United Food and Commercial Workers International Union, Local 175 v. 561270 Ontario Inc., c.o.b. as St. Laurent I.G.A.

[1984] OLRB Rep. May 745

2476-83-R United Food and Commercial Workers International Union, Local 175, Applicant, v. 561270 Ontario Inc., c.o.b. as St. Laurent I.G.A., Respondent, v. Group of Employees, Objectors

BEFORE: Ian C. Springate, Vice-Chairman, and Board Members I. M. Stamp and L. Collins.

APPEARANCES: Harold F Caley and John Hurlev for the applicant; Walter T Lan glev, Tim Laplante and Ed Cheung for the respondent, no one appearing for the objectors.

DECISION OF IAN C. SPRINGATE, VICE-CHAIRMAN, AND BOARD MEMBER I. M. STAMP; May 25. 1984

1. The name of the respondent is amended to read: "561270 Ontario Inc., c.o.b. as St. Laurent I.G.A."

2. This is an application for certification.

3. We find that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.

4. Having regard to the agreement of the parties, we further find that all employees of the respondent at its stores in Ottawa, save and except full-time meat department employ­ees, department managers, head cashier, office and clerical staff, store manager and persons above the rank of store manager constitute a unit of employees of the respondent appropriate for collective bargaining.

5. On the date of the making of the application there were a total of eighty-five em­ployees in the bargaining unit. The applicant filed evidence of membership with respect to thirty-nine, or slightly over forty-five per cent, of these employees. Given the proportion of employees for whom it submitted membership evidence, for the applicant to be certified pur­suant to the general certification procedures set out in the Act, it would first have to receive the support of a majority of employees casting ballots in a representation vote.

6. Rather than have the Board follow the general certification procedures and conduct a representation vote, the applicant requests that it be certified outright pursuant to the pro­visions of section 8 of the Act. Section 8 provides as follows:

"Where an employer or employers' organization contravenes this act so that the true wishes of the employees of the employer or of a member of the employers' organization are not likely to be ascertained, and, in the opinion of the Board, a trade union has membership support adequate for the purposes of collective bargaining in a bargaining unit found by the Board pursuant to section 6 to be appropriate for collective bargain­ing, the Board may, on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit."

7. At the commencement of the hearing into this application the parties specifically agreed that in assessing the applicant's request that it be certified pursuant to the provisions of section 8 of the Act, the Board could rely on information obtained from three separate sources. One of the sources was viva voce evidence led before this panel of the Board. A second source was certain facts set forth in a letter to the Board dated January 30, 1984 from counsel for the applicant. Counsel for the respondent agreed that the facts in the letter were correct and could be relied on by the Board, except to the extent that certain specific points might be amplified or contradicted by direct evidence. In fact, no evidence was led to either amplify or contradict any of the material set forth in the letter. The parties also agreed that we could rely on evidence led before a differently constituted panel of the Board chaired by Vice-Chairman M. Mitchnick. This other panel had dealt with a related certification appli­cation in File No. 2320-83-R.

8. The only witness to testify before this panel of the Board was Mr. John Hurley, an organizer with the United Food and Commercial Workers International Union. Mr. Hurley testified that the International Union was initially contacted by an employee who works in the respondent's grocery store located in the City of Ottawa. This initial contact led to a meeting on January 9, 1984 attended by Mr. Hurley and approximately forty-eight of the respondent's employees. After some discussion, most of the employees present signed a union membership card. The employees signed membership cards with respect to two different locals of the In­ternational Union. Those employees working in the respondent's meat department signed membership cards in Local 633, a local which represents craft units of meat department em­ployees in a number of grocery stores. Employees from all other departments (at times re­ferred to as the "grocery employees") signed membership cards in Local 175. At the meeting, over fifty-five per cent of the full-time employees in the respondent's meat department signed membership cards in Local 633. Having regard to the provisions of section 7 of the Act, this meant that Local 633 was in a position to meet the statutory membership requirement for au­tomatic certification. The employees who signed membership cards in Local 175, however, represented only a minority of the respondent's grocery employees. In the hopes of being able to acquire membership evidence on behalf of more than fifty-five per cent of the grocery em­ployees, at the meeting on January 9th Mr. Hurley handed out blank membership cards in Local 175 with the understanding that some of the employees present would seek to convince other employees to sign the cards.

