[1983] OLRB Rep. April 593
1945-82-R United Food and Commercial Workers International Union, Applicant, v. Primo Foods Limited, Respondent, v. Group of Employees, Objectors
BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. Wilson and W. F. Rutherford.
APPEARANCES: James Haves and Vincent Gentile for the applicant; R. M. Parry, Helmut Fittler and Arthur Pelliccione for the respondent; George W King and Helmut Dietz for the objectors.
DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER J. WILSON; April 11, 1983
In a decision dated February 15, 1983 in this application for certification, another panel of the Board directed that a representation vote be taken of the employees of the respondent in the bargaining unit described in paragraph 3 of that decision. Prior to that decision, the representatives of the respective parties signed Minutes of Settlement, dated February 10, 1983, by which they resolved a number of matters that had been in dispute among them, including a section 89 complaint which had been filed by the applicant (Board File No. 1946—82—U), an application for certification without a vote pursuant to section 8 of the Labour Relations Act, the bargaining unit description, and the eligibility of certain individuals to cast ballots in the representation vote which the parties were in agreement should be directed in this matter. Accordingly, a representation vote was taken on February 24, 1983. Twenty ballots were cast in that representation vote, including two segregated ballots cast by persons whose names appeared on the voters' list, and three segregated ballots cast by persons whose names did not appear on the voters' list. In view of the disputes which had arisen concerning the eligibility to vote of the five individuals who cast segregated ballots, the ballot box was sealed and the ballots were not counted.
In a letter dated February 25, 1983, which was filed with the Board on March 1, 1983, the applicant raised in a timely fashion certain allegations on the basis of which it contended that the representation vote would not disclose the true wishes of the employees. In a further letter delivered to the Board that same day, counsel for the applicant alleged that the conduct complained of in the aforementioned letter constituted violations of sections 64, 66, and 70 of the Act and reserved the right to rely upon section 8 of the Act.
Following the taking of the aforementioned representation vote, the parties agreed that the segregated ballots cast by persons whose names did not appear on the voters' list should not be counted since those three individuals were not eligible voters. At the commencement of the hearing held by this panel of the Board in Windsor on March 30, 1983, we heard the submissions of the parties concerning the eligibility to vote of the other two persons who cast segregated ballots. The Board also heard submissions concerning certain allegations raised by counsel for the objectors. After recessing to consider those submissions, the Board gave the following oral ruling, which is hereby confirmed:
"We are of the view that the February 10, 1983 Minutes of Settlement are dispositive of the issue of the eligibility to vote of Helmut Dietz and John Leipold. It was not suggested that Mr. Gentile could not, through the exercise of due diligence, have discovered, prior to signing that settlement, the information which the applicant now seeks to place before the Board concerning their duties and responsibilities. Accordingly, we find that Helmut Dietz and John Leipold were entitled to cast ballots in the February 24, 1983 representation vote and that their ballots should be counted, unless the Board decides to set aside that vote. With respect to the allegations set forth in counsel for the objectors' letter dated March 22, 1983, paragraph #1 is covered by the above ruling. Paragraph #2 is a matter which is not properly particularized and, in any event, is a matter which could and should have been raised much earlier if the objectors were seeking to rely on it. In any event, we are of the view that it is a matter that has been laid to rest by the Minutes of Settlement dated February 10, 1983. The allegations set forth in the balance of that letter are matters which have not been raised in a timely manner. The last day for filing a statement of desire to make representations concerning the representation vote was March 3, 1983: see section 70 of the Board's Rules of Procedure. Counsel for the objectors has not satisfied the Board that there are any circumstances in this case which make it appropriate to extend the time for filing those objections. His attempt to file them 20 days late, and to particularize them on the eve of the hearing, has prejudiced the applicant, which has not had an adequate opportunity to prepare its defence to them. An adjournment for that purpose would also prejudice the applicant in view of the need for expedition in the disposition of certification applications, as has long been recognized by this Board and by the Courts. In any event, we are of the view that those allegations, if proved, would not prompt the Board to set aside the representation vote. Accordingly, we shall proceed to hear the evidence and argument of the parties with respect to the applicant's application for certification under section 8, which deals only with matters which followed the February 10, 1983 Minutes of Settlement and were not covered by that document."
(Counsel for the objectors and counsel for the respondent each asked the Board to note that they objected to the portion of that ruling which pertains to the allegations contained in the letter of March 22, 1983.)
