Ontario Labour Relations Board
[1982] OLRB Rep. May 783
2261-81-R International Molders & Allied Workers Union, Applicant, v. Washington Mills Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Ian Springate, Vice-Chairman, and Board Members C. G. Bourne and C. A. Ballentine.
APPEARANCES: H. Goldblatt and G. Plancke for the applicant; Jane Forbes-Roberts, Ralph Powell and Henry Homer for the respondent' G. F McNab for the group of employees.
DECISION OF VICE-CHAIRMAN IAN SPRINGATE AND BOARD MEMBER C. A. BALLENTINE; May 25, 1982
This an application for certification.
We find that the applicant is a trade union within the meaning of section 1(l)(p) of the Labour Relations Act.
The parties are in disagreement as to whether or not "technical staff' should be excluded from the bargaining unit. There is only one person who might fit within this classification, namely Ms. Maureen McCrea. The parties are unable to reach agreement concerning her duties and responsibilities. In these circumstances, a Board Officer is appointed to inquire into, and report back to the Board, on the duties and responsibilities of Ms. McCrea.
Apart from the matter of the proposed exclusion of technical staff, the parties are in agreement that the bargaining unit should be described in terms of all employees of the respondent at Niagara Falls, save and except foremen, persons above the rank of foreman, office and sales staff and students employed during the school vacation period.
Depending on the determination as to the status of Ms. McCrea, on the date of the filing of the application these were either 25 or 26 employees in the bargaining unit. The applicant filed evidence of membership on behalf of 19 of these persons. The evidence of membership consists of applications for membership, with attached receipts indicating a payment of $1.00 to the union. This evidence of membership is supported by a duly completed Form 9, Declaration Concerning Membership Documents. Having regard to this material, and to the definition of a "member" of a trade union set out in section 1(1 )(l) of the Act, 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 February 8,1982, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
There was also filed with the Board a statement of desire in opposition to the application signed by23 of the respondent's employees. Statements of desire are not regulated by the Act as directly, or precisely, as union membership evidence. There is no statutory definition equivalent to section l(l)(l), nor is there any requirement for a monetary payment (in the nature of consideration confirming the act of signing), or a declaration of regularity similar to Form 9. Nevertheless, the existence of statements of desire appears to be contemplated by both section 103(1)6) of the Act and Rule 48 of the Rules of Practice; and in any event, the Board has a long established practice of accepting statements of desire and exercising its discretion under section 7(2) of the Act to order a representation vote where: the statements are voluntary, there is evidence given in accordance with Rule 48, and the statements contain the signatures of a sufficient number of persons who have previously signed membership cards that there is some doubt that the union's members continue to support its certification.
In the instant case, 18 of the 23 employees who signed the statement of desire in opposition to the application, had previously signed union membership cars indicating that they supported the union s certification. If we were satisfied that the union members who signed statements of desire did so voluntarily, we would have before us two contradictory pieces of documentary evidence concerning the employees' wishes and would, in accordance with the Board's usual practice, exercise our discretion under section 7(2) of the act and direct the taking of a representation vote to resolve the issue.
Before the Board will direct the taking of a representation vote on the basis of an employee statement of desire, it must be satisfied that when union members signed the statement of desire evidencing an apparent change of heart, they did so voluntarily and were not motivated by a concern that their failure to sign would be communicated to their employer or could result in reprisals. The Board's concerns in this regard were expressed as follows in the Radio Shack case [1978] OLRB Rep. Nov. 1043:
"The Board has long held that there is an onus on a party relying on a statement of desire in opposition to an application for certification to establish that the "sudden change of heart" by those who have signed for the union and shortly thereafter repudiated the union, represents a voluntary change of heart. The Board recognizes the delicate and responsive nature of the employer-employee relationship and having regard to it, is circumspect in its assessment of the voluntariness of any statement of desire which bears the signatures of employees who have also signed cards in support of the union. The Board's approach to these matters is described in the leading Pigott Motors case, 63 CLLC ¶116,264 the following terms:
'In view of the responsive nature of his relationship with his employer and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious, which may operate or impair or destroy the free exercise of his rights under the Act. It is precisely for this reason and because the Board has discovered in a not inconsiderable number of cases that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence of a form and of a nature which will provide some reasonable assurance that a document such as a petition signed by employees purporting to express opposition to the certification of a trade union, truly and accurately reflects the voluntary wishes of the signatories.'
Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the workplace in deciding whether or not the statement of desire represents a voluntary expression of those who signed it. If the evidence establishes that the hand of management has been actively involved in its origination, preparation or circulation, the Board will dismiss the statement. The Board will also, however, dismiss the statement if the evidence establishes that an employee might reasonably suspect the involvement of management and hence be concerned as to whether or not management might become aware of his decision to sign it or not to sign it. (See Morgan Adhesives of Canada Ltd. and Canadian Paperworkers Union, [1975] OLRB Rep. Nov. 813 and the cases cited therein.)"
On Tuesday, January 26, 1982 a majority of the respondent's employees attended a meeting called by the applicant trade union. It is clear that at least one of the respondent's foremen was aware of the meeting prior to it being held. During the union meeting, Mr. Robert Lloyd, one of the employees who later was to become actively involved with the statement of desire, proposed that instead of joining the union, the employees form a committee for the purpose of dealing with the respondent. At the hearing, Mr. Lloyd acknowledged that at the time he originally made this proposal it did not receive the support of any of the other employees.
One of the employees active in signing employees into union membership was Mr. Keith Hammond, an electrician. Mr. Hammond, as well as Mr. Dale Lovell, an electricians' apprentice, had been the ones who informed employees of the union meeting. On January 27, 1982, the day after the union meeting, Mr. Hammond was called into the office of Mr. Ralph Powell, the respondent's president. This was the first time that Mr. Hammond had met with Mr. Powell. Mr. Powell did not refer to the union during the meeting, but did ask about any problems which Mr. Hammond might be having. In response Mr. Hammond referred to the need to carry a pager when he was "on call" on the weekends. On the same day, it was announced that the schedule for electricians was being altered. Mr. Hammond had previously worked Monday to Friday while also being on call every second weekend. As of January 27th, Mr. Hammond's schedule was altered so that thereafter he worked Monday, Tuesday, Wednesday, Saturday and Sunday. According to Mr. Hammond, another electrician, Mr. G. Meehan, was also assigned "this type" of shift. It was the contention of counsel for the respondent that the shift changes were required due to an increase in production. The evidence on this point, however, was limited to Mr. Hammond's response to questions put to him by the respondent's counsel. Mr. Hammond testified that while there had been an increase in production, as far as he was aware the increase had been minimal.
Prior to the union meeting, employees received their pay cheques on Wednesday. The evidence led before us indicates that although at times the cheques were dated for the Wednesday, generally they were dated for the following day, Thursday. Notwithstanding the fact that the cheques were generally dated for Thursday, the evidence is that banks would cash the cheques after 3:00 p.m. on Wednesday. On January 27, 1982, the day after the union meeting, the respondent indicated that henceforth all cheques would be issued on Thursday. No reason was advanced to explain this change, either at the time the change was announced or at the Board hearing.
As indicated above, at the union meeting Mr. Robert Lloyd proposed that instead of joining the union the employees form a committee, but that this proposal had not met with any support. On the morning of Thursday, January 28, 1982, Mr. Lloyd went to see Mr. L. Lauzon, the respondent's plant manager and Mr. A. Hare, the plant superintendent. According to Mr. Lloyd, these gentlemen were already aware of the union meeting. Mr. Lloyd told Mr. Lauzon and Mr. Hare that he would like to get a committee going and to have the committee meet with management, including Mr. Powell, the respondent's president, to "get problems out". The meeting was agreed to, and arranged for Monday, February 1, 1982.
Mr. Lloyd testified that although he had worked the preceding night shift, on the morning of January 28th he stayed at work to discuss a committee with a number of employees, some of whom were at their work stations at the time. It is not clear from the evidence whether this discussion was before or after Mr. Lloyd's meeting with management. It is clear that subsequent to his meeting with management, Mr. Lloyd advised the employees that they should select representatives to meet with management about their concerns.
On either Thursday, January 28th or Friday, January 29th, Mr. Ron Taylor, one of the respondent's employees went to see Mr. Robert Thiel about the trade union. It appears that Mr. Thiel holds no formal position with the respondent. However, Mr. Thiel was described as a contractor who built the respondent's plant and who still does work for the respondent. Mr. Lloyd testified that Mr. Thiel had hired most of the respondent's employees. The evidence does not indicate whether Mr. Thiel had hired the employees on behalf of the respondent, or whether he originally hired them to work for him while he was building the plant and they were subsequently "taken-over" by the respondent to operate the plant.
A few days after their original meeting, Mr. Taylor returned to see Mr. Thiel, this time accompanied by Mr. Lloyd and Mr. Dale Lovell. There is some conflict in the evidence concerning just when it was that they went to see Mr. Thiel, but the most likely date appears to have been Sunday, January 31, 1982. Mr. Taylor, Mr. Lloyd and Mr. Lovell discussed with Mr. Thiel the wording to be used on a statement of desire. Mr. Lovell testified that everyone in the plant knew that Mr. Thiel had been consulted about the statement of desire.
