[1984] OLRB Rep. November 1564
1548-84-R United Brotherhood of Carpenters' and Joiners of America, Local Union 1030, Applicant, v. Elbertsen Industries Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Harry Freedman, Vice-Chairman, and Board Members W. H. Wightman and H. Kobryn.
APPEARANCES: Frank Manoni and Thomas Dunn for the applicant; Lynn H. Harnden, G.P.
Van Huffel and Charles Marquardt for the respondent; Ron Veley, Kevin Gurnsey, Denis
Dupuis and Tim Garrison for the employees.
DECISION OF HARRY FREEDMAN, VICE-CHAIRMAN, AND BOARD MEMBER H.
KOBRYN; November 13, 1984
The applicant United Brotherhood of Carpenters and Joiners of America, Local 1030 seeks certification in respect of a group of employees of the respondent Elbertsen Industries Limited. The application, filed on September 14, 1984, stated that the applicant was relying on section 8 of the Act, and set out the particulars upon which it relied to obtain certification under that section.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
At the hearing of this matter in Kingston, on October 10, 1984, the parties agreed to the following bargaining unit description, which the Board finds to be a unit of employees appropriate for collective bargaining:
all employees of the respondent in the Township of Kingston, save and except foremen, persons above the rank of foreman, office and sales staff, persons regularly employed for not more than 24 hours per week and students employed during the school vacation period.
The Board finds that there were 33 employees in the bargaining unit as of the application date. The union had filed evidence of membership, as defined by section 1(1 )(l) of the Act on behalf of 12 of those 33 employees on or before the terminal date, which is the time as of which the Board determines the number of employees who are union members pursuant to clause 103(2)(j) of the Act. The documentary evidence of membership consisted of combination applications and receipts showing payment and receipt of $1.00 with original signatures and counter-signatures. There was more than one collector. The evidence of membership was also authenticated by a Form 9 Declaration of Membership Evidence filed by the union. Two of the membership documents filed by the applicant were undated; however, the respondent and the representative of the employees agreed that the Board could treat those two documents as having been signed at about the same time as the other membership documents filed by the applicant. The membership evidence had been signed within 6 months of the union's application.
There were also filed with the Board on or before the terminal date 23 individually signed documents expressing support for the "Employees Association Committee of Elbertsen Industries." Ron Veley and others appeared at the Board hearing on behalf of the employees. While no evidence was led concerning the origination, execution or filing of those documents, the employees did lead evidence relating to the establishment and existence of the committee since such evidence was relevant to the union's application for certification under section 8 of the Act.
The Board received evidence from a number of witnesses called by the applicant, respondent and the employees. It appeared to the Board that all of the witnesses attempted to honestly recall the events about which they were being questioned. Although there were some minor inconsistencies in the evidence, the material facts relating to this proceeding were not in dispute, and the Board attributes any inconsistencies in the evidence to the individuals' perceptions at the time the conduct occurred about which they were giving evidence rather than to any attempt to mislead the Board, or colour their evidence for their own benefit.
Thomas Dunn was the union's principal witness and was the primary in-plant organizer for the applicant. He had begun working for the respondent in April 1984, and had been laid-off on the afternoon of Monday, August 20, 1984. The respondent, through the evidence of Charles Marquardt, its plant manager, conceded that Mr. Dunn's union activity had been a factor contributing to the decision to lay-off Mr. Dunn. Mr. Dunn was reinstated with full compensation for loss of earnings on September 25, 1984, pursuant to the settlement of an unfair labour practice complaint that had been filed by the applicant in respect of Mr. Dunn's lay-off.
Mr. Marquardt first became aware of the union's organizing activity on Monday, August 20, 1984, and that afternoon laid-off Mr. Dunn. The next day, at 9:45 a.m., Mr. Marquardt convened a meeting of all of the production and mill employees. Mr. Dunn, who had been advised of the meeting by another employee, returned to the plant on the 21st, the first day of his lay-off, to attend the meeting. Mr. Marquardt, Ralph Fiegen, the sales manager and Wayne Guard, the production supervisor were also present, although Mr. Guard left shortly after the meeting commenced.
