John Sinnamon v. The United Brotherhood of Carpenters and Joiners of America Local 3054
[1984] OLRB Rep. November 1636
0752-84-R John Sinnamon on his own behalf and on the behalf of all other employees of United Plastic Components Limited, Applicant, v. The United Brotherhood of Carpenters and Joiners of America Local 3054, Respondent, v. United Plastic Components Ltd., Intervener
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members J. A. Ronson and C. A. Ballentine.
APPEARANCES: Dale G. Wright and John Sinnamon for the applicant; J. D. Watson and Adam Salvona for the respondent; S. A. Bernofsky and Stephen M. Peacock for the intervener.
DECISION OF THE BOARD; November 23, 1984
1By decision dated October 9, 1984, the majority of the Board concluded that the representation vote held pursuant to a Board decision dated August 8, 1984 should not be set aside; Board Member Ballentine reserved his decision in the matter at that time. As per paragraph 3 of the October 9, 1984 decision, the following are the full written reasons in respect of the Board's determination to terminate the respondent's bargaining rights with the intervener company.
2At the October 9th hearing, the Board sought to clarify the respondent's position with respect to the representation vote. That is, the Board could, in response to the respondent's allegations, set aside the vote and direct a new representation vote be held. However, if the respondent was essentially seeking the dismissal of the termination application, the appropriate route was for the respondent to request reconsideration of the August 8, 1984 decision. The respondent considered its position and determined to proceed before the Board in respect of its allegations that the vote be set aside as not reflecting the true wishes of the employees. The allegations of impropriety were not raised prior to the vote being counted and after the parties signed the usual waiver. Consequently, the Board indicated that the respondent must address the impact of the signing of the waiver on the right of the respondent to raise the allegations and satisfy the Board that the respondent exercised due diligence in learning of the events on which the allegations are based.
3The only witness for the union was Bradley Olmsted, who had been employed by the company for about one year by the date of layoff on August 28, 1984. On examination in chief, Olmsted stated that he and William Robson Sr., the plant superintendent, had a conversation on July 3, 1984 regarding the future of the company. Robson Sr. allegedly stated that, if the union stayed, the company would be out of business by Christmas but, if the union was out, there would be work into the next year. No other employees heard this discussion. On July 25th, Robson Sr. again approached Olmsted and the conversation was more or less the same as on July 3rd. Olmsted was on the union negotiating committee during this period. Olmsted stated the conversation was strictly between himself and Robson Sr. with "no bearing on any thing to happen in the future". However, Olmsted also stated he told other employees about the conversation, although he could not recall their names. In August, Olmsted was approached by Terry Cox, the shift foreman, at 1:30 a.m. and Cox allegedly repeated the statement that if the union stayed, the firm would be out of business by Christmas. This conversation was allegedly relayed by Olmsted to several other employees, including Tom Barry, Bill Robson Jr., Frank Arts and the maintenance man. Olmsted, however, did not tell Adam Salvona, the union business agent, of these incidents until after the representation vote had been held and the ballots counted on August 21st.
4On that date, Olmsted also stated he saw the petitioner, John Sinnamon, on two occasions in the plant and talking to G. Luckhurst, a member of management, in front of the offices, an area visible from the plant floor. Olmsted stated he was the union scrutineer for the representation vote and signed the waiver thinking that the waiver only related to the proper conduct of the vote itself, not to prior irregular conduct. Olmsted also testified he saw a notice posted on the bulletin board that a barbecue would be held at the plant on August 23rd at 1:00 p.m. when the plant would be shut; all employees were invited, although Olmsted did not go as he had personal business. [Olmsted could not recall the date; counsel for the intervener agreed that a barbecue had been held on August 23rd and a notice posted for three weeks, i.e., since before the August 8th Board hearing ordering a representation vote.]
