[1982] OLRB Rep. May 791
2526-81-R International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W., Applicant, v. Windsor Machine & Stamping Limited, Respondent, v. Group of Employees, Objectors
BEFORE: R.D. Howe, Vice-Chairman, and Board Members J.D. Bell and H. Kobryn.
APPEARANCES: H. Carl Anderson and Ken Simpson for the applicant; George W. King for the respondent; D. Stephen Jovanovic for the objectors.
DECISION OF THE BOARD; May 17, 1982
- In a decision dated March 22, 1982, in this application for certification, another panel of the Board directed that a pre-hearing representation vote be taken of the employees of the respondent in the following voting constituency:
"All employees of the respondent in Windsor, Ontario, save and except foremen, those above the rank of foreman, office and sales staff."
Pursuant to that decision, a pre-hearing representation vote was taken at the respondent's premises on March 30, 1982. Ballots were cast by forty-five of the forty-six employees who were eligible to vote. Twenty-five of those ballots were marked in favour of the applicant and nineteen were marked against the applicant. There was also one spoiled ballot.
A statement of desire to make representations with respect to the holding of that representation vote was filed in timely fashion by Mark Brockman, through his solicitors, on behalf of a group of employees who sought to have the results of the vote set aside and a new vote ordered. In support of that request, the objectors alleged that certain electioneering had taken place during the "silent period", that certain employees in the voting constituency were not allowed to attend the applicant's organizational meetings, and that Ken Simpson, an International Representative of the applicant, was in the respondent's lunchroom speaking to employees who were about to vote in the representation election. Accordingly, a hearing was held in Windsor at the request of the objectors for the purpose of considering the evidence and the representations of the parties with respect to the representation vote.
Since 1964 the members of a committee selected by the employees of the respondent have met from time to time with Lionel Pelletier, the owner of the respondent, to negotiate wages and other terms and conditions of employment. That committee was formed at the suggestion of Gaston Frenette, who played an active role in the activities of the committee and in the applicant's organizational campaign. Mr. Frenette was an employee in the voting constituency until the termination of this employment on February 26, 1982. Earlier that month Mr. Pelletier told the committee that since poor economic conditions had caused him to amass substantial debts, he wished to implement a wage cut. As a result, Mr. Frenette arranged for U.A.W. International Representative Ken Simpson to meet with employees of the respondent on February 21, 1982 at the applicant's Windsor office to "explain the workings of a union. It was Mr. Frenette's evidence that all of the employees of the respondent were invited to that meeting, including Mark Brockman and Gary Young. Mr. Frenette also testified that Messrs. Brockman and Young told him that they were "working for Lionel" and did want to go to the meeting. Both Mr. Brockman and Mr. Young adamantly denied that they were ever invited to attend that meeting by Mr. Frenette. Approximately thirty-five of the respondent's forty-six employees attended that meeting. After Mr. Simpson had "explained all about the union" and answered employees' questions about it, he left the room to permit them to discuss among themselves whether they wanted a union or not. After he was called back into the meeting about fifteen minutes later, approximately thirty-one of the employees "signed up".
A second meeting was held at the applicant's Windsor office a week later. That meeting was attended by "twenty to thirty" employees, including a few who had not attended the first meeting. Not all of the employees were invited to attend the second meeting; in particular, those employees, including Messrs. Brockman and some of the other objectors who were perceived by Mr. Frenette to be opposed to certification of the applicant, were not invited. Mr. Brockman conceded in cross-examination that he socializes with members of management of the respondent and has a brother who is a member of management with whom he works very closely. When he learned of the (second) meeting through a conversation with one of the respondent's foremen, he approached Ron Knight whom he knew to be a supporter of the applicant, and told him that he knew there was a meeting and the wanted to attend it. It was his evidence that Mr. Knight told him that he (Mr. Knight) and the other union supporters did not want him to attend the meeting. It was Mr. Brockman's contention that if he had been permitted to attend the meeting, he would have been able to bring to the attention of employees that "it will cost $30,000 for the U.A.W. to negotiate a contract", and various other matters that would have "allowed the other employees to make a more responsible and considered choice in the vote."
