[1983] OLRB Rep. September 1464
0206-83-R Graphic Arts International Union, Local 211 Toronto, Ontario, Applicant, v. Haughton Graphics Limited, Respondent, v. Objecting Employees, Interveners
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members J. A. Ronson and S. Cooke.
APPEARANCES: J. James Nyman, M. Zajac and F Barber for the applicant; Edward T McDermott and C. Nash for the respondent; Walter S. Tiam Fook on his own behalf
DECISION OF M. G. MITCHNICK, VICE-CHAIRMAN, AND BOARD MEMBER S. COOKE; September 9, 1983
This is an application for certification.
The parties have been advised that the applicant's level of membership evidence is well in excess of that required for certification without a vote, the respondent, however, argues on a number of grounds that the Board should place no reliance on the membership evidence. Alternatively, the respondent argues that the Board ought to order a representation vote, in order to satisfy itself that the employees' true wishes have been ascertained. The grounds which the respondent puts forward are:
(1) that the applicant's use of a two-tiered initiation fee ($1.00 now, $300.00 later) coerced employees into signing;
(2) that the suggestion emanating from the union that the employer might close the operation or take other retributive action raised unjustified fears in the employees, and improperly portrayed the union as their only salvation;
(3) that the applicant engaged in a form of improper "tied-selling" by tieing a variety of union benefits simply to the act of becoming a member, irrespective of the question of representing employees as bargaining agent with respect to a particular employer; and
(4) that the applicant improperly conveyed to employees the impression that certain benefits would automatically flow from a subsequent collective agreement, rather than be the subject of and subject to negotiations with the employer.
Charge number (1) is joined in by Mr. Walter Tiam Fook, an employee in the unit, who wrote to the Board and appeared on his own behalf.
- With respect to the latter two points, the Board has most recently dealt with the question of "salesmanship" in the case of Leon's Furniture Limited, [1982] OLRB Rep. March 404, and noted at paragraph 11:
The Board has drawn the line of regulation between salesmanship and improper conduct at fundamental misrepresentation, coercion and intimidation.
Section 7 of the Labour Relations Act provides:
7.-(l) Upon an application for certification, the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and the number of employees in the unit who were members of the trade union at such time as is determined under clause 103(2)(j).
(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.
(3) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union, and in other cases, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit.
The section, as can be seen, was drafted by the Legislature in terms of "members", and the issue that the Board is called upon to decide is whether or not the employees in question want to become part of the trade union.
In the Board's view, the applicant's references to the benefits simply of joining the union, and to the benefits which might be anticipated in a collective agreement, do not, in the context of the evidence before the Board in this case, including letters distributed by management in response to the applicant's campaign, cross the line of misrepresentation. We find that employees at this operation would be fully aware that what they were being asked to join was a "trade union" that would be representing them in bargaining with their employer, and that the anticipated benefits in a collective agreement would be the product of bilateral negotiations with the employer. On the evidence, employees could not be said to have been misled by any representations of the applicant, nor improperly influenced in deciding for themselves whether or not they wished to belong to the trade union. As the Board made clear in Leon's, supra, section 7 of the Act does not require the Board to finely scrutinize mere elements of "salesmanship", so long as the line of misrepresentation, coercion or intimidation is not crossed.
With respect to the arousal of employee fears of recrimination by the employer, this is a common enough fear of employees in an organizing context that it is difficult to imagine a case where the addressing of it by a trade union would undermine the reliability of that union's membership evidence. As well, any apparent misstatement of a particular employer's intentions can normally be cleared up by communications from management on its own behalf, as in fact took place in the case before us.
There was also a suggestion arising from the evidence of a company witness, Mr. Kearns, that threats of physical violence were made to him on the road when stopped by someone whom he took to be a representative of the applicant. This latter question was never totally clarified, but even if the Board were to find on the balance of probabilities that the individual encountered by Mr. Kearns was in some way connected to the applicant's organizing campaign, the Board is not satisfied, having regard to Mr. Kearns' own tendency, demonstrated as a witness, to be somewhat belligerent and defensive, that the incident disclosed any evidence of threats being used by the applicant in connection with the mere solicitation of membership evidence.
The real issue in this case centres around the applicant's use of the two-tiered fee structure in the campaign. Such usage was also the main focus in the Leon's Furniture Limited case, supra, and the Board noted, at paragraph 11:
... The Board has not attempted to lay down standards of conduct aimed at responding to confusion and misunderstanding. Rather, it has tried to strike a balance between competing interests by censuring conduct that could deter, coerce or mislead the reasonable employee. The reduced payment before certification has been viewed by the Board as a borderline tactic which has sometimes crossed the line of acceptability.