5On cross-examination, a rather difficult picture emerged. Olmsted acknowledged that, as the plant was so small, everyone was on a one-to-one relationship and there were numerous conversations amongst employees, foremen and other managerial personnel throughout the day and night shift. He conceded that the company's financial difficulties were common knowledge, that he heard a lot of things on the plant floor and that it was hard to separate fact from fiction. He regarded Robson's statement about the plant closing at Christmas lightly yet Olmsted also said he considered Robson Sr. "very believable". Olmsted described his personal relationship with Robson Sr. as "good" and couldn't recall being disciplined, even verbally, by Robson Sr. in early June, 1984. Robson Sr. allegedly also told Olmsted: "I don't care about the plant, I hopefully won't be here [much longer]." Asked why he didn't mention the incidents to Salvona, Olmsted commented that people "say a hundred and one different things in a day", "it seemed to have no bearing on the future", he "didn't believe Robson at the time", "it only became important after August 21st" (i.e., the representation vote), he was "always personally worried but not enough to call Salvona." With respect to the conversation with Cox, Olmsted described the discussion as extending off-and-on for about 2-1/2 hours. The two discussed motorcycles, among other topics. Then Cox said, "if the union stays in until Christmas, they might as well lock the doors" but that was his personal opinion and added he (Cox) shouldn't really talk about the union. Olmsted admitted he considered Cox's personal opinion "off the record", just as his opinions were "off the record".
6Also on cross-examination, Olmsted admitted that, as a negotiator, he met with Salvona on several occasions during that period but apparently only discussed negotiating items like job security, etc. He could not recall Salvona ever asking questions to inform himself about what was happening in the plant during the summer months either. Nor did he know if Salvona asked other employees such questions; Salvona never indicated he knew of the Robson Sr. or Cox conversation. During this period, as well, Olmsted was an alternate shop steward and, after John Keller was dismissed as shop steward, he was, in effect, the acting shop steward.
7Concerning the incidents on the day of the representation vote, Olmsted admitted the employees and management generally congregate to have a coffee as shifts changed either at a machine or at the coffee machine. Specifically, Olmsted agreed it was not unusual for Luckhurst to talk with employees on the plant floor or at the coffee machine or even on the night shift. In fact, Luckhurst had spoken to Olmsted on the day of the representation vote. At first, Olmsted stated he saw Sinnamon at the plant at 10:30 a.m. When asked if it was actually between 8:30 a.m. and 8:45 a.m., Olmsted replied that he said "in and around", that he didn't wear a watch but "I'd say [it was] later than that."
8Before the vote was counted, there was a discussion amongst the Returning Officer, Salvona, Olmsted and, presumably Peacock and Sinnamon about the possibility of segregating a ballot. Olmsted stated he understood that they agreed to waive the segregated ballot in order to have the votes counted immediately. Olmsted agreed the Returning Officer had explained that signing the wavier meant the parties would know the results of the vote without delay. Olmsted signed the waiver with Salvona present; he read the waiver document quickly and didn't know if Salvona read it.
9Finally, concerning the barbecue, Olmsted said he didn't see the notice posted but it might have been posted as much as three weeks earlier. Olmsted had heard that the company had held at least one Christmas party in the past but not that year (i.e., December 1983).
10William Robson Sr., plant superintendent for the past 2-1/2 years, testified for the company. He flatly denied that he had any conversations with Olmsted about a likely plant closing if the union stayed in. In Robson Sr.'s words, "I know you're not supposed to say anything to union [members] about something like this." Robson Sr. stated that he had had a conversation with Cox, the foreman, when he (Robson Sr.) commented that the plant would go under if they didn't get rid of the union and get more financial backing. He knew the company was in financial difficulty because there were few orders and the equipment was not being repaired. On June 7, 1983, Robson Sr. stated he verbally reprimanded Olmsted for taking too long at a job and that Olmsted seemed angry.