Mr. Marquardt opened the meeting by indicating that he knew that there was some talk of a union around the shop and that he wanted to know what was going on. Both Mr. Dunn and Mr. Marquardt testified that Mr. Marquardt solicited the complaints of the employees and suggested that a group of the employees could go to see "Gus", Mr. Gustaaf Van Huffel, the Vice-President of the respondent, about their concerns. While Mr. Dunn recalls that Mr. Marquardt suggested that a committee of employees be formed to negotiate with the company, Mr. Marquardt's recollection of the meeting was that he did not suggest an employee committee, but rather suggested only that a group of employees meet with the company.
Mr. Dunn and Mr. Marquardt both testified that Mr. Fiegen had stated that if the union were to come into the company, the company would close. Mr. Dunn's recollection was that Mr. Fiegen had indicated that he knew the owner quite well, the owner was getting on in years, and didn't need the problems that a union would bring so therefore he would close the company. Mr. Marquardt testified that Mr. Fiegen had said that the company's customers preferred not to do business with a union shop, and if the union came in it could result in a loss of business and could shut down the company.
It is not necessary for the Board to resolve the differences in the testimony of Mr. Dunn and Mr. Marquardt concerning the meeting of August 21, 1984. It is clear that a meeting of all production employees was convened by the respondent's management where management solicited the complaints of the employees knowing that a union organizing campaign was taking place, suggested, at the very least, that instead of the union, the employees organize themselves and select a group of employees to meet with company, and made it clear that if the union was successful in organizing the employees, the company would close.
Mr. Dunn also testified that most of the employees had been quite interested in the union until the company meeting of August 21, but that after the meeting, no employees would talk to Mr. Dunn about the union.
The Board heard evidence about the establishment and operation of the committee from several witnesses, including Timothy Garrison, Mr. Van Huffel, Mr. Marquardt, Kevin Gurnsey and Ron Veley. It is clear to the Board that the members of the committee viewed themselves as an alternative to the union. The Board has no doubt that the members of the committee were acting sincerely in what they thought were the best interests of the employees. However, on the evidence, it is clear that the concept of an employee committee arose only after the August 21, 1984 meeting at the implicit, if not direct, suggestion of the company and in light of the assertion that if the company was required to deal with the union, it would close down.
The committee, comprised of seven employees, met on company premises during working hours to prepare proposals and had formal meetings with the company on two occasions. At the first meeting between the company and the committee certain items that the committee requested were agreed to (see exhibit #3) and following the second meeting between the company and the committee a detailed letter signed by Mr. Van Huffel (exhibit #4) was distributed in the plant. That letter reads as follows:
September 4th, 1984
TO ALL PLANT PERSONNEL,
It appears that meetings between management and the plant employees' committee over the past few days have resulted in better mutual understanding.
Management has become more aware of your frustrations as related to working conditions, job security, and wages. You have become more aware of the company's difficult struggle to survive over the past four years.
The result is a mutual commitment to work towards the improvement of the company's position for the benefit of all of us who depend on its success.
A few measures with the object of improving morale have been agreed upon. 1.) Pay cheques, starting immediately, will be issued weekly.
2.) One week's notice will be given for temporary lay-offs.
3.) All hourly paid employees will receive a pay increase of 25 per hour starting with the first pay cheque in each of the following months: September and November 1984, and January and March 1985.
Other suggestions by the committee such as the application of more uniform wage rates have been agreed to in principle; but the details remain to be worked out over the next few weeks as a co-operative effort.
[emphasis added]
To determine the cost to the company of a pay increase of just one dollar per hour, please multiply an average of 50 employees by an average of 2000 hours worked per year. No chicken feed, right? There is only one way this company can afford the one dollar increase which has been agreed to over the next seven months: that is by improving productivity! There is also only one way the company can afford to extend any further benefits: that is by improving productivity even more!
