[1982] OLRB Rep. August 1216

2645-81-R; 2664-81-R United Food and Commercial Workers International Union Local lOOOA AFL-CIO-CLC, Applicant, v. Keele­Wilson Supermarket Limited c.o.b. as Tops Food Market, Respondent, v. Group of Employees, Objectors.

BEFORE: N. B. Satterfield, Vice-Chairman and Board Members W. H. Wightman and S. Cooke.

APPEARANCES: Martin Levinson, Brain Herlich and Dan Gilbert for the applicant; R. F. Filion and J. Chetti for the respondent; no one appearing for the objectors.

DECISION OF THE BOARD; August 16, 1982

1. The decision issued June 7th, 1982 by the Board, differently constituted, directed consolidation of these two applications for certification. Board File No. 2645-81-R was an application for certification with respect to the full-time employees of the respondent in Brampton, Ontario and the applicant was certified to represent those employees in collective bargaining by the Board's June 7th decision. The application in Board File No. 2664-81 -R was with respect to part-time employees and students employed by the respondent in Brampton, Ontario and by agreement of the parties, the Board directed that a representation vote be held with respect to those employees. Following the conduct of the vote, the Board listed both applications to be heard on July 30th, 1982. When they came on for hearing as scheduled, no one appeared for the objectors. The applicant and respondent agreed that the only outstanding issue to be dealt with was the respondent's allegation that there had been a violation of the silent period prior to the vote taken pursuant to the Board's direction in its June 7th decision. Accordingly, this decision is with respect to Board File No. 2664-8 l-R only.

2. The parties agreed on May 28th to a list of eligible voters. The Board's customary notice in the Form 69 — Notice of Taking a Vote was sent to the parties on June 8 together with the Registrar's direction to the respondent to post two copies of the notice in a conspicuous location where they may be seen and read by all eligible voters. The notice contains the following direction:

ELECTIONEERING

I direct all interested persons to refrain and desist from propaganda and electioneering from midnight of Sunday, the 13th day of June, 1982, until the vote is taken.

The Board's record shows that the eligibility to vote of three persons who appeared to cast ballots was challenged. Two were challenged by the applicant and were persons whom it had previously agreed should be on the list of eligible voters. It was the respondent's uncontested claim at the hearing that the third person also was challenged by the applicant and was a person whom the respondent had requested be added to the list. After the balloting was finished, the representatives of the parties signed the Consent and Waiver by which they agreed that the ballots cast be counted immediately and waived any objection to the regularity and sufficiency of the balloting. The ballot count revealed that a total of 41 ballots were cast. The three challenged ballots were segregated and not counted. 22 of the remaining 38 ballots were cast in favour of the applicant and 16 were cast against it. The Board's "Notice of Report of Returning Officer" (Form 70) was issued to the parties on June 17th, 1982, together with the Registrar's instructions to the respondent to post it where the employees are most likely to see it, notifying the parties (and any persons) that, if they desired to make representations as to any matter relating to the representation vote that they do so not later than June 25th. Solicitors for the respondent sent a registered letter dated June 24th, 1982 to the Board containing allegations that the Registrar's direction to refrain and desist from propaganda and electioneering had been violated and, as a result of those violations, the application should be dismissed. The respondent sought a hearing before the Board to present evidence and argument about its allegations. A second registered letterdated July 14th, 1982 was sent to the Board alleging that a further violation of the Registrar's direction had occurred.

3. It was because of these allegations that the Board scheduled a hearing on July 30th. At the hearing, the Board directed that witnesses be excluded at the request of the applicant. The Board heard the submissions of the parties on the preliminary objections of counsel for the applicant that certain of the violations alleged by the respondent did not satisfy the requirements of section 72 of the Board's Rules of Procedure. Ultimately the parties agreed to certain facts essentially as alleged in the two letters from the respondent's solicitors. The Board also has before it the applicant's uncontradicted admission that Mr. Les Dowling, a representative of the applicant conducted the organization campaign which led to both applications for certification. Additional evidence was adduced through the testimony of Dan Gilbert who has been president of the applicant for approximately twelve years and who testified at the hearing on its behalf.

