[1984] OLRB Rep. March 530
2620-83-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant, v. T. Eaton Company Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members I. Stamp and B. L. Armstrong.
APPEARANCES: H. Buchanan, Carole Currie and Don Collins for the applicant; F G. Hamilton, Q. C., H. A. Beresford and R. A. Hubert for the respondent; Michael Horan and Heather Didomizio for the objectors.
DECISION OF THE BOARD; March 28, 1984
1The name of the respondent is amended to read T. Eaton Company Limited.
2This is an application for certification.
3The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
4There are four units appropriate for collective bargaining in this matter. These are: a full-time all-employee unit (bargaining unit #1), a part-time all-employee unit (bargaining unit #2), a full-time office and clerical unit (bargaining unit #3) and a part-time office and clerical unit (bargaining unit #4). The parties are agreed on the description of each of these units except that they are in dispute as to whether the geographic scope should be limited to the employees of the respondent at its store in the City Centre, Brampton, Ontario or to the employees of the respondent in Brampton, Ontario. The parties are also in dispute as to whether there should be an exclusion of "personnel staff" or an exclusion of the "personnel supervisor''.
5The respondent company argues in support of its position that these bargaining units should be framed with reference to the existing Eaton store in the City Centre, Brampton, that the company employs persons who work in Brampton other than those falling within the bargaining units for which the union seeks bargaining rights. The company referred specifically to employees who are employed by its contract division and who perform renovation work in Brampton from time to time, employees who are employed by its drapery department who install draperies in Brampton from time to time, employees in its electronic repairs department who work in the Brampton City Centre store and in private homes in Brampton from time to time and finally to delivery employees of the respondent who deliver and pick up in Brampton from time to time. All of these employees work out of locations situated within the municipality of Metropolitan Toronto. In the face of the number of employees of the company not falling within the bargaining units for which the union seeks bargaining rights who work in Brampton from time to time the company asks the Board to describe the bargaining units with which we are concerned in terms of the specific store within which those for whom the union seeks bargaining rights, work.
6In an attempt to balance the competing interests of freedom of employee choice and stability of collective bargaining rights, the Board usually circumscribes the bargaining rights which it grants through certification by reference to the municipal boundary. In this way bargaining rights are preserved should the employer move his operation to another location within the same municipality but not if he moves his operation beyond the municipal boundary. In the latter situation the employees at the new location are free to choose, or not to choose, a bargaining agent of their choice. The Board may depart from its normal practice of circumscribing bargaining rights by reference to the municipality where an employer operates out of two or more locations within a municipality. Where the union organizes the employees at only one of these locations and where there is not a sufficient community of interest between the employees at these locations the Board may limit the unit to the employees working at a specific street address or otherwise designated location within the municipality. In these circumstances the street address is necessary to avoid confusion as to who is in the unit and who is not.
7In this case all of the employees for whom the union seeks bargaining rights work at the City Centre store. The company does not have any other retail stores in the Municipality of Brampton. The union does not seek to represent the employees of the company who work in the Municipality of Brampton from time to time but work out of and are supervised from work locations in the Municipality of Metropolitan Toronto. Having regard to the nature of their employment it is hardly necessary to depart from the Board's usual practice and restrict bargaining rights to the single location. A designation of all retail stores in the municipality coupled with a clarity note to the effect that employees of the company headquartered in other municipalities who work in Brampton are not within the bargaining unit avoids any confusion that might otherwise exist with respect to the status of employees who are headquartered outside Brampton but work in Brampton from time to time. In this way the traditional balance between stability of bargaining rights, on the one hand, and employee freedom of choice, on the other, is maintained as well.