Even if sales return to the high levels experienced earlier this year, unless productivity improves significantly, the one dollar per hour wage increase will without any doubt result in a loss for the year. Through co-operation,
however, vast improvement is possible. Although it is certainly very important, hard work alone will not do the trick. To substantially improve the company's financial position and the standard of living of its employees, we will need ideas, ideas that will reduce costly waste of time and materials when hammered out and implemented co-operatively.
Hoping that the enthusiasm for a new start evidently felt by some of us can be shared by all.
Sincerely,
That letter from the company made it clear that it was dealing with the plant employees committee as a way of bargaining with the employees. It is also clear from the underlined statement in that letter that the company wished to continue dealing with the committee in the future.
On September 25, 1984, in accordance with the Minutes of Settlement that were filed with the Board as exhibit #1, the company agreed to settle the unfair labour practice complaint which related only to the lay-off of Mr. Dunn, by reinstating him with full compensation. Between the time of Mr. Dunn's lay-off on August 20, 1984 and his reinstatement on September 25, 1984, there was no active organizing attempted by the union, although the Board did hear evidence that a meeting was called by the union for August 23. Approximately ten employees came to attend that meeting. Mr. Frank Manoni, a union official, failed to appear. A later union meeting was scheduled for August 29. Only approximately four employees arrived.
On the day before Mr. Dunn's reinstatement, the company, through Mr. Marquardt, delivered to every employee the following letter, which was filed as exhibit #2 in these proceedings:
September 24th, 1984
TO EMPLOYEES OF ELBERTSEN INDUSTRIES LIMITED
As you are aware the Carpenter's Union has applied to the Ontario Labour Relations Board to be certified as your Trade Union Representative.
I want to make sure that you aware of the facts around this application and the company's position regarding your being represented by a Union.
The Union is asking in its application to the Labour Board that it be certified without a vote by the employees. It claims that the Board should do that even if the Union doesn't have enough support among the employees. The Union says that this should happen because the company has acted improperly in the following ways.
The Union claims that the company laid off Tom Dunn in August because he was a Union organizer. It says that we threatened to close the plant if the Union got in. It also claims that the company was wrong in negotiating with the employees committee and agreeing to make wage increases and
other changes. I want you to know the company's position and what it intends to do about these claims:
We are contacting Tom Dunn today to tell him he can report to work tomorrow. If he does so, we will pay him his lost wages since his lay-off. I can assure you that NO ONE needs to be worried that they will be laid off because they support the Union. That is your right and we will not interfere with it in any way.
If the Union is certified the company will negotiate in good faith with its representative. We will not attempt to withdraw the wage increases which have been promised.
I promise you the company has no intention to closing the plant simply because the Union is certified. The success of this plant will depend on our ability to produce efficiently and to sell our product and nothing more.
Tomorrow at 4:00 p.m. I will shut down the plant and provide all employees a half hour to discuss whether they want a Union. No member of management will be present. If the Union wants to, they can send a representative to speak to you.
You should know that if you wish to sign a Union Card you must do so before Wednesday.
I would not be honest if I said that I wanted to deal with the Carpenter's Union rather than with each employee on an individual basis. But it is your right and decision to choose to bring in a Union or not and I do not want to interfere with that decision.
Very Sincerely Yours
"Gustaaf P. Van Huffel"
Vice-President.
Mr. Dunn was present at the meeting of employees envisaged by the company in item 4 of the letter. He testified in cross-examination that he tried to ascertain whether any employees were still interested in the union. They indicated to him that they were not interested. He also testified that some employees expressed concerns over the business slowing down and possibly closing if the union was certified.
In determining whether to certify a trade union under section 8 of the Labour Relations Act, the Board must be satisfied of three conditions:
The employer has contravened the Act;
The contravention makes it unlikely for the Board to ascertain the true wishes of the employees;
The union has membership support adequate for the purposes of collective bargaining.
