Ontario Labour Relations Board

[1982] OLRB Rep. November 1641

0918-82-R Energy and Chemical Workers Union CLC, Applicant, v. Indusmin Limited, Respondent, v. United Cement Lime Gypsum and Allied Workers International Union A.F.L.-C.I.O. C.L.C., Intervener

BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members B. K. Lee and E. J. Brady.

APPEARANCES: Chris G. Paliare, Tania Wacyk and Don Burshaw for the applicant; N. McL. Rogers, Q. C. and Gaston Berube for the respondent; Naomi Duguid, Ed Mattocks and Wayne Moore for the intervener.

DECISION OF THE BOARD: November 30, 1982

1. This is an application for certification which was filed on August 13, 1982.

2. By a previous decision of the Board dated August 30, 1982, a pre-hearing representation vote was ordered to be taken of the employees of the respondent in the following agreed voting constituency:

All employees of Indusmin Limited at its mine and plant at Nephton, Ontario save and except officers of the company; management personnel; supervisors, foremen, hourly rated employees above the rank of working sub-foreman; secretary to mine manager, drafts­men, surveyors; janitors and watchmen, and employees who have less than thirty (30) days of service or two hundred and forty (240) hours worked, whichever comes first, with the company.

This was also the bargaining unit contained in the October 12, 1980 — October 11, 1982 collective agreement between the intervener and the respondent. By the Board's direction, the voters were to be given a choice between the applicant and the intervener.

3. A vote was held on September 9, 1982 and the results revealed to the parties on the same day showed that of 103 individuals casting ballots, 49 marked their ballots in favour of the applicant and 54 marked their ballots in favour of the intervener.

4. Within the time limits set out in form 71 - NOTICE OF REPORT OF RETURNING OFFICER WHERE PRE-HEARING VOTE HAS BEEN HELD the applicant made certain allegations regarding the conduct of the intervener and its supporters prior to the vote. On the basis of these allegations the applicant requested that the representation vote held on September 9, 1982 be set aside and that a new vote be ordered by the Board pursuant to section 103(5) of the Labour Relations Act. A hearing was held for the purpose of hearing the evidence and representations of the parties with respect to these allegations.

5. While initially the applicant's allegations related to two incidents, namely;

(a) the use of a company vehicle to drive employees to the polling station and

(b) dissemination of misleading information,

the applicant only called evidence with regard to the second incident.

6. It is undisputed that Mr. Wayne Moore, President of the intervener, spoke to approximately 25 employees of the respondent at a regular meeting of the intervener on Thursday, September 2, 1982 at or around 7p.m. The stated purpose of the meeting was to discuss the counterproposals received from the respondent. However, prior to discussing them, Mr. Moore spoke to the gathered employees about the scope clause set out in the respondent's Reply to the Instant Application. He told the gathering that he had obtained a copy of the Reply from a Mr. Mattocks, District Representative of the intervener. He handed out three copies of the Reply for the gathering to see and read its contents aloud as well. He drew their attention to paragraph 5 of the Reply which described the appropriate bargaining unit to be:

Employees of Indusmin at its Quarry and Plant at the Nephton's

Nepheline Syenite Division save and except:

a. Office, clerical and technical employees

b. Supervisors including employees above the rank of working sub­foreman

c. Sales and customer service personnel

d. Janitors, watchmen, students and probationary employees

e. Persons covered by subsisting labour agreements.

The difference between this bargaining unit description and the bargaining unit described in the then subsisting collective agreement between the respondent and the intervener is the exclusion of office, clerical and technical employees.

7. The dispute between the applicant and the intervener centers on what Mr. Moore said regarding this difference and the effect of what was said on the voters' ability to express their "true wishes" in a secret ballot vote.

