[1983] OLRB Rep. November 1877
1506-83-R M. A. Sample, Applicant, v. Teamsters Union Local 91, Respondent, v.
Ottawa Commercial Realties Limited, Intervener, v. Group of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chairman and Board Members J. Wilson and H. Kobryn.
APPEARANCES: Margaret A. Sample on her own behalf; Ken Petryshen and Rick Kelly for the respondent; Joe Carrier and Dale Worrell for the intervener; no one appearing for the objectors.
DECISION OF THE BOARD; November 28, 1983
- This is an application brought pursuant to section 57(2) of the Labour Relations Act for a declaration terminating the bargaining rights of the respondent trade union. Subsection (3) of section 57 reads as follows:
Upon an application under subsection (I) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
The intervener filed a list of employees in the bargaining unit represented by the respondent, which indicated 10 employees in that bargaining unit as of the date of this application. With her application, the applicant filed a statement of desire signed by seven of those 10 employees, signifying that they no longer wish to be represented by the respondent trade union. The respondent trade union filed three documents purporting to evidence the desire of a total of five employees that they continue to be represented by the respondent. These documents were filed by registered mail posted on October 17, 1983, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j), to be the time for determining whether a number of employees who have voluntary signified in writing that they longer wish to be represented by the respondent trade union. Only two of the signatures on the counter-petition filed by the respondent correspond with signatures on the petition filed with the application. The written significations of those who have not executed a counter-petition are sufficient in number to cause the Board to order a representation vote if those five people are found to have voluntarily signed the petition.
The Board undertook its usual inquiry with respect to the voluntariness of the petition. The applicant testified under oath that she was an employee within the bargaining unit represented by the respondent. She said the question of the union had been batted around by the employees for a considerable period of time. The general consensus, so far as she was concerned, was that the dues were too high, they did not see much of the union and articles in the newspaper about employers shutting down in the face of excessive union demands led them to wonder what might happen to them. A co-worker's complaint one day about all the deductions on her pay cheque finally led the applicant to contact the Ministry of Labour to find out what was involved in an application to terminate the union. She said it was explained to her that there was a time frame within which she could make the application. She had to have two telephone conversations with them to satisfy herself exactly what that time frame was. She asked for and was sent the necessary forms, along with some books which she read and did not really understand very well. She read the union contract to see when it expired. When she got the forms, she completed them and prepared the petition on her own typewriter. Only her daughter was present when she did that.
Mrs. Sample also gave evidence with respect to the circulation of the petition and its ultimate delivery to the Board. The petition never left her sight. She obtained the signatures all on one day, at various points in and about the buildings where she .and the other signatories work, prior to the commencement of her own work shift. No management personnel were present or within sight when any of the signatures was obtained. By and large she caught the other employees as they were going off shift or before they went on shift.
There was some conflict in the evidence over the precise time and place at which the signature of Mr. Roy, the union's sole witness, was obtained. He says it was at least half an hour before his quitting time. The applicant says that cannot be so, and that she obtained his signature as he was coming off shift. Having seen and heard both the applicant and Mr. Roy, we are satisfied that the applicant has a better grasp of the time frames involved. Even if Mr. Roy is right, we do not believe the timing of his signature would have affected its voluntariness. It would have been clear to Mr. Roy that Mrs. Sample was not collecting the signatures during her own working hours and, but for the matters to be discussed later in this decision, he would have had no reason to suppose she had the approval of management to interrupt his work.
The respondent trade union attacks the voluntariness of the petition. The basis of its attack was set out in a letter to the Board dated October 27, 1983, the body of which reads as follows:
"It is the position of the Respondent that the petition filed in the above matter does not represent a voluntary expression of those employees who signed it. As well, it is the position of the Respondent that management was involved in the origination and circulation of the petition. The particulars which the Respondent intends to rely upon are set out below:
The petition was circulated during working hours and with the knowledge of management.