8The second area of disagreement between the parties with respect to the description of the bargaining units is whether there should be an exclusion of "personnel staff" or an exclusion of the "personnel supervisor". At the time of application the personnel staff at the Brampton City Centre store was (and continues to be) composed of the personnel supervisor, only. While the union does not dispute that the personnel supervisor should be excluded on the basis of access to confidential information in labour relations matters, it does not agree to the exclusion of other persons who may be hired in the future and who may or may not have access to this type of confidential information. The practice of the Board is to exclude from a bargaining unit only those classifications which are in existence at the time of the filing of the application. To do otherwise would invite disputes based on hypothetical job duties and responsibilities which could only be resolved on the basis of self-serving evidence. Section 106(2) of the Act provides that if, during the course of bargaining for a collective agreement or during the period of operation of a collective agreement, a question arises as to whether a person is an employee, the question may be referred to the Board for a final and binding determination. If the respondent hires additional personnel staff and if those hired are employed in a confidential capacity in matters relating to labour relations within the meaning of section l(3)(b) of the Act, a determination can be made under section 106(2) at that time. At present, however, there is nothing to cause us to depart from the Board practice of refusing to exclude non-existent classifications. Having regard to the foregoing the "personnel supervisor" will be excluded from each of the bargaining units in this case.
9Finally, the parties are in dispute as to whether Mr. Butler exercises managerial authority within the meaning of section 1 (3)(b) of the Act and should be excluded from bargaining unit #1. Accordingly, the Board hereby appoints a Board Officer to meet with the parties, inquire into the duties and responsibilities of Mr. Butler and report to the Board.
10Having regard to all of the foregoing, the Board hereby finds that all employees of the respondent at its retail stores in Brampton, Ontario, save and except sales managers, merchandise presentation managers, food services managers, foremen, persons above the rank of sales manager, merchandise presentation manager, food services manager and foremen, office and clerical staff, employees at Eaton Travel Ltd., management trainees, personnel supervisor, security staff, medical services nurse, persons regularly employed for not more than twenty-four (24) hours per week, students employed during the school vacation period and students employed on a co-operative programme with a school, college or university, (hereinafter referred to as bargaining unit #1) constitute a unit of employees of the respondent appropriate for collective bargaining.
CLARITY NOTE: For purpose of clarity the Board notes that employees of the respondent headquartered or working out of other municipalities who work in Brampton are not within the bargaining unit.
11The Board further finds that all employees of the respondent at its retail stores in Brampton, Ontario regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except sales managers~ merchandise presentation managers, food services managers, foremen, persons above the rank of sales manager, merchandise presentation manager, food services manager and foreman, office and clerical staff, employees of Eaton Travel Ltd., management trainees, personnel supervisor, security staff, medical service nurse, and students employed on a co-operative programme with a school, college or university, (hereinafter referred to as bargaining unit #2) constitute a unit of employees of the respondent appropriate for collective bargaining.
CLARITY NOTE: For purpose of clarity the Board notes that employees of the company headquartered in or working out of other municipalities who work in Brampton are not within the bargaining unit.
12The Board further finds that all office and clerical employees of the respondent at its retail stores in Brampton, Ontario, save and except managers, those above the rank of manager, employees of Eaton Travel Ltd., personnel supervisor, security staff, secretary to the store manager, medical services nurse, persons regularly employed for not more than twenty-four (24) hours per week, students employed during the school vacation period and students employed on a co-operative programme with a school, college or university, (hereinafter referred to as bargaining unit #3) constitute a unit of employees of the respondent appropriate for collective bargaining.
CLARITY NOTE: For purpose of clarity the Board notes that
(1) All employees of the company headquartered in or working out of other municipalities who work in Brampton are not within the bargaining unit.
(2) Managers include sales manager, merchandise presentation managers, food services managers and office manager.
13The Board further finds that all office and clerical employees of the respondent at its retail stores in Brampton, Ontario regularly employed for not more than twenty-four (24) hours per week and students employed during the school vacation period, save and except managers, those above the rank of manager, employees of Eaton Travel Ltd., personnel staff, security staff, secretary to the store manager, medical services nurse and students employed on a co-operative programme with a school, college or university, (hereinafter referred to as bargaining unit #4) constitute a unit of employees of the respondent appropriate for collective bargaining.
CLARITY NOTE: For purpose of clarity the Board notes that:
(1) Employees of the respondent headquartered in or working out of other municipalities who work in Brampton are not within the bargaining unit.
(2) Managers includes sales manager, merchandise presentation managers, food services managers and office manager.
14The 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 each of bargaining units #1, #2, #3 and #4 at the time the application was made, were members of the applicant on February 21, 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.
15The dispute as to the status of Mr. Butler cannot effect the applicant union's entitlement to certification in bargaining unit #1. The applicant trade union has filed membership cards which have been duly signed and a dollar paid by well in excess of fifty-five per cent of those in each of the bargaining units. The overall support evidenced by the union across all of the bargaining units is in excess of 80%. The documentary evidence of membership is supported by a properly completed form 9 attesting to its regularity and sufficiency. There is no allegation of any irregularity in the form of this documentary evidence, nor is there any alleged impropriety in the manner in which it was solicited. Certainly there is nothing to call into question the "voluntariness" of the individual acts of signing or to suggest that, by so doing, the employees were not indicating their desire to be represented by the applicant union. The form and content of this evidence are consistent with the requirements of section 1(1 )(l) of the Act and, as well, it meets the form and time limits 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. However, notwithstanding the absence of a relevant statement of desire (the statement in opposition filed in this case was signed by only seven employees and only one of these also signed a union membership card) a request was filed by an objecting employee in this matter to nevertheless exercise our discretion under section 7(2) of the Act to direct the taking of a representation vote. This request is made on the basis of allegations of "studied intimidation and coercion practised by the applicant and its agents in contravention of the provisions of sections 70 and 80(2) of the Labour Relations Act."
16The allegations of coercion and intimidation in support of the request that the Board exercise its discretion under section 7(2) of the Act to direct the taking of a representation vote were made by Mrs. Heather Didomizio, a ten year Eaton's employee who presently works as a display artist for the company and spends about 90% of her working hours at the Brampton City Centre store. She reports to Mr. Patrick Shank, the manager of visual presentation, who, in turn, reports to Mr. Lemon, the store manager. Mrs. Didomizio was approached by a union supporter on February 6, 1984 and asked to join the union on February 8, 1984. She immediately voiced her objection and attempted to obtain information from the Provincial Government as to how she might oppose the union. When she received pro-union literature from the Women's Bureau she went to Mr. Lemon, the store manager, told him of her concern and was provided with two pamphlets dealing with the Labour Relations Act and certification. Mrs. Didomizio made contact with two other employees who opposed the union on February 10th, one of whom is the secretary to the store manager. She then prepared a statement opposing the union which she posted beside the notice of application for certification which had been posted by this time. However, she was then advised by the secretary to the store manager, who had typed the notice, that Mr. Lemon wanted it taken down. Mrs. Didomizio removed the notice but prepared a statement of desire which she began to circulate on February 14th. She testified that she did not have much success in obtaining signatures in opposition to the union and when asked why, she replied that some of the employees she approached just smiled like they were in a daze and said nothing while others said they were neutral. She elaborated in cross-examination that those who appeared dazed, "didn't want to hear what I had to say."
17Mrs. Didomizio returned to the store after her working hours on February 15th and approached fellow employees who were working with the purpose of providing them with an opportunity to sign the statement in opposition to the union. She was confronted by Ms. Helen Townsend (whom she identified as the manager of security) and Mr. Grant McDonald (another member of the store's security staff) and told that a complaint had been made and that she was not supposed to be in the store doing what she was doing. She was asked to leave. She did not leave the store but moved to another department and approached the employees there. She testified that she was observed by Mr. McDonald but that he did nothing. Mrs. Didomizio continued to circulate the statement on February 16 and February 17. When asked if the security staff could affect her employment she replied that her job could be jeopardized if a member of the security staff reported that she had engaged in theft.
18Mr. Lemon, the store manager, had the following letter, over his signature, dated February 15, 1984, delivered to all of the store's employees:
TO ALL EMPLOYEES:
As a result of questions being asked about the green Notices posted yesterday regarding a Union's application to the Labour Relations Board, some explanation is in order. In making this application, the Union is attempting to become your sole representative in all your future dealings with Eaton's concerning your terms of employment.
In this connection you may have been asked to sign a Union membership card so that there will be a vote. Do not be misled. If a Union has membership cards of more than 55 per cent of the eligible employees, it is entitled to automatic certification as bargaining agent without a vote being taken. If a Union has membership cards of between 45 per cent and 55 per cent of the eligible employees, the Labour Board normally holds a vote and if more than 50 per cent of those voting favour a Union, the Union is certified.
It is the practice of the Labour Board to permit a Union to file membership cards with the Board that are signed up to the "terminal date" which in our case is February 2 1st. If you sign up just to keep from being pestered or because someone says they need "a few more", you may never get a vote.