4. The facts agreed to by the parties are as follows. During the evening of Monday, June 14th, 1982, the first day of the silent period, an eligible voter was called at home by Les Dowling, a representative of the applicant. Dowling asked the employee to give him the names of employees who had attended a meeting with management on the previous Thursday evening. Some names were given to Mr. Dowling by the employee. During the evening of Wednesday, June 16th, two eligible voters received telephone calls at home from an unidentified male. Obviously, it is not known whether it was the same caller in each incident. One of the voters was told by the caller to "go out and vote for the union". The other was told "vote tomorrow for the union or else". On the date of the vote the wife of an eligible voter received a call at home from an unidentified female who told her to tell her husband not to forget to come out and vote. Also on the date of the vote, a part-time employee named Deedee Ryan, a known supporter of the applicant, called another part-time employee at home and asked her if she had gone to vote. A representative of the respondent learned of one of the anonymous phone calls on the date of the vote and immediately reported the information to the Board's Returning Officer who was there to take the vote. The two anonymous telephone calls and Ryan's telephone call did not come to the respondent's attention until after the representation vote had been held.

5. Dan Gilbert testified that he was the chairman of a meeting of employees held Sunday evening, June 13th, at a Brampton hotel. The meeting had been called by mailed notices sent to all full-time and part-time employees of the respondent. Approximately 40 employees attended the meeting, but Gilbert could not say how many from each category attended. The Board's record shows that there are approximately 100 employees in the two bargaining units. Gilbert told the meeting that, as of midnight, neither the applicant nor the respondent could solicit support in any way and he stressed "in any way". He cautioned the employees not to solicit support in any way for the applicant. Gilbert was unaware of Dowling's call to one of the eligible voters. Nor could he tell the Board whether, at the Sunday meeting, he had been told about the meeting of management and employees on Thursday, the week prior to the vote.

6. Counsel for the respondent contends that each of these individual incidents constitute a per se violation of the silent period and that collectively they are repeated and persistent attempts to contact employees which constitute a pattern of conduct intended to influence the outcome of the vote. Counsel argues that these incidents are obvious attempts to influence the vote and, in light of the relative closeness of the vote (counsel suggests that the three votes challenged by the applicant indicate the true outcome would have been 22 votes for the applicant and 19 votes against), cast serious doubt on whether the vote represented the true wishes of the part-time employees. He asked that the Board disallow the vote and conduct a second one in order to obtain their true wishes. To this end, counsel is relying on the Board's decisions in: XDG Limited, [1975] OLRB Rep. 963, as authority that a deliberate violation of the silent period by a representative of the applicant trade union will cause the vote to be set aside and a new vote to be directed; Anderson Metal Industries Inc., [1981] OLRB Rep. April 415, at paragraph 9, as authority for the purpose underlying the Registrar's direction that there be no propaganda and electioneering during the seventy-two hours immediately preceding the vote; Treco Machine & Tool Ltd., [1981] OLRB Rep. Oct. 1503 for the proposition that rank and file members of the bargaining unit are interested persons as referred to in the Registrar's "no propaganda and electioneering" direction as well as for the standard by which the Board determines whether there has been a violation of the silent period when the persons alleged to have violated it are not under the control of the party which stands to benefit from the alleged violation; and Tend-R-Fresh Plant Co-operatives of Ontario, [1977] OLRB Rep. Jan. 22, for the proposition that unidentified persons may be interested persons referred to in the Registrar's direction who may engage in conduct intended to influence the vote.

7. The authority for the Registrar's direction quoted at paragraph 2 above and customarily contained in the Form 69—Notice of Taking a Vote is clause of section 68 of the Board's Rules of Procedure which state as follows:

Where the Board directs the taking of a representation vote and refers the matter to the registrar, the registrar may, subject to the provisions of the reference,

(j) direct all interested persons to refrain and desist from propaganda and electioneering during the day or days the vote is taken and for seventy-two hours before the day on which the vote is commenced.