9. On Tuesday, January 10, 1984 Mr. Hurley filed an application for certification on behalf of Local 633 with respect to the meat department employees (Board File No. 2320-83-R) as well as an application for certification on behalf of Local 175 with respect to the grocery employees (Board File No. 232 l-83-R). The two bargaining units initially proposed by the union encompassed the managers of the various departments within the store. Before this panel of the Board, Mr. Hurley testified that in his experience different I.G.A. stores give different levels of responsibility to department managers, such that in some instances they are appropriately included in a bargaining unit, whereas in other instances they are appropriately excluded as persons who exercise managerial functions. Mr. Hurley also explained that the union's general practice was to file certification applications on behalf of bargaining units which included department managers, but if it subsequently appeared that the department managers exercised managerial functions, then the union would agree to their exclusion. The respondent in this case filed a reply to both certification applications on or about January 17, 1984. In both replies, the respondent took the position that its department managers should be excluded from the applied for bargaining units in that they exercised managerial functions. With respect to the application dealing with the grocery employees, the respondent's reply expanded on the contention that the department managers exercise managerial functions with the comment that they "have hiring and firing privileges within their respective departments and are privy to confidential financial statements, profit figures and operating objectives".

10. The Board set January 19, 1984 as the terminal date for both certification appli­cations. In accordance with the Board's practice and Rules of Procedure, the union had until January 19, 1984 to file additional membership cards. This date also became the deadline for any employees to file statements of desire in opposition to the two applications. As noted ear­lier, at the meeting on January 9, 1984 certain union supporters took blank membership cards in Local 175 for the purpose of approaching other employees to get them to sign. Mr. Hurley testified that he expected that a number of additional grocery employees would sign mem­bership cards, but none did. Mr. Hurley further testified that he had made arrangements to meet with certain of the respondent's employees on January 17, 1984 in order to discuss mat­ters relevant to the two applications, but that none of the employees showed up at the meeting place. On the following day, January 18, 1984, statements in the form of "petitions" ex­pressing opposition to the two certification applications were signed by nine meat department employees and fifty-four grocery employees. These petitions were filed with the Board on Jan­uary 19th, the terminal date. On that same day Mr. Hurley wrote to the Board to withdraw the certification application filed on behalf of Local 175. Mr. Hurley testified that he withdrew the application because he had not received any additional membership cards.

11. The application for certification by Local 633 with respect to the respondent's meat department employees came on for hearing before a Board panel chaired by Mr. Mitchnick on January 27, 1984. Before this panel of the Board, Mr. Hurley testified that on the day prior to the January 27th hearing he had attempted to get certain employees to meet with him respecting the application, but without success. During the course of the hearing on January 27th, the respondent outlined its management structure to the Board, following which the union agreed with the respondent's contention that the meat department manager exercised mana­gerial functions and hence should be excluded from the bargaining unit. The Board then an­nounced the "count" indicating that Local 633 had filed membership cards with respect to more than fifty-five per cent of the employees in the meat department bargaining unit. The Board then turned to consider the petition in opposition to the application signed by nine meat department employees.

12. In instances where a union has met the statutory requirement for automatic certi­fication by filing membership cards on behalf of more than fifty-five per cent of the employees in a bargaining unit, the Board still retains a discretion to direct the taking of a representation vote. The Board's practice is to direct such a vote where sufficient numbers of union members have voluntarily indicated that they have had a "change of heart" about being represented by a union. Before it will direct the taking of a vote, however, the Board seeks assurances that a document expressing opposition to the union does in fact represent a truly voluntary sig­nification on the part of employees who signed it. In instances where members of management have been involved in the origination or circulation of such a document, the Board's practice is not to give the document any weight. This is due to a concern that union members may have signed the document not as a result of any real change of heart about the union, but only to avoid revealing their union support to management. Evidence led at the hearing on January 27, 1984 indicated that the petitions filed in opposition to both the Local 633 and Local 175 applications had been drafted at the instance of the same people, and that signatures on both documents had been acquired at the same time. The evidence further indicated that three department managers had been active with respect to the origination of the petitions and obtaining employee signatures on them. After this evidence had been tendered, the group of employees who had been relying on the petition in opposition to the Local 633 application formally withdrew the petition. The Board then announced that it would be certifying Local 633 as the bargaining agent of employees in the respondent's meat department.

13. At the hearing before this panel of the Board, Mr. Hurley testified that the evidence led at the hearing on January 27, 1984 caused the union to re-evaluate its position insofar as it related to the grocery employees. As a result of this re-evaluation, on January 30, 1984, Local 175 filed a second application for certification, which is the one now before us. This application specifically excluded department managers from the applied for bargaining unit. In support of its second application Local 175 filed the same membership cards as it did in its earlier application. However, in support of its application to be certified under section 8, the local also relies on the facts surrounding the origination and circulation of the petitions filed with respect to the earlier applications.