Also, if certified, the Union can demand that a collective agreement requires the deduction of Union dues from every full and part-time employee's regular pay whether a Union member or not.
In answer to questions some of you have been raising, the Company's policy as to union representation, which is in strict keeping with the law, is summarized as follows:
— each employee is entitled to join a Union of his or her choice;
— each employee is equally entitled not to join a Union;
— no person — representing either a Union or Management — is entitled to interfere with you in making your decision;
— no person is entitled to solicit membership or carry on Union activities during working hours.
There are, however, some questions you should ask yourself before deciding about Unions:
- What obligations will be placed on me if I join?
Membership in a Union is like signing a contract. You are legally bound by the conditions contained in the Union constitution and by-laws.
What does the Union's constitution have to say about assessments on my pay and about Union fines?
How much will I have to pay each Inonth in regular or special Union dues?
Will I have to go on strike if the Union tells me to?
You may be asked to sign a Union card in the near future. Before you decide what to do, give careful consideration to these questions. We are all in the selling business and know that we should investigate carefully any product or service before making a decision to purchase.
(emphasis added)
Mrs. Didomizio agreed in cross-examination that the prohibition against soliciting membership or carrying on union activities during working hours extended to anti-union activities carried on store premises as well. We might note at this point that section 71 of the Act reads as follows:
- Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade him during his working hours to become or refrain from becoming or continuing to be a member of a trade union.
19Mrs. Didomizio testified that during the period she was actively opposing the trade union the "traffic flow" of other employees through her work area increased substantially. She testified that a number of known union supporters passed through her work area on a regular basis. She testified that "all eyes were on me and no one was speaking to me any more." She testified that on one occasion when she went to the washroom another employee followed her. She testified that Sandra Lockwood, a sales person, said that she was going to report her to Mr. Lemon. Mr. John Clark, the Union's staff representative who directed the organizing campaign, acknowledged that employees at the store were reporting to him on the activities of Mrs. Didomizio but denied that anyone had been instructed to watch her or that he had communicated with anyone from security with respect to her activities. None of the persons whom Mrs. Didomizio identified as having passed through her work area during the relevant period were members of the security staff.
20Mrs. Didomizio again returned to the store after her working hours on Friday, February 17th. She had already been reported to the store manager on one occasion by Helen Townsend, the manager of security, so she took up a position at the entrance to the store. She testified that Paul Wannamaker, an appliance salesman, exited the store with his wife, then re-entered the store, appeared with a camera and took her picture. Pat Tierney, a member of the security staff, had approached and cautioned her earlier the same day. Mrs. Didomizio testified that she told Ms. Tierney to take a walk and that Ms. Tierney replied "you'll be the one taking the walk" and said that she would be reporting her to the union. Mrs. Didomizio testified that she took from these remarks that she would probably lose her job, although no comment to that effect was ever actually made. Mrs. Didomizio approached Mr. Lemon in his office on each occasion when she felt harassed and complained about the treatment she was receiving. Mr. Lemon recorded her complaints but did not otherwise respond.
21Mrs. Didomizio forwarded a statement of desire to the Board on Saturday, February 18th bearing only seven signatures. She was unsuccessful in obtaining any additional signatures prior to the February 21 terminal date.
22Mrs. Gwen Gray, an inventory control clerk who works in the same general area as Mrs. Didomizio, confirmed Mrs. Didomizio's evidence that there were more employees than usual passing in and out of Mrs. Didomizio's work area. Mrs. Gray estimated that she approached ten to twelve employees seeking signatures in opposition to the application but testified that none of those she approached signed the statement of desire. When asked why she did not approach a greater number of employees Mrs. Gray replied that she was not getting anywhere and that she was busy in the office.
23Ms. Dagmar Jenett, a customer accounts clerk reporting directly to Mr. Lemon, testified that she opposed the union and signed the statement in opposition. It is her evidence that shortly after signing the statement, Mrs. l7ierney (a member of the security staff) approached and confronted her with the fact and asked if she had done so on company time or on her own time. Ms. Jenett testified that when she replied that she had done so on her own time Ms. Tierney said that she would have to report her to the union. Mrs. Jenett testified that she was upset to the point that she went to Mr. Lemon in tears and asked for permission to go home where she remained for two days with, in her own words, nervous tension.
