Ontario Labour Relations Board
[1984] OLRB Rep. September 1255
0984-84-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant, v. Simpsons Limited, Respondent, Group of Employees, Objectors
BEFORE: R. O. MacDowell, Acting Alternate Chairman, and Board Members, W. H. Wightman and B. L. Armstrong.
APPEARANCES: Gordon D. Reeckie and Doug Roache for the applicant; T. F. Stone and R. E. Brown for the respondent; Arnold Adams and Paul McKendrie for the employee objectors.
DECISION OF R.O. MACDOWELL, ACTING ALTERNATE CHAIRMAN AND BOARD MEMBER B.L. ARMSTRONG; September 11, 1984
This is an application for certification.
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
When this matter came on for a hearing before the Board on August 3rd, 1984, the union and employer were able to reach agreement on the description and composition of two bargaining units which, in their view, were appropriate for collective bargaining. That agreement was reached in light of previous certification applications before the Board in this industry, and involving these parties at other store locations. The bargaining unit descriptions agreed to and proposed by the union and the employer are as follows:
FULL-TIME UNIT
"All employees of the respondent at its retail store(s) in the Township of Kingston, in the County of Frontenac, save and except department supervisors, persons above the rank of department supervisor, security staff, management trainees, office and clerical staff, persons regularly employed for not more than twenty-four (24) hours per week, students employed during school vacation period, students employed on a co-operative program with a school, college or university, and employees of H. B. C. Travel Limited and all employees of The Haircutting Place."
PART-TIME UNIT
All employees of the respondent at its retail stores in the Township of Kingston in the County of Frontenac regularly employed for not more than twenty-hours (24) hours per week save and except department supervisors, persons above the rank of department supervisor, security staff, management trainees, office and clerical staff, students employed during the school vacation period, students employed in a co-operative program with a school, college or university, and all employees of H. B. C. Travel Limited and all employees of The Haircutting Place.
The applicant union and the respondent employer were further agreed that, for the purposes of clarity, the following management positions above the rank of department head should be specifically excluded: store manager, sales manager, personnel and office manager, security manager, restaurant manager, visual presentation co-ordinator, advertising co-ordinator, supervisor: Elizabeth Arden Salon, manager: travel service; manager: The Haircutting Place.
Mr. Arnold Adams appeared on behalf of five of the ten "commission salesmen" who work for the respondent and who would be included in the above-described full-time bargaining unit, if the Board were disposed to accept the descriptions submitted by the union and the employer. Mr. Adams is one of ten such commission salesmen, all of whom are paid solely on the basis of earned commissions, unlike other employees who are paid on an hourly basis or on the basis of a wage or salary plus commission. Mr. Adams told the Board that he does not wish to be represented by a trade union and does not see what benefit a trade union would be for persons in his position. He asserts that fully commissioned salesmen have a separate community of interest from the other employees working for the respondent. He concedes that, as far as he knows, his duties or position are no different from other commission salesmen at other locations who have regularly been included in the bargaining units which the applicant union has been certified to represent. It is also acknowledged that in a number of cases involving the T. Eaton Company Limited, commission salesmen have been included in the bargaining unit. In other words, the unit description agreed to by the union and employer has been generally found to be "appropriate" in this industry and for other similar store locations operated by this employer.
The position of commission salesmen was recently considered by the Board in a certification case involving the applicant union and the T. Eaton Company Limited store in Scarborough (See, T. Eaton Company Limited, [1984] OLRB Rep. May 755). In that case, the salesmen were not only 100% on commission, but were also involved in the sale of sophisticated computer equipment, requiring specialized training and skills, which gave their department characteristics which were a little different from some of the other store departments. Likewise, the skills, duties, progression path, and mobility were somewhat different from those of other salesmen. However, the Board was not persuaded that this small group of employees should be excluded from the bargaining unit, thereby potentially fragmenting the bargaining structure — with all of the labour relations problems fragmentation involves. The Board observed:
While the question before us in the present application is whether to accede to the request of the employer to allow this one small group to remain outside the broad-based sales unit, viewing the matter from the point of view of its corollary better illustrates the problem. If the five-men sales unit of the business centre is appropriate for exclusion from the broader sales unit now before us, it presumably would also be appropriate as a self-contained bargaining unit at another store, where no other union organizing may yet have taken place. That is not the kind of piecemeal organizing or collective bargaining which the Board would be anxious to foster in this industry. While the needs of the [business] centre may require certain accommodations, we are not persuaded on the facts that those accommodations cannot be made within the broader context of the varyingly specialized and commissioned/non-commissioned sales unit.