For a period of three weeks prior to the termination application, the petitioner, a sister of the supervisor Bob McIntyre, discussed the question of the Union with most of the employees. At least on one occasion the subject of the Union was discussed by the petitioner and by McIntyre in the presence of other employees. In these discussions, the petitioner and McIntyre were attempting to convince the employees that they should no longer support the bargaining agent."
This application was filed September 26, 1983. The respondent filed a Reply dated October 14, 1983. That Reply contains no allegation of improper conduct. The Board's hearing in this matter was conducted on October 31, 1983. At the outset of the hearing, counsel for the intervener employer objected to the lack of particularity in the letter of October 27 and the delay, which counsel described as inordinate, in its delivery. We were urged to exercise our discretion under Rule 72 of the Board's Rules of Practice and refuse to permit evidence with respect to the allegations in the letter. In response to this objection, counsel for the respondent trade union said the delay was due to the difficulty the trade union had experienced in breaking through the sense of uneasiness which prevailed in the workplace as a result of the application. He said the trade union had only recently discovered the allegations set out in the letter. We were prepared to take counsel at his word. On the basis of those and other representations, the Board gave the following oral ruling:
"The Intervener invokes Rule 72 with respect to allegations raised by the respondent by letter dated October 27, 1983.
We are satisfied that the matters alleged do concern improper or irregular conduct as contemplated by Rule 72. Application of the Rule is not limited to proceedings in which a remedy is sought against the person alleged to have engaged in the impugned conduct.
We are also satisfied that the matters referred to in the letter could have been raised during cross-examination of the applicant even if there had been no prior notice. This is because the matters raised go to the question whether the petition is voluntary.
For the same reason, we would not refuse to hear evidence with respect to the matters charged. Without ruling on whether the circumstances fall within subsection (2) or subsection (3) of Rule 72, we are satisfied the only relief we would grant the party prejudiced would be an adjournment.
That question need not be dealt with unless the union proposes to call evidence to supplement the examinations of the applicant. We will therefore reserve any question of adjournment until the applicant's case has closed."
Thereafter, Mrs. Sample gave her evidence, and then the union called Luc Roy to give evidence with respect to the allegations set out in its letter. Before reviewing Mr. Roy's evidence in support of those allegations, we think it important to note that in his testimony Roy swore that he had first told his story to Rick Kelly at a union meeting on September 27, 1983. Rick Kelly was the union representative present at the Board's hearing in this matter. We are unable to characterize that meeting, if it occurred on September 27th, as a recent event in relation to the trade union's letter to the Board of October 27th, 1983. Of the number of conclusions which might flow from a balancing of Roy's evidence and the earlier representations of respondent's counsel, we have concluded that Roy must have been mistaken about the date on which he first told the Union the story which led to its letter of October 27, 1983. This is consistent with our other observations of Roy as a witness. If we had come to any conclusion inconsistent with the representations of respondent's counsel on the question of delay, we would have reconsidered our ruling on the intervener's objection. We might have concluded that allegations of wrongdoing of which the union was first aware September 27th would not have been entertained when first raised by letter dated October 27, 1983, having regard to the reasoning in Cable Tech Wire Company Limited, [1978] OLRB Rep. 496. We would, in that case, have disregarded Mr. Roy's evidence entirely in arriving at our decision in this case.
Roy testified to a conversation which he said took place during the lunch hour about three weeks before this application was filed. It is common ground that some of the employees eat lunch in a particular area of the one of the two buildings they are employed to maintain. It is also common ground that the applicant's brother, Robert McIntyre, is the immediate supervisor of those employees, and that he also eats his lunch in that location. In his examination-in-chief, Roy testified that on the occasion in question Mr. McIntyre had initiated a discussion about the trade union, during which he said that the employees did not have any sick leaves or union cards. Roy claimed that McIntyre and the applicant then proceeded to discuss these issues in front of the other employees, who just sat and listened. During this discussion, he alleged, McIntyre pointed out that the end of the year was approaching, and that this would be a good time to get rid of the union if they wanted to do so. In cross-examination, Roy conceded he did not know who had initiated the discussion about the trade union. He further conceded, as he had in his examination-in-chief, that everyone present had been complaining about the amount of union dues they were paying. It was put to Roy that all Mr. McIntyre was doing was commenting on the complaints that had been made by the employees, and that McIntyre's response had been that they should look to the union and not to him. Roy's response to this proposition was "Yeah, but he gave us a good hint when to do it if we want to get rid of it." Reminded he had earlier testified that Mcintyre had not told them to get rid of the union, Roy explained "He didn't push us to do it. He said ‘If’ - that's not telling us to do it.''