24The union did not seek the exclusion of security staff from the bargaining units that it proposed as appropriate in its application. However, the union agreed in pre-hearing consultation with a Board Officer that security staff should be excluded from these bargaining units.
25Counsel for the objecting employees maintains that under section 2(d) of the Charter and under section 3 of the Labour Relations Act an employee's freedom to either join a trade union or to oppose a trade union is guaranteed. He argues that in this case there has been an interference with this freedom as evidenced by the surveillance to which Mrs. Didomizio was subjected and the tactics employed by the security staff. In the absence of any evidence to the contrary he argues that we must accept the evidence of the objecting employees as to what transpired in the work place at the relevant times and cites Empco-Fab Ltd., [1982] OLRB Rep. Aug. 1162 in support of the proposition that a "hands off" approach is required. K-Mart Canada Limited (Peterborough), [19811 OLRB Rep. Jan. 60. and Securicor Investigation and Security Ltd., [19831 OLRB Rep. May 720 are cited in support of the proposition that surveillance of employees in the work place has a chilling effect that interferes with the exercise of the basic employee freedoms referred to above. It is the submission of counsel for the objecting employees that where security staff who openly support the union and at the same time are in a position to affect the employment status of other employees, threaten employees who are opposed to the union, they provide a "vigilante service for the union. Counsel for the objecting employees asks the Board to take into account the chilling effect upon employee freedom of choice caused by the surveillance and isolation of the anti-union supporters and the tactics of the security staff and, notwithstanding the membership support evidenced by the union, exercise its discretion under section 7(2) of the Act to seek the confirmatory evidence of a representation vote.
26Counsel for the respondent company also characterizes the issue as one of interference with the fundamental right of an employee to join or not to join a trade union. He asserts that whereas the company was scrupulous in adopting an even-handed and neutral approach~ the trade union accepted members of the security staff into membership and then used these individuals and the positions they occupy to their advantage. Counsel for the respondent company points to section 12 of the Act which requires security guards to be represented by trade unions that represent only security guards. In the face of the statutory policy of segregating security guards in recognition of their functions and their control over other employees, the company questions the motive of the union in admitting security personnel into membership. In the face of the conduct of the security staff in this case, vis-a-vis those opposing the trade union, the company submits that we should exercise our discretion under section 7(2) if the Act to direct the taking of a representation vote.
27The union asks the Board to draw a distinction between surveillance by fellow employees in the context of an organizing campaign and surveillance by the employer or its agents as was the case in both K-Mart Canada Ltd. (Peterborough), supra and Securicor Investigation and Security Ltd., supra. The union maintains' that surveillance by fellow employees may fairly be characterized as a normal interchange generated by a union organizing campaign while surveillance by the employer, who has control of the employment relationship, is quite another matter and may constitute, as the Board found in the cases cited, an unfair labour practice. The union takes the position that the store's security staff are not security guards within the meaning of section 12 of the Act. It is the submission of the union that in this case security staff were excluded on the basis of a potential conflict of interest because of their responsibility to report theft. In any event, the union relies on the evidence of Mr. Clark that he did not direct the security staff nor receive reports from them with respect to Mrs. Didomizio. The union relies on Re Alderbrook Industries Limited, [1981] OLRB Rep. Oct. 1331 at paragraphs 12 and 13 as standing for the proposition that the Board accepts that there may be conflict between employees who take different sides in an organizing campaign and that the Board does not attempt to regulate this conduct except where coercion or intimidation are present. The union describes Mrs. Didomizio as overly sensitive to events which fall within the realm of the normal interchange generated by a union organizing campaign and asks the Board to certify it on the basis of the plus 80 per cent membership support which it has evidenced.