8. The evidence of the two witnesses called by the applicant who attended the meeting of September 2, 1982 supports the conclusion that Mr. Moore indicated that the Reply showed that the company wanted to change the scope of the bargaining unit. One of these witnesses, Mr. John Davis, at the time and currently a steward of the intervener, testified that Mr. Moore said what such a change of scope "may~~ involve, i.e., people in the lab and office would have to "go staff' or bump into the mill and the result would be 5 laid-off mill employees. The other witness, Mr. Randy Ellis, couldn't repeat what Mr. Moore said but said he was left with the impression that if the 5 office, clerical and technical employees were excluded from the scope of the bargaining unit, they would be offered to "go staff' and if they didn't, they would bump down and there would be a loss of 5 jobs. His job would have been one of the five. Mr. Ellis agreed under cross-examination that the loss of 5 jobs was a "guess~~ by Mr. Moore as to the effects of the scope of the bargaining unit being changed. Both witnesses recall Mr. Moore saying that if a vote was cast for the intervener, then the scope would not be the one in the company's reply and the office, clerical and technical employees would remain in the bargaining unit. Only Mr. Davis could testify with certainty as to what Mr. Moore said would be the effect of the applicant "getting in". His evidence was that if the applicant got in, the company was going to change the scope clause. While Mr. Ellis couldn't recall precisely what Mr. Moore said, regarding the likelihood of the scope clause changing, he was left with the impression that if the employees voted for the applicant, the scope clause in the Reply would be "it"; there was no doubt in his mind therefore that if he voted for the applicant he would be laid off. Mr. Ellis acknowledged in cross-examination that what Mr. Moore said was Mr. Moore's impression of what would happen if the new union got in. Mr. Davis, perhaps because of his greater knowledge and experience as steward, appears to have had a greater participation at the meeting. When Mr. Moore stated the effects of the scope clause as set out in the company's Reply, Mr. Davis testified that he asked him about "what was posted on the board", referring to the notice of Application for Certification. He claims that he pointed out to Mr. Moore that the description in the Reply was completely different from the one posted. At some point Mr.Davis said that someone asked Mr. Moore whether the unit description was a "negotiable item". Mr. Davis claims that he couldn't remember whether Mr. Moore answered or not.

9. The meeting which in total took up about 2 hours also dealt with the company's counterproposals to the intervener's proposals for amendments to the subsisting collective agreement. According to Mr. Davis, Mr. Moore pointed to the fact that the counterproposals did not contain any changes to the scope clause as evidence that if the company was going to change the scope clause in the negotiations, it would have put the new one in the counterproposal. In Mr. Davis' estimation, this point tied into the prior points Mr. Moore had made regarding the scope clause in the Reply because the conclusion to be drawn was if the applicant got in, the company was going to change the scope clause.

10. The applicant was permitted to call evidence not particularized in its original letter to the Board regarding a certain conversation between Mr. William Walling, a Quality Control Technician and one of the persons encompassed within the office, clerical and technical group, to show a "consistent pattern of communication by Mr. Moore". This conversation took place the day after the Thursday evening membership meeting described above. Mr. Moore sought Mr.Walling out at his work location and showed Mr. Walling the Respondent's Reply. Mr. Moore and Mr. Walling had had a conversation earlier in the week wherein Mr. Moore had informed Mr. Walling that he had learned there was a document showing the company wanted to change the scope clause of the agreement. Therefore, when Mr. Moore showed Mr. Walling the copy of the Reply, Mr. Walling understood it to be the document of which Mr. Moore had been speaking prior to September 3rd. Mr. Walling claims that Mr. Moore said that this was "the new scope we'd be working under" if the applicant got in. Mr. Walling claims Mr. Moore said nothing about the company per se but Mr. Walling understood that it was the company that wanted to change the scope. Mr. Moore's evidence is to the effect that he showed Mr. Walling the Reply saying that it was the document they had been talking about and that Mr. Walling should read it. He claims he said nothing more.