11On cross-examination, Robson Sr. agreed that Olmsted had been described as one of the better employees by the company president. Further, Robson Sr. and Olmsted had numerous conversations during the shifts, generally, about family and such like. He had talked about the termination notice posted in the plant with other foremen but had not discussed this with the employees. Robson Sr. reiterated his denial of his alleged statements to Olmsted about the plant closing by Christmas if the union remained. As to the company's financial difficulties, Robson Sr. stated that Luckhurst had mentioned there was a prospective partner. When that individual apparently backed out, Robson Sr. surmised the partner didn't want to be involved because the plant was unionized. If the plant closed, Robson Sr. said he had enough experience to get another job but he was concerned about the younger men. Robson agreed that no Christmas party had been held in 1983 but, as he never attended in previous years, he didn't know how many had been held in the past. He had, however, attended the barbecue. Hot dogs, hamburgers and beer had been provided free to the 18 or 20 employees attending. A notice had been posted announcing the barbecue. The president, S. Peacock, stated at the barbecue that he appreciated what the employees had done for the company. Robson assumed that Peacock had paid for the barbecue out of his own pocket.
12There was agreement of the parties on the fact that the company went into receivership on August 30, 1984.
13Counsel for the respondent union submitted that the waiver form only precluded the union from attacking the conduct of the vote itself, not from raising other irregularities. The allegations involved serious threats to job security and amounted to intimidation, even if the statements about the company's financial difficulties were true. Counsel submitted that Olmsted's testimony should be preferred over Robson Sr.'s. In any event, it was undisputed that Cox, at least, had made these statements to Olmsted and this was sufficient, particularly, since Olmsted had relayed the statements to other employees. The barbecue was an attempt to bribe the employees. Greb Industries Limited, [1978] OLRB Rep. Feb. 89; Bell & Howell Canada Ltd., [1968] OLRB Rep. Oct. 695; McMaster University, [1979] OLRB Rep. July 685; Bush Gamble Company Limited, [1972] OLRB Rep. June 644 were cited in support. The test was whether a reasonable person would have been unduly influenced in voting. Counsel asserted that there had been intimidation and bribery and, thus, that a new vote should be directed. As to the timing of the union's allegations of impropriety, counsel contended that Olmsted should be regarded as a "lay person", despite his status as a negotiator, and not subjected to a high standard of due diligence in informing Salvona. Further, counsel argued essentially that Salvona had no duty to ask about events he was unaware of. In reply, counsel distinguished Bioshell Inc., infra, and Crock & Block Restaurant, infra. The Board was also asked to draw an adverse inference from the company's failure to call further evidence about the barbecue.
14The petitioner, submitted that the union had not led evidence to substantiate their allegations. Moreover, the allegations were not raised until after the ballots were counted. With respect to the waiver, the union had an obligation to explain to Olmsted what signing the waiver meant.
15Counsel for the intervener submitted that Robson Sr. acknowledged he could not remember details of all conversations with Olmsted but was certain he had not made the statements about plant closure if the union remained. Robson Sr.'s evidence should be preferred to Olmsted's on this point. Olmsted's testimony regarding the statements by Cox was not credible given Olmsted's subsequent conduct. Olmsted claimed he relayed the information to other employees. The union could have called the other employees to corroborate Olmsted. Counsel urged the Board to draw an adverse inference from the failure to do so. And, if Olmsted had told other employees, why did he not tell Salvona. Further, the Board should regard with skepticism allegations raised for the first time after the results of a vote became known. The waiver should not be disregarded since this would rescue a party from its miscalculation. Counsel stressed that Olmsted was appointed by the union to act as scrutineer and Salvona was also present for the count. Treco Machine & Tool Ltd., [1981] OLRB Rep. Oct. 1503; Crock & Block Restaurant, [1984] OLRB Rep. Jan. 19; Bioshell Inc., [1983] OLRB Rep. Dec. 1964; Golden Griddle Restaurant, [1983] OLRB Rep. Oct. 1651 were referred to in support. The barbecue was described as a "red herring": it was simply to recognize that the employees had been doing a good job under difficult circumstances; it was not a closed door meeting where threatening statements had been made. In summary, counsel asserted the union had not proved its allegations and the representation vote should stand.