It is to be noted that the words".... refrain and desist from propaganda and electioneering... which appear in the Registrar's direction are the same words as are used in clause of section 68. While it is clear that the Registrar has discretion whether to issue the direction, it is customarily, if not routinely, included in the Form 69 notice. The period during which it is prohibited to engage in propaganda and electioneering has come to be known as the "silent period" before a representation vote. In spite of the suggestion inherent in that term that interested persons are prohibited from speaking with one another, as the Board noted in Anderson Metals, supra, at paragraph 14, the wording

does not prohibit all communication among employees; it only precludes propaganda and electioneering, in order to allow employees an opportunity for reflection during a period in which they will not be subjected to persuasion."

(emphasis added)

So the question with which the Board is concerned is whether persons interested in the vote have engaged in the prohibited activities of propagandizing or electioneering. In this respect, it is helpful to refer to the meanings of the words "propaganda" and "electioneer" in Webster's New Collegiate Dictionary:

propaganda(n):

(2) the spreading of ideas, information, or rumor for the purpose of helping or injuring an institution, a cause or a person;

(3) ideas, facts, or allegations spread deliberately to further one's cause or to damage an opposing cause.

electioneer (vi.):

to take an active part in an election; to work for the election of an candidate or a party.

8. The Board's decision in one of its more recent cases dealing with alleged breaches of the Registrar's direction, Treco Machine, supra, reviews the purpose of the direction as well as the standards which the Board has applied when the violations alleged are the actions of rank and file employees of the employer. The Board was dealing with an allegation that one of the trade union's supporters, Mr. Egbert Thomas, in an application for certification in which a pre-hearing representation vote had been held had violated the "silent period". Thomas was alleged to have been responsible for the circulation of a rumor to the effect that employees' job security would be affected by the way they cast their votes. The Board found that Thomas had ceased to be an employee for whose actions the trade union was directly responsible and dismissed the employer's claim that Thomas' actions entitled the other employees to a new vote. The Board then went on to deal with the employer's claim that violation of the Registrar's prohibition by a rank and file employee (Thomas) was a violation by an "interested person" entitling employees to a new vote. In dealing with that issue, the Board set out at paragraphs 7, 8 and 9 of the decision the purpose of the Registrar's direction and the standards to which the Board looks when seeking to determine whether there has been a violation of that direction.

9. It is the second branch of the respondent's argument that is the more perplexing, underscoring as it does the problems of control and enforcement which arise out of the imposition of the 'silent period' by the Board. The purpose of the 'silent period' has been reiterated in a long line of Board cases, the most recent being Anderson Metal Industries Inc., [1981] OLRB Rep. April 415, at paragraph 9:

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 pressures 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.

The Board in Wackenhut Security, [1975] OLRB Rep. Oct. 738, made it clear that the prohibition can extend to all forms of propaganda, and that the result of a violation will in each case depend upon an assessment of all of the relevant circumstances. Particularly where, as here, the alleged propaganda goes to the heart of the employment relationship and job security, the circumstances surrounding it must be closely scrutinized by the Board.

8. In the present case, the Board is satisfied that the applicant has taken reasonable steps to ensure the observance of the "silent period" by its supporters, and that the actions of Mr. Thomas here in dispute were outside of the applicant's control. This raises some hard issues for the Board. To what extent are incidents of this kind to result in a successful party losing the benefit of an election victory, and the necessity of a further vote taking place? Is it appropriate to expect compliance with the Registrar's direction by employees acting outside the control of either party? Is it necessary to attempt to monitor the informal conversations between employees in the days preceding a vote on the very subject which is likely to be uppermost in their minds at that point?

9. The Board has grappled with these problems in the past, and has developed a policy which neither gives to such informal activities a weight out of proportion with their true impact, nor, on the other hand, creates a licence for the parties to do indirectly what they cannot do directly. In Royal Hotel, [1981] OLRB Rep. Aug. 1174, the Board stated at paragraph 7:

... We find it difficult to characterize a conversation between three employees in the bargaining unit [at a party] on the Saturday evening prior to a representation vote as campaigning within the meaning of the term campaigning which is prohibited by order of the Registrar in a representation vote.