11. Not surprisingly Mr. Moore was the union's key witness. Mr. Moore claims that after reading the whole of the Reply to the employees gathered at the September 2, 1982 meeting and circulating it along with a letter from Mr. Aynsley, the Director [sic] of the Board, he gave his impression of what would take place, of what would happen if the applicant were voted in on September 9, 1982. He specifically denied telling the meeting that if the applicant were voted in, it was "definite" that the scope clause of the collective agreement would change. His testimony was that he told the employees gathered that it would "appear" to him that the company would "attempt" to change the scope clause if the vote went in favour of the applicant. Under cross-examination he agreed he said that the company had not suggested a change to the scope clause as long as the intervener remained the bargaining agent. He claimed that if the intervener were "solidified" there would be no changes to it, but with the applicant there would "possibly be changes and everything pointed to that". He acknowledged that while he stated that if the bargaining unit became the one stated in the Reply 5 jobs would be lost, this assertion was based on the "possibility" of the change. He also agreed under cross-examination that he mentioned the name of "Jenny" in the payroll department. He acknowledged that he knew she was well liked by the members of the bargaining unit. When asked in cross-examination whether he intended, by saying all these things, to raise the threat that 5 jobs would be lost if the vote went in favour of the applicant, he denied this intention. He claimed his reason for pointing out the Reply's scope clause was that he felt people should know about the document and his opinion as to what would take place as a result of the document.

12. It is undisputed that the meeting of September 2, 1982 occurred some six days after a meeting between the representatives of the parties in the instant application and Angus Smith, a Labour Relations Officer, to determine the voting constituency. Mr. Moore, Mr. Mattocks and Mr. Clarence Galliott, District Representative for Eastern Canada, were there on behalf of the intervener. Mr. Gaston Berube was representing the company, Mr. Donald Burshaw, Project Director of the Canadian Cement Gypsum & Lime Workers branch of the applicant and Mr. Bernard Davis attended on behalf of the applicant. The events of this meeting have some significance in the applicant's conten­tion because they tend to show that Mr. Moore's intentions were to mislead the gathering of September 9, 1982; he already had known on August 26th what the company's Reply entailed and the bargaining unit description had been settled neverthe­less. Mr. Moore claimed that from his point of view the August 26th meeting was to verify the voters list and to deal with the "problem" of S names being deleted from the list. These 5 were employees in the office and lab. He testified that both before and after this meeting Mr. Berube had made the statement that the company would try to change the scope clause either through negotiations or by appeal to the Labour Board. He also acknowledged that the result of the August 26th meeting was the addition of the 5 names of those originally not on the list. While admitting, under cross-examination, that he knew in order for the list to be determined that they first had to decide what the bargaining unit was going to be, he denied emphatically that either Mr. Mattocks or Mr. Galliott had a copy of the company's Reply (Form 10) at that meeting. He indicated that the first he heard of the Form 10 was when he received a call from Mr. Mattocks on August 30th from Kingston. Mr. Mattocks told him that his wife had received a document from the Labour Board and he read to Mr. Moore what she had informed him was on it. Mr. Moore believed from this that the company wanted to change the scope clause. He said he went to work the next day and told the people about it and someone said it might be a good idea to have the document available for the Thursday night meeting. On Wednesday Mr. Moore phoned Mr. Mattocks and arranged that he meet him half-way to Ajax to get a copy of the document so that he could give it to the people the following evening. According to Mr. Moore, the reason why he persisted in thinking that the company wished to change the scope clause, even after the August 26th meeting where the voting constituency was settled, was because Mr. Berube had reiterated at the close of the meeting that the company would try to do so, either through negotiations or appeal to the Labour Board. Under cross-examination Mr. Moore admitted that while he did know on August 26th the company's position regarding its intention to change the unit, he did not put forward his interpretation of it until September 2 because he needed the document showing this and that he wouldn't have said anything at the Thursday meeting unless he had the document.