In her earlier testimony, the applicant had quite freely conceded that Mcintyre was her brother. She said there had been no secret about that, and that the employees would be aware of the relationship. She also freely admitted she had obtained the job through her brother, but explained that they had made a "pact" that they would not discuss work outside of work and that they would keep their working relationship quite separate from their personal lives. Mrs. Sample also said that employee concerns about the union had been kicked around quite freely for a long period of time in many discussions, and she volunteered that McIntyre may have been present during some of those discussions. However, she said his participation in such discussions was limited to his pointing out that the union was none of his business, that he did not belong and that it was their problem, not his. She testified he never said whether they should or should not have a union. She denied that a conversation had taken place in the way Roy described. She said the question of the timing of the application was one she had sorted out herself as a result of reading the union contract and speaking by telephone twice to persons at the Ministry of Labour.
Having seen and heard them both, we prefer the evidence of Mrs. Sample where it differs from that of Mr. Roy. Roy was often hazy about dates, having to be led back to events two or three times by the union's counsel before he got a date right. Many of the questions asked of him in examination-in-chief were in the form of leading alternatives, to which he consistently responding by selecting the second of the alternatives offered. Mrs. Sample, on the other hand, was direct and consistent, both in presenting her evidence and in cross-examination.
Section 57(3) of the Labour Relations Act requires that we satisfy ourselves that the written statement of desire filed in support of a termination application represents the voluntary signification of the wishes of the employees who signed it. The approach taken to voluntariness is explained by the Board in Grove Park Lodge, [1980] OLRB Rep. Feb. 235 at p. 240 in the following terms:
The Board has always been sensitive to the particular vulnerability of employees arising out of the employer-employee relationship. As stated in the Pigott Motors (1961) Ltd. case, 62 CLLC ¶16,264:
There are certain facts of labour-management relations which this Board has, as a result of its experience in such matters, been compelled to take cognizance. One of those facts is that there are still some employers who, through ignorance or design, so conduct themselves as to deny, abridge or interfere in the rights of their employees to join trades unions of their own choice and to bargain collectively with their employer. In view of the responsive nature of his relationship with his employer, and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously vulnerable to influence, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act. It is precisely for this reason, and because the Board has discovered in a not inconsiderable number of cases, that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence in a form and of a nature which will provide some reasonable assurance that a document such as a petition, signed by employees purporting to express opposition to the certification of a trade union truly and accurately reflects the voluntary wishes of the signatories.
and in the Peel Block Co. Ltd. case, 63 CLLC ¶16, 227:
It is a function and duty of this Board to be vigilant and scrupulous in its concern to protect the fundamental rights of employees to make their own choice, as distinct from the choice of their employer, on the matter of selecting or rejecting a bargaining agent.
See also CCH Canadian Limited [1975] OLRB Rep. Jan. 19, which involved an application for termination of bargaining rights.
The Board has before it, in the present case, a cogently-worded statement of desire signed by almost the full complement of the bargaining unit. The Board must still be satisfied, however, that the motivation behind such a statement was of a truly voluntary nature; that is, as the above cases indicate, that the employees are not simply identifying themselves with the choice of their employer, out of fear of antagonizing their employer, or fear of reprisal, or for whatever reason. This is a fundamental duty which the Board owes to the employees themselves, and is made a pre-condition under section 49(3) of The Labour Relations Act to its power to direct the holding of a representation vote.