Mr. Young also testified that he was told by various union supporters, including Messrs. Frerette and Knight, that they did not want him to attend that meeting. Paul Thiebert, another employee who was subpoenaed as a witness by the objectors, also testified that he was dissuaded from attending that meeting by union supporters. Employee Larry Janisse testified that although no one told him not to go to the meetings, he was unable to attend any of the meetings because no one would tell him where or when they were being held.
It is unnecessary for the Board to resolve the conflicts in the evidence concerning whether certain of the employees were or were not invited to attend the organizational meetings. For the purposes of this decision, we will assume without deciding that certain employees in the voting constituency were invited to attend neither the February 21st nor the February 28~:h meeting and that union supporters told at least some of the objectors that they were not welcome to attend the second meeting. Refusal to invite or to permit attendance by all employees in the proposed bargaining unit at an organizational meeting neither violates the Act nor provides a basis for setting aside a representation vote. Organizers are no more required to invite each and every bargaining unit employee to an organizational meeting than they are to approach each and every employee to invite him or her to join the union. Once a union has signed at least thirty-five per cent of the employees into membership, it is free to apply for certification via a pre-hearing vote. There is nothing in the Act which requires an applicant for certification to approach all of the remaining employees either individually or collectively prior to the vote. A requirement that all employees be invited or permitted to attend union organizational meetings would ignore the realities of the milieu in which union organizers must function. It has been the experience of this Board that many employees are fearful that signing a union card or otherwise supporting an organizational campaign may lead to loss of their employment or other job related penalties. Indeed, the Board's experience in adjudicating unfair labour practice complaints under section 89 of the Act indicates that there is considerable justification for such fear in some instances. To impose upon organizers a requirement that all employees be invited or permitted to attend organizational meetings, regardless of how close an association with management they are perceived to have, would stultify organizational activities which are protected by the Act in the interest (identified in the preamble) of furthering "harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and trade unions as the freely designated representatives of employees." That is not to say that employees opposed to certification are not free to voice their views. Subject to the provisions of the Act which preclude unfair labour practices such as employer interference in the formation, selection or administration of a trade union, intimidation, and coercion, such employees are free (at times other than the "silent period") to meet with other employees singly or in groups to discuss their opposition to the union and to attempt to persuade them to adopt a similar point of view. Staunch union supporters whose pro-union advocacy might weaken or destroy the objectors' electioneering activities need not be invited or permitted to attend any such meetings or discussions; objectors are free to invite certain employees to such meetings and to refuse to permit other employees to attend. Any attempt by the Board to regulate closely such activities by requiring supporters to afford an equal opportunity for objectors to speak to employees at organizational meetings, and vice versa, would be unrealistic, virtually unenforceable and undesirable from a labour realtions perspective. The fact that in the present case Mr. Brockman elected not to attempt to organize a meeting of employees for the purpose of expressing his opposition to the applicant because he felt that it would be futile since he "[doesn't] have any influence over them" does not detract from the fact that he and the other objectors were at liberty to arrange meetings and use other lawful means of electioneering to attempt to persuade employees to vote against the applicant. For the foregoing reasons, the Board is not prepared to direct that a further representation vote be taken on the ground that some of the employees were not permitted to attend the applicant's organizational meetings.
As conceded in argument by counsel for the objectors, there is no evidence before the Board in these proceedings of any breach of the "silent period". Accordingly, it is unnecessary to consider whether the alleged electioneering would, if proven, have prompted the Board to direct that another representation vote be taken.
It was submitted on behalf of the objectors that a new vote should be ordered because Mr. Simpson was present at the respondent's premises in the vicinity of the polling area during part of the one hour period for which the po1l was open. In accordance with the voting arrangements that were agreed upon at the pre-hearing vote meeting, the po1l was located in the quality control room of the respondent's plant and was open from 3:15 to 4:15 p.m. Mr. Simpson, who was to be the applicant's agent at the count, arrived at the plant at approximately 3:45 p.m. that day. After entering the respondent's premises through the front door, he asked a secretary if the voting had been completed, as the Board's Returning Officer had previously advised the parties that the poll might be closed before 4:15 p.m. if each of the eligible employees had voted before that time. The secretary responded that she did not know and directed him to Mr. Pelletier's office. Mr. Pelletier, who was speaking with counsel for the respondent (who was to be the respondent's agent at the count), advised Mr. Simpson that he understood that there were two or three employees who had not yet voted. Mr. Simpson then returned to the front door and stood there to await the completion of the vote. A number of employees were seated at tables in the employee cafeteria located immediately adjacent to where Mr. Simpson was standing. It appears that many of those employees were evening shift employees awaiting the commencement of their shift at 4:00 p.m. Some of them acknowledged Mr. Simpson's presence by waving or calling a greeting to him. The location which Mr. Simpson was standing was a considerable distance away from the polling area in the quality control room and could not be observed from that location. After a minute or two, Gerald Rivard, who was known to be a union supporter by many if not all of the respondent's employees, approached Mr. Simpson together with another employee named Zeitoun. When they reached the place where he was standing, Mr. Simpson asked them if they had voted and they told him that they had already done so. Mr. Zeitoun then informed Mr. Simpson the he had requested of Mr. Pelletier a six month leave of absence to permit him to return to his home country and Mr. Pelletier had told him that he would have to obtain the permission of the union. Mr. Simpson advised Mr. Zeitoun that the applicant would have no objection to him getting a leave of absence provided that the majority of the people in the plant did not have any objection. Those employees then left Mr. Simpson who remained standing by the front door until shortly before 4:15 p.m. when he approached the quality control room. Upon arriving at the transparent door to that room, he observed that there was no one in the polling area except the scrutineers and the Board's Returning Officer. The Officer immediately came over to the door and opened it to speak with Mr. Simpson, who asked if the vote was completed. The Officer replied that the pol1 would remain open for a further minute and a half as there was one employee who had not yet voted. Mr. Simpson then stepped back approximately ten feet and waited for the poll to close. No employee came to vote during that brief interval prior to the closing of the poll.
In considering whether a further representation vote ought to be directed due to the presence of a representative of one of the parties, other than its scrutineer, in or near the polling area during a representation vote, the majority wrote as follows in Associated Tube Industries, [1981] OLRB Dec. 1705:
"13. As indicated by the Board in Scarborough Centenary Hospital Association, [1979] OLRB Rep. Apr. 350, at paragraph 4, '[i]n assessing the conduct of the parties during the taking of a representation vote the Board is concerned that such conduct not have destroyed the secrecy of the ballot or have created a situation where the vote was not likely to disclose the true wishes of the employees.' See also Anderson Metal Industries, [1981] OLRB Rep. Apr. 415, in which the Board stated (at paragraph 9):
'In deciding whether to exercise its discretion under section 92(5) to direct a further representation vote, the Board's concern is whether it can rely on the vote taken on January 30, 1981 as representing the true wishes of the employees. As stated in Armoured Floor Company Limited, [1981] OLRB Sept. 793, at paragraph 5, 'the Board has indicated the kind of climate which it considers suitable for the exercise of an individual employee's personal choice in casting his vote in Volverine Tube Division of Calumet and Hecla of Canada Ltd. 63 CLLC ¶1 12,296 at 1228 wherein it refers to Rogers Majestic Limited D.L.S. 7-1382 as follows:
'Its Primary object is to ensure that, so far as possible, the vote will be conducted in an atmosphere of calm and that the employees who are to participate in the vote shall not be subjected to partisan pressure and influences as the voting day approaches. The Board's view has always been that at that point the individual employees should be left free to make a purely personal decision as to how he should vote.’"
(See also The Great Canadian Pizza Company (Division of 40182 Ontario Limited), [1980] OLRB Feb. 216; Constellation Hotel Corp. Ltd. [1974] OLRB Rep. Nov. 799; and Zehr's Markets Limited, [19711 OLRB Rep. Oct. 638.)