The meeting between the employee representatives and management took place at 3:00 p.m. during working hours, on February 1st. At least two of the employees who attended the meeting stopped work prior to 3:00 p.m. to wash-up. Employees attending at the meeting included Mr. Taylor, Mr. Lloyd, Mr. Lovell and Mr. J. Gibson. Among those attending on behalf of management were Mr. Powell, Mr. Lauzon and Mr. Hare. Also in attendance at the meeting was Mr. Thiel who had been invited by both Mr. Taylor and Mr. Lloyd. Mr. Thiel did not speak at the meeting.
During the course of the meeting, the employees raised a number of concerns. The evidence indicates that these concerns had not previously been discussed directly with senior management, although some employees had raised certain of the same concerns with their foremen, but without any response. Near the commencement of the meeting, management indicated that it could make no promises, and with the exception of an undertaking to correct certain safety problems, during the meeting no promises were made. The union was not referred to during the meeting.
On February 4, 1982, the respondent posted the following notice to employees:
"Memo To: All Employees
Memo From: Ralph Powell
Further to our meeting with the employees group, the following items of
their concern are receiving our immediate attention.
- First Aid Stations have been increased to 4 locations and each first aid kit will be filled and supplies reviewed weekly.
Locations: 1) general office 2) control room 3) foremen's office 4) maintenance shop
The crane has been under review for the last 5 months and we have discussed the crane up-grading with other crane manufacturers to correct the known problems that exist.
Dust Masks all employees will be issued with the same heavy-duty mask effective immediately. The masks are available on request from your foreman.
Utility Cupboards construction will start immediately which will provide 4 utility cupboards for each shifts set of tools. It will be the responsibility for each shift to maintain their own cupboard and keys.
Coveralls Work Wear Corporation of Canada have been contacted regarding coveralls for all employees. Each shift foreman will be responsible for distribution. The coveralls should be available within 10 days.
Repair Request Sheets The supply of sheets will be the responsibility of Alan Hare and when a repair is requested, please complete the form so that immediate action can be taken.
Deep Tap Care Repairs repairs will be started immediately to correct the problems.
Pot Cars Care wheels are being changed to correct the binding problem.
Profit Sharing Plan — A simple descriptive brochure explaining all the benefits to you and your family will be mailed to you by February 15, 1982.
Vacations Vacation schedules will be posted and adhered to with seniority, the basis for settlement of any duplications.
Change Rooms An outside contractor will be hired initially to maintain the washrooms, lunch room and shower area. The hot water and ventilation problems are being investigated.
Safety Committee See memo, February 4, 1982.
Accident Procedure A formal procedure is being developed whereby any of Washington Mills Limited employees will receive the most efficient and best treatment available for any accident on company property. This procedure will be reviewed with the safety committee to be appointed by the employees.
Propane Torch A specific location for the torch and tanks will be selected with the shift supervisor responsible to see that the torch and tank are in place at the end of every shift.
All the other areas of concern that were discussed at the meeting are being followed up and these will be reported back to you when completed."
The statement of desire was circulated by Mr. Taylor, Mr. Lovell, Mr. Gibson and Mr. Lloyd, all of whom had attended the meeting with management. All four of these individuals testified before the Board. There was considerable uncertainty among the four as to just when it was that the statement was circulated. The weight of the evidence, however, suggests that is started to be circulated on Tuesday, February 2, 1982, that is the day after the meeting with management, and that the last signatures were obtained on Thursday, February 4th after the posting of the memo from Mr. Powell. Most of the signatures were obtained on the statement of desire on the respondent's premises during working hours. However, it appears that no one signed the document in the presence of managerial staff.
One further issue was raised with respect to the voluntariness of the statement of desire. This involved an alleged statement made at the union meeting held on January 26, 1982. No particulars of misconduct were filed with respect to the alleged statement, and counsel for the objectors indicated that the statement was being put before the Board only insofar as it related to why employees might have signed a union card and later signed the statement of desire. Counsel stressed that the matter was not being raised with the intent to challenge the validity of the union's membership evidence. Mr. Gibson, one of the employees who circulated the statement of desire, testified that at the meeting it was stated that he could pay one dollar now, or if he later decided to sign a union card he would have to pay four hundred dollars. Mr. Gibson testified that he did not want to be part of the union, but that he signed a card since he did not want to pay four hundred dollars for something that he did not like. Mr. Gibson noted, however, that he had left the meeting without having signed a card, so presumably he signed sometime later. Mr. Lloyd testified that at the meeting he was told that he could pay one dollar now or three hundred dollars later.
Mr. Hammond gave detailed testimony about what was actually said at the union meeting, testimony which we accept as being accurate. During the meeting, while employees were signing cards, and indeed after most of those present had signed, the question was raised as to what the union's initiation fees would be. In response to this question, Mr. G. Plancke, a staff representative of the union, indicated that if the union was certified, a local would be established for the employees of the respondent, and that it would be up to the local's members to set any initiation fee they wanted, that they could charge $300.00, but that again it would be up to the Washington Mills local to decide. In our view, given the nature of Mr. Plancke's comment, the lack of any direct or implied threat to employee job security in the comment, as well as Mr. Planeke's statement that the matter would be decided by the Washington Mills employees, we do not believe that reasonable employees would have either felt coerced into signing a union card or somehow influenced into first signing for and then against the union s certification.
In assessing the voluntariness of the statement of desire, we do view as important the fact that the day after the union meeting, the respondent's president called into his office a leading union supporter and on the same day this union supporter was assigned to work weekends. We also view with some concern the change of days on which pay cheques are distributed. Even if the change in Mr. Hammond's shift was motivated by valid business considerations, because of the timing involved, employees would likely have viewed the change as being connected with his active support for the union. The changing of the days on which pay cheques are handed out would likely have been viewed by the employees as indicative of the respondent's displeasure with their attendance at the union meeting while at the same time impressing on them the respondent's ability to alter employment conditions to their detriment. Given the lack of any explanation of the purpose behind the change in days, we must presume that this result was what the respondent intended to achieve.
The respondent's action in meeting with a committee of employees during working hours would also have likely been viewed as a management response to the union. In this regard it is to be remembered that Mr. Lloyd, the employee who advised other employees about the committee and arranged for the meeting with management, had at the union meeting proposed that instead of joining the union the employees form a committee to deal with management. As a result of the meeting with the committee on February 4, 1982, Mr. Powell issued a memo which indicated that management was taking steps to correct a number of employee complaints. The announcement of improvements by management in response to a union organizing campaign is a matter of some concern due to the possible inference that these and any future improvements are conditional on the employees rejecting the union. In N.L.R.B. v Exchange Parts Co. (1964), 375 U.S. 405, the U.S. Supreme Court expressed this concern as follows:
"The danger inherent in well-timed increases in benefits is the suggestion of a fist inside the 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.
The danger may be diminished, if, as in this case, the benefits are conferred permanently and unconditionally. But the absence of conditions or threats pertaining to the particular benefits conferred would be of controlling significance only if it could be presumed that no question of additional benefits or renegotiation of existing benefits would arise in the future; and, of course, no such presumption is tenable."
The cumulative effect on the employees of the improvements announced by the company, the changes to Mr. Hammond's shift and the alteration of the day on which pay cheques are distributed, would alone make us concerned about accepting the statement of desire as a voluntary expression of the employees. However, when both the role of Mr. Thiel and the identity of those who circulated the statement are also taken into account, we have no hesitation in concluding that we cannot be satisfied that the statement of desire represents the voluntary wLshes of the employees who signed it. Mr. Lovell testified that all of the employees knew that Mr. Thiel had been consulted about the statement of desire. Although, Mr. Thiel apparently had no official role with the respondent, because of his role in building the plant and hiring most of the employees, he would have reasonably be viewed as having a direct connection with management, a view which would have been reinforced by his presence at the meeting of employees with management of February 1, 1982. Because of Mr. Thiel's involvement with the statement of desire, coupled with the fact that the employees circulating the statement were members of the committee who attended at the meeting with management, employees might reasonably have signed the document out of a concern that management supported the statement and might become aware as to which employees had refused to sign it.
In all of these circumstances, we decline to exercise our discretion to direct the taking of a representation vote. The respondent is accordingly in a certifiable position. In these circumstances, pursuant to the Board's authority under section 6(2) of the Act, and pending a final resolution of the composition of the bargaining unit, we hereby certify the applicant as the bargaining agent for all employees of the respondent at Niagara Falls, save and except foremen, persons above the rank of foreman, office and sales staff, technical staff, and students employed during the school vacation period. For the purposes of clarity, we note that until her status is finally determined Ms. McCrea is excluded from the bargaining unit.
The decision of Board Member C. G. Bourne will be forthcoming at a later date.