[1982] OLRB Rep. March 352
2073-81-R United Food and Commercial Workers International Union, A.F.L., C.I.O., C.L.C., Applicant, v. C S P Foods Ltd., Respondent, v. Group of Employees, Objectors
BEFORE: Ian Springate, Vice-Chairman, and Board Members J. D. Bell and C. A. Ballentine.
APPEARANCES: James Hayes, David Bloom and Vincent Gentile for the applicant; R. W. Kitchen and Charles Cyopik for the respondent, James W. Hammond, Q. C. for the group of employees.
DECISION OF IAN SPRIN GATE, VICE-CHAIRMAN, AND BOARD MEMBER J. D. BELL; March 22, 1982
This is an application for certification.
We find that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, we further find that all employees of the respondent in the township municipality of the Township of Flamborough, save and except supervisors, persons above the rank of supervisor, office and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period constitute a unit of employees of the respondent appropriate for collective bargaining.
On the date of the filing of the application there were forty-three employees in the bargaining unit. The applicant trade union filed evidence of membership on behalf of twenty-four, or approximately 55.8 per cent of these employees. In these circumstances we are satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made, were members of the applicant on January 11, 1982, the terminal date fixed for this application and the date which we determine, under section 103(2)6) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act. The applicant has accordingly met the minimum statutory requirements for automatic certification.
There was filed a statement of desire in opposition to the application signed by twenty-nine employees in the bargaining unit, eight of whom had previously applied to become members of the applicant trade union. Having regard to the applicant's membership position, if we were satisfied that the union members who signed the statement of desire did so as a result of a voluntary "change of heart" about trade union representation, then in accordance with the Board's normal practice we would exercise our discretion under section 7(2) of the Act and direct the taking of a representation vote.
Before the Board will direct the taking of a representation vote on the basis of a statement of desire, it must be satisfied that management played no role in either its origination or circulation and further that the union members who signed the document did not do so as result of either real or perceived management pressure or out of a concern that failure to sign the document might be communicated to their employer.
The evidence establishes that the decision to circulate a statement of desire was made by a small group of employees free from any managerial involvement. One of the employees, Mr. Alex Onufer, approached his personal solicitor for assistance in the matter, but his solicitor referred him to another lawyer. This other lawyer then referred Mr. Onufer to Mr. J. Hammond, Q.C. who actually drafted the statement of desire and gave Mr. Onufer instructions concerning the manner in which the document should be circulated.
The statement of desire was circulated by bargaining unit employees away from the respondent's premises. Most employees signed the document in their own homes, although a few signed at the home of friends, and two signed in an automobile. A system of "blinders" was used to cover up the signature of each employee after he had signed the statement. Given these facts, we are satisfied that there is nothing with respect to either the origination or circulation of the statement of desire which would cause us not to accept the document as a voluntary expression of those who signed it.
Counsel for the applicant trade union contended that the Board should not give any weight to the statement of desire due to certain events which occurred prior to the document's circulation. One of these was a meeting of an employee-management committee on January 6, 1982, the day after the respondent was formally advised of the application for certification and the day prior to when the statement of desire began to be circulated. The employee-management committee had originally been formed in late July or early August of 1981, and since that time had held meetings about once a month, although no meeting was held during the month of December, 1981. The committee was formed at the initiative of management to deal with certain employee concerns and as an extension of the respondent's "open door" personnel policy. From its very inception employee members of the committee had raised concerns about the lack of written company policies on a wide range of issues, and the fact that employees in the same situation appeared to be treated differently. As a result of these concerns management began to put various policies into writing. In some cases this involved merely putting into writing an existing unwritten policy while in other cases it involved setting a uniform policy where previously a number of different practices had been followed. Once a policy was put into writing, management would so advise the employee members of the committee with the expectation that they would pass the information on to other employees. At a meeting of the committee on September 23, 1981, management announced that the policies which had to date been put into writing had been placed in a policy manual which the employee members of the committee were free to examine.
It was the contention of the applicant that at the committee meeting held on January 6, 1982, the respondent announced a number of improvements in working conditions. Counsel contended that alleged improvements amounted to a violation of section 79(2) of the statute (which imposes a "freeze" on terms and conditions of employment after an employer has been notified of an application for certification), and that they would have unduly influenced employees into signing the statement of desire. The evidence establishes that all of the issues dealt with by management at the January 6th meeting had been raised by employees at earlier meetings, and that management had actually put the policies referred to during the January 6th meeting into writing some time prior to that date. The evidence also establishes that the January 6th meeting followed the same general format as had previous meetings of the committee.
