[1984] OLRB Rep. May 741
2641-83-R The Employees of Patro d'Ottawa (Patro Ottawa) (Elaine Deschamps), Applicant, v. Canadian Union of Public Employees, Respondent, v. Patro d'Ottawa, Intervener
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and B. L. Armstrong.
APPEARANCES: Bernard P Quinn for the applicant; JohnP Nelligan and Sean F McGee for the respondent; RaimoT Heikkila for the intervener.
DECISION OF THE BOARD; May 11, 1984
- This is an application for a declaration terminating bargaining rights, under the provisions of section 57(1) of the Labour Relations Act. That section provides:
If a trade union does not make a collective agreement with the employer within one year after its certification, any of the employees in the bargaining unit determined in the certificate may, subject to section 61, apply to the Board for a declaration that the trade union no longer represents the employees in the bargaining unit.
In light of the time required to litigate this matter, together with the context within which it arose, the Board, after considering the evidence and representations of the parties, delivered the following oral reasons for decision.
The Board would begin by thanking all three counsel for their courtesy toward one another and to the Board in the handling of this matter and also for the excellence of all three submissions. When the eloquence of counsel is stripped away, however, it comes down to a judgement by the Board based on the evidence before it, and in cases of this kind, each one must be decided on its own facts. The nature of our inquiry is fixed by statute and the sole issue is the voluntariness of the petition itself.
This is a termination application under the provisions of section 57 of the Labour Relations Act and subsection 3 of that section provides that upon an application under subsection 1 or 2, (this one is under subsection 1) the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether or not less than forty-five per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as it is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union and, if not less than forty-five per cent have so signified, the Board shall, by a representation vote, satisfy itself that a majority of the employees desire that the right of the trade union to bargain on their behalf be terminated.
No provision is made in our statute for the Board to satisfy itself by way of discretionary power or otherwise that majority support for the union still exists after a certain period of time has elapsed, or after certain events have taken place, nor do we have such a provision as exists in the National Labour Relations Act of the United States allowing some discretion where the facts raise what is referred to as an "issue of representation". (See (1935) P.L. 198, 74th Congress, as amended, section 9(c)(l).) In our own jurisdiction there is only one way in these circumstances to get to a representation vote, and that is to provide the Board with some reasonable assurance of the voluntariness of a statement in writing signed by not less than forty-five per cent of the employees in the unit. We have, of course, heard the evidence and the views of Ms. Deschamps and Mr. Delwaide that they feel that a majority of the employees are disenchanted and looking for ways of extricating themselves from the union but that evidence, no matter how sincere, represents only the opinion of the two witnesses themselves and both, of course, are individuals who may in fact be influenced by their own strong opinions as to the appropriateness of the union continuing. Ms. Deschamps and Mr. Delwaide, no matter how well-intentioned, cannot, either as a matter of fairness or of the law of evidence, purport to speak for the other employees in the unit. The Board rather is required to make a judgement of other employee support or non-support on the basis of the circumstances in which those other employees have been called upon or given the opportunity to affix their signatures to the petition before us.
When we ask ourselves whether this petition can be said to fairly represent the voluntary wishes of the employees themselves in general, one element we simply cannot overlook is the role and status of Alain Delwaide.
Le Patro is an organization "owned", if we can say that, and operated by the religious order of St. Vincent de Paul. All of its executive officers are members of the Order and all of its officers are appointed by the Order. Mr. Delwaide is unique amongst the employees of Le Patro in that he, too, is a "religieux", a member of the Order which manages and controls this enterprise. That connection alone, with the strong emotional overtones we have heard about, might be enough to raise a concern with a petition before the Board; but there is, to the knowledge of all employees, in this case much much more. We note and accept the submission of Mr. Nelligan that on the evidence there was no demonstrable "grass-roots" movement to take action against the union prior to the involvement of Mr. Delwaide. Mr. Delwaide was involved from the beginning. In fact more than being involved, Mr. Delwaide was instrumental from the outset, a leader as he himself described his strength and personality. He was a part of the original four who met to discuss the union and what ought to be done and, indeed, that originating meeting was convened at the home of Mr. Delwaide himself.
There is no getting around the fact that that home is not an ordinary home. Mr. Delwaide lives in a building adjacent to Le Patro which houses the actual members of the Order, being in this case, the full senior management complement of Le Patro. Mr. Delwaide himself had been a first-line member of management as a co-ordinator from September of 1982 to June of 1983, stepping down for reasons of his own only four months prior to the time that this movement to take action with respect to the union began to take shape. Of lesser importance we might note also that even with that demotion, Mr. Delwaide continued to exercise responsibilities of a degree above those of other monitors, and of other monitors who worked under him.