13. Mr. Donald Burshaw testified that at the August 26th meeting Mr. Smith indicated that the bargaining unit description applied for was the same as the one in the collective agreement between the respondent and the intervener. He asked whether the intervener had any objections to this and receiving a negative answer from Mr. Mattocks, Mr. Smith then "read out Form 10" which Gaston Berube had sent in. Mr. Burshaw claims he was surprised by this since he hadn't been aware of the content of the Reply prior to the meeting. Mr. Burshaw agreed that Mr. Berube was "strong on changing the scope clause. Mr. Smith pointed out to Mr. Berube that in a displacement application where there was an agreed bargaining unit (between the applicant and the intervener) any revisions to the bargaining unit had to be taken care of in negotiations. Mr. Berube replied that he might take it to the Labour Relations Board. At this juncture Mr. Smith said the bargaining unit, as agreed between the applicant and the intervener, would stand and they proceeded to settle the list. Mr. Burshaw recalls Mr. Moore saying that his name was not on the list, to which Mr. Burshaw replied that if he had any problems or objections, he should make them to the officer. The omission of the 5 names from the list was explained to be caused by the company taking those names off who were excluded in their own description of the bargaining unit. The names of the S were added as a result of the meeting. What is noticeably absent from Mr. Burshaw's evidence is whether he or anyone else received a copy of Form 10 on August 26, how he knew the officer was reading out Form 10 and whether anyone unacquainted with the Board's procedures would necessarily know that Form 10 was the basis for the Labour Relations Officer's recitation of the bargaining unit the company proposed.

14. Another aspect of the timing of the September 2 meeting which the applicant contends is of significance is the fact that it occurred in the evening before the last working day prior to the Labour Day weekend. The 72-hour "silent period" required by the Board's procedures commenced at midnight on Sunday. Therefore, the applicant argues, there was little or no opportunity for the applicant to respond or counteract the mis-statements of Mr. Moore. The intervener, on the other hand, argues that there was sufficient time — 31/2 calendar days and, in terms of working time, the evening of Thursday and all of Friday. In any event, there was no "choice" to the meeting taking place on Thursday because it was a regular monthly membership meeting. Mr. Moore in cross-examination admitted that he knew the time for the applicant responding was a bit short, but the timing of his remarks was dictated by the receipt of the document on Wednesday showing the company's intention to change the scope of the bargaining unit.

15. There was no dispute that all these events took place during a time of electioneering. According to Mr. Brushaw, the applicant's campaign had begun in the first part of May and went on until September 1 and there had been numerous meetings and debates between the two unions throughout this period.

16. Section 103(5) of the Act provides:

Where the Board determines that a representation vote is to be taken amongst the employees in a bargaining unit or voting constituency, the Board may hold such additional representation votes as it considers necessary to determine the true wishes of the employees.

This section gives the Board discretionary power to call a second vote where the first has not revealed the true wishes of employees. The principles upon which the Board has relied in exercising its discretion under this section are set out in cases cited to the Board by the applicant, namely, Joseph Gould & Sons Limited, 52 CLLC ¶17,039; Stauffer-Dobbie Manufacturing Co. Ltd., 59 CLLC ¶18,147; and McMaster University, [1979] OLRB Rep. July 685. While only Joseph Gould involved a representation vote in a displacement application, the principles, as stated, appear not to vary whether it be a vote held in connection with a regular application for certification (McMaster, supra) or in a vote in connection with termination application (Stauffer-Dobbie, supra). The Board has stated in all of these cases, in different words, that it will not monitor or evaluate the campaigning of either party unless the way in which the campaigning has taken place and the content of what was said is such as to impair the opposite party from responding or to interfere critically with the ability of the employees' expression of their free wishes in a secret vote. It appears that proof of the intention to mislead or so interfere is not essential to the success of a request pursuant to section 103(5) (see McMaster, supra).

17. The applicant urges as a test for the statements made by Mr. Moore whether the statements "seriously mislead the reasonable voter" (from Stauffer-Dobbie, supra). On this basis the application urges us to conclude that Mr. Moore purposely misled and deceived the employees, and by raising a fundamental issue of "major importance" at the late date of Thursday, September 2, made it impossible for the applicant to counteract its effects. The respondent based its argument that no new vote ought to be held on two broad grounds, namely,

1. that the allegations the applicant raises are untimely and consti­tute a second bite of the cherry (Chateau Gardens, [1977] OLRB Rep. Jan. 12 and Mallett Wood Products, [1979] OLRB Rep. Jan. 41 cited as authorities) and

2. that negotiations have been proceeding since September 9th with the incumbent union based on results of the vote and the progress made should not be lightly disturbed.