At the same time, the Board from its earliest cases has left no doubt that employees in the bargaining unit were 'interested persons' within the meaning of the Registrar's direction, and that a violation by one of them of the silent period could result in vitiation of the election. See Ontario Steel Products, [1961] OLRB Rep. Aug. 174; and International Nickel Company Limited, 62 CLLC ¶116,257. The position of the Board is well summarized in Kimberly v-Clark Limited, [1977] OLRB Rep. Sept. 599. at paragraph 9:

Obviously, it would unduly prejudice the parties to a repre­sentation vote if the vote could always be automatically in­validated by virtue of breaches of the silent period by persons whose conduct is beyond the parties' reasonable control. Having found a disregard of the silent period the Board therefore must ask whether the party concerned took reasonable precautions to avoid or prevent any breach. If it is satisfied that the party has exercised the necessary care and that the breaches are neither so serious nor so widespread as to call into question the results of the vote, the Board will allow the vote to stand. Where it is found that isolated infractions are the work of rank and file employees who are not under the control of the union and that the union did all that can be reasonably expected to prevent those breaches, the Board may decide not to disturb the vote. (Rheem Canada Limited, [19651 OLRB Rep. July 284; Marsland Engineering Limited [1972] OLRB Rep. Dec. 1009.)

See also Tend-R-Fresh Plant, [1977] OLRB Rep. Jan. 22. The Board, in order [sic] words, applies its usual test of whether the impugned activity 'was likely to and intended to influence the result of the vote' (Ontario Steel Products, supra). taking into account that the statement is made only by a rank-and-file employee.

9. The instant case is not one just involving rank and file employees as persons inter­ested in the vote, it involves Les Dowling, the representative of the applicant who con­ducted the organization campaign and Deedee Ryan, a known supporter of the applicant. There can be no doubt that Dowling is a person for whose actions the applicant was directly responsible and Ryan might be such a person. Where a person in Dowling's relationship to an applicant fails to observe the Registrar's prohibition, there is no doubt that the Board will set aside the vote and order a new one. The Board in XDG Limited, supra, was dealing with circumstances where a union official accepted an invitation to meet informally with a group of employees in the bargaining unit during the silent period. In the process of meeting with them, he answered various questions about the type of working conditions and benefits which they might enjoy were the applicant to represent them in collective bargaining with the employer. The Board found this conduct to be"... a direct infringement of the 'silent period' in that he did engage in propaganda and electioneering during this period.” The Board went on to direct that a new representation vote be taken.

10. Dowling's impugned conduct was to call an employee on the first day of the silent period to seek information from the employee about the identity of other employees who had attended a meeting with management on the previous Thursday evening. In Ryan's case, it was to call another eligible voter at home on the date of the vote and ask if she had gone to vote. Dowling's telephone call to an employee is neither propaganda nor electioneering. Ryan's call may satisfy the meaning of electioneering which would derive from the meaning given to "electioneer" in Webster's, supra. The purpose of the "silent period", however, is to avoid employees being subjected to partisan pressure and influence. It seems to the Board that a query from one employee who is a known supporter of the applicant to another employee about whether that employee has been to vote, does not constitute partisan pressure and influence. Therefore. Ryan's conduct standing alone is not cause to negate the election and call another one. That being the case, the same must said of the anonymous telephone caller, who, on the date of the vote, spoke to the wife of an eligible vote and told her to tell her husband not to forget to come out and vote.

11. This leaves the two remaining, separate, anonymous telephone calls made to two eligible voters the evening before the vote. The calls obviously cannot be attributed either to employees in the bargaining unit or to the parties to the application. The Board knows only that the caller was male and there is no evidence as to whether it was: he same person who made each call. Both calls exorted the recipient to vote for the union. One of the calls ended with the ambiguous threat "or else". There can be no doubt that the two calls were a form of electioneering and made for the purpose of attemption to influence the outcome of ~he vote, either by getting the two eligible voters to vote against the union or for the mischief of creating a violation of the prohibition against electioneering so as to cause a new vote to be held. Are these two incidents sufficient cause for the Board to disregard this vote and direct a new one? The Board thinks not in the circumstances before it.