28If we understand the submissions of both the objecting employees and the respondent company, it is argued that the rights of both the employees who sought to actively oppose the union and those whom they hoped to persuade have been interfered with. This Board has extensive experience in dealing with the conduct of those involved in or directly affected by a union organizing campaign. In regulating the conduct associated with an organizing campaign the Board has been careful to distinguish between the actions or statements of responsible company or union officials on the one hand and rank and file employees on the other. The Board has adopted a "reasonable employee" test — asking itself if the conduct complained of would interfere with the rights of a reasonable employee. An employer has control over the employment relationship and, therefore, as the respondent points out, the Board has imposed rigorous standards upon an employer during a union organizing campaign. A trade union does not have control over the employment relationship and is not, therefore, in the same position as an employer to intimidate or otherwise interfere with the rights of employees under the Act. Nevertheless, trade union conduct that would interfere with the rights of a reasonable employee is also proscribed under the Act. Finally rank and file employees, although not in the same position of potential authority as a trade union, may also unlawfully interfere with the exercise of employee rights under the Act. The distinction which the Board draws between the conduct of a union official and that of a rank and file employee, and the attempt by the Board to adopt a realistic view of work place exchanges during an organizing campaign, as set out in Re The Kendall Company (Canada) Limited, [1975] OLRB Rep. Aug. 611 as follows is relevant to this case:
A reading of these cases demonstrates the Board's sensitivity to the realities of organizational activity. Improper conduct on the part of union officials may be symptomatic of much broader unlawful actions. Moreover, threats by trade union officials have a ring of malice that is qualitatively different from the disfavour of a fellow employee caught up in the "heat" of campaign activity. A fellow employee's threat is likely to be recognized for what it is — "an isolated outburst by a hot-headed partisan". Further, such persons are seldom capable of carrying out their threats and for this reason men and women of ordinary convictions are not likely to be inhibited from exercising rights under the Act.
As observed in Dupont of Canada Ltd. [1961] OLRB Rep. 360, it would be unwise for the Board "to act as a censor of social pressures used to persuade employees to join or not to join the union or to oppose or not to oppose a union unless the pressure is of such a nature that it places a person's employment in jeopardy either directly or by implication". A contrary position would be oblivious to human nature and result in artificial standards that would adversely affect the rights of all employees under the legislation.
(See also Alderbrook Industries Limited, supra and Walbar of Canada inc., [19821 OLRB Rep. Nov. 1734.)
29There is no evidence in this matter that any official of the applicant trade union ever spoke to Mrs. Didomizio or any other objecting employee. Rather, this complaint, insofar as it has been dealt with in evidence, is in respect of the conduct of certain rank and file employees and certain members of the security staff who, it is argued, as pro-union supporters, relied upon their power to affect the employment of others to interfere with the rights of employees opposed to the trade union. Dealing firstly with the conduct of Mrs. Didomizio's fellow employees. Mrs. Didomizio, as was her right, spearheaded the opposition to the trade union. She posted a notice opposed to the union, spoke out openly against the trade union and prepared and circulated a statement of desire in opposition to the trade union. In response, fellow employees who were in favour of the trade union kept a careful watch over her movements and activities .in the store, did not speak to her and, on one occasion, a pro-union employee took her picture at the entrance to the store. In our view, there is nothing in the conduct of Mrs. Didomizio's fellow employees that can be characterized as anything other than the normal byplay which sometimes develops between pro-union employees and those opposed to the union. It is hardly surprising that union supporters would be disposed to "keep an eye" on someone who, despite their employer's injunction against union activities on company time, was engaged in opposition to the union, and was regularly conferring with the store manager during the relevant period. Their conduct would not have had any effect whatsoever on a "reasonable" employee and did not interfere with the exercise of Mrs. Didomizio's rights or the rights of anyone else.