After reviewing its jurisprudence on the subject, and particularly the case of Alex Henry, [1977] OLRB Rep. May 288, the Board concluded:
- While [in Alex Henry] there had been no explicit linking of the higher initiation fee to an employee's job security, the Board found that an employee might reasonably see this link and therefore held that the full-time union organizer is under a duty to explain in detail how his statement might come to pass. Once having raised a topic that relates to job security and amounts to a significant financial enticement, there is an affirmative obligation on the organizer to be totally candid. Therefore, in Alex Henry the Board concluded that the bald statement "$2.00 now or $50.00 later" crosses the boundaries of acceptable salesmanship. However, instead of prohibiting a two tier initiation fee structure for the purposes of an organizing campaign, the Board has instead required complete disclosure on how it would impact on the employee who refuses to sign a membership card before the trade union is certified. This, it seems to us, is a reasonable approach given the reality that many trade unions customarily reduce their initiation fees for the purposes of organizing campaigns.
(emphasis added)
- The basis of the Board's concern is set Out in plain terms in an earlier portion of the decision:
- The statute permits the Board to certify applicant trade unions to represent employees based upon written authorizations involving the payment of at least $1.00 where such "membership documents" are properly executed and witnessed and where the application is supported by a declaration made by a knowledgeable official, declaring that the monies were paid as the membership documents indicate. See for example Form 9 and sections l(l)(l) and 103(2)(j) of the Act. Thus, the Board relies on the execution of such membership evidence as an indication of the true wishes of employees and where more than 55 percent of the employees in the bargaining unit are members of the trade union, the Board will usually certify the applicant without a representation vote. However, because of the "hearsay" quality of membership cards, a fact demanded by the membership secrecy section of the Act (see section 111(1)), conduct by organizers that obscures the primary reason why an employee signed a membership card is of concern to the Board.
The Board accordingly sent a clear signal that a "special" initiation fee to eliminate the financial impediment to organizing would continue to be acceptable; but not to the point where the same device may be held out as the threat of a "penalty" to those employees who would refrain from joining prior to the union becoming certified. The union, in other words, must not use this organizing tool in such a way as to cause the Board to doubt whether employees have joined the union of their own free choice, or simply as insurance to avoid the risk of being required to pay the full amount of the initiation fee if the union is successful. The proper question is whether the employees wish to become part of the trade union or not, and organizing campaigns ought to be won or lost on this basis. Any two-level system of initiation fees causes a problem for the Board so long as the higher level is made to apply before or immediately upon certification of the trade union. In order to prevent this organizing device from being a distorting factor in assessing employees' true wishes, the two-tiered system must allow all employees employed at the time of the organizing campaign a reasonable opportunity to join for the lower fee after it has been determined whether the union will be certified. This is recognized to be already the practice of at least certain of the trade unions in the province, and conformity to it by others would seem to be no more than the Act requires. The practice of the present applicant, in fact, is entirely in conformity with the Board's requirements. The issue which arises here, however, is the manner in which the applicant has communicated its practice to the employees of the respondent.
- The main organizing meeting in this campaign took place on April 23, 1983, at the Howard Johnson Hotel. The applicant handed out at the plant gates a number of pieces of literature prior to this meeting. At the bottom of the first one, following a list of advantages to joining the union, was a line which read:
We have a 100th Anniversary Special INITIATION FEE Don't miss out
Also, prior to the meeting, a second leaflet was handed out which listed in greater detail the various benefits to union membership, and which contained the following reference to the initiation fee:
SPECIAL INITIATION FEES - $1.00 (normally between $200.00 to $350.00).
