Ontario Labour Relations Board
[1982] OLRB Rep. August 1140
0372-82-R Teamsters Union Local 938, affiliated with the International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America, Applicant, v. Brinks Canada Limited, Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Picher, Vice-Chairman, and Board Members J. A. Ronson and S. Cooke.
APPEARANCES: Ken Petryshen and Al LeFort for the applicant; James F. Bowden, F. V. Johnson, Arthur Morin, and James Mulrooney for the respondent; Terrance J. Schiler for the objectors.
DECISION OF M. G. PICHER, VICE CHAIRMAN & BOARD MEMBER S. COOKE; August 17, 1982
This is an application for certification.
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 further finds that all employees of the respondent at North Bay, save and except dispatchers, persons above the rank of dispatcher, office, clerical and sales staff, persons regularly employed for not more than twenty-four (24) hours per week and students during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining (hereinafter referred to as bargaining unit #1).
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent at North Bay, regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except dispatchers, persons above the rank of dispatcher, and office, clerical and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining (hereinafter referred to as bargaining unit #2).
The membership strength of the union is fifty per cent of the employees in each bargaining unit that would normally cause the Board to order a representation vote among the employees in each unit. In this case, however, the union alleges that the employer has violated the Labour Relations Act by intimidating the employees in respect of their job security in such a way as to prevent the free expression of their true wishes concerning union representation. It therefore requests certification under section 8 of the Act.
The respondent operates an armored car delivery service at North Bay. Its establishment at that location is small, having two full-time and six part-time employees, all of whom are under the direction of the branch manager, Mr. Arthur Morin.
The evidence establishes that one of the full-time employees, Mr. Blake Smith, was the principal proponent of union representation for the respondent's employees at North Bay. While he did not have the support of his full-time counterpart, Mr. Terrance Schisler, Mr. Blake did get support from at least three of the six part-time employees, all of whom joined the union at a meeting on April 21, 1982. This application was filed on May 20, 1982.
The evidence establishes that when Mr. Morin learned of the application for certification he called a meeting of all of the employees at North Bay at the respondent's depot on Saturday, May 29, 1982. Six of the eight employees attended. Mr. Morin began his discussion with the employees by accurately singling out and identifying each one who had joined the union. He then explained that there were only ninety man-hours of work per week available in the branch, forty of which were then regularly assigned to Mr. Schisler. He stated that if the union were certified and succeeded in bargaining a full forty hour work week for Mr. Smith, who was then working only twenty-five and a half hours, there would only be ten hours of work left in the week to be divided among the six part-time employees. He further stated that if the company were forced to pay the union rate it could close its North Bay branch. Mr. Morin then asked Mr. Smith how he felt as the person responsible for closing the North Bay office and putting everyone out of work.
Towards the latter part of the meeting, which lasted approximately an hour and a half, Mr. Schisler took from his pocket a typed petition, dated the same day, in opposition to the union. He announced to those present that he for one opposed the union and was prepared to go on record as being the first to sign it, which he did in the presence of Mr. Morin. All of the employees present except Mr. Smith signed the petition immediately after him also in the presence of the branch manager. The following Monday, May 31, 1982, one of the employees who had been absent from the meeting and who had previously been a union supporter, Mr. W. J. Duggan, signed a similar document.
The response of the employees was perhaps best summarized by Robert J. Barnes, a union supporter, who signed the petition: "I told everyone I wasn't in a position to jeopardize three regular employees' jobs for a union. ... After the meeting I went to see Barry Chapelle (the other employees who had been absent). He'd signed for the union. I told him I didn't feel I could be responsible for closing the office. He agreed." The petition indicates that it was signed by Mr. Chapelle the next day, May 30, 1982.
It would be difficult to imagine a more obvious violations of the Act by an employer to justify the granting of certification under section 8 of the Act. When an employer makes a threat which effectively tells an employee that to choose a union is tantamount to choosing unemployment, the ability of the employee to exercise any free choice is obviously removed. While Mr. Schisler indicated that he felt Mr. Morin's statements were largely "bluff', three of four employees who had joined the union obviously took a different view. From the earliest cases since the introduction of section 8 into the Act, the Board has consistently found that direct threats to the job security of employees are violations of the Act which trigger the operation of section 8 of the Act. (Djlex Ltd. [1977] OLRB Rep June 357; Viceroy Construction Co. Ltd. [1977] OLRB Rep Sept 562; Radio Shack [1979] OLRB Rep Mar. 248).
Counsel for the respondent submits that with respect to the full-time bargaining unit the third element of section 8, namely, that the true wishes of the employees are not likely to be disclosed, is not made out. He argues that even if there has been a violation of the Act, it has not affected the ability of the two employees in the full-time unit to make their choice. In this regard he points to the testimony and demeanor of Mr. Schisler and Mr. Smith, submitting that notwithstanding the employer's statements each of them remain strongly anti-union and pro-union respectively. He submits that the Board should have no concern about the ability of these two full-time employees to freely express their wishes respecting union representation as their positions were well demonstrated both in the events surrounding the application and at the hearing.
We cannot agree. Firstly, the Board's procedures do not favour the taking of viva voce evidence from employees in the presence of their employer at a Board hearing as the optimal means of determining their wishes respecting union representation. The Board's jurisprudence has long recognized the natural affinity of an employee to identify, publicly at least, with the interests of his employer.
In our view, the situation is no different because in the past Mr. Schisler may have opposed union representation and continued to do so during the applicant's campaign. Section 8 of the Act speaks not to the past, but to the present and the future:
Where an employer ... contravenes this Act so that the true wishes of the employees . .. are not likelv to be ascertained ...
The Act contemplates the state of an employee's mind at the time he or she might be called upon to express a choice, whether it be in supporting a union membership drive or in a representation vote. In the instant case the issue is whether Mr. Schisler can freely cast his ballot in a union representation vote to be conducted by the Board. We do not see how he can. By equating union certification with almost certain unemployment, the employer has for all practical purposes deprived Mr. Schisler, or any reasonable employee in his position, of the most essential element of freedom the ability to change his mind. If there was even a chance that Mr. Schisler could be persuaded to support a union, that chance must have been entirely eliminated by his employer's threats. By the same token the respondent's actions have unfairly deprived the applicant union of the opportunity, free of intimidation and undue influence from the employer, to persuade Mr. Schisler to its point of view. Having placed a chain around an employee's neck, the employer should not now be heard to say that the chain should be disregarded because it was never necessary in the first place.
We have no less concern for the expression of Mr. Smith's choice. While Mr. Smith has obviously been instrumental both in the union's membership campaign and in the presentation of its case against the respondent at the hearing, the Board cannot know with certainty that the respondent's threats will not ultimately have their impact on Mr. Smith. In our view it is entirely possible that Mr. Smith might become persuaded, as some of his fellow employees obviously have, that to vote for the union is to vote himself or others out of job. It is precisely the likelihood of that kind of ballot which the act intended to avoid by the provisions of section 8 of the Act. Having failed to frighten Mr. Smith at first, it is not for the employer to now assure the Board that Mr. Smith will remain unaffected by its threats. In these circumstances the Board cannot conclude with any acceptable degree of certainty that the true and unqualified wishes of the employees are likely to be ascertained.
With a membership strength of fifty per cent in each unit, we are satisfied that the applicant has support sufficient for collective bargaining. The Board therefore grants certification pursuant to section 8 in respect of both bargaining units. Certificates will issue accordingly.
DECISION OF BOARD MEMBER J. A. RONSON;
Dissent of Board Member J. A. Ronson to follow.