In Kidd Creek Mines Ltd., [1984] OLRB Rep. March 481, the Board also had occasion to comment on the industrial relations consequences of a multiplication of bargaining units within a single enterprise:
We may begin by observing that the notion of an "appropriate" bargaining unit is a labour relations concept with no common law antecedents and in the general case, no precise statutory definition. What it means, quite simply, is the group of employees whom it makes "labour relations sense" to lump together for the purposes of collective bargaining, and section 6(1) of the Act leaves the Board's discretion to fashion bargaining units largely unfettered. Yet the Board's determination is obviously of immense practical importance, not only for the immediate parties, but for the structure and performance of the collective bargaining system as a whole. The definition of the unit affects the bargaining power of the union and the point of balance it creates with that of the employer. It influences the potential scope of the effectiveness of collective bargaining for dealing with different matters, and to some extent, even the substantive issues covered in the collective agreement. And, perhaps most important, the shape of the bargaining unit can profoundly influence the potential for industrial peace or collective bargaining discord. The more disparate are the interests enclosed within the unit, the more difficult it may be for the union to effectively represent the collectivity. Insufficient attention to these special interests generates internal strife, while too much attention to minorities may make it more difficult for a union to formulate a coherent package of proposals or make necessary concessions. On the other hand, there are dangers at the other extreme, as the Board noted in Bestview Holdings Limited, [1983] OLRB Rep. Aug. 1250:
Self-determination and community of interest often favour relatively small units, but these are not the only relevant factors in bargaining unit design. The Board must also strive to create a viable structure for ongoing collective bargaining and, to this end, undue fragmentation must be avoided. Consolidated bargaining offers several advantages over a fragmented structure. A proliferation of small units may result in unnecessary work stoppages. Each time one group goes on strike, other employees performing jobs that are functionally dependent upon the work normally done by strikers may erect picket lines that keep other employees away from work. The likelihood of a strike occurring increases as the number of rounds of bargaining grows, and is further enhanced by competition among bargaining agents. Secondly, each of several units typically becomes a separate seniority district, enclosed by walls which impede the movement of employees between jobs. In addition, broader-based structures may lower the cost and thereby increase the availability of insurance schemes and benefit plans. A multiplicity of bargaining units also inevitably spawns jurisdictional disputes over the assignment of work and entails the cost of negotiating and applying several collective agreements. Finally, the existence of a single bargaining unit facilitates equitable treatment of employees doing similar jobs.
A patchwork quilt of bargaining units is a recipe for industrial unrest —if only because in an integrated enterprise it takes only one collective bargaining breakdown to start the whole system unravelling.
We are of the view that those comments are equally applicable here. The question before us is not whether Mr. Adams and the several employees he represents do or do not want to be represented by a trade union. The issue is what bargaining structure makes sense, and is most likely to further orderly collective bargaining. In this context, and in the absence of compelling evidence that these salesmen have a substantially different community of interest from other salesmen employed by the respondent, we are reluctant to adopt a view which fosters undue fragmentation of the bargaining structure. Employees in Mr. Adams' position have routinely been included in other Simpson's units at other locations, and in retail sales bargaining units for other employers without any apparent collective bargaining difficulties, and we do not think this established pattern can be ignored. We see no basis on the evidence before us for departing from it. Mr. Adams' submission that he does not wish to be represented by the union does not, in itself, constitute a sufficient ground for defining a bargaining unit in terms which exclude him and the several employees upon whose behalf he appears. Nor, in our view, should any special significance be attributed to the fact that he is paid totally "on commission" — although that fact might have to be considered by the union and employer when they actually sit down to bargain.