And finally, in the last leaflet before the meeting, the reference was:
REMEMBER
(A) Initiation Fee is only $1.00 (including expelled members)
Mike Zajac, the key officer involved in this organizing campaign, testified that the present system of allowing employees to join the applicant for a dollar was put into effect in the fall of last year (the union's 100th anniversary) to correspond with what other trade unions organizing in the field were offering. He testified that the arrangement is that all employees for whom the union becomes certified are allowed to join for the dollar, not only up to the date of certification, but up until the time that a first contract is actually signed. (Previously, employees who had paid their dollar and who wanted to complete their initiation into the union after a certification application was successful were required to pay a further amount of $25.00 in lieu of the full fee.) Mr. Zajac testified that the initiation fee was only one of the subjects discussed with employees at the April 23rd meeting. He began by explaining the scheme of the Labour Relations Act for certification, particularly the requirement of fifty-five per cent for outright certification, and went on to explain that there would be a meeting of all employees prior to any bargaining to put together the proposals which the union wanted to table. Mr. Zajac testified that there were no inquiries at this meeting with respect to the initiation fee, but that he explained it anyway as a part of his normal dissertation. There were some 30 to 35 employees at the meeting, and membership cards were ultimately obtained on behalf of all of them. These represent approximately half of the cards collected in this campaign. At the meeting Mr. Zajac explained that the dollar initiation fee remained in effect up until the time that a contract was signed, and that after that time the applicant's regular initiation fees would apply. These are set out in the union's constitution which outlines a sliding scale of fees ranging roughly from $200.00 to $350.00, depending on an individual's weekly salary. There were, however, questions asked as to whether everyone had to join the union, and Mr. Zajac responded that it would be up to the people at a meeting to decide whether they wanted a closed shop. Mr. Zajac further testified that he then explained the two basic options that were open on the subject, being a fully closed shop, where everyone has to join, as opposed to the situation where existing members must maintain their membership, and all new employees must join, but anyone else is required only to pay dues, in accordance with the law of Ontario.
- Mr. Zajac let everyone at the meeting know that the union representatives would be at the hotel on April26th and 27th, to meet with any other employees interested in joining the union. Mr. Zajac testified that he heard nothing more on the subject of the applicant's initiation fees other than two telephone inquiries from employees asking him for clarification on the dollar versus $300.00, indicating that they had heard conflicting versions in the plant. Mr. Zajac testified that he explained to these employees that the dollar would apply up until the time that a contract was signed, and that after that the regular initiation fees would apply.
The union subsequently issued a final handbill, on May 4,1983, and in it Mr. Zajac included a statement on initiation fees, he said, to "clear the air". That statement read:
REMEMBER
(A) INITIATION FEE is only $1.00. (Regular Initiation fees will be in effect when we get a contract as per our Local By-Laws).
The "terminal date" for this application was several days later, being May 9th, and all of the leaflets in the campaign set out the applicant's address and telephone number.
The evidence of Walter Tiam Fook is that he returned from vacation on April 23rd to find the issue of unionization being hotly debated in the print shop. Mr. Tiam Fook is, for his own reasons, resolutely anti-union, and appears to have become involved in frequent arguments with a number of the union's supporters. One employee, Rick Gouin, told him that if he joined with the rest of the guys, he would only have to pay a dollar, but if he left it to later, it would cost him between two and three hundred dollars. Mr. Tiam Fook indicated he did not wish to join the union and Mr. Gouin said that he would have no choice because if the union got in, he would either have to pay the $300.00 or look for another job; he would not be allowed to touch any of the machines. Mr. Tiam Fook never did sign a card, but wrote to the Board complaining of "coercion" and "intimidation" over the union's initiation fee, and the fact that he was told he would ultimately have to pay it to keep his job. He did not call the union to verify Mr. Gouin's statements because, he said, he "wasn't interested". Mr. Tiam Fook testified that a number of other employees complained to him about the initiation fee, but he called no other evidence.
The respondent employer called Fred Blakelock, a maintenance man, as a witness. Mr. Blakelock also made it clear that he, for his own reasons, had no interest in unions, based on his experience in Britain. Another employee, Cohn, approached him and told him about the meeting the Saturday before. Cohn then began reading from one of the union's leaflets the list of benefits to joining the union, and also the reference to the applicant's initiation fee. Cohn said that if Mr. Blakelock joined now, it would cost him a dollar, but later it would cost between two and three hundred dollars. Cohn also said that a majority had joined, and Mr. Blakelock would be "left out in the cold" and deprived of the union's benefits. Mr. Blakelock replied that he doubted he could be denied the benefits once he had paid his two or three hundred dollars.
He was approached by another employee, Silvano, who asked him if he was aware of the union meeting the previous Saturday. Mr. Blakelock responded that he was. Silvano then asked him if it were true that it would cost someone a dollar to join now, as against two to three hundred dollars later. A third employee, John, came in, and all three began to discuss the cost of joining. John said he did not really understand what the situation was concerning the union's initiation fee, and said he was going to call someone to find out. That was where the discussion ended.