It is preferable that all persons, including union officials and members of management, who are not directly involved with the conduct of a representation vote absent themselves from the vicinity of the polling area while the vote is being conducted in order to remove the temptation to engage in electioneering and propagandizing, and to eliminate any possible objection to the validity of the vote on the basis of their presence. The presence of such persons in that vicinity during the course of the vote is a factor that must be considered by the Board in the light of all of the other relevant circumstances, in determining whether another vote should be directed. Thus, in the Zehr's Market case, supra, the congregation of 'up to seven' management personnel in the area immediately adjacent to the polling booths was found by the Board to be a circumstance that would tend to bring pressure on the employees who entered the booths to cast their ballots, in the context of a situation in which the employer had clearly indicated to the employees its opposition to the applicant union and had, within the week before the vote, superimposed an alternate choice of an employee association that it had informed employees it would be willing to recognize. Similarly, in Constellation Hotel Corporation Limited, [1974] OLRB Rep. Nov. 799, 'the presence of management personnel in a strategic location in the vicinity of the polling area in full view of the employees as they proceeded towards the ballot box' was one of the circumstances which persuaded the Board to direct that a further representation vote be taken. However, other relevant circumstances included the visible 'ticking off of employee names on a list held by one of the members of management in question, a 'shouting match' that subsequently developed in the vicinity of the polling area between those members of management and an organizer employed by the applicant union, the 'cloak and dagger' scenario during which officials of the union and the employer surveyed each other's activities on the employer's premises, and the presence as scrutineers of relatively high ranking officials on behalf of both the union and the employer.
Although the Board prefers that all persons not directly involved with the conduct of the vote absent themselves from the vicinity of the polling area while the vote is being conducted, that is not an absolute requirement. The Board has held in a number of cases that the mere presence of extraneous representatives of one of the parties in or near the polling area will not by itself inevitably lead the Board to conclude that a situation has been created wherein the vote is not likely to disclose the true wishes of the employees; see, for example, Neelon Steel Limited, [19S5] OLRB Rep. Nov. 548; and Hostess Food Products Limited, [1975] OLRB Rep. March 218
Having regard to all of the evidence and the submissions of the parties, the Board is of the view that the impugned conduct of Mr. Simpson did not destroy the secrecy of the ballot or create a situation in which the representation vote would be unlikely to disclose the true wishes of the employees. As the applicant's agent at the count, Mr. Simpson had a legitimate reason for being present at the respondent's premises that afternoon. Moreover, his arrival prior to 4:15 p.m. was quite reasonable in view of the Officer's suggestion that the polling booth might be closed before 4:15 p.m. if all of the eligible employees cast their ballots before that time. While ii would have been preferable for Mr. Simpson to have avoided speaking with any of the respondent's employees prior to the completion of the vote so as to eliminate any possible objection to its validity on the ground of such conversation, we are satisfied that his conversation with employees who had already cast their ballots does not provide a basis for setting aside the vote in the circumstances of the present case. (Cf. Anderson Metal Industries, [1981] OLRB Rep. April 415). Similarly, his presence outside the polling area prior to the closing of the poll could not have affected the validity of the vote in any way since no one cast a ballot during that interval. Even if it were to be hypothesized that the one employee who did not vote might somehow have been dissuaded from casting a ballot by the presence of Mr. Simpson (despite the fact that there is no evidence that the employee in question was even present at the premises at that time, much less that he was in any way influenced by Mr. Simpson's presence), the result of the vote would remain unchanged since one more ballot cast either in favour of or in opposition to the applicant would not have changed the fact that more than fifty percent of the ballots were cast in favour of the applicant.
For the foregoing reasons, the Board in the exercise of its discretion under section 103(5) of the Act, declines to direct that a further representation vote be taken.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board finds that all employees of the respondent in Windsor, Ontario, save and except foremen, those above the rank of foreman, office and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied that not less than thirty-five percent of the employees of the respondent in the bargaining unit were members of the applicant at the time the application was made.
As noted above, on the taking of the pre-hearing representation vote directed by the Board, more than fifty percent 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 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 day period.