Mr. Adams further submits that he should not be required to join a trade union or pay the dues or assessments levied by a union to support its activities as the employees' bargaining agent (collective bargaining, representation of employees in grievance-arbitration matters, etc.). He argues that the Canadian Charter of Rights protects "freedom of association", so that it must necessarily also protect an individual's right not to associate, and to refuse to support the objects of an association with which Mr. Adams does not agree. Mr. Adams advances this proposition as an additional reason for excluding him from the bargaining unit and for relieving him of any obligation which he may subsequently have to contribute financial support to the activities of the union in its role as bargaining agent for the respondent's employees.
Mr. Adams' submission, whatever its philosophical merits, raises fundamental questions about the existing legislative framework for collective bargaining at both the federal and provincial levels. That system permits a trade union with the support of a majority of employees to become the exclusive bargaining agent for a defined group which a Labour Relations Board determines to be appropriate for collective bargaining. In this and other Canadian jurisdictions, employees do not have an unfettered right to apt out, choosing another union as their representative or no union at all. They are bound by the will of the majority of employees in the bargaining unit that this Board determines to be appropriate. Legislation in Canada has not followed the English pattern of total "voluntarism" which, until recently, permitted the growth of collective bargaining, without any legislative control. Total voluntarism was apt to produce a "crazy quilt" of bargaining structures, with the undesirable labour relations consequences that we have already mentioned. Indeed, in sectors where bargaining patterns often predated legislative regulation (the railways or construction industry for example) there has been a determined effort to consolidate bargaining structures. We do not think the Charter of Rights was intended to or does impinge upon these legislative efforts to foster orderly collective bargaining and industrial peace.
Likewise, legislation has not prohibited dues checkoff or compulsory membership requirements which were prevalent prior to the passage of any collective bargaining legislation at all. The vast majority of collective agreements contain such union severity devices, and it is difficult to accept that Parliament intended that henceforth they should all be illegal. What the Ontario statute has done, is to attempt to strike a balance: recognizing the legitimacy of union security devices, but restricting their operation where there is abuse or potential collision with other important societal interests. For example, the Act provides for the exemption of employees who have a bona fide religious objection to supporting a union, and protects employees whose jobs might be put in jeopardy because they have been denied or expelled from union membership for (inter alia) taking a stand against the union, or refusing to pay unreasonable dues (see section 46). Clearly, the current legislative scheme in this, and other provinces, represents a sophisticated and calculated balancing of competing individual and collective interests in a collective bargaining framework which necessarily requires some sensible compromise between collective and individual concerns.
Mr. Adams' submissions raise important philosophical and legal issues concerning the impact of the Charter of Rights on the established collective bargaining legislation in this and other Canadian jurisdictions as well as the propriety of a variety of arrangements negotiated by the parties and included in their collective agreements. But, however important the issues raised by Mr. Adams may be, we do not think it is necessary to deal with them at this time. In the first place, we do not think that the notion that collective bargaining should take place in respect of units which are "appropriate" impinges upon any fundamental interest protected by the Charter of Rights. Secondly, Mr. Adams is not now required to be a union member nor to pay union dues. That situation will arise if, and only if, the union is certified and it eventually concludes an agreement with the employer requiring membership and/or payment of union dues. Finally, and most importantly, we do not think we should canvass legal propositions which could significantly alter the legal framework for collective bargaining in this and other provinces without thorough and careful legal representations on this question. While we do not wish to diminish Mr. Adams' concerns, we do not think we should conclude that portions of our constituent statute are void or that the Board should significantly alter its approach to bargaining unit determination solely because an individual is opposed to supporting a union and makes rhetorical reference to the Charter of Rights. Whether Mr. Adams and those employees he represents would have a Charter of Rights argument at some time in the future and perhaps in another forum, we need not here consider.
We turn now to the purported "charges" against the trade union and the effect which such allegations should have on the conduct of this proceeding; however, to put this matter in context, it may be useful to advert, briefly, to the degree of union membership support which, it is said, should be cast in doubt by these "charges".