The employee Doug Kearns also testified about approaches that were made to him in the plant. Another employee, Jim Phillips, came up to him in the cafeteria and asked him if he had joined the union and been to the meeting. Mr. Kearns said "no" to both. Mr. Phillips stated that they already had 80 per cent of the people signed up, and that if Mr. Kearns paid a dollar, it would not cost him $300.00 later; but if he did not pay now, it would cost him. Like the witnesses before him, Mr. Kearns however, if the applicant by its conduct left employees with the impression that its practice was something differenuse, he testified, he liked "all the fancy stuff you could get for a buck", and "wasn't interested in paying no $300.00".
As noted earlier, the practice of the present applicant in allowing employees to join for a dollar up to the point when the first agreement is signed is in conformity with the minimum requirements which the Board's inquiry under section 7 of the Act appears to demand. This would be little consolation to the Board, however, if the applicant by its conduct left employees with the impression that its practice was something different than it was. On the facts before us here, the Board does not find the applicant guilty of such conduct.
The applicant did, in its literature, set out what were its "normal" initiation fees, indicating the extent of the "bargain" that employees were getting, and it also exhorted employees not to miss the "special anniversary" fee. This latter reference contained an element of "puffing", in that the "special anniversary" part was really the decision of the applicant in the anniversary year to allow employees who had paid their dollar for the purpose of their application for membership before the Board to actually join the trade union and be inducted into membership for the same dollar, rather than the twenty-five dollar fee applicable previously. Mr. Zajac acknowledged that he hoped this change in the applicant's fee structure would continue forever. He did, in any event, clearly explain that all employees would have the opportunity to join for the dollar right up to the point of signing the first contract — to the 30-35 employees in attendance at the meeting of April 23rd, and to any employees who called him about the initiation fee subsequently. On the other hand, Mr. Zajac candidly acknowledged, with respect to the first contract being the cut-off point, that, beyond those employees, "if an employee didn't ask, he wouldn't know". And for that reason, in light of the applicant's own literature, the handout of May 4th is important. To the extent that any confusion may have arisen from the written propaganda of the applicant, the May 4th leaflet specified clearly that the opportunity to join for the dollar continued until the point that a first contract was settled.
The only "organizers" used by the applicant in this campaign were its outside professional staff, and no representative of the applicant did, in fact, ever expressly state that an employee at Haughton Graphics who did not join in the organizing drive would be required to pay a higher amount "later". Such statements arose explicitly only in discussions amongst the rank-and-file employees, and there was, in those discussions, no elaboration as to when "later" was. Any doubt (and there does appear to have been some) could readily have been clarified by a call to the applicant, by any employee who was interested. As the Board commented in Crenmar Services Limited, [1978] OLRB Rep. Jan. 48, for example, in dealing with a similar "two dollars now, 250 dollars later" statement:
- Unlike the situation with a union official, a rank-and-file employee is not in a position to seek to achieve the consequences of any statements he may make during a union organizing campaign. Further, employees upon hearing any statements made by rank-and-file employees concerning what a union might do in the future can always check out the accuracy of those statements with a responsible union official before signing a membership application. Having regard to these considerations, the Board is generally less willing to infer that a reasonable employee is likely to be improperly influenced into signing a membership card on the basis of statements made by a rank-and-file employee than it is with respect to statements made by a union official. (See: Canadian Electric Box and Stampings Limited, [1964] OLRB Rep. Sept. 284; Green Giant of Canada Limited, [1973] OLRB Rep. June 376 and The Kendall Company (Canada) Limited, [1975] OLRB Rep. 611.)
And in the same vein, dealing with precisely the same issue, see: Hancock Sand and Gravel, [1978] OLRB Rep. Oct. 928; Bond Structural Steel (1965) Ltd., [1979] OLRB Rep. Dec. 1137.
The applicant in this case, in any event, in the handout of May 4th, five days prior to the final date set by the Board for advising it of any changes in employee wishes, resolved in clear terms any ambiguity which may have existed with respect to the timing of its two-tiered initiation fee. Only one employee who had signed a card wrote to the Board indicating that he had paid a dollar on the basis of an incorrect statement of the facts. It is interesting to note, on that point, that Mr. Tiam Fook distributed copies of his letter to other employees whom, Mr. Tiam Fook testified, were as upset as he was over the initiation-fee issue, but none of those employees saw fit to remit a letter to the Board.
On the evidence, the Board is satisfied that the membership cards filed by the applicant are a reliable indicator of the employees' wishes~ and the charges of the company and Mr. Tiam Fook are rejected.
On the basis of all of the material before it, the Board is satisfied that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made were members of the applicant on May 9, 1983, the terminal date fixed for this application and the date which the Board determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the said Act.
A certificate will issue to the applicant.
The decision of Board Member J. A. Ronson will follow.