16The Board first must consider the effect of the signed waiver, i.e., whether signing that waiver precludes the union from relying on alleged employer improprieties in order to set aside the representation vote. The Board has reviewed the cases cited by the intervener as to the effect of the waiver (particularly Bioshell, Treco Machine & Tool, and Golden Griddle Restaurant, supra, as well as Bermay Corporation, [1980] OLRB Rep. Feb. 166). In those cases, it may fairly be said that the alleged impropriety was intimately or closely connected with the conduct of the vote itself (e.g., composition of the voters' list, breach of the silent period). The waiver itself speaks to the regularity and sufficiency of the conduct of the vote. The allegations of impropriety alleged here (with the exception of the alleged misconduct on the day of the vote) were not closely connected to the holding of the vote. The Board is prepared to assume, without finally deciding, that the waiver does not reach beyond those events which may reasonably be said to be closely connected to the conduct of the vote so as to preclude the union from raising the allegations after signing the waiver. On this reasoning, then, the Board will not permit the union to assert that the alleged misconduct on the day of the vote is a ground for setting aside that vote. Olmsted may well be a "lay person" in some senses but he was also chosen by the union to be scrutineer and to sign the waiver. The union must bear the risk if Olmsted was not properly instructed by Salvona as to the effect of the waiver and his responsibility to at least discuss any possible improprieties concerning the conduct of the vote before the vote was counted. And, it must be remembered that Salvona, an experienced union official, was also present at the time.
17Although the Board would not rule out consideration of the union's allegations (except as noted in paragraph 15) because of the signing of the waiver, the union must still satisfy the Board that it has exercised due diligence in conducting inquiries as to possible impropriety on the part of the applicant and/or intervener. A Board is naturally skeptical when allegations of earlier misconduct are raised only after the outcome of a representation vote is known. The Board is not prepared to permit a party losing a representation vote to cast about for any basis upon which to set aside the vote. If improprieties occurred which could have been discovered through due diligence and founded a complaint before the Board, those improprieties could well have been remedied before the vote was conducted. Or, the ballot box could have been sealed pending the outcome of the hearing into the allegations and a new vote directed, if necessary, after the appropriate relief had been ordered. The "due diligence" standard, then, prevents a party from having "two kicks at the can". In this case, the Board is not persuaded that the union exercised due diligence in learning of the alleged improprieties and filing the allegations. This is a very small bargaining unit for which the union is the incumbent. These are not the circumstances of an organizing campaign where a union may have difficulty in obtaining access to the workforce; rather, the union has a presence in the plant. Indeed, the union offices were in close geographic proximity to the plant as well Olmsted was a union negotiator and apparently a shop steward of some sort. He was in contact with Salvona in several occasions during the relevant time period and could easily have mentioned the alleged incidents. A final opportunity for discussing these alleged improprieties occurred when Salvona and Olmsted met before the vote was counted. Moreover, there is no evidence that Salvona, as business agent, conducted inquiries of any sort whatsoever as to possible improprieties. Salvona himself, although present at the hearing, was not called to testify as to any inquiries he may have made. For these reasons, then, the Board finds that the union has not exercised due diligence and should not now be permitted to raise the allegations of misconduct in order to set aside the vote.
18In any event, and in the alternative, the Board would dismiss the union's allegations of impropriety on the merits. Given the conflicting evidence of Olmsted and Robson Sr., the issue of credibility is squarely raised. In assessing credibility, the Board considered the usual factors, i.e., the consistency of their evidence, the firmness of their memory, their ability to resist the influence of interest to modify their recollections, their capacity to clearly express their recollections and their demeanour. The Board is of the opinion that Robson Sr. was truthful and candid in his responses. Olmsted, on the other hand, was evasive and contradictory. For example, Olmsted stated he took Robson Sr.'s alleged threats about plant closure seriously, yet at other points in his testimony he stated he regarded those comments lightly. Olmsted testified that he told the employees about the alleged statements, yet didn't regard the statements seriously enough to tell Salvona, the business agent. The Board need not recount other examples. Thus, the Board does not accept Olmsted's version of Robson Sr's statements on July 3, 1984 and on July 25, 1984. The Board is further prepared to draw an adverse inference from the union's failure to call any of the employees allegedly told about Robson Sr.'s comments. The Board would also add that the fact that the alleged improprieties were only raised after the results of the vote were known coupled with the explanation for delay does not assist Olmsted's credibility. In view of the Board's evaluation of Olmsted's credibility generally, the Board does not accept Olmsted's testimony with respect to statements allegedly made by Cox in August, 1984, as constituting threats to job security. Moreover, Olmsted's testimony, even taken at face value, amounts to no more than two individuals exchanging personal opinions about a number of topics in a casual conversation lasting, on-and-off, about 2-1/2 hours. Thus, the Board finds that the union has not proved any of its allegations with respect to statements by Robson Sr. and Cox.
19The Board must then consider whether the holding of the barbecue was improper and, if so, sufficient to warrant setting aside the vote. The evidence on the barbecue was not particularly detailed. Robson stated a notice was posted about the barbecue; Olmsted said he didn't see the notice but it might have been posted as much as three weeks earlier; i.e., before the date the representation vote was even ordered. Olmsted could not recall the date of the barbecue but counsel for the intervener agreed a barbecue had been held on August 23rd and a notice posted for the three weeks prior to the event. The uncontradicted testimony of Robson Sr. was that the president, S. Peacock, stated he appreciated what the employees had done for the company. The Board has often held that the employer may not use its dominant position and right of free speech to overtly or subtly threaten employees about employment conditions or job security: Dylex Limited, [1977] OLRB Rep. June 357, upheld 77 CLLC ¶ 14,112 (Ont. Div. Ct.); Viceroy Construction Co. Ltd., [1977] OLRB Rep. Sept. 562; The Globe and Mail, [1982] OLRB Rep. Feb. 189 and the cases cited therein. In this case, however, there was no evidence of any suggestion or statements by management that could be construed as threats to job security or of a nature which the Board has regarded as improper. Nor was there any evidence that the barbecue was comparable to the circumstances of a "captive audience". The Board does not regard any allegations of impropriety on the part of management at the barbecue to have been substantiated — or even alleged — other than the mere fact that the barbecue was held. And, the Board is not prepared to order a new representation vote merely because there was a barbecue for the employees.
20The Board, in paragraph 16 above, refused to hear the alleged irregularities on the day of the vote since the union had signed the usual waiver. However, the Board finds nothing unusual in one or two conversations between Sinnamon and Luckhurst on the day of the representation vote. Luckhurst regularly had conversations with employees during the day (according to Olmsted) and even had a conversation with Olmsted on the date of the vote (also acknowledged by Olmsted). Thus, even on the merits, these matters add nothing to the union's position.
21The approach to requests to set aside a representation vote was set out in Greb Industries Limited, supra, at para. 14:
- In evaluating conduct which leads up to the holding of a representation vote so as to determine whether that vote ought to beset aside, the Board has sought to establish whether the employees were capable of freely expressing their wishes in that representation vote. The party which seeks to set aside a representation vote is required to establish that the impugned conduct has deprived the employees of the ability to freely express their true wishes. See the Alcan Building Products Limited case, [1971] OLRB Rep. Dec. 806. The effect of impugned conduct upon the employees is determined by looking at the objective facts of what has occurred and drawing reasonable inferences as to what is the more probable effect of such conduct upon the employees in all the circumstances, see the Wolverine Tub, Division of Calumet & Hecla of Canada Ltd., case 63 CLLC ¶ 16,296. This is an objective test. The Board's approach is to determine the likely effect of the impugned conduct upon an employee of average intelligence and fortitude.
(See also Crock & Block Restaurant, supra). Management threats to the job security of employees should a certification application be successful (or, conversely, if a termination application fails) are regarded seriously by this Board. However, in this case, as stated above, the Board finds that the union has not substantiated its allegations of impropriety, let alone met the test in Greb that "the impugned conduct has deprived the employees of the ability to freely express their true wishes."
22The Board, then, as set out in the decision of October 9, 1984, would not set aside the representation vote for the above-stated reasons.