14. Before proceeding further, we would note that in response to the second application for certification by Local 175, a new statement of desire in opposition to the application signed by twelve bargaining unit employees was filed. No one attended at the hearing in support of this statement and neither of the other parties sought to rely on it in any way. Accordingly, we are not prepared to give the document any weight, and will not refer to it again in this decision.

15. Local 175 would be entitled to be certified outright pursuant to the provisions of section 8 of the Act if the Board were satisfied that:

(a) the respondent has violated the Act;

(b) The true wishes of the respondent's employees are not likely to be ascertained either from its membership cards or in a representation vote; and

(c) in the Board's opinion the Local has support adequate for collective bargaining.

16. Given the Board's jurisprudence, there is little doubt but that the Board would not have given any weight to the petitions obtained by the three managers as being voluntary expression of employees' desires. In this case, however, we are required to go farther and deal with two additional issues. The first is whether the actions of the managers involved a violation of the Act on the part of the respondent. The second is whether the action of the department managers, as well as any other relevant matters, resulted in a situation where em­ployees were not able to express their true wishes during the union's organizing campaign and would not now be able to express their true wishes in a Board conducted representation vote.

17. We turn now to consider in some detail the involvement of the three managers with the anti-union petitions. The three managers involved were Mr. Jacques Lalonde, the manager of the respondent's deli department, Mr. Jean Guy Raccine, the manager of the meat de­partment and Mr. James Broome, the manager of the produce department. The letter of Jan­uary 30, 1984 sets out the functions of the managers as including:

"(i) the effective hiring and firing of staff;

(ii) disciplining of employees in own department;

(iii) they have access to financial statements and personnel documents;

(iv) they are involved in budget discussions;

(v) the issuing of reprimands to employees;

(vi) attend management meetings."

18. As indicated earlier, Mr. Hurley met with a number of employees on Monday, Jan­uary 9, 1984, at which time they signed membership cards. On that same evening, at least one of the department managers overheard some employees discussing the union. When giving evidence before the Board panel chaired by Mr. Mitchnick, Mr. Raccine, the meat department manager, testified that on January 10, 1984 he went to see Mr. T. Laplante, the store manager, to advise him that employees were discussing the union. According to Mr. Raccine, Mr. La­plante's reply was that he was already aware of this fact. Mr. Raccine testified that during his meeting with Mr. Laplante there was no talk of a petition.

19. On or about Tuesday, January 16, 1984, the Board's "Notice to Employees of Ap­plication for Certification and of Hearing" (commonly referred to as the "green form") was posted with respect to the two initial certification applications. The applied for bargaining units described on the forms indicated that the union was seeking to include departmental managers within the bargaining units. Subsequent to the posting, Mr. Raccine had a discussion with Mr. Laplante. The material before us, however, is silent on the question of whether they talked about a petition. On Wednesday, January 18, 1984 Mr. Raccine, Mr. Lalonde and Mr. Broome began to obtain signatures on the petitions in opposition to the two applications. There is very little material before us related to the origination of the petitions. However, what material there is indicates that the petitions were drafted by a lawyer who had met with Mr. Raccine and possibly the other two managers. The petitions had a typed heading with space left under the heading for employees to sign their names. Below the space for employee signatures was typed the following:

"This statement of desire is filed on behalf of the above noted employees by:

Name Signature Mailing Address

Jacques Lalonde 1021 St. Laurent

Boulevard

Jean Guy Raccine 1021 St. Laurent Boulevard

James Broome 1021 St. Laurent Boulevard"

When filed with the Board, the two petitions contained the signatures of the three managers in the spaces indicated. The address, 1021 St. Laurent Boulevard, is the address of the re­spondent's store in Ottawa.

20. Employees signed the petitions in the respondent's staff lunchroom. Employees were approached individually by either Mr. Lalonde, Mr. Raccine or Mr. Broome during xvorking hours and directed to go to the lunchroom. Once in the lunchroom, each employee was asked by either Mr. Lalonde or Mr. Broome to sign a petition. In all, forty-five of the eighty-five grocery employees signed a petition. At the hearing before this panel, Mr. Hurley testified that although he had no personal knowledge of the matter, it was his understanding that Mr. Laplante, the store manager, had also interviewed employees in connection with the union. This hearsay evidence was not supported by any direct evidence led before this panel of the Board, the panel chaired by Mr. Mitchnick, or the facts set forth in the letter of January 30, 1984. Accordingly, we are not prepared to give Mr. Hurley's evidence on point any weight. However, given the manner in which employees were directed to the lunchroom by the three department managers during their working hours, and the total time that the three managers were likely involved with the petitions, we feel it reasonable to conclude that Mr. Laplante was probably aware of their activities. Under normal circumstances, one would have expected Mr. Laplante to take steps to ensure that employees and the three department managers spent their working hours attending to their normal duties. However, it appears that Mr. Laplante took no such steps. We would note at this point that in contemplation of the hearing before this panel of the Board, Mr. Hurley arranged to meet with five bargaining unit employees on February 15, 1984, but none of them turned up at the arranged meeting spot.

21. It is the applicant's position that the conduct of the three department managers vi­olated a number of sections of the Act. The most relevant of these is section 64 which pro­vides as follows:

"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 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."

22. We are satisfied that the action of the three department managers in seeking to get employees to sign an anti-union petition involved an interference on their part with the se­lection of a trade union by employees. Generally, the actions of managerial personnel, even those at the bottom of the management hierarchy, can be automatically attributed to their em­ployer, such that a violation of the Act by any managerial person will involve a violation of the Act on the part of the employer. In the instant case, however, the respondent contends that the three department managers were not acting on behalf of the respondent, but rather on their own behalf. In support of this position the respondent relies on the fact that the bar­gaining units originally applied for by the union included the department managers. We ac­knowledge that there might well be instances where it could appropriately be held that a member of management was not acting on behalf of management. On balance, however, we are satisfied that this is not such a case. Whatever their original motivation might have been, the three department managers utilized their management status in getting employee signatures on the petitions by directing employees during their working hours to go to the lunchroom. Further, notwithstanding that the three managers made use of their management status and also took a considerable amount of time off work in connection with the petitions, neither the store manager nor anyone else in management took any steps to stop them. In our view, the action of senior management in permitting the department managers to use their managerial authority to solicit opposition to the union during working hours meant that the respondent approved and essentially adopted their actions. It might be noted that the store manager and the three department managers attended at the hearing before this panel of the Board with representatives of the respondent, but were not called to testify so as to further clarify any of these matters. Given these considerations, we are of the view that the actions of the three department managers should appropriately be viewed as the actions of the respondent. We accordingly find that the action of the three department managers in interfering with the se­lection of a trade union by employees involved a breach of section 64 of the Act on the part of the respondent.

23. As the wording of section 8 makes clear, automatic certification is not the appro­priate response to every employer violation of the Act committed in response to a union or­ganizing campaign. The intended purpose of the section was summarized in Ex-Cell-O Wildex Canada [1977] OLRB Rep. June 370 at p. 373 as follows:

"Section 7a (now section 8) allows the Board to certify a trade union as bargaining agent without the membership percentage usually required for outright certification. It is not surprising, then, that the Legislature has placed a number of legal restrictions on its use. As the wording of the section makes clear, it is not enough that the employer has engaged in conduct prohibited by the Labour Relations Act. This conduct must have resulted in a situation where the true wishes of the employees are not likely to be ascertained from the results of a representation vote. As well, the trade union must, in the opinion of the Board, have membership sup­port adequate for the purposes of collective bargaining in the unit found appropriate by the Board.

The logic of these requirements is clear enough. The premise of the Act's certification procedures is that collective bargaining is to be afforded only when it is the choice of the majority. Accordingly, the grant of automatic certification to a trade union, in the absence of documented evidence of majority support, should only be permitted where the true wishes of the employees are not likely to be ascertained through the normal procedures and where the union has sufficient support among the employees in the unit to bargain collectively with the employer."

24. In a number of cases the Board has applied section 8 where an employer has vi­olated the Act by indicating to employees, directly or by implication, that continued job se­curity depended on the union not being certified. See: Dylex Limited [1971] OLRB Rep. June 357 and DI-AL Construction Limited [1983] OLRB Rep. March 356. The Board has also ap­plied the section where the cumulative effect of a range of unlawful employer activities, none of which taken separately might call the section into play, have had the effect of undermining the rule of law such that employees could not feel confident that the protections of the law would guarantee them a free choice in deciding whether or not to be represented by a trade union. See: Radio Shack [1979] OLRB Rep. March 248 and Skyline Hotels Limited [1980] OLRB Rep. Dec. 1811. In certain cases where an employer has violated the Act, however, the Board has declined to apply section 8 because it felt that the violation was not of the type that would deprive employees of the ability to express their true wishes in a representation vote. See: Homeware Industries Limited [1981] OLRB Rep. Feb. 164 and The Globe and Mail Division of Canadian Newspapers Company Limited [19821 OLRB Rep. Feb. 189. One of the factors the Board looks at in assessing whether employer breaches of the Act affect the ability of employees to express their wishes so as to justify certification without a vote is whether effective remedies for those breaches can be fashioned so as to create a climate in which a representation vote might successfully ascertain employee wishes. See: Seven-Up/Pure Spring Ottawa, a Division of Seven-Up Canada Inc. [1984] OLRB Rep. Jan. 87 and the cases cited therein.