Certain of the written company policies discussed on January 6, 1982, did not involved any change from a previous unwritten policy. Included in this category were a policy to compensate employees called for jury duty, and a policy respecting the payment of employees for scheduled call-ins. Another written policy announced on January 6th dealt with the qualifications for short term disability payments. It is clear that under a prior unwritten policy an employee would have to wait for three days before receiving disability payments unless he had either been injured or was hospitalized, in which case there was no waiting period. What was previously unclear, and apparently there had been some inconsistency on this point, was whether an employee who brought in a note from a doctor would also be paid from the first day. The written policy announced on January 6th provided that the three day waiting period would not apply to an employee who had been injured or was hospitalized or to an employee who presented a doctor's note stating that he will be off for a given period of time. Also announced on January 6th was a written policy stating that employees recalled to work on an emergency basis would be paid the applicable hourly rate (with a one hour minimum) as well as a special allowance of $20.00. Previously, this type of call-in had been paid for in a variety of ways, including time only, time with a minimum of one hour, time with a minimum of three hours, and $15.00 plus time. Both the policy concerned with disability payments and the policy relating to emergency call-in allowances had actually been put into writing on December 3, 1981 albeit they were not announced by management until the next committee meeting on January 6th.
We are of the view that in certain instances benefits granted by an employer during a union organizing campaign may well have an undue influence on the decision of employees to sign a statement of desire. The danger inherent in well-timed increases in benefits is the suggestion of "a first inside a velvet glove." Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. See: NLRBv. Exchange Parts Co. (1964), 375 U.S. 405 (U.S. Sup. Ct.) and The Globe and Mail Division of Canadian Newspapers Company Limited, [1982] OLRB Rep. Feb. 189. In the instant case, however, we are satisfied that the facts do not warrant a conclusion that employees may have signed the statement of desire as a result of being influenced by management's announcement of the written policies at the January 6th committee meeting. Management's actions in putting into writing and standardizing personnel policies, and then announcing the results at a committee meeting, was an on-going process which preceded the applicant's organizing campaign. The issues discussed on January 6th had all been raised at earlier meetings by employees. Accordingly, employees would not likely have regarded the announcement of the written policies on January 6th as a management response to the union. Further, the written policies announced on January 6th by and large involved little change from previous unwritten policies. To the extent that they did involve some standardization and improvement to the system of payments for emergency call-ins and the qualifying period for disability payments, we do not regard the changes as being of such a nature that they would likely have influenced employees one way or the other with respect to the statement of desire. As already noted, counsel for the applicant contended that the respondent in announcing the new written policies at the January 6th meeting was in violation of section 79(2) of the Act. In this regard, we would note that the issue before us at this time is not whether the respondent violated the Act, but whether the respondent's actions may have influenced employees into signing the statement of desire. We are satisfied that they did not.
The other issue relied upon by the applicant relates to a comment made by Mr. Leonard Ord, one of the respondent's foremen, to a warehouse employee, Mr. D. Hardy on December 30, 1981. On the day in question, Mr. Ord, Mr. Hardy and two other employees were alone in the respondent's warehouse. In the presence of the other two employees, Mr. Ord told Mr. Hardy that if the union was to come in there would probably be lay-offs and since Mr. Hardy was a new employee he likely would be "bumped" by employees from the plant. Of the three employees who heard Mr. Ord's comment, two had not signed union cards. The other employee had signed a union card and did not subsequently sign the statement of desire. Accordingly, none of those who heard Mr. Ord's comments were among the eight union members who apparently had a change of heart about union representation. Indeed, the one union member who did hear the comment remained a union supporter. There is no evidence before us to indicate that Mr. Ord's comment was reflective of the comments of other foremen or of the respondent's senior management or that Mr. Ord's comment was ever made known to the workforce at large. In these circumstances, we are not prepared to assume that Mr. Ord's comment influenced the decision of any of the union members who signed the statement of desire.
Having regard to the above, we are satisfied that the statement of desire reflects a voluntary change of heart on the part of the union members who signed it, and that accordingly, absent consideration of the matters referred to below, we should exercise our discretion under section 7(2) of the Act and direct the taking of a representing vote.
Both in its filings and at the hearing the applicant indicated that it might seek to be certified pursuant to the provisions of section 8 of the Labour Relations Act. If that is the applicant's desire, the Registrar is to relist this matter for hearing to hear the evidence and the representations of the parties with respect to both the section 8 application, and a related section 89 complaint in Board File No. 2178-8 1-U. If the applicant advises the Registrar that it does not wish to proceed under section 8, then a representation vote will be taken among employees in the bargaining unit. Those eligible to vote will be all employees in the bargaining unit on the date hereof who have not voluntarily terminated their employment or been discharged for cause between the date hereof and the date the vote is taken. Voters will be asked to indicate whether or not they desire to be represented by the applicant in their employment relations with the respondent.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER C. A. BALLENTINE;
I disagree with the majority that the "statement of desire" is a voluntary expression of the bargaining unit employees who signed it.
1 agree with counsel for the applicant union that the employees' committee meeting called by the general manager, Mr. Charles Cyopik, on January 6, 1982, would have unduly influenced employees into signing the petition against the union.
Mr. Cyopik returned from vacation on January 4, 1982, at which time he was told by his office staff of the union organizing campaign. On January 5, 1982 he received from the Board the application for certification and then immediately called a meeting for the next day January 6, 1982. The following day after the meeting, Mr. Alex Onufer a truck driver employee who attended the meeting started circulating the petition.
Two witnesses for the applicant union, Mr. James Burns and Mr. Robert Beke, both committee members who attended the meeting, gave evidence that two conditions, (1) jury duty and (2) call-in time, had been discussed before but were put into writing for the first time at the January 6th meeting. Their evidence was clear that the sick benefit condition of reducing the waiting period from three days to one day was a new policy and condition. Robert Beke had raised the sick benefit issue at the September meeting, but the November meeting minutes make no mention of it. Alex Onufer also admitted under cross-examination that the reduction of the three days in regard to the sick benefit was a new condition.
The employees, prior to January 6, 1982, were never given a policy statement on the changes. The company relied on the committee members to report back to the employees and the supervisors had policy manuals if an employee asked them for any information. It is obvious that the employees were not well informed of which policies were in place and of which were not. Mr. Rodrick Johnson, a truck driver and a three year employee who assisted Mr. Onufer in the circulation of the petition, stated under cross-examination that Mr. Onufer had told him of the January 6th meeting, but he never heard of the employees' committee before.
Mr. Cyopik, by confirming previous policies in writing and announcing the new sick benefit condition at the January 6th meeting, one day after the company received the application for certification from the Ontario Labour Relations Board, amounts to a violation of section 79(2) of the Act and was intended to influence the employees to oppose the union's application for certification. Section 79(2) of the Act prohibits the employer from making changes to wages and conditions after notice of an application for certification has been given by the Board. Section 79(2) reads as follows:
“Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until,
(a) the trade union has given notice under section 14, in which case subsection (I) applies; or
(b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.”
- In a case that closely parallels this instant case, Car/ton University [1978] OLRB Rep. Feb. 184, the Board found that the respondent breached section 70(2) (now section 79(2)) and it stated at page 188, paragraph 16 the following:
“Having regard, therefore, to the thrust of the Board's jurisprudence and the purpose of the section 70(2) freeze, the Board is of the view that for an employer to sidestep the parameters of the freeze period by setting into motion prior to the freeze period an alteration of conditions of employment to take effect after the onset of the freeze period, the employer must have communicated the intended alteration to the employees prior to the onset of the freeze period.”
The majority decision at paragraph 14 deals with the issue where Mr. Leonard Ord, one of the respondent's foremen, told Mr. Hardy, a member of the bargaining unit, that if the union got in he would probably be laid off. The majority rationalizes this uncontradicted evidence on the grounds that Mr. Hardy did not sign the petition and therefore the incident is irrelevant. I cannot agree. It is a threat made by a person acting on behalf of the employer. The statement was obviously made with the intention of coercing the employee to oppose the union's application for certification which makes the statement improper and illegal.
It is my decision that the company interfered with the protected activity of the applicant union in a way that was illegal. This unlawful interference unduly influenced employees into signing the statement of desire. The applicant union filed evidence of membership on behalf of twenty-four (24) employees, representing over fifty-five (55) per cent, therefore, a certificate should issue to the applicant without the necessity of a representation vote.