[1985] OLRB Rep. January 8
2451-84-R International Molders & Allied Workers Union, Applicant, v. Aluminum Reduction Company, Respondent, v. Group of Employees, Objectors.
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members I. M. Stamp and W. F. Rutherford.
APPEARANCES: Frank Luce and Alex Naples for the applicant, G. C. Fuller and I. Lissack for the respondent, Harvey Jones and Roy Watson for the objectors.
DECISION OF VICE-CHAIRMAN, M. G. MITCHNICK AND BOARD MEMBER I. M.
STAMP; January 17, 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.
The Board finds that all employees of the respondent at its operation in Concord, Ontario, save and except foremen, persons above the rank of foreman, sales and office staff, constitute a unit appropriate for collective bargaining.
The applicant in this matter filed membership evidence at a level well in excess of that required for certification without a vote. Sections 7(2) and (3) of the Act provide:
(2) If the Board is satisfied that not less than 45 per cent and not more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall, and if the Board is satisfied that more than 55 per cent of such employees are members of the trade union, the Board may direct that a representation vote be taken.
(3) If on the taking of a representation vote more than 50 per cent of the ballots cast are cast in favour of the trade union, and in other cases, if the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union, the Board shall certify the trade union as the bargaining agent of the employees in the bargaining unit.
There was, however, also a statement in opposition filed in a timely fashion in this matter. That statement, or "petition", was signed by a substantial number of employees who also signed cards, so that if the Board were satisfied that the petition were voluntary, it would reduce the number of unqualified cards in support of the applicant well below the level of fifty-five per cent. In that case the Board would normally direct the taking of a representation vote, on the basis that the cards alone were not a reliable indication of the wishes of more than fifty-five per cent of the unit. The Board accordingly conducted its usual inquiry into the origination of the statement in opposition, and the circumstances under which employees were asked to sign it.
The two employees who appeared before the Board in support of the petition were Frank Jones, a truck-driver, and Roy Watson, a maintenance man. The petition itself was prepared and for the most part circulated by Mr. Jones. Mr. Jones testified that he noticed the "green sheet" (Notice to Employees) that was posted in the plant, and took the time to read it when he returned from deliveries. He was himself opposed to the unionization of the plant, and noted that employees could indicate such opposition by sending a statement to the Board by registered mail, not later than the terminal date, Friday, December 14th. Mr. Jones was uncertain what such a statement would involve, and decided to discuss the matter with other employees when he had the opportunity. Mr. Jones testified that that is what he did, the main discussion occurring in the lunchroom that same day, as he and other employees were waiting to punch out. The only other employee he could recall specifically discussing the matter with at that point was Mr. Watson, although he testified that other employees were involved in the discussion as well. Mr. Jones says that he had some discussion about the wording, and went home that night and wrote it up.
The next morning Mr. Jones produced the petition in the lunchroom as employees congregated, in their normal way, to punch in, and invited anyone who was interested to sign their name. A number of employees, including Mr. Jones, signed at that time, and Mr. Jones continued to gather signatures before and after work or at break time over the next two days. Mr. Watson was not present in the lunchroom the morning that Mr. Jones first announced the petition, but signed it when approached by Mr. Jones at some point later in the day. He also told Mr. Jones that he could be called upon to help in the solicitation of signatures, if required.
On the Thursday afternoon, Mr. Jones and Mr. Watson did have a discussion about two additional employees who had expressed an interest in signing. Mr. Jones' recollection was that Mr. Watson knew the two men and mentioned them, while Mr. Watson's recollection was that Mr. Jones was aware of the two men's desire to sign, but needed help making contact with them. In any event, Mr. Watson took the petition from Mr. Jones, and at the change of shift that day obtained the other two signatures. The next morning Mr. Watson saw Mr. Jones in the locker-room at the 9:30 break, and gave him back the petition. Mr. Watson may have said at that point, "Don't forget to send it by registered mail", but Mr. Jones says he already knew that. Mr. Jones then took it with him when he went out on his deliveries, made a photocopy at the library, and mailed the petition to the Board. According to Mr. Jones, he did not specifically show the photostatic copy of the petition to Mr. Watson when he returned that day, although Mr. Watson may have seen it folded in his hand. Mr. Jones testified that he had generally kept the petition in his locker prior to mailing it, and that he was unaware of any problems having occurred with locker break-ins in the past.
