[1984] OLRB Rep. January 22
1880-83-R Crothall Employees Ongwanada Hospital Penrose Div. 752 King St. W.
Kingston Ont., Applicant, v. Canadian Union of Public Employees, Respondent, v.
Crothall Services Limited, Intervener, v. Employee, Objector
BEFORE: G. Gail Brent, Vice-Chairman, and Board Members J. A. Ronson and W. F. Rutherford.
APPEARANCES: David Soper and Ed Barker for the applicant; Helen 0 'Regan and R. Millage for the respondent; James G. Knight and James G. Cooper for the intervener; no one for the objector.
DECISION OF VICE-CHAIRMAN, G. GAIL BRENT AND BOARD MEMBER W. F.
RUTHERFORD; January 13, 1984
I. The applicant has applied to the Board under section 57 of the Labour Relations Act for a declaration that the respondent no longer represents the employees in the bargaining unit for which it is the bargaining agent.
There are two bargaining units represented by the respondent, a full-time unit and a part-time unit. There are two certificates which were issued on different days. It was agreed by the parties that there had been no collective agreement entered into in respect of either unit since certification; however, only the application in respect of the full-time unit is timely because of the different dates on the certificates. Accordingly, the application in respect of the part-time unit was withdrawn.
The evidence before us indicates that a sufficient number of employees in the full-time bargaining unit have indicated that they no longer wish to be represented by the respondent to allow the Board to order a vote. The sole question is whether there has been interference or assistance by the employer such that the vote should not be ordered.
The facts in this case are very unusual; however, they are relatively straightforward and can be summarized without difficulty. There are eight employees in this bargaining unit; they are employed by the respondent to clean a hospital. There is no doubt from the evidence that the employees themselves generated the idea that they should terminate the respondent's bargaining rights, largely because they had heard nothing about any progress toward achieving a collective agreement. Mr. Soper, the steward, had his daughter type the petition at home, and he and Mr. Barker, another cleaner, circulated it among the employees. There is no evidence that the employer was aware of this or in any way assisted in the preparation and circulation of the document.
After the signatures had been obtained by Messrs. Soper and Barker, Mr. Soper took the document and had copies made of it. He had sufficient copies made for every employee and distributed them at lunch when the members of the bargaining unit were sitting together at their usual table. At that time Mr. Cooper, the employer's manager on the premises, was seen going into another part of the cafeteria, and it was suggested that they let him know what they were doing. As a body, the bargaining unit employees went over to Mr. Cooper and presented him with a copy of the petition showing the signatures of all who signed it. Apparently Mr. Cooper was somewhat taken aback by this gesture but he took the copy he was offered.
Mr. Soper filed the application for termination with the Board along with the statement signed by the employees. He had been in touch with the Board by telephone a couple of times to ask for forms, etc. He had not asked or been informed about the possibility of the hearing being held in Kingston.
When the date for hearing was set, it was scheduled for Toronto according to the Board's usual practice. Both Mr. Soper and Mr. Barker concluded that they could not afford to make the trip from Kingston in order to state their case. They approached the respondent and informed it about their financial problems, indicated that they might not be able to appear without assistance, and asked for financial support. Not surprisingly, the respondent refused to give them any support or assistance. The respondent did not inform them that they could request that the hearing be held in Kingston. The two men then approached Mr. Cooper and asked him for financial assistance to come to Toronto for the case. Mr. Cooper gave them two days off, paid for their train fare to and from Toronto, paid for their hotel stay in Toronto the night before the hearing, and bought one of them dinner the night before the hearing. In addition, the three of them travelled to Toronto together, stayed at the same hotel, and had dinner together. According to the evidence before us, Mr. Cooper told the two men that he would pay and ask the employer to pick up the costs; however, if the employer refused, then they would make arrangements about reimbursement.
The nub of the problem is that we are faced with a statement of employees' desire initiated, circulated and signed without employer support, assistance, or participation of any kind, followed by the active participation and assistance of the employer in ensuring that the matter could be heard by this Board in Toronto. By the time the assistance was offered, the employer was also in as good a position as anyone to know that the two men had collected enough signatures to justify a vote of the employees.
Needless to say, there are no cases which have faced such a situation. The parties cited none to us and we were able to find none on our own. The respondent has asked us not to order a vote because of the extraordinary assistance given by the employer in this case.
In the course of our research, we did find some cases which may be of some general assistance. In Selinger Wood Ltd., [1979] OLRB Rep. May 434, the Board heard evidence that the employee who wanted to get rid of the union was referred to a lawyer by a member of management and, after asking who would pay the legal fees, was told that the company would take care of the fees. That was all the evidence before the Board when it concluded, at page 435, paragraph 6:
In view of the involvement of management described by Mr. Schoemaker [the employee], the Board is unable to find that the document presented in support of the application was voluntarily signed by the employees whose names appear thereon. In the circumstances, the Board has no alternative but to dismiss the application.
While that conduct occurred prior to the circulation of the petition, it does indicate the concern which the Board has shown in the face of financial assistance being rendered by an employer.
The Board's concern about employer involvement in termination applications was expressed cogently and at some length in Empco-Fab Ltd., [1982] OLRB Rep. Aug. 1162. That case is different from this on its facts. It dealt with the question of perceived management involvement because of an agreement by management to pay legal fees of a petitioner in an earlier pre-certification petition. In dealing with the role of management generally, the Board said at pages 1164 to 1166 (paragraphs 10 to 16):
It is central to the Labour Relations Act that an employer is not to interfere with the administration of a trade union or in the matter of representation of his employees by a union. Section 64 of the Act provides:
No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.