As the Pigott Motors case, supra, makes clear, so vulnerable are employees to employer influence that the influence need not even be created by employer design. The Board in a long line of cases has refused to accept as voluntary a statement of opposition to a trade union signed in circumstances where the employees could reasonably believe that their failure to sign would come to the attention of management. In the Morgan Adhesives of Canada Limited case, [1975] OLRB Rep. Nov. 813, for example, the Board stated at paragraphs 30 and 31:
The finding of the Board is not intended to imply collusion or other conscious or deliberate improprieties on the part of either the objectors and/or the respondent company. There is no evidence before the Board which would support such a finding.
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The evidence taken as a whole however, supports the inference that the employees of the respondent company would logically have assumed that management supported the petition, albeit in a tacit manner and that the names of those refusing to sign the petition would become known to management.
In carrying out its statutory duty, the Board is at the same time conscious that it must not be overprotective of employees' interests to the point where its evidentiary requirements become an unwitting trap for those very employees trying to express themselves. At all times a balance must be struck.
The Board has had occasion in several cases to consider whether the existence of a familial relationship between the applicant and a member of management is sufficient to cast doubt on the voluntariness of a statement of desire. In Otto's Deli [1980] OLRB Rep. Nov. 1673, the Board had this to say:
We do not think that we should readily draw inferences from the mere existence of a family relationship. In some circumstances, relatives may reasonably be perceived as having a special relationship with the employer which could influence an employee's choice with respect to trade union representation, but we do not think that this is always the case, nor are we prepared to automatically assume that the existence of a family relationship necessarily evidences a community of interest with the employer. It may be that there is a presumption tending in that direction but we are all aware that family relationships do not always exhibit the solidarity which counsel suggests. The involvement of family members is not irrelevant, but it is not the only factor to be considered especially where, as here, the inferences to be drawn from it were unclear. Of equal significance in our view is the general atmosphere prevailing at the work place, and the impact this would likely have on employee perceptions.
In International Beverage Dispensers and Bartenders Union, Local 280, 11981] OLRB Rep. June 690, the Board found a petition voluntary notwithstanding that the applicant employee was the wife of one of the co-owners of the employer business and that four others of the six employees in the bargaining unit were related to one or the other of those owners. In Jean Marc Joanisse, [1983] OLRB Rep. Jan. 92, the applicant was the son of the owner of the employer business. Significantly, he acted as manager of the store where the bargaining unit employees worked when the regular store manager had his days off or was on vacation. The applicant in that case conceded that employees could view him as a part of management. In the course of obtaining signatures on his petition, he had commented about his father's methods of doing business, and had spoken of the possibility of a strike during the then consent of negotiations. The Board in the circumstances of that case concluded that the applicant could reasonably have been regarded by his fellow employees as an arm or agent of his father acting for his father's interests in circulating the petition.
In this case, we are satisfied that her fellow employees would not regard Mrs. Sample as a mere arm or agent of her brother. Mr. Roy commented that in the conversations he claimed had taken place between Mrs. Sample and her brother she had agreed with some things he said and disagreed with others. Having seen and heard Mrs. Sample ourselves, we are satisfied she presents herself as a force independent of her brother. We also take into account that her brother is at the lowest level of "management", that there is no evidence of a concurrent anti-union campaign by management and that Mr. McIntyre himself demonstrated indifference to the presence or the absence of a union. Finally, we take into account that even on Mr. Roy's evidence of the comments of Mr. McIntyre, he was not perceived by the employees as directing them to get rid of the union.
The Board therefore directs that a representation vote be taken of the employees of the Ottawa Commercial Realties Limited. Those eligible to vote are all employees of Ottawa Commercial Realties Limited working at Ottawa, Ontario, save and except supervisors, those above the rank of supervisor, office and sales staff, persons regularly employed for not more than twenty (20) hours per week, and students employed during the school vacation period on the date of this decision who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken.
Voters will be asked to indicate whether they wish to be represented by the respondent in their employment relations with Ottawa Commercial Realties Limited.
The matter is referred to the Registrar.