The intervener stresses that the onus on the applicant in these cases is a heavy one and the evidence shows that the applicant has failed to establish an intention to mislead and the fact of any misleading by Mr. Moore at all. Counsel for the intervener characterized Mr. Moore as having expressed his opinion as to what would happen in the event the applicant became certified and that he was stating the "truth" when he indicated that the company, having expressed a desire to change the scope of the unit, would try to sit down and get a different scope from the applicant. The intervener also raised the issue of timeliness in much the same form as the respondent. The applicant argues that the timeliness argument ought not to be entertained because the first time the applicant heard about it was in argument, and if it had been in allegation, it would have called evidence.

18. The Board has decided that this matter ought not to be resolved on the basis of the timeliness of the applicant's objections to the vote because the applicant was not given notice of this argument and was not given an opportunity to call evidence on it, nor did the cross-examination of the applicant's witnesses indicate this to be a part of the intervener's or respondent's response.

19. The question the Board must decide is whether the effect of Mr. Moore's statements, either as they are described by the intervener or by the applicant, are so serious as to undermine the results of the vote of September 9, 1982. The question of intention is not relevant in this assessment and therefore the Board makes no conclusion on Mr. Moore's intention. We find that Mr. Moore did indicate to the employees gathered, using the Reply filed by the company, that given the company's intention to try to change the scope of the bargaining unit now that the applicant had applied for certification and the fact that the scope had remained the same during the period the incumbent union held representation rights, the safest surest course was to vote for the incumbent. He went further to state that if the applicant were certified, the company would try to get a new scope clause and "everything pointed to" changes which would result in the loss of 5 jobs. It is reasonable to assume that anyone listening to Mr. Moore would conclude at least that 5 jobs would be potentially jeopardized by the election of the applicant and that a vote for a new unknown bargaining agent could result in a new scope clause along the lines proposed by the company in its Reply. We have no difficulty in concluding that the impression left or created was that at least 5 jobs were potentially put into question by the election of the applicant. The Board has concluded that this is within the bounds of electioneering and in the circumstances would not seriously mislead the listeners. The evidence indicates that the meeting involved the "give and take" on the subject, with one person querying whether it was a negotiable item and another challenging the difference between the unit described in the Reply and the one in the Notice of Application for Certification.

20. Even if we accepted that Mr. Moore went further than simply predicting possible change and loss of 5 jobs if the application was successful, and actually claimed that this result was a certainty, the Board would not come to a different conclusion in the circumstances because these statements fall within the boundaries of electioneering between two unions seeking employee support. In the Stauffer-Dobbie decision, supra, the Board stated at p. 1790:

... In the main, however a considerable amount of leeway is permitted in electioneering. The Board does not undertake to police election campaigns or to consider the truth or falsity of campaign literature and speeches unless the ability of the employees to evaluate such literature or speeches is impaired, e.g., by the use of campaign trickery, to such an extent that the free desires of the employees cannot be determined in a secret vote.

(emphasis added)

We are not prepared to consider what Mr. Moore did or said as "campaign trickery". He was speaking to a group of employees who had been the subject of a lengthy campaign by the applicant and who, prior to that, had been involved in a collective bargaining relationship. They were informed as to the basis of Mr. Moore's concerns because copies of the Reply were circulated and its contents read out. Mr. Moore was challenged on the conclusions he was drawing from it and it is unlikely that his statements would in this context be reasonably regarded as anything more than his views put forward to persuade them to stick with the intervener in the vote. Proof of this is that at least one of the applicant's witnesses regarded his statements as such.

21. Because of the conclusion the Board has arrived at regarding the content of the statements Mr. Moore made, it is unnecessary to come to any conclusion as to the adequacy of length of time the applicant had to respond in the circumstances.

22. The application for certification is, therefore, dismissed on the basis that of the ballots cast, less than fifty per cent indicated a desire to be represented by the applicant.

23. The Board will not entertain an application for certification by the respondent in the bargaining unit within the period of six months from the date hereof.

24. 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.