30The evidence clearly establishes that members of the security staff interfered with Mrs. Didomizio's attempts to circulate the statement in opposition to the trade union on store premises during the working hours of the employees she was canvassing. On the evidence before us one member of the security staff threatened to report Mrs. Didomizio to the store manager while another, after telling Mrs. Didomizio that she would be the one to take a walk (in response to Mrs. Didomizio's remark to her that she should take a walk) threatened to report her to the union. Mrs. Didomizio testified that she took from the retort of the security staff member that she would be the one to take a walk that she would probably lose her job. Before dealing with the specifics of the exchanges between Mrs. Didomizio and the various members of the security staff, two observations must be made. Fistly, no member of the security staff, although many may have been union supporters, was under the direction of or reported to the union with regard to Mrs. Didomizio. Secondly, the company expressly prohibited the solicitation of union membership or the carrying on of union activities during working hours on February 15, 1984. Mrs. Didomizio by her own evidence, interpreted this prohibition to extend to the solicitation of anti-union support during working hours. In these circumstances, it was entirely consistent with their function for members of the security staff to interfere with Mrs. Didomizio's attempt to obtain signatures on the statement of desire opposed to the union which she was circulating during working hours and nothing untoward is to be taken from their reporting Mrs. Didomizio's activities in this regard to the store manager. The threat to report her to the union, which on Mrs. Didomizio's evidence was made by one member of the security staff, carries no greater weight than the same threat uttered by a fellow rank and file employee. Mrs. Didomizio made no attempt to hide her opposition to the union. In these circumstances that remark should not have had any effect whatsoever on the continued exercise of her right to oppose the trade union. Finally, we are at a loss to understand how Mrs. Didomizio could have taken from the comment of the security staff member (in response to Mrs. Didomizio's directive to "take a walk") that she would probably lose her job. Mrs. Didomizio had been in contact with Mr. Lemon, the store manager, from the outset. She bypassed her immediate supervisor and reported her various exchanges with the security staff to him testifying that she was in his office "four, five or six times" complaining about the treatment she was receiving. The evidence is that Mr. Lemon, who had authority over the security staff, recorded her complaints but did not admonish her or in any way suggest that her employment was in jeopardy. We do not accept that Mrs. Didomizio ever had any concern that her employment was in jeopardy. If Mrs. Didomizio feared the authority of the security staff she would not have disregarded their directions as readily as she did, nor would she have told a member of the security staff to "take a walk"~ nor would she have reported their activities to Mr. Lemon, the store manager. There was no evidence led with respect to the actual authority of the security staff although it can be inferred from the evidence of Mrs. Didomizio that the role of the security staff in this store is similar to that generally played by security staff in a retail store; that is, a monitoring and apprehending function in respect of theft, pilferage or other misconduct but no general authority over the employment relations of store personnel. We are notsatisfied that the lawful right of Mrs. Didomizio to oppose the trade union was unlawfully interfered with or that it was reasonably perceived by anyone to have been interfered with.
31We accept the evidence of Ms. Dagmar Jenett that she had an exchange with Ms. Pat Tierney, a security staff member, in which she was confronted with the fact of signing the statement against the trade union and told that she would be reported to the union. We further accept that Ms. Jenett was shaken by this encounter and took two days away from work to overcome the "nervous tension" caused by it. However, as we have found, Ms. Tierney was not acting under the direction or control of the trade union and, in the absence of evidence to establish any further interchange between members of the security staff and bargaining unit employees who had not publicly expressed opposition to the trade union, we must characterize it as an isolated event. Although Ms. Jenett may have felt threatened, we are not satisfied that the interchange between Ms. Tierney and Ms. Jenett could reasonably have inhibited the rights of the respondent's employees to either support or oppose the trade union and it clearly did not deter Mrs. Didomizio from her opposition to the trade union.
32Mrs. Didomizio testified that from the outset (prior to any of the alleged misconduct) she "did not have very good success" in circulating the statement in opposition to the trade union and elaborated that the employees she approached "didn't want to hear what I wanted to say." In the face of our finding that there has been no interference with her right to oppose the trade union or with the rights of other employees to either support or oppose the trade union, the fact that only seven signatures were obtained on the statement in opposition to the union (only one of those by an employee who also signed a card in support of the union), from a total of 185 bargaining unit employees is consistent with a finding that the expression of support in the form of a signed membership card and the payment of $1 by more than 80 per cent of the respondent's bargaining unit employees is an expression of the true wishes of these employees.
33Accordingly, having regard to all of the foregoing and to the membership support enjoyed by the applicant trade union in each bargaining unit, we hereby certify the applicant trade union as bargaining agent for the employees of the respondent company who fall within bargaining unit #1, bargaining unit #2, bargaining unit #3 and bargaining unit #4; each of which has herein been described. Because of the dispute with respect to the status of Mr. Butler, the Board has proceeded under section 6(2) of the Act with respect to bargaining unit #1. The issuance of the formal certificate in respect of bargaining unit #1, therefore, must await the resolution of that dispute. Formal certificates will issue immediately in respect of bargaining units #2, #3 and #4.
34This matter is hereby referred to the Registrar.