Mr. Watson had voluntarily excluded himself from the hearing room while Mr. Jones testified (after a discussion of the applicability and rationale of an order excluding witnesses) and his own account of the events differed in a number of respects from Mr. Jones. He testified that he had been one of the last to sign a union card, and that he began to have second thoughts when he heard through the grapevine that a number of other employees had been "pressured" into signing cards. He said that he and other employees had also begun wondering what it was the union was going to do for them, and were unable to obtain any direct responses from the union organizers. According to Mr. Watson, on the day the "green sheet" went up he went to the lunchroom to punch out and found a number of employees discussing whether there wasn't some way to hold off the union from coming in, and he said: "Funny, I was thinking the same thing". The discussion, he said, moved to the question of a petition, and Frank Jones volunteered to take something around. Mr. Watson told Mr. Jones to be sure to come and see him, because he definitely wanted to sign. Apart from that, Mr. Watson says he played no major role in the discussion, and does not recall specifically discussing the wording for the petition. He says he saw Mr. Jones the next day, and Mr. Jones indicated he had had some help with the wording from another employee, known to the employees generally as a "bar-room lawyer". Only Mr. Jones and Mr. Watson came to the hearing to represent the petitioners, however, and Mr. Watson stated that he would prefer not to identify the other individual whom Mr. Jones said had helped him. No one insisted that Mr. Watson make that disclosure, and the Board did not direct it.
Mr. Watson acknowledged on cross-examination that he had been unable to verify the alleged "pressure" tactics he said he had heard about, but testified that Mr. Jones himself had told him of a threat to burn Mr. Jones' house down for taking around the petition. Mr. Watson also says that Mr. Jones mentioned when the petition was being passed between them that someone had tried to break into his locker. Mr. Watson went over to Mr. Jones' locker and observed that both the top and bottom of the locker door had been forced out. Mr. Watson testified that he gave the petition back to Mr. Jones at the start of the shift on Friday, and then corrected himself to say that it was more probably at the morning break that he did so. He says that he saw Mr. Jones put the petition in an envelope a few minutes later, and that at that point Mr. Jones had a photostat of the petition in his hand. Mr. Watson testified that he was certain that he saw the photostat at that time.
The respondent company has been in receivership for a couple of years, and a new Plant Manager, Greg Fuller, was brought in some months ago to attempt to turn the situation around. Employees had, however, not received a wage increase for over a year, and discontent over this led to the election by the employees of five of their number to approach Mr. Fuller as a "committee" to discuss improvements. These meetings began in August of 1984, and both Mr. Jones and Mr. Watson were on that committee. Eventually Mr. Fuller suggested that two employees be selected to sit down with him more regularly, and Mr. Watson and another employee volunteered to take on this role. The discussions between the three of them culminated in a wage increase in October, and the meetings with Mr. Fuller have not continued beyond that month. No improvement was made to the benefit package, which includes OHIP 100 per cent company-paid, a dental plan, and a supplementary health plan, and which Mr. Watson and Mr. Jones, at least, considered to be reasonable. Mr. Jones acknowledges saying to other employees when discussing the petition and the subject of benefits that there appeared to be no point bringing a union in to bargain for things the employees already had, but he could not recall who was the first to put forward that thought. Mr. Watson testified that he felt there was a concern ''in everyone's mind'' that the employees might lose the benefits they already had if the union came in, and that a lot of people said: "The union might go and screw it up".
The applicant submits that the Board, on the basis of the petitioners' evidence, should not accept the petition as a voluntary statement of employee wishes. It points, first of all, to the failure of the alleged "bar-room lawyer" to be produced as a witness. Mr. Jones was asked in reply about this other individual, and testified that he talked to several employees about starting the petition, but could not discern from Mr. Watson's evidence who it was that Mr. Watson was referring to specifically. Had that individual been someone improper, it seems highly unlikely that Mr. Watson would have volunteered this evidence to the Board, while at the same time making an issue over whether or not the name had to be publicly disclosed. The more striking matter is the apparent difference in the two men's evidence as to the role of Mr. Watson. Mr. Jones did, however, name Mr. Watson as only one of a number of employees he was discussing the petition with. Mr. Watson, we observed, is a more senior employee of a somewhat combative and opinionated nature (hence, perhaps, his role on the employee committee), and it is not beyond our comprehension how Mr. Jones and Mr. Watson might have perceived the level of Mr. Watson's participation in the discussions differently. There is no evidence whatever to give an appearance of a link between any of the petitioners and the company, the closest being the fact that both Mr. Jones and Mr. Watson, and particularly the latter, had served as employee spokesmen in dealing with the company previously. But those meetings had, to the knowledge of all employees, completed their work and terminated in October. And to the extent that Mr. Watson ultimately had come to be one of the two main contact points with management, he himself played a non-prominent role so far as the circulation of the petition was concerned, apart from the final two signatures.
