[1985] OLRB Rep. September 1359
1365-85-R Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Applicant, v. Eddie Black's Limited, Respondent, v. Group of Employees, Objectors
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W H. Wightman, and B. L. Armstrong.
APPEARANCES: Frank Reilly and Waye Robson for the applicant; A. P. Tarasuk; J.G. Walsh and C. King for the respondent; C. J. Abbass, Bozana Gregoire and Edward C. Murray for the objectors.
DECISION OF M. G. MITCHNLCK, VICE-CHAIRMAN, AND BOARD MEMBER W.
H. WIGHTMAN; September 30, 1985
This is an application for certification.
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 employees of the respondent in the Regional Municipality of Ottawa Carleton, save and except supervisors, persons above the rank of supervisor and office staff, constitute a unit of employees of the respondent appropriate for collective bargaining.
For purposes of clarity, the Board notes the further agreement of the parties that the term supervisor" used above refers to the first line of managerial exclusion, and that that line in the present circumstances is at the level of Store Manager. Assistant Store Managers, as well as employees Ursula Archibald, David Lavigne, Leonard Mullen, and Gytri Nizam are included in the bargaining unit.
The applicant filed membership evidence on behalf of 53 employees employed in the bargaining unit as of the date of the application. That represented 64 per cent of its projected unit of 83 persons. The application, however, covers some 13 or 14 stores in the Ottawa municipal area, and the actual number of employees in the bargaining unit as of the date of the application has been determined to be 94. The applicant's cards still represent 56 per cent of that figure, sufficient evidence of support to be certified without a vote.
There were, however, timely statements in opposition filed in this matter bearing the signatures of 3 persons who had also signed membership applications for membership in the applicant. If those 3 persons (or even 2 of them) are found to have signed the statement in opposition in circumstances which can be said to be voluntary, the applicant's level of unqualified membership support drops below the level required, under the practice of the Board, for certification without a vote.
In the present case, the main proponents of the petition against certification were Ted Murray and Bozana Gregoire. Each was disturbed, for his or her own reasons, by the posting of the Notice of Application, and began to consider individually, and then together, what they could do about it. Each of them ultimately went on their own to different stores to attempt to collect, with varied success, signatures on "petitions" which were written up in a form given to Mr. Murray by an experienced labour lawyer.
Mr. Murray is the younger brother of the individual who was District Manager for the respondent's Ottawa area until the 1st of this month, and who is now Assistant Sales Manager in Toronto. Mr. Murray was candid in acknowledging that his brother had asked him about rumours of a Union coming into the stores in the past. But he testified that his only discussion of the Union's application on this occasion, prior to his canvassing activity, was with the assistant store manager and another full-time employee in his store. That was on Saturday, September 7th, when the Notice of Application was posted, and, again on the following Monday. Mr. Murray understood from the Notice that employees could oppose the application either individually or as a group, but he was unsure as to what each involved, and which he ought to pursue. By the end of Monday morning, after talking to the employees in his store, to Ms. Gregoire when delivering film to her store, and to 2 other employees in another store at lunch, Mr. Murray made up his mind to head up opposition to the application in the group or "petition" form.
That afternoon, Mr. Murray received a telephone call from someone identifying himself as an employee in the Toronto warehouse, and indicating that he heard Mr. Murray was planning on taking up a "petition" against the Union. The caller went on to say that if Mr. Murray proceeded to do so, he strongly recommended obtaining the advice of a lawyer. He then gave Mr. Murray the name and telephone number of a lawyer in Toronto.
The Toronto warehouse is also the location of the company's Head Office, and the Board itself questioned Mr. Murray closely on what he knew about the telephone call from Toronto. Mr. Murray himself, however, appeared to be genuinely puzzled over the call, and did not, we are satisfied from his demeanour, automatically attribute it to management. Mr. Murray indicated that he himself could not figure out how anyone in Toronto could have found out so fast that he was planning a "petition", when he himself had only came to that decision that morning. He testified that he did, however, feel that he needed advice, and after wrongly trying to dial the number he had been given in Ottawa, made contact with the lawyer in Toronto.
The involvement of Mr. Murray alone, given his familial relationship to management, in the initiating stage of the petitions which were ultimately circulated calls for careful scrutiny. Yet, as the Board has noted, persons in Mr. Murray's position are employees in the bargaining unit, and their rights to participate in the question of Union representation cannot be dismissed automatically. As the Board put it in Otto's Deli, [1980] OLRB Rep. Nov. 1673 at 1681:
'We do not think that we should readily draw inferences from the mere existence of a family relationship. In some circumstances, relatives may reasonably be perceived as having a special relationship with the employer which could influence an employee's choice with respect to trade union representation, but we do not think that this is always the case, nor are we prepared to automatically assume that the existence of a family relationship necessarily evidences a community of interest with the employer. It may be that there is a presumption tuning in that direction but we are all aware that family relationships do not always exhibit the solidarity which counsel suggests. The involvement of family members is not irrelevant, but it is not the only factor to be considered especially where, as here, the inferences to be drawn from it are unclear. Of equal significance in our view is the general atmosphere prevailing at the work place, and the impact this would likely have on employee perceptions."
In that regard, there does not appear to have been any significant reaction on the part of management at all in this campaign, such as would heighten employee sensitivity.
There is, however, the additional factor of the "Toronto contact", and the potential impact of that on employees' perception. Had there been any evidence of general discussion of this contact, as in Baltimore Aircoil, [1982] OLRB Rep. October 1387, or of "trading" upon it, as in Zymaise Company, [1983] OLRB Rep. Jan. 176, the likelihood of any of the signatures on the ensuing petitions being considered voluntary would be highly remote. But there are no indications of that taking place, and we are satisfied that even Mr. Murray had made and discussed his decision to circulate a petition before a source of legal advice had been identified to him.
Mr. Murray did, in the subsequent circulation of his own copy of the petition, engage in acts of indiscretion in the open way he approached other employees such as would, in our view, invalidate any of the signatures that he collected. But Ms. Gregoire was much more discreet in the stores that she solicited, and much of her activity took place at a time prior to it being likely that word of Mr. Murray's own indiscretions had gotten around. As it happens~ the circumstances in which she solicited the only signatures relevant to these proceedings are such as to satisfy the Board that they are the product of voluntary reflection by those employees, as opposed to a concern that Ms. Gregoire was acting as a conduit for management.
The applicant's unqualified support being below the level of fifty-five per cent, therefore, the Board, in accordance with its normal practice, directs the taking of a representation vote. All employees in the bargaining unit described in paragraph 3 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 will be eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the respondent.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER B. L. ARMSTRONG;
I find the main proponents of the petition against certification Ted Murray and Bozana Gregoire to be working together.
They both visited different stores to collect signatures for the petition, it was no secret as to the purpose of their visit to the stores.
In paragraph twelve the majority found Mr. Murray had engaged in acts of indiscretion in the way he approached other employees. I find Ms. Gregoire's actions equal to those of Mr. Murray and would find the petition not to be voluntary and would certify the applicant.