[1984] OLRB Rep. March 400
2644-83-R United Food and Commercial Workers International Union, Canadian Labour Congress, AFL-CIO, Applicant, v. Autotube Limited, Respondent, v. Group of Employees, Objectors
BEFORE: R. A. Furness, Vice-Chairman, and Board Members M. Eayres and L. Collins.
APPEARANCES: Ian E. Reilly, M. Fraser, R. Pearson and J. Leeyus for the applicant; Brian P Smeenk, R. Hayden and R. Strome for the respondent; Liza Jane Westelaken, Jane Mills, Virginia Frayne and Linda Robinson for the objectors.
DECISION OF R. A. FURNESS, VICE-CHAIRMAN, AND BOARD MEMBER M. EAYRES; March 9, 1984
The Board finds that the applicant is a trade union within the meaning of section 1(1)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all employees of the respondent at St. Mary's, save and except lead hands, persons above the rank of lead hand, office and sales staff, persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board notes that the applicant withdrew its allegations of improper or irregular conduct and its request that the Board apply the provisions of section 8 of the Act as contained in its letter dated February 22, 1984. The Board inquired into the origination, preparation and circulation of a statement of desire which was filed in opposition to this application for certification. The respondent operates a plant which fabricates small diameter tube products for the automobile industry at St. Mary's. The respondent employs about seventy persons at St. Mary's and about sixty of these persons are employees who are affected by this application.
The respondent's operations consist of an open plan machine shop, a quality control laboratory and offices. A cafeteria is provided for the use of employees. Most of the employees are women and all of the witnesses who appeared before the Board were women. The Notice to Employees of Application for Certification and of Hearing (the "green form") were posted on the respondent's premises during the afternoon of February 20, 1984. Liza Westelaken and Jenny Frayne each asked Roy Strome, the plant manager, to clarify paragraph seven of the green form. He did so and stated that he could only interpret for them and could not help them. Ms. Westelaken and Mrs. Frayne discussed the preparation of the statement of desire and on the evening of February 20th, Ms. Westelaken prepared the statement of desire at her home with the aid of a dictionary and her father's typewriter. On February 21 and 22, Ms. Westelaken and Mrs. Frayne collected signatures on the statement of desire.
Five meetings were held on February 21 and 22. The first two meetings occurred during the smokers' and non-smokers' break when Mrs. Frayne spoke to the employees on their break. The third meeting occurred on February 21 at 12:30 p.m. (which was after the lunch break) and lasted about twenty minutes. The fourth and fifth meetings occurred on February 22 during the smokers' and non-smokers' break when Mr. Strome spoke briefly.
At the first meetings Mrs. Frayne asked those in attendance to sign the statement of desire. At that time she told the employees that if the union came in the plant would close. When challenged to say how she knew that this would happen, she stated that she had been told this two years ago when she was hired by Steve Goodwin, the plant manager. Mrs. Frayne also referred to the closing of another employer which was organized in London and then moved to across the street in St. Mary's. Beyond that she was unable to base her prophesy on anything else.
The third meeting was held as a result of a request of a union supporter, Jean Tomczak, who asked a lead hand to obtain permission from management to hold a meeting in order that the employees could discuss the pros and cons of the union. Permission was granted and the shop was shut down for approximately twenty minutes while a meeting of employees was held in the cafeteria in the absence of members of management. At the end of this time, one of the leadhands told the employees that they had enough time and that they had to return to work. The meeting had degenerated into a shouting match and each side's supporters were compelled to make their points as and when they could. On the union side, it was argued that the employees needed help with health and safety problems. On the other side, it was argued that they did not need a union and that a union would mean that the employees could not spend as long in the washroom as they did, that they could not leave their work stations whenever they desired to get a cup of coffee and that they would not be able to continue the practice of arriving late for work. Remarks were also made about the plant closing if a union came in, although such remarks were not attributed to the present management of the respondent. Reference was also made to a conversation with a union organizer named John who had been asked if the doors would close and who is said to have replied that he could not guarantee what would happen after the union got in.