The right of an employee to freely chose or not to be represented by a trade union is protected under the Act. It is specifically protected from interference by the employer, whether by coercion or bribery. Section 66(c) of the Act provides:
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
(emphasis added)
The Act contemplates that apart from the reasonable exercise of his freedom to lawfully express his views an employer should be uninvolved in any exercise of rights by employees under the Act. That is so whether his interference takes the form of threats or intimidation aimed at union supporters or favours or financial support given either to union supporters or to union opponents among his employees.
The most common form of employer financial support proscribed by the Act relates to the employer dominated union. The Act contemplates that as a precondition to certification, the union and employer must be in a clearly arm's length relationship. (Dr. George A. Morgan Dental Centre [1977] OLRB Rep. Jan. 1). Section 13 of the Act bars the certification of the "sweetheart" union in the following terms:
The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of his race, creed, colour, nationality, ancestry, age, sex or place of origin.
The Act goes further to provide that an agreement between an employer dominated organization and the employer is not a collective agreement for the purposes of the Act. Section 48(a) provides:
An agreement between an employer or an employers' organization and a trade union shall be deemed not to be a collective agreement for the purposes of this Act,
(a) if an employer or an employers' organization participated in the formation or administration of the trade union or if an employer or an employers' organization contributed financial or other support to the trade union;
The Board has in the past not only found that a sweetheart agreement is not a collective agreement for the purposes of the Act, but has concluded that a trade union purporting to be party to such an agreement has relinquished its status as a trade union under the Act. (See, Norfish Ltd., [1965] OLRB Rep. Sept. 414 at 416). An employer dominated body is not a union within the meaning of the Act.
It is no less improper for an employer to support employees opposed to a union than it is for an employer to support a union itself. The cases are legion in which the Board has found that granting favours to employees who oppose a union and the encouragement of such employees, is contrary to the Act. That is so whether the employer assistance is in the form of a promise to pay the legal fees of employees opposing a union (e.g. Selinger Wood Ltd., [1979] OLRB Rep. May 434) or providing employees time and facilities to organize and conduct anti-union meetings (e.g. Skyline Hotels Ltd., [1979] OLRB Rep. Dec, 1811 at 1820-21). The Board has also found that repeated company sponsored meetings aimed at exhorting anti-union employees to organize are employer interference with employees' rights contrary to the Act, (K. Mart Canada Ltd., [1981] OLRB Rep. Jan. 60 at 72, 80-81).
An employer can align himself neither with the employees who favour a union nor with those who are opposed. Doing so distorts the balance of choice and frustrates the free exercise of employees' rights under the Act. Support to either camp, whether open or covert, amounts to interference contrary to the Act. While it may be impossible in the real world to expect employees to make their choice for or against a union in "laboratory conditions" unaffected by any outside influences, the Act strives insofar as possible to insulate the process by which employees select or reject union representation. Apart from the right to express his views, a right whose exercise requires some care, the Act imposes a simple rule for the employer: "Do not interfere". That rule, it should be stressed, is generally accepted and observed by the vast majority of employers who appear before the Board in applications relating to the representation of their employees by a union.
The Board also said, in paragraph 18 of the same decision:
Is unlawful interference with the selection or administration of a trade union or with the rights of employees made out in this case? In the instant case an employee succeeded in defeating an application for certification. It would surely be unlawful for his employer to have rewarded him for his efforts, ex post facto, by giving him a promotion or granting him a raise purely for defeating the union, just as it would be unlawful to penalize an employee who worked for the union's cause. Either act would be in violation of section 66 of the Act, no matter when it occurred. The "hands off" rule knows no time limitation: it binds the employer before, during and after an application for certification.
The case at hand bears some similarity to an ex post facto reward. The employees who circulated the petition so successfully got two days off work and received an all expense paid trip to Toronto to press their case for the termination of the respondent's bargaining rights. Even without construing this as an ex post facto reward, the employees would never have been able to come to Toronto to make their case had it not been for the active assistance of management. This assistance was given after management had before it the information necessary to conclude that the employees would likely succeed in its attempt to have the union's bargaining rights terminated.
Under the circumstances, we cannot ignore the assistance given by the employer and we must conclude that it is interference which is contrary to the Act. Its assistance has aligned it squarely with the employees who favour the termination of the trade union's bargaining rights. Such overt actions in the face of the employer's knowledge of the names on the petition, could influence the outcome of any vote which the Board ordered.
Put bluntly, and echoing the review of the law done in Empco-Fab Ltd., (supra), the employer has become an actor in a drama in which his proper role is one of interested spectator. To allow this to happen, even when everyone's motives are innocent, is to upset the balance prescribed by the Act and to risk a distortion of any picture which attempted to describe the true wishes of the employees. Such employer action could discourage employees from changing their minds either before or after the Board hearing. To allow this action by the employer to pass unnoticed is to invite others, who may be less scrupulous, to ensure that termination applications are proceeded with by postponing their assistance and co-operation until after the documents are filed with the Board and then, by their actions, inform the employees that it will look with favour on any attempt to get rid of the union.
Having regard to the general prohibition against employer participation or interference in the selection of a trade union in section 64 of the Act, we consider that to allow a vote pursuant to section 57 of the Act would be tantamount to condoning a violation of section
In view of this interference, along with the employer's knowledge when it gave the assistance, we cannot be certain that the evidence before us can be relied on as a voluntary signification of the employees' wishes. Accordingly, the application is dismissed.
The decision of Board Member J. A. Ronson will follow.