In support of its application for certification, the trade union has filed documentary evidence on behalf of well over 55% of the employees of the respondent in each of the above-noted bargaining units. This documentary evidence takes the form of membership cards, which include a combination application for membership, and an attached receipt. These cards are each signed by the subject employee, and the receipts are counter-signed by a witness (the "collector") and indicate that a payment of at least $1.00 has been made to the union in respect of its membership fees. The documentary evidence is supported by a properly completed Form 9, statutory declaration, attesting to its regularity and sufficiency. There is no suggestion of any irregularity in the form of this documentary evidence nor, save for the matters we will refer to below, is there any alleged impropriety in the manner in which it was solicited. It has all of the attributes of a valid and voluntary "contract". The form and contents of the documentary evidence of membership are consistent with the requirements of section 1(1 )(l) of the Act and, as well, it meets the form and time limit requirements prescribed pursuant to section 103(2)(j) of the Act. This documentary evidence, standing by itself, demonstrates that the union has a level of "membership support" well in excess of that required by section 7(2) of the Act, for certification without recourse to a representation vote. On the basis of this documentary evidence it is evident, and the Board finds, that more than 55% of the employees, in each bargaining units mentioned above, were members of the union on July 23, 1984, the terminal date fixed for this application and the date which the Board determines under section 103 of the Act to be the time for ascertaining membership under section 7.
There was also filed with the Board various "statements of desire" or "petitions" signed by some employees of the respondent indicating that they wish to oppose the certification of the applicant union. In several cases these documents were signed by individuals who had previously signed union membership cards and paid $1.00 in respect of union membership fees and, therefore, were "members" of the union within the meaning of section 1(1 )(l) of the Act. These individuals had had a purported change of heart, and now allegedly no longer wish to support the applicant union's certification. It is clear, however, that the vast majority of these employee objectors had either never supported the union at all and had not signed membership cards or, were not, by reason of their duties and responsibilities or place within the respondent's management structure, excluded from the bargaining unit. In the result, even if all of these individuals can be considered (colloquially) as casting a "no” vote for trade union representation, their collective expression does not diminish the unequivocal membership support enjoyed by the union among well over 55% of the employees in the bargaining unit. A consideration of the "numbers" would not, in itself, warrant any departure from the Board's usual practice, mandated by the statute, of certifying an applicant union, where it is able to demonstrate membership support among more than 55% of employees in a bargaining unit.
We turn then to the purported "charges" of impropriety. In considering them, we will attempt to accommodate the spirit of section 111 of the Act, and preserve the secrecy of employee opposition to the union even though, in this case, some of the persons expressing opposition to the union are not "employees" within the meaning of the Act because they exercise managerial functions (see section l(3)(b)). Nevertheless, it may be helpful to sketch in the total picture, and rather than referring to employee names (which are not strictly necessary) we will refer to numbers assigned for identification purposes to the objectors who filed complaints against the union. In this way, we can convey a "flavour" of the "charges" against the union, without exposing the individual objectors to either personal embarrassment, or revealing their position respecting trade union representation — an employee preference which section 111 of the Act suggests should be kept secret as far as possible. These expressions of employee views are contained in the letters or petitions addressed to the Board, and are, of course, hearsay to the extent that the writers did not appear and their representative had no direct knowledge of the matters mentioned.
P1-PS are the five commission salesmen, represented by Mr. Arnold, who oppose the union's certification because they do not think they share a community of interest with the members of the bargaining unit and see little benefit in trade union representation. P6 (a person excluded from the bargaining unit on the basis of that she exercises managerial functions) was disturbed that department supervisors like herself who, under the Act, were not entitled to engage in trade union activity and collective bargaining, were not allowed to attend union meetings or discuss the union with subordinates. She was also concerned that in the wake of the announced layoff of 27 employees, a fellow employee and union supporter had claimed that the company was "making money", without providing any statistical foundation for that claim — a statement P6 considered misleading. P7 and P18-P31 (which includes both some supervisory and clerical personnel excluded from the unit) express opposition without citing any reason. P1 l-P17 express concern about the union's international links and support for the New Democratic Party, and repeat the assertion that as members of management their views on the union have not been sufficient canvassed. P9, a clerical employee excluded from the bargaining unit suggests that the union is not in her best interests. P8, another clerical employee excluded from the bargaining unit, complains that a union supporter was pressing, persistent and rude. PlO complains that in her view union supporters have attempted to "coerce" people, in that she saw at least two employees approached a number of times. On one occasion one of these employees was told, profanely, that she had to "get off her [expletive deleted] ass" and "stand up for her rights" since support for the union was her only hope for reinstatement [she was scheduled for layoff]. Except in the case of P8 (who, we repeat, was not in the bargaining unit and did not sign a union card) the persons involved in these discussions are not generally identified.
It will be seen from the foregoing that the purported charges against the union are, at best, a little "thin" — leaving aside the fact that most of the above submissions are made by persons who are excluded from the bargaining unit on the basis of their status as members of the management team, and others are made by persons who are excluded from the bargaining unit on other grounds or may never have been union supporters in the first place. Even if all of these assertions are treated as being true (and there is, of course, no evidence of that), they must be weighed against the reality of a union organizing campaign which, in some respects, resembles a political campaign in which one party seeks to boost its own position and attack that of its political adversaries. In these days when we are all being subjected to such propaganda when pressing and persistent entreaties are common, and when the contending parties are all making assertions which must be taken with a healthy grain of salt, it is difficult to give much weight to the concerns expressed by the objecting employees. No doubt, some of them found the union's campaign objectionable in one way or another, but this is a far cry from intimidation or coercion in the sense contemplated by section 70 of the Labour Relations Act. Even if one assumed that all of the assertions in the letters addressed to the Board were true, it would not, in all likelihood, affect the result in this case. The fact is, that the overwhelming majority of the employees of the respondent, in each of the bargaining units defined above, want a trade union to represent them. Whether that decision is wise or foolish is not for us to decide.
We should note that the objecting employees mentioned above designated a representative to appear on their behalf. He did so. He had no personal knowledge of the concerns referred to in the employees' letters. He had no evidence or witnesses to call to confirm the accuracy of those employee assertions. He had no direct knowledge of any of the events referred to and, could not, of course, make any comment upon what an individual employee writer said he/she had observed. In the case of PlO who claimed that X and Y, two employees designated for layoff, had been approached frequently and told, too forcefully, to "stand up for their rights", there was nothing whatsoever to substantiate this hearsay statement.
The union contends that it should not have to defend against these belated, amorphous, and unparticularized complaints, which surfaced only after it was revealed that the union would be entitled to certification in both bargaining units. The employer asserts that these charges are serious and that, on its own initiative, the Board should investigate them. The employer notes that it is under some disability in this regard because if it were to probe who was or was not a union supporter, it might be charged with interfering with employee rights under the Act. The employer also argues that the Form 6 Notice to Employees does not give sufficient information to employees potentially opposed to the union to register their dissent.
We do not agree. The Board is a quasi-judicial body constituted to adjudicate disputes between contending parties under the Labour Relations Act. The Board does not institute an investigation of the merits of a complaint simply because someone sends a letter to the Board containing allegations which might, if true, be a relevant to a Board proceeding. Parties potentially affected by the result of such proceeding are given notice and are entitled to participate. If charges are appropriate, they are entitled to make them. But it lies upon the party alleging misconduct to bring forward the evidence to prove it. That is not the Board's role.
In the instant case, the employer made the submission that it was particularly concerned about the allegation of alleged misconduct characterized as ''coercion~~ and referred to above. The employer also indicated that, not having made the charges, it was not in a position to call evidence to substantiate the events referred to. Nor was the representative of the concerned employees. However, it was clear that some of the allegations, whether improper or not, involved a union supporter whom the employer, on the basis of information received, believed to be involved. The employer was aware of the individual's identity and she was present in the hearing room on the day of the hearing. The Board ruled (over the union's objection) that, while its role did not encompass an independent investigation of alleged misconduct, it would entertain any evidence which any of the parties wished to lead with respect to that matter. The objecting employees had no such evidence; but it was open to the employer to call, as its witness, the purported union organizer whom it believed was the "culprit". The employer declined to do so. Counsel indicated that he was not prepared to call the individual as his witness, thereby foregoing the advantages of cross-examination. Thus, there is no direct evidence at all of the conduct which is said to constitute impropriety. The objecting employees called no such evidence and, when invited to do so, the employer made the same choice.
The employer's final plea concerns the adequacy of notice to employees and the content of Form 6 — the Notice to Employees of the application and their right to register an objection.
Form 6 is prescribed by regulation. It indicates, fairly clearly, how employees can register their objection to the union's certification. In the instant case, a number of employees did so, and it seems they were not acting together. There is no evidence before us to suggest that any employees were misled by the "legal jargon" contained on Form 6. Quite the contrary, there were a number of timely employee objections and two individuals, appeared separately, on behalf of different groups of employees objecting, who for different reasons, were opposed to the union's certification. If the employer's submission is that the ordinary employee is incapable of understanding his right to oppose the union, the circumstances here do not support that proposition.
If the employer's submission is that employment law is complicated and not always readily understandable by individual employees, we unhesitantly agree. A certification application, a claim for workers' compensation, a claim under the Employment Standards Act, or a claim for unemployment insurance benefits, may all involve statutory or regulatory language with which an individual employee will not be familiar. He may even require legal advice if he is to successfully make his way through the statutory framework. Complexity is an unfortunate by-product of modern economic life and access to informed legal advice may not be as easy as it should be. But the Board, as a quasi-judicial entity, can only do so much. It can provide, as it does, a Guide to the Act which, in fairly clear terms, sets out the options open to the objecting employee in a fairly straightforward certification application. There are pamphlets to the same effect available on request from local offices of the Ministry of Labour.
What the Guide indicates, as it must, is that what is at issue in a proceeding before the Board are legal rights. In the circumstances, persons involved in proceedings before the Board are advised to seek the assistance of a lawyer or someone experienced in labour relations matters. Such assistance, we might note, may not only be useful to employees objecting to the formation of a trade union, but also to persons who want to join or form a trade union and who must, therefore, do so in accordance with the statute. Proponents and opponents of collective bargaining can sometimes face the same problems of determining the appropriate method of achieving their objective within the framework of the Labour Relations Act. No doubt in family law questions or matters of taxation, individuals may be equally perplexed. But that is no reason for this Board to ignore its responsibility or its own statutory mandate where, as here, a clear majority of the respondent's employees have indicated a desire for collective bargaining.
For these reasons, a certificate will issue in respect of the two bargaining units defined in paragraph 3 above.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
Dealing first with the penultimate paragraph of the majority decision, I did not hear Mr. Adams say anything to suggest he is an "opponent of collective bargaining". Clearly he viewed compulsory unionism as having coercive aspects with which he strongly disagrees and he could perceive no value for him, or the other commission salesmen he represented, in being represented through a labour union. He said nothing to indicate he would deny the right to be collectively represented to workers in general or to his co-workers in particular. Thus to characterize Mr. Adams as an opponent of collective bargaining is both unfair and unproven.
The concern of the Board over the implications of fragmentation, as expressed in paragraph S of the majority award, are views with which I agree. However, with respect, I do not feel the fact that, the Board has previously found persons totally on commission appropriate for inclusion in collective bargaining units to be a compelling reason for continuing to do so.
As the majority to this decision has indicated it is not for this Board to instruct the courts as to the implications of the freedom of association provision of the Canadian Charter of Rights. However, pending more definite indications as to the meaning of the Charter's provision, I do not think the majority decision meets Mr. Adams' contention that the now enshrined right to associate must carry with it an equal and concurrently implicit right not to associate. I do not think it sufficient to tell Mr. Adams that he is not now required to be a union member nor to pay dues and that "that situation will arise if, and only if, the union is certified and it eventually concludes an agreement with the employer requiring membership and/or payment of union dues" at paragraph 10 of the decision, and then proceed to grant certification at paragraph 25 of the same decision. Indeed, since the statute also provides for automatic dues deductions in collective agreements, paragraph 10 strikes me as being more cynical than responsive.
In dismissing the charges against the union, the majority draws an analogy between the union organizing campaign and the current national election campaign. For all its imperfections the secret ballot vote is apparently seen by the majority in the same light as the defeated Prime Minister who observed that the voters are always right, notwithstanding "propaganda", "pressing and persistent entreaties", and "assertions which must be taken with a grain of salt".
I would have thought that employees of Simpsons Limited are as reliable as the rest of the Canadian electorate and that Mr. Adams, and everyone else, would have been more content had the Board allowed the certification decision to be made by means of a government-supervised secret ballot and I would have so ordered.