The applicant also places emphasis on the fact that Mr. Jones, a truck-driver, was allowed to remain in the plant during the three days he was circulating the petition. But Mr. Jones testified that the time he spends on the road each week varies from every day to no days, and he was in fact on the road for a good part of Friday, and, it would appear, Tuesday of that week. On the evidence we do not conclude that the treatment of Mr. Jones in that week was so different as to make it appear to employees that management must have been assisting in the circulation of the petition.
On the whole, we find the conflicts in the two petitioners' evidence as consistent with both petitioners trying to recount the events honestly and independently from their own recollection, as with either of them trying to deliberately mislead the Board. As noted, for example, their recollection differed on how the conversation which led to Mr. Watson's taking possession of the petition began. But given the common knowledge of Mr. Jones' petition, and the number of employees he talked to about circulating it, it may be that one or both are mistaken in their recollection of the course of the Thursday-night discussion, or of how it first came to either of their attention that the two off-shift employees were desirous of signing the document, without the Board being compelled to conclude that that information came through management. On the question of the fire threat, Mr. Jones testified in reply that he had simply overheard a comment on the floor that his petitioning activities could lead to him having his house burned down, and although he mentioned it to Mr. Watson in passing, he placed no weight on it. With respect to the attempt on his locker, he testified in reply that he did not mention it because he had been unaware of any such problems prior to that, and that he was not in a position to suggest who had carried out that act, or why. There is no evidence, as the applicant would argue, that Mr. Jones was trying to "trade" on those incidents with other employees to misrepresent what the union was doing, and certainly Mr. Jones made no effort to use them to denigrate the other side when testifying before the Board.
The petitioners' evidence was also in conflict over the time when the photostat of the petition was made. Mr. Watson says he saw the photostat in Mr. Jones' hand as Mr. Jones was putting the petition into an envelope for mailing. Mr. Jones says he made the photostat while he was out on his rounds later in the morning, and that Mr. Watson is simply incorrect. In light of the difficulty which Mr. Watson demonstrated in recalling the order of events on that Friday, we are not prepared to conclude that Mr. Jones chose to lie to us about where he photostated the petition. Rather, while we have no doubt that Mr. Watson did in fact see the photostatic copy in Mr. Jones' hand, as Mr. Jones himself had testified, we conclude that Mr. Watson was in fact mistaken in his recollection of the occasion when he first made that observation. Influencing that conclusion is our observation that Mr. Watson, as a matter of personality, tended to be absolutely certain of various points when testifying initially, only to be subsequently shown to be incorrect.
The final matter raised by the applicant, and the one of most concern, is the admitted reference by Mr. Jones in circulating the petition to the possibility of employees losing benefits if the union were allowed in. Such a possibility did not, however, come from the mouth of anyone with authority in the company, and probably represents an unrealistic appraisal of where the parties would be in bargaining. The question, however, is whether, on these particular facts, the employee making the statement would be perceived by others as delivering a message from management. Once again, therefore, the relevant factor present here is the role Mr. Jones had played as an employee on the original five-man committee which had been put forward to communicate with management. Again, however, those meetings were no longer ongoing, and the benefit package itself was not one of the areas in which improvement had just recently been negotiated. But more critically, management itself neither said or did anything at this stage that would suggest to employees that the concerns expressed by Mr. Jones had their source, covertly or otherwise, in a strong reaction by management. For cases involving different circumstances, but which placed similar emphasis on the restrained response of management, in finding a petition voluntary, see Catfish Calhoun Inc., [1981] OLRB Rep. Nov. 1551; Consumers Distributing [1982] OