Susan Flewelling v. United Steelworkers of America, 1984 CanLII 948

[1984] OLRB Rep. January 19

1346-83-R Susan Flewelling, on her behalf and on behalf of a group of employees, Applicant, v. United Steelworkers of America, Respondent, v. Crock & Block Restaurant, Intervener

BEFORE: Owen V. Gray, Vice-Chairman and Board Members F. W. Murray and L. C. Col­lins.

APPEARANCES: David J. Sherman, Lee Rhodenizes, Eric Costello and Lan Flegg for the applicant; Keith Oleksiuk and Bill Fuller for the respondent; Michael L. Powell for the in­tervener.

DECISION OF THE BOARD; January 4, 1984

1. On September 15, 1983 the applicant filed an application under section 57 of the Labour Relations Act for a declaration that the respondent no longer represents the employees of the intervener for which it is the bargaining agent. By letter dated September 29, 1983, the respondent union advised the Board that it consented to the taking of a representation vote. Accordingly, by a decision dated October 4, 1983, the Board directed that a representation vote be taken.

2. The vote was conducted November 12, 1983. Of the 41 employees on the em­ployer's list filed in this application, 37 cast ballots. One person whose name did not appear on the list also cast a ballot, which was segregated. The unsegregated ballots were counted. Twenty were marked in favour of the respondent trade union; only 17 ballots were marked against the respondent.

3. By a letter dated November 18, 1983, counsel for the applicant requested a hearing into allegations of improper conduct of trade union representatives. The letter alleged the cir­culation by the trade union of a leaflet which the applicant alleged could be and would have been interpreted as indicating that the applicant had been supported by the employer in this application. The applicant further alleged that certain statements of fact in this pamphlet mis­represented the past labour relations history of the intervener employer. The letter says this:

It is the position of the Applicant that the total effect of this leaflet was to falsely characterize the representation vote as a union vs. management scenario in which management was held to be a threat to the employees. As a consequence the employees of the company were placed in fear of their jobs and livelihood and were, therefore, prevented from freely ex­pressing their true wishes by means of a representation vote.

4. At the outset of the hearing in this matter, it became apparent that the applicant relied not only on the leaflet and its contents but also on other behaviour by employees of the intervener whose interests lie with the union. Particulars of this behaviour were first pro­vided at the hearing in response to questions from the Board. Those allegations are sum­marized in the ruling the Board made orally at the hearing, the text of which is reproduced later in this decision.

5. The respondent's representative raised as a preliminary matter the argument that the applicant's allegations disclosed no prima facie case for relief and, alternately, that the Board should decline to entertain evidence in support of allegations insufficiently particularized, hav­ing regard Rule 72 of the Board's Rules of Procedure. The Board indicated it would hear the parties on the question whether the applicant's allegations disclosed a prima facie case. In that respect, the respondent referred the Board to paragraph 16 of the decision in Indusmin Lim­ited, [1982] OLRB Rep. Nov. 1641 and at paragraph 34 of the decision in Vogue Brassiere Incorporated, [1983] OLRB Rep. Oct. 1737, as setting out the correct tests in cases of this kind. In particular, it was argued that the Board will not respond to pre-vote propaganda by ordering a new vote unless the propaganda is such as to interfere critically with the ability of voters to respond to and assess such propaganda. The mere fact that propaganda is false or misleading will not alone result in the Board ordering a new vote.

6. The intervener employer was represented by counsel at the hearing. Counsel ad­vised the Board that the intervener took no position one way or the other with respect to this dispute between the applicant and the respondent trade union.

7. During the course of his argument, counsel for the applicant indicated he would not be calling any evidence with respect to matters arising prior to the date of the order di­recting the vote. The intervener proposed to call no evidence. It was apparent, therefore, that even if the Board heard evidence, no attack on the union's propaganda could be made on the basis of the truth or falsety of the union's description in its leaflet of employment relations as they existed with this employer prior to the union's arrival on the scene. Although it was part of the applicant's complaint that union propaganda suggested to employees, and partic­ularly older employees, that their jobs were in jeopardy if the union were removed, counsel for the applicant conceded he had no evidence to show, for example, that the jobs of senior employees were not in jeopardy. He took the position that where the trade union makes an allegation in a campaign the onus is on the trade union to prove its truth if challenged.

8. After hearing and considering the representations of the parties, the Board delivered the following oral ruling at the hearing in this matter:

The applicant asks that we set aside the result of the representation vote herein held November 12, 1983, on the ground that the written and oral pre-vote propaganda on behalf of the respondent union was misleading. The particulars of the impugned propaganda are set out in a letter to the Board from counsel to the applicant dated November 18, 1983. At the hearing this morning, counsel for the applicant enlarged the applicant's attack on union propaganda, alleging that employee members of the re­spondent's bargaining committee had:

(1) told employees that the applicant had been acting on behalf of management in this matter, and that she was collecting from management a cheque to cover her legal fees;

(2) told older waitresses that they would be fired by management if the Union was decertified; and,

(3) told employees generally that everyone's job could be in jeopardy if the Union goes, as they could then be fired for the slighest excuse.

Further, the applicant alleged that a rank and file employee told em­ployees that they would all be fired if the union was decertified, and then touted the union's pamphlet of November 8th as confirming his suspi­cion.

The respondent trade union argued that before hearing evidence in sup­port of these allegations we should hear his argument the Board should not grant relief even if all such allegations were true. We have enter­tained that argument.

The submissions of counsel were made by them and considered by this Board on the assumption that the facts alleged by the applicant are en­tirely true and, we might add, that any allegation of collusion between the applicant and her employer is totally false.

Indusmin Limited, [1982] OLRB Rep. Nov. 1641 sets out the Board's jurisprudence on representation vote propaganda and the degree to which the Board will respond to inaccurate or misleading propaganda by or­dering a second vote. Reference may also be made to the yet unreported decision of the Board dated October 26, 1983 in Vogue Brassiere Lim­ited, Board File #0646-83-R.

As those decisions indicate, the Board does not normally interfere with a vote preceded by propaganda which is speculative, exaggerated, mis­leading or even false. The Board recognizes that in representation votes as in other electoral processes voters must be presumed capable of as­sessing critically the conflicting arguments often presented by the interests which compete for their votes.

In our unanimous view, the statements here attributed to the union's representatives are not of such a nature that the critical faculties of em­ployee voters would have been overpowered.

We conclude, therefore, that we would not order a new vote even if the applicant proved all she has alleged.

We do wish to comment specifically on the allegations made against the integrity of the applicant. These have been described by her counsel as defamatory both of the applicant and her employer. We have no ju­risdiction to award compensation for or punish publishers of defamatory statements. That jurisdiction lies elsewhere. Our concern is with a vote in which employees were asked to say whether they wished to continue to be represented by the respondent. It was not a vote of confidence or non-confidence in the applicant. While we cannot say that these allega­tions could not have influenced employee voters in some way, the influ­ence is of the same sort as that created by allegations that dues dollars go to support fat cat American trade union leaders, or like attacks on employer malevolence. However unpleasant or even actionable elsewhere, the Board will not be quick to control the use of such propaganda, be­cause the justification for so doing is unclear and the potential restraints undue. In the result, then, the vote of November 12, 1983 will stand.

9. The Board hereby confirms its ruling. Accordingly, this application for a declaration terminating the bargaining rights of the respondent is hereby dismissed.