It is beyond question that the respondent's initial responses to the union's organizing campaign were flagrant violations of the Act designed to stop any further lawful organizing activity from taking place among its employees. The lay-off of Mr. Dunn, who was the main in-plant organizer for the union, removed the union presence from the respondent's premises. In addition, the company convened a meeting the day after the lay-off where it threatened to close the plant if the union was successful. The company solicited employee complaints and suggested that employees organize to represent themselves rather than support an outside independent union. These were all clear attempts to stop employees from joining or supporting the applicant and to provide an alternative to a union through which employee concerns could be expressed to the company. The Board, therefore, finds that the respondent's actions on August 20 and 21, 1984 violated sections 64 and 66 of the Act. (See The Globe and Mail, [1982] OLRB Rep. Feb. 189; Homeware Industries Ltd., [1981] OLRB Rep. Feb. 164.)
The continued recognition by the company of the employee committee as a bargaining representative of its employees and the purported negotiation of wages and working conditions with that committee continued the effect of its earlier violations. It was, in our view, further conduct which violated section 64 of the Act. By permitting the employees committee to meet on its premises during working hours, and indeed, by agreeing to their proposals, as late as September 4, 1984 when it knew that a union organizing campaign had been ongoing, the company further interfered with the selection of a trade union by the employees contrary to section 64 of the Act.
In Upper Canadian Furniture Limited, [1981] OLRB Rep. July 1016, the Board commented on the continued existence and recognition of an employee committee formed with the approval of an employer:
If there is a simultaneous union campaign then even if the employee association is not seeking certification an employer must exhibit considerable caution in his relationship with persons known to favour an employee association over the union. Section 56 [now 64] of the Act protects an employer's ability to freely express his views but only so long as he does not interfere with the selection of a union and so long as the expression of his opinion does not constitute coercion, intimidation, threats, promises or undue influence. For an employer to attempt to use his right to free speech to initiate an employee association to compete with a union is not protected by section 56. Even where an employer does not sow the seed of an employee association, its active support for the association may become a potent form of interference in contravention of section 56 of the Act. Given their economic dependence on their employer, employees may be readily swayed by employer conduct, even where subtle, which indicates support for an association over a competing union.
See also Primo Importing and Distributing, [1983] OLRB Rep. June 959.
The Board is also satisfied that the union has membership support adequate for collective bargaining. Prior to any unlawful activity, the union was able to obtain more than thirty-six per cent membership support. Membership support adequate for collective bargaining under section 8 does not require a majority of employees to join the union. If the union can demonstrate that it has a significant core of support within the bargaining unit, it can at least commence to engage in meaningful collective bargaining. The Board cannot compel the employees to join or support the union during the bargaining for the first collective agreement. It can, however, under section 8, permit the union to begin to bargain and attempt to obtain further support among the employees in order to enhance its bargaining power with the employer. The degree of membership support that is adequate for collective bargaining can vary, depending on the individual circumstances of the case. (See Dr. Hillers Peppermint Canada Ltd., [1979] OLRB Rep. May 375; Skyline Hotels Limited [1980] OLRB Rep. Dec. 1811). It is clear from the evidence of the employees that they desire some form of collective bargaining, albeit through an employee's committee rather than through the applicant union. In our view, that desire for collective bargaining provides an environment in which the number of members that the union does have in this case is adequate for collective bargaining.
As to the final element necessary for the Board to have the authority to issue a certificate under section 8, it is apparent that the unlawful conduct of the respondent prior to September 24, 1984 was such that the true wishes of the employees were not likely to be ascertained during that time. As the Board noted in Di-AI Construction Limited, [1983] OLRB Rep. March 356 at 360:
"A discharge is one of the most flagrant means by which an employer can hope to dissuade his employees from selecting a trade union as their bargaining agent.... In the face of this discharge I doubt that employees would now be able to freely decide for or against the union."