The evidence establishes that on or about Friday February 18, 1982, Helmut Fittler, the General Manager of the respondent's plant in Cottam, Ontario, telephoned bargaining unit employee Goulen Chi and told him that he had something to discuss with him the following day. Although Mr. Chi does not usually work on Saturdays except during the tomato season (from August to October), he attended at the plant on Saturday February 19, 1983 and met privately with Mr. Fittler. It was Mr. Chi's uncontradicted evidence that during that meeting Mr. Fittler told him that the union would not be good for the employees because unionization of the plant might lead to layoffs or a reduction to "three days a week", and that a strike might result in the closure of the plant. Under the circumstances, we find that the respondent, through Mr. Fittler, contravened sections 64, 66, and 70 of the Labour Relations Act. If those statements had been communicated to other bargaining unit employees prior to the representation vote taken on February 24, 1983, it might well be that the true wishes of the employees would be unlikely to be ascertained from that vote. However, Mr. Chi did not tell any of the other employees what Mr. Fittler said to him, nor is there any evidence that similar statements were made to any other employees by Mr. Fittler or by anyone else. The evidence of Herman Sawatzky, another bargaining unit employee, does not disclose any contravention of the Act. Although Mr. Sawatzky received a raise prior to the vote, we are satisfied from his evidence that the raise reflected a promotion to the position of mechanic, for which he had been in the process of being groomed prior to the applicant's organizational activities. With the increase that the respondent was experiencing in the amount of mechanical work required to be performed at its Cottam plant, there was nothing improper in promoting Mr. Sawatzky to that position. Indeed, a failure by the respondent to do so might itself have constituted an unfair labour practice under the circumstances. We are also satisfied that the comments which Steve Fittler, who is in charge of plant maintenance, made to Mr. Sawatzky about the union, fell within the ambit of the employer's "freedom to express his views" under section 64 of the Act.
Under the circumstances, the ballot cast by Mr. Chi in the February 24, 1983 representation vote is unlikely to reflect his true wishes with respect to representation by the applicant in his employment relations with the respondent, since it might well have appeared to Mr. Chi that a vote in favour of the applicant would be tantamount to voting himself out of a job, or at least out of employment involving more than three days per week (see, for example, Straton Knitting Mills Limited, [1979] OLRB Rep. Aug. 801). However, there is nothing before the Board which establishes that the true wishes of any of the other employees who cast ballots are unlikely to be accurately reflected by that vote. Indeed, those ballots may be more truly reflective of their wishes than would be ballots cast after the hearing of this matter, in view of the inevitable dissemination of information concerning Helmut Fittler's comments to Mr. Chi that will result from the hearing and deciding of this matter.
Under the circumstances, we are not prepared to exercise our discretion to certify the applicant pursuant to section 8 of the Act at this stage in these proceedings, as we are of the view that it would be appropriate for the ballots cast in the February 24, 1983 representation vote to be counted. In the event that the applicant loses that vote by a single ballot, the Board will entertain further representations of the parties with respect to the appropriate disposition of this application.
For the foregoing reasons, the Board hereby directs that the ballots cast in the February 24, 1983 representation vote be counted forthwith, including the segregated ballots cast by Helmut Dietz and John Leipold. Having regard to the agreement of the parties, the segregated ballots cast by Andy Johnson, Ed Thiessen, and Andy Sutoris are not to be counted.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER W. F. RUTHERFORD;
I dissent. Mr. Helmut Fittler, General Manager for Primo Foods Limited, Cottam, Ontario, contravened the Labour Relations Act. Mr. Fittler called Goulen Chi to attend at the plant and discuss the unionization campaign on the weekend prior to the certification vote. His statements to Chi about a possible three-day work week or plant closure if the union won the vote, were intended to intimidate the employee into voting against the union.
Mr. Sawatzky stated in evidence that he had been called by Mr. Steve Fittler, the brother of the General Manager, to come to the plant on Saturday, February 19th, prior to the union vote. At that time, he was offered a promotion to a permanent mechanic's job that he had been doing on a part-time basis along with his cooking job for some months. The offer included a wage increase of $1.15 per hour. They then discussed the pros and cons of the union campaign at the Cottam plant.
It is my contention that both Helmut and Steve Fittler arranged the interviews prior to the certification vote as a pressure tactic to have the employees vote against the union. Their approach in this manner went beyond the bounds of management's rights during a union campaign as set out in section 64 of the Labour Relations Act.
The Fittlers' actions interfered with the rights of employees as set out in section 3 of the Labour Relations Act. A vote following their interference would not reflect the true wishes of the employees. On that basis, I would have certified the applicant union without a representation vote pursuant to section 8 of the Act.