12. The union took the precaution of holding a meeting the night before the start of the silent period of both the part-time employees directly affected by the vote and the employees in the bargaining unit which the Board had already certified. The employees were told that they must not solicit support for the union in any way. While the Board has found the two anonymous telephone calls to be electioneering, those incidents do not represent widespread breaches of the prohibition against electioneering, nor are they so serious of themselves that they call into question the vote results. Even if the two eligible voters who were the recipients of the calls heeded the directions of the callers, the vote was not so close that a reasonable possibility exists for the outcome of the vote being influenced by those two breaches of the Registrar's direction. The vote was 22 for the applicant and 16 against. The evidence of the breaches is limited to two voters being exposed to possible influence. There is no evidence that the calls were anything but two isolated incidents or that any other employees were subject to the same kind of electioneering. Even if the Board were to accept, and it does not, respondent's counsel proposition that the three segregated ballots should be treated as votes against the applicant, thus reducing the margin of its win to three ballots, the applicant would still have sufficient support remaining to win the vote. In the Board's decision in Tend-R-Fresh, supra, the Board directed that a new representation vote be held and in so doing, took into account the relative closeness of the result of the first vote which was 30 votes for the applicant and 26 against it, or a difference of 4. In that case, the impugned conduct took place while the vote was in progress. One voter on the way to the polls was subjected to comments by other employees derogatory of the union and to calls from them to vote against it. Another voter was in the process of marking his ballot when he was subjected to anonymous calls from outside of the polling area to vote no. While the Board did not have evidence which allowed it to conclude that the remarks overheard by the voter who was marking his ballot were also overheard by others, there clearly was the risk that those remarks as well as the shouts directed at the other voter might have been overheard by still other voters. That is not so with the telephone calls in the instant case.

13. The Board is satisfied that the applicant has taken reasonable precaution to avoid breaches of the Registrar's direction by persons beyond its reasonable, direct control. There is no evidence that the two anonymous calls were anything more than two isolated infractions. Nor is there any evidence that they were the work of anyone other than rank and file bargaining unit employees, or were perpetrated by persons under the direct, reasonable control of either party to the application. In these circumstances and having regard for the facts set out above, the Board is not satisfied the two calls are likely to have influenced the outcome of the note.

14. Counsel for the respondent has contended that all of these events constitute a pattern of conduct designed to influence the vote. To this end, he contends that the Board should infer that Dowling's conduct in calling an employee during the silent period, demonstrates a clear intent to call other employees during that period. He further asked the Board to draw an adverse inference from the fact that Dowling was present for the hearing and did not testify that his evidence would have been unfavorable to the applicant's case or would have supported the respondent's allegations. As a matter of clarification, the Board notes that Dowling, as a potential witness, was excluded by the Board's order at the commencement of the hearing. The Board did draw such adverse inference in the Anderson Metal decision, supra. That was a case where the most senior official of the union was present at the vote for the purpose of counting the ballots. He was not a scrutineer. The Board found that he had spoken to employees for at least five minutes while the balloting was taking place. There was no evidence of what he had said, but since he was the highest official of the trade union and had failed to explain his conduct to the Board, it was prepared to draw the inference that he had breached the prohibition about propaganda and electioneering. In our case, the Board is being asked to infer that Dowling intended to talk to employees other than the one he called and that he intended to do so as part of a campaign to influence the outcome of the vote. Absent any evidence to support the suggestion of an organized campaign and having regard for the fact that Dowling's call to the one employee was on a subject matter which had nothing to do with propaganda or electioneering, the Board simply is not prepared to draw the double inference sought. Therefore the Board does not find the three anonymous telephone calls, together with those of Dowling and Ryan, to constitute a pattern of conduct intended to influence the outcome of the vote.

15. In the result, the Board declines to direct that a new vote be held.

16. The Board finds that more than fifty per cent of the ballots cast were cast in favour of the applicant.

17. A certificate will issue to the applicant.

18. The Registrar will destroy the ballots cast in the 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.

19. The concurring opinion of Board Members W. H. Wightman and S. Cooke will follow.