25. In the instant case, no member of management threatened the job security of em­ployees or made any other threat to employees. Further, there is no evidence of on-going im­proper conduct on the part of the respondent. Notwithstanding these facts, the role of the three department managers in improperly obtaining employee signatures on petitions against the union on January 18, 1984 would likely have had some impact on employees. This impact may well have resulted in some employees not signing union cards on January 18th and 19th, the last two days they could have done so. It may also have been at least part of the reason why on January 26th no employee would meet with Mr. Hurley to discuss the application pertaining to the meat department and why no employee met with him with respect to the instant application. However, the failure of any employees to meet with Mr. Hurley on or before January 17th could not have been due to the same reason. Neither can the fact that no grocery employees signed union cards between Mr. Hurley's meeting with employees on January 9th and the events of January 18th. When all these considerations are taken into ac­count, we do not believe that this is an appropriate case in which to certify the applicant out­right. Rather, we believe that the adverse impact of the respondent's contravention of the Act can be rectified in such a way as to enable the true wishes of employees to be ascertained in a representation vote. In order to rectify the breach of the Act, we direct that the respondent:

26. Cease and desist violating section 64 of the Labour Relations Act.

27. Post the attached notice, in the French and English languages, as sup­plied by the Board, on its premises where they are likely to come to the attention of the employees and to leave such notices posted uncovered by any other material, until the conclusion of the representation vote.

28. Give a representative of the applicant reasonable physical access to its premises at reasonable times so that the applicant can satisfy itself that the posting requirements are being complied with.

29. Provide two representatives of the applicant with an opportunity to address the employees in the bargaining unit referred to in paragraph 4 above, out of the presence of any member of management, during nor­mal working hours without loss of pay, for a minimum of one hour. Such meeting will be at least three full days prior to the date of the repre­sentation vote.

30. We direct that a representation vote be conducted among the employees of the re­spondent in the bargaining unit described in paragraph 4 of this decision. Those eligible to vote are 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.

31. Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.

32. The matter is referred to the Registrar.

33. The decision of Board Member L. Collins will be issued at a later date.

[Editor's Note: The French translation of the Notice to Employees has been omitted]

Appendix

The Labour Relations Act

NOTICE TO EMPLOYEES

Posted by Order of the Ontario Labour Relations Board

WE HAVE POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE CNTARIO LABOUR RELATIONS EOARD ISSUED AFTER A HEARING ARISING OUT OF THE EFFORTS OF UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION LOCAL 175 TO REPRESENT CERTAIN OF OUR EMPLOYEES. THE ONTARIO LABOUR RELATIONS BOARD FOUND THAT WE VIOLATED THE LABOUR RELATIONS ACT BY INTERFERING WITH THE RIGHTS OF OUR EMPLOYEES TO SELECT A BARGAINING AGENT OF THEIR CHOICE,

THE ACT GIVES ALL EMPLOYEES THESE RIGHTS:

To ORGANIZE THEMSELVES.

To FORM, JOIN AMD PARTICIPATE IN THE LAWFUL ACTIVITIES OF A TRADE UNION.

To ACT TOGETHER FOR COLLECTIVE BARGAINING.

To REFUSE TO DO ANY AND ALL OF THESE THINGS, IF THEY WISH.

WE ASSURE ALL OF OUR EMPLOYEES THAT WE WILL NOT DO INTERFERES WITH THESE RIGHTS,

THE LABOUR RELATIONS BOARD HAS DIRECTED THAT A REPRESENTATION VOTE BE HELD AMONG THE EMPLOYEES SOUGHT TO BE REPRESENTED BY LOCAL 175. PRIOR TO THE TAKING OF THE VOTE WE WILL ENSURE THAT ANYTHING THAT REPRESENTATIVES OF THE UNION WILL BE ABLE TO MEET WITH EMPLOYEES DURING WORKING HOURS, IN THE ABSENCE OF MANAGEMENT, WITHOUT LOSS OF PAY.

561270 ONTARIO INC., C.O.B. AS ST. LAURENT I.G.A.

This is an official notice of the Board and must not be removed or defaced.

DATED this 25 day of MAY , 1984.