Not only did the respondent lay-off the prime union supporter, it threatened the closure of the plant if the union was certified. The impact of this type of threat was dealt with by the Board in the Globe and Mail case, supra, where it stated at paragraph 60:
The Board has found in a number of cases that the employer, in violating the Act, made threats to the continued job security of his employees conditional on whether the union succeeded in its attempt to become certified. In these cases, the Board concluded that the employer violation of the Act was such as to make it unlikely that the true wishes of the employees could be ascertained. An employee is unable to express his true wishes where he has been told by his employer, either expressly or impliedly, and has reason to believe, that the selection of a union may cause the company to reduce the scale of its operation or close down with an attendant reduction in the number of jobs. (See Dylex Limited, supra, Lorain Products (Canada) Ltd., [1977] OLRB Rep. Nov. 734, Riverdale Frozen Foods Limited, [1979] OLRB Rep. April 338, Straton Knitting Mills Limited, [1979] OLRB Rep. Aug. 801, Sommerville Belkin Industries Limited, [1980] OLRB Rep. May 791 and A. Stork and Sons Ltd., [1981] OLRB Rep. April 419.)
- Counsel for the respondent argued that section 8 was inappropriate in this case because of the remedial steps it took. He referred to the reinstatement of Mr. Dunn, the
undertaking not to close and the recognition of employee rights under the Act. He argued that these actions eliminated the effect of the company's previous unlawful activity.
The Board finds a good deal of merit in counsel's able submissions, but we are not persuaded on the evidence in this case that the respondent's attempt to undo the wrongs it had committed was enough to negate the impact of its threat to close, the lay-off of Mr. Dunn and its support for the employee committee as the preferred alternative to an independent union, on the decision making ability of the employees. Mr. Dunn's lay-off lasted for more than a month before he was reinstated and the letter of September 24 was delivered. During that month the respondent bargained with the employee committee, and the evidence of Mr. Dunn indicated that the threat of plant closure was still on some employees' minds, even after that letter was distributed. In our opinion, the respondent's action of September 24, 1984 was a reasonable attempt at rectifying its previous conduct. However, more than a month had elapsed before the respondent was prepared to openly recognize the legal rights of its employees under the Labour Relations Act. During that period the respondent's reaction to the union and its supporters had been made clear to the employees. In our view, the letter together with reinstatement and compensation for Mr. Dunn, and the opportunity for the employees to meet with union on company premises came too long after the unlawful conduct began and continued to have the curative effect argued for by the respondent's counsel. Furthermore, the employee committee was still in existence and there was no attempt by the respondent to address that element of its illegal conduct.
The Board has previously commented upon an employer's attempt to rectify the impact anti-union conduct. In West gate Nursing Home Inc., [1983] OLRB Rep. Jan. 159, the employer had improperly suspended a union steward for two days. The employer subsequently posted a notice to employees advising them of their rights under the Act and undertaking that he would not violate the Act again. Approximately two weeks later a petition in support of an application for a declaration terminating the union's bargaining rights was taken up among the employees. The Board in that case had to determine the effect of the two day suspension of the union steward and the subsequent posting by the employer of that notice on the voluntariness of the termination petition. The Board wrote at page 163 of that decision:
It is readily apparent from the uncontradicted evidence that Mr. Bond suspended Ms. Clark with the sole intention of "getting at" Mr. Burshaw, the person responsible for administering the collective agreement. In the Board's assessment Mr. Bond's retaliation against the union channelled through the suspension of the chief steward was not sufficiently nullified by the posting of the June 10th Notice to Employees to satisfy the Board that statement of desire circulated less than two weeks later was a voluntary expression of the views of its signatories.
We similarly find that, notwithstanding the respondent's actions on and after September 24, 1984, the true wishes of the employees in the bargaining unit are not likely to be ascertained.
