeditious to view the petition as being voluntary for the purposes of the complaint. What then, is its relevance? The right of a union to act as exclusive bargaining agent for all of the employees in the bargaining unit can be questioned neither by the employer nor by the employees once a Board certification has issued until such time as the union's bargaining rights have been lawfully terminated under the Act. So long as the union's bargaining rights endure, as they did in this case, it is bound to represent the employees to the best of its ability in bargaining with the employer. That is so whatever level of confidence it might enjoy among the employees at any given point in time. The union had an obligation to represent the employees and a right to do so in a way that protects its own interests and bargaining rights. The issue in these proceedings is whether it has done so lawfully. The degree of the support which the union enjoyed among the employees at the time the ratification vote was taken in the instant case is not relevant to the issues which the Board has to decide. On that basis the Board declined to entertain lengthy evidence as to the originating and circulation of the petition for the purposes of the section 89 complaint. For the purposes of this complaint, however, we are prepared to assume that the union's popular support was as the complainants allege. If the application for termination were found to be timely the petition would, of course, become relevant and detailed evidence in respect of it would be entertained.
Counsel for the union did not object to the admission of the "no strike" petition filed by the complainants. Signed by 28 employees on September 8 and 9, 1981 it bears the preamble: "We, the undersigned employees of Malcolm Condensing Company do not want to strike". The Board takes that petition as establishing that the persons who signed it did not want to strike. What more does it establish? Employees seldom embrace the prospect of invoking the strike sanction with all the personal hardship it implies. They may, however, do so reluctantly because they perceive that their industrial relations goals leave them no alternative. There is nothing intrinsically contradictory in an employee voting freely to support a union mandate to strike, a threat that may of itself be of some value in bargaining, while just as freely signing a petition such as the one tendered by the complainants.
With the ratification rejected and a strike mandate in its possession the union resumed negotiations with the company. In that round of bargaining the company made further concessions, some of them substantial, in the area of benefits. On September 3, 1981 a revised memorandum of agreement was signed between the parties. On September 4, 1981 the union gave written notice to the employees advising them of the changes that were negotiated in the memorandum of agreement. On Tuesday September 8, 1981 the union met with the employees in the bargaining unit to explain the terms of the revised memorandum of settlement. Although he was not invited, the solicitor for the complainants attended for the purpose of directing questions and comments regarding the proposed collective agreement. The union officers in attendance advised him that the meeting was for employees only and requested him to leave, which he did.
Counsel for the complainants suggested in his argument that his rejection from the union meeting is evidence of further coercion, intimidation and manipulation of the employees by the union. We disagree. As one of the complainants himself testified it would bring the affairs of trade unions to a standstill if each member or factions of members had an absolute right to participate in union meetings through their legal counsel. On the whole the Board is left with the unfortunate impression that Mr. Challis attended the meeting on the chance of creating self-serving evidence. It is clear on the evidence that at the meeting of September 8, 1981, all of the complainants, and indeed all of the employees, had a full and fair opportunity to ask questions respecting the proposed collective agreement and to make such statements as they wished prior to the ratification vote.
The ratification vote for the revised memorandum of settlement was conducted on Wednesday September 9, 1981. Because the employer apparently would not allow its premises to be used for the taking of the vote the union, in an effort to make the vote accessible to as many employees as possible, conducted the vote from a rented van which was parked across the street from the company's premises. In a secret ballot vote each employee was asked to respond to the question "Do you accept the company's final offer?". Voting was conducted in the van from 6:30 a.m. to 9:30 a.m. and from 2:00 p.m. to 7:00 p.m. and had been previously posted to the attention of the employees by a formal written notice of the union. Out of an abundance of caution and fairness to the complainants the union allowed the complainants to maintain a scrutineer in the van during the entire period of the polling. In the result 20 ballots were cast in favor of accepting the proposed collective agreement and 19 ballots were cast against. The complainant maintains that the ratification and the collective agreement resulting from it were obtained by unlawful intimidation and coercion on the part of the trade union.
The evidence in support of that allegation is so slim as to be almost imperceptible. Counsel for the complainants suggests that by requesting him to leave a meeting of the bargaining unit to which he had not been invited the union intimidated and coerced the employees. He further submits that prior to the final ratification vote, in a letter dated September 4, 1981 advising the employees of the terms of the new settlement the union unlawfully intimidated the employees by stating that should the settlement be rejected the union would set up picket lines and take economic action against the company at midnight September 9, 1981. He also submits that the form of the ballot, referring as it did to the "final offer" of the company was misleading and designed to intimidate and coerce the employees.
We do not see any violations of the Act made out against the respondents on the evidence before us. The Board accepts the evidence of Mr. Dayman that he believed the position put forward by the employer which became the subject of the last ratification vote represented the last concessions which the company was prepared to make. As the chief architect of the union's bargaining strategy he could not be expected to bargain indefinitely with the company over the terms of a collective agreement. He cannot, moreover, be faulted for ordering the union's affairs in such a way as to avoid being vulnerable to a termination application or an application for displacement by another union. To that extent we see nothing sinister or unlawful in the timing of the ratification votes and strike votes in this case. Article 23 of the union s constitution makes specific provision for the ratification vote to be taken on "the proposal judged by the president or negotiation committee to be the employer's final proposal…” The evidence does not disclose that Mr. Dayman or any other union officer departed from the requirements of the Act or of the regular provisions and procedures of the union's constitution in the conduct of the strike and ratification votes.
The Board is not prepared in this case to second guess the motive of employees for their choice expressed in a secret ballot vote. It is plain from the evidence that there were three general groupings of employees: those in support of the union, those opposed to the union and those who were uncommitted. How each employee voted and the motive for his or her choice is personal to that individual; valid inferences in that regard cannot be drawn from the evidence. Some may have accepted the contract because of the additional benefits bargained in since the strike vote was taken; others may have voted for the contract to avoid striking. Most employees probably had a mix of motives. To conclude that the Act has been violated because a certain number of employees voted in favor of ratification to avoid going on strike is to misconceive the normal workings of the Act. That is a choice that organized employees must make continuously in this Province as part of the normal process of collective bargaining. It is the very choice that the Labour Relations Act ultimately forces upon them to promote compromise and the peaceful resolution of bargaining disputes; that is the avenue employees choose when they opt for union representation. On the evidence before us we see nothing that unlawfully deprived the employees of their freedom of choice.
The complainants also called extensive evidence in respect of the defacement of a Board notice. It appears that when Form 15, the Notice to Employees of the Application for a Declaration Terminating Bargaining Rights was posted in the plant in late September and early October of 1981 someone placed the imprint of a boot in black ink upon it. While the Board must have obvious concern for the defacement of its notices it cannot, on the purely circumstantial and speculative evidence before it, draw any conclusions on the balance of probabilities as to what individual or group of persons was responsible for that act. We cannot find that it was committed by any individual union officer or employee who is a respondent in these proceedings or that it was done on the instruction or approval of the respondent union.
For the foregoing reasons the complaint under section 89 is dismissed. The application for the termination of the union's bargaining rights is also dismissed as being untimely.