[1985] OLRB Rep. September 1352
0255-85-R Canadian Paperworkers Union, Applicant, v. Canton Cards Ltd., Respondent, v. Independent Greeting Card Workers' Union of Canada, Intervener
BEFORE: Harry Freedman, Vice-Chairman, and Board Members L M. Stamp and C. A. Ballentine.
APPEARANCES: Harold F. Caley and Gary Bucella for the applicant; Derek L. Rorgers, Dieter Plautz and Robert Strandon for the respondent; Stewart D. Saxe, Cheryl Elliott, Brad Huxtable and John Trigiani for the intervener.
DECISION OF THE BOARD; July 4, 1985
- The Board delivered the following oral ruling at its hearing on June 28, 1985:
ORAL RULING
We do not have to hear from counsel for the respondent or from counsel for the applicant who are opposed to the intervener's motion.
The intervener submits that the pre-hearing representation vote directed by the Board in this case that was conducted on May 27, 1985, should be set aside and a new vote be directed on the grounds that the respondent circulated a letter to the employees in the bargaining unit, which letter the applicant incorporated into its own campaign propaganda. The respondent's letter stated:
May 21, 1985
Fellow Employees:
On Monday, May 27th the Ontario Labour Board will conduct a vote among you to permit you to decide whether you want to be represented by
Independent Greeting Card workers
of Canada
or
Canadian Paperworkers Union
Your decision in that vote can have a long-time effect upon your future here, and in the future of your families.
Dieter Plautz and I are relatively new at the plant and we are still familiarizing ourselves with the policies and procedures in effect here. We have been attempting to visit with you to discuss your problems.
We are familiar with the fact that about 29 years of representation by the Independent Greeting Card Workers of Canada has resulted in many years of peaceful relationships with no interruption of work because of strikes or other serious disputes.
From what we have been able to learn about the C.P.U. we are seriously concerned that its entry into our business could put an end to the long period of peaceful relations and is not in your best interests.
Dieter Plautz and I ask only that you give us time to prove to you that we have your best interests at heart, and that you can count on us to be fair with you.
The voting will be by secret ballot and all of you should vote so that your choice will be a truly democratic one.
Sincerely,
'Bill Powell' 'D. Plautz' Bill Powell Dieter Plautz President Director of Personnel"
The applicant, in its campaign propaganda, stated:
"HAVE YOU HEARD OR READ THE LATEST?
In case you haven't, we feel it is important that you do. Therefore, we are attaching a copy of the leaflet being circulated by Mr. Powell and Mr. Plautz of Carlton Cards.
Firstly, we would like to congratulate both Mr. Powell and Mr. Plautz because they have now proven what we have been saying all along. Mr. Trigiani [an official of the intervener]is not only paid by the Company but also supported by it.
Mr. Powell and Mr. Plautz start their letter by saying "Fellow Employee". These are the same two guys that lay you off, keep you as temporary help to deprive you of benefits, issue incident reports, deny your job postings, deny you merit increases and impose unreasonable production standards on you. Now, because they need you for one day, they have the nerve to call you - 'Fellow Employees'.
Mr. Powell and Mr. Plautz say they are concerned about your future and your family's future.
Do they show that same concern when you are collecting U.I.C. on lay-off and they hire new employees to replace you? Do they show that same concern when you have problems and their supervisors abuse and discipline you?
Do they show that same concern when you are denied your rate increase and cannot afford to buy your family the things they need and want? Where is that heart-felt concern when you are ill and receive sick pay for only a meagre seven days?
Mr. Trigiani has gone to them for help because he knows he will lose everything on Monday the 27th. He will lose because he has abused you, the workers. The Company owes John Trigiani because over the years the Company has not given you the wages, the benefits, and the security you deserve. They know now that you have finally seen the light and want fair representation.
The company speaks of supporting the Independent Greeting Cards Workers of Canada. Really, what the Association should be called is "The Dependent Carlton Greeting Card Workers".
It is our intention to continue to maintain a long and peaceful relationship with no interruption of work. However, as well, we intend on providing a reasonable and responsible service to you, the workers of Carlton Cards. Something that is absent under the present system.
Mr. Powell states that he is relatively new at the plant and has your best interests at heart, and that you can count on him to be fair with you. Where has he been for the past two years?
This is obviously an outright lie.
Mr. powell's lack of action has made a mockery out of his words. Why didn't the Company negotiate a contract with better wages and better working conditions and more
security before now - like during the last three months. They could have you know!. Instead the Company has set negotiations up for June 3 - one week after the vote.
Don't be fooled by promises they say will come tomorrow - because tomorrow never comes.
A VOTE FOR C.P.U.
IS A VOTE FOR YOU
Fraternally yours,
M. Hunter'
Michael Hunter"
The intervener submits that the implicit support shown for the intervener by the respondent was the "kiss of death" for the intervener since it would appear to the employees that the respondent is suggesting that they would achieve far more from collective bargaining by being represented by the applicant than by being represented by the intervener, and thus, the intervener argues, would take support away from the intervener.
The interpretation that the intervener places on the respondent's letter is a reasonable one which is the one the applicant used in its own propaganda.
Counsel for the intervener did not submit that the respondent's actions violated section 64 of the Act, nor did he submit that the applicant ought not to be certified by virtue of section 13 of the Act. As we understood his argument, it was counsel's submission that even in the absence of conduct which violates section 64 or triggers section 13. a new vote is needed in this case because the respondent has improperly affected the employees' ability to freely decide whether to be represented by the applicant or the intervener in collective bargaining. We understood counsel to say that the respondent's letter, on its own, would have raised a much weaker objection to the vote, but it was that letter together with the use to which it was put by the applicant that should cause the Board to set aside the vote.
We reject the submissions of the intervener. The respondent's letter on its own cannot reasonably be viewed as affecting the ability of the employees to freely make a decision on which union should represent them. Thus, the issue before us does, in fact, turn on the use of the respondent's letter by the applicant.
The test the Board uses in assessing campaign propoganda in representation votes has been stated as follows in Crock and Brock Restaurant, [1984] OLRB Rep. Jan. 19 at page 21:
'As those decision 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."
See also Cara Operations Limited, [1985] OLRB Rep. Feb. 222.
In our view, the ability of the employees to freely decide which union should represent them has not been affected by the propaganda distributed by either the respondent or the applicant in this case.
Thus, the Board is satisfied that the results of the pre-hearing vote can be relied upon by the Board.
The Board finds that the applicant is a trade union within the meaning of section l(l)(p) of the Labour Relations Act.
Having regard to the agreement of the parties, the Board further finds that all plant production employees of the company, except watchmen, group leaders, supervisors, persons above the rank of supervisor, office, clerical and sales staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
The Board is satisfied that not less than thirty-five per cent of the employees of the respondent in the bargaining unit were members of the applicant at the time the application was made.
On the taking of the pre-hearing representation vote directed by the Board, more than fifty-five per cent of the ballots cast were cast in favour of the application.
A certificate will issue to the applicant.
The Registrar will destroy the ballots cast in the pre-hearing representation vote taken in this matter following the expiration of 30 days from the date of this decision unless a statement requesting that the ballots should not be destroyed is received by the Board from one of the parties before the expiration of such 30 day period.