The Board is satisfied that all three elements for certification under section 8 of the Act have been established. We hereby exercise our discretion under that section to certify the applicant union. Had the respondent not taken the steps that it had on September 24, the Board would have likely been persuaded to grant a broad range of remedies in addition to a certificate to the applicant. However, in our opinion, the respondent's recognition of employee and union rights, together with the undertaking it gave to bargain in good faith with the union if the union was certified satisfies us that there is no need for any other remedial orders to be made in this case to support the certificate we are about to issue.
A certificate will issue to the applicant.
DECISION OF BOARD MEMBER, W. H. WIGHTMAN;
I am gravely concerned as to how this decision will be interpreted and acted upon in the labour relations community.
This is a situation wherein a plant manager, and perhaps others of managerial status, acted inappropriately upon learning of an organizing campaign and in the absence of their superior — the vice-president (Gustaaf Van Huffel). The lay-off of Mr. Dunn on August 20 and statements made by Mr. Marquardt at the August 21 meeting were undoubtedly violations of the Act. These actions were also fait accompli by the time of Mr. Van Huffel's return to Kingston.
We do not know when or through whom Mr. Van Huffel became aware that the actions contravened the Act, but we do know that:
without any prompting from the Ministry, the Ontario Labour Relations Board or the Union, Van Huffel put into the hands of each and every employee on September 24 a letter (see paragraph 16 of the majority award) the text of which goes beyond anything I would have expected the Board to have required the employer to include in a posted Notice to Employees had the employer chosen to wait until he was "found out" rather than act of his own volition to remedy the harm to Dunn in full and to reassure the employees, in the most positive terms conceivable, as to their rights and their prospects for continued employment with or without union representation, and,
notwithstanding Mr. Dunn's assertion that after the August 21 meeting no employees would talk to him about the union, the applicant was unable to call any substantive evidence to suggest that it had attempted to renew its efforts to organize during the period from September 24, when each employee received the letter, until the date of hearing.
With respect to the latter point I do not think it is open to the union claim, or for us to infer, that the voluntary re-instatement of Dunn with full pay and issuance of the September 24 letter did not ameliorate the perceived "chilling effect" of the employer's earlier actions, when the union failed to renew its organizing efforts.
My greater concern, however, relates to the manner in which the labour relations community will view the "reward" that awaits an employer who, having made mistakes, attempts to correct them by anticipating the very action the Board could prescribe and taking that action voluntarily and wholesomely.
In citing West gate Nursing Home Inc., supra, at paragraph 25 of the majority, it should be noted that the posted notice referred to therein had come about as a consequence of the Board's settlement efforts, thus differentiating that case from the matter before us not only at law but, more importantly, in terms of the realities of labour relations and industrial life.
Perhaps by inference, the majority of this panel are calling into question the efficacy of the notices directed by the Board in cases where such conduct is only admitted to or revealed in the course of a Board hearing. At the very least the decision will give employers cause to question the wisdom of deporting themselves in a manner I can only believe the Board wishes to foster and encourage rather than penalize. Sadder still is the fact that this is first instance of such praiseworthy conduct having come to the attention of the Board to my knowledge.
Finally I note the majority disapprove of the continued existence of the employee committee. As was noted in the dissenting opinion of Primo Importing and Distributing Co. Ltd., supra, at page 972 the Board effectively "allows the applicant union a vested interest in the representation of the bargaining unit, even when the applicant is not attempting to actively organize the plant" (my emphasis). It should be noted that such attempts to resolve employer/employee differences and accommodate their respective interests becomes a breach of the Act only through time and circumstances and brands both the employer and employees as having acted unlawfully.
Notwithstanding some interpretations as to the purposes of the Labour Relations Act, I would have thought the fostering of courses of action such as that voluntarily undertaken by the respondent would be somewhere among them. In pursuit of that objective I would have found that the employer had successfully (and commendably) redressed the earlier violations of the Act. In this case the consequent "reward" to the employer and "penalty" to the union would have been a government-supervised secret ballot to determine whether or not they wished to be represented by the union.