While Ms. Deschamps tended in her evidence to downplay the activities of Mr. Delwaide, his role as the leader and spearhead of the petition is unmistakable from the evidence in general. Mr. Deiwaide obtained all of the necessary materials and prepared all the documents. Apart from the initial meeting convened at his home, Mr. Delwaide acknowledged that he "moderated", as he put it, the meeting held at Le Patro where the options open to the employees were ultimately articulated and voted upon. Mr. Delwaide stood before the group at that meeting and wrote these options on the blackboard and then, having from the evidence clearly made his own views known to that point, he indicates that he deliberately abstained from the final discussion and the vote because he said (indicating to us a sensitivity himself to his own position) he did not want to be perceived later as having "influenced" the expression of the other employees. In our view the point at which Mr. Delwaide withdrew himself was artificial and too late to undo the damage which all of his participation had done to that point: the straw vote taken amongst the employees at that time cannot be taken as reliably indicating the sentiments of employees, particularly since Mr. Delwaide remained in the room for the vote itself and participated in the counting. When it came time to circulate the actual petition, Mr. Delwaide was present for the solicitation of many of the signatures, but in any event his role was well known by that time. No matter how much at ease Mr. Delwaide may have himself felt in discussing this matter with other employees, the Board has no reasonable assurance that other employees would view Mr. Delwaide, who was, after all, a "religieux", an individual who lived and ate every day with all of the officers of Le Patro, and who had in fact been a member of management a short time before, with the same ease when expressing themselves on an issue as important to management. The three of us have no doubt that Mr. Delwaide was sincerely motivated by his own views, but a recognition of the freedoms of expression and association of others required that he restrain and withdraw himself from the process of taking action with respect to the union — in the way that he did on the final vote which was taken, but at a much, much earlier stage.
On the undisputed facts we have no alternative but to find that the involvement of Mr. Delwaide in the petition before us critically undermined its probative value and we can make no finding of voluntariness based upon it. That is the only issue before us in this termination application and we must not be taken as making any finding or comment upon the reasons put forward for supporting or not supporting the union, nor on any difficulties in bargaining with which this application does not deal. The application itself must be dismissed and we hereby do so.
CONCURRING OPINION OF BOARD MEMBER W. H. WIGHTMAN;
This is a unanimous decision of the panel as the Chairman has stated, and as he has stated as well, the issue, the sole issue before us to decide is the voluntariness of the petition.
As opposed to a case wherein a petition accompanies an application for certification under section 7 of the Act, the Board is then free to conduct a case within the bounds of practices which the Board itself determines. In this case the parameters are set by statutory provisions. It is in an application for a certification that it is open to parties to argue, for instance, that unlike federal, provincial or municipal governments, a union is not required to renew its mandate at periodic intervals and, given the importance that free society has placed on the secret ballot vote, an administrative tribunal should be very reluctant to deny requests from employees to exercise that franchise and that means of determining the wishes of majorities. It is also in that context that it could be argued it does not necessarily follow that whatever pressures may have caused employees to sign a petition, those pressures would follow the employees into the sanctity of a government-supervised voting booth. To believe that, it could be argued, is to hold a patronizing and condescending view of the employees while calling into question the integrity of government-supervised votes.
But the primary reason for my offering a concurring opinion relates to the assertions by witnesses from the petitioners, as well as their submissions, regarding serious problems affecting the morale and the operations of Le Patro in its efforts to serve its clients. As the chairman has said, we make no findings as to whether these assertions are founded in fact. I think it should be noted that employees petitioning this Board are not obliged to make the statements as to why they support or do not support a trade union, let alone prove them; but it seems to me, in joining with my colleagues in this decision, that I should point out that we, as a panel, are not unmindful of the possibilities of problems of the sort described to us arising nor are we uncaring as to the effect our decision may or may not have on those problems. It becomes my personal view (and it is open for me to say this kind of thing as opposed to perhaps my colleagues) but I would observe that whatever "freedom of association" may mean in our Constitution, it is not, I suspect, limited to a system of collective-bargaining and labour-management relations that was devised in the first instance to have application in industrial settings, and which is sometimes not as flexible as we might like to think it is, and when applied in other settings, can give rise to some serious problems.
As I say, I would not want anyone to leave this room feeling that we are not conscious of the fact that in many cases that appear before us we are not necessarily able to measure the nature of some of the problems the parties may be facing, nor can we necessarily expect that the specific decision will be dispositive of those problems.
Having said that, as I said at the outset, I must join with my colleagues in the decision.