The fourth and fifth meetings were very brief and consisted of Mr. Strome telling all the employees who were present that there had been enough discussion for and against the union and that it was time to get back to work because production was being affected. There is no doubt from all the evidence that advocacy for and against the union had diminished production on the respondent's premises.
In our view, the respondent adopted a hands off policy towards the opposing positions of its employees and paid them all without distinction when they spent time away from their machines and argued their points of view and also when Mrs. Frayne obtained the signatures on the statement of desire. Mrs. Frayne gave evidence that she frequently moves away from her machine to speak to such employees. However, in collecting signatures for the statement of desire she spent more time and moved further away from her machine.
When Mrs. Frayne obtained the signatures, members of management were not present and given the arrangement of the machines in the shop it is not always possible to see what is going on in the shop from any particular location in the shop. Mrs. Frayne carried a clip board when she was obtaining the signatures. The statement of desire was covered by another sheet of paper. Some employees were apparently reluctant to sign the statement of desire if it became known that they had signed it. In order to satisfy these apprehensions, Mrs. Frayne covered the signatures of those who had signed while exposing the heading on the statement of desire.
In assessing the effect of Mrs. Frayne's remarks about the closure of the plant, we find that there was no evidence that the present management was responsible for such remarks. Unfortunately, there was a gap in the evidence in that there was reference to new management in the last three months. It is unclear to us whether there has been a change of ownership or management over this period of two years. Mrs. Frayne, in our view, was expressing a personal opinion and, indeed, one of the witnesses called by the applicant, Donna Hartfield, agreed in cross-examination that she felt that Mrs. Frayne was giving her own views. Another witness, Cecelia Bolt, called by the applicant agreed in cross-examination that she did not think Mrs. Frayne had such information on good authority. Moreover, when Mrs. Frayne said she was obtaining signatures on behalf of the company, Mrs. Bolt agreed in cross-examination that she was not sure how she meant it and that she could have meant it as "for the employees".
The applicant introduced evidence of a meeting in tJie quality control laboratory between Mr. Strome, Ms. Westelaken, Mrs. Frayne and another employee. We are satisfied that the only purpose of this meeting was in connection with production in the shop and was not an attempt by the respondent to promote the statement of desire.
In conclusion, we are satisfied that Ms. Westelaken, who is a quality control inspector, and Mrs. Frayne, who is a press operator, acted in furtherance of their own views in originating, preparing and circulating the statement of desire. The respondent for its part tolerated a great deal of discussion and advocacy for and against the applicant and only interfered to the extent of telling both sides to get back to work because production was being affected. In our view, the twin spirits of assent and dissent are alive and well in the shop of the respondent at St. Mary's. We are satisfied on the balance of probabilities that the statement of desire represents the true and voluntary wishes of the employees who signed it.
The Board is satisfied on the basis of all the evidence before it 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 February 23, 1984, 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.
The Board, in the exercise of its discretion under section 7(2) of the Act, orders a representation vote to be taken of the employees of the respondent in the bargaining unit. All employees of the respondent in the bargaining unit on the date hereof who do not voluntarily terminate their employment or who are not discharged for cause between the date hereof and the date the vote is taken will be eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER L. COLLINS;
I dissent. In my view management favoured the objectors. In particular, when Donna Hartfield asked if she could be given a clip board, Mr. Strome said "No, you've probably had a clip-board visit at your home". Apparently, the plant manager's orders were at the noon break on the second day of the petition's circulation to discontinue any further debate on the union matters as production was being affected. However, for the balance of the day the petitioner continued circulating the petition and remained in the plant after the end of her shift to solicit signatures. At the end of her shift she remained in the plant to get signatures from workers on the second shift. This was a clear indication of management involvement, I would therefore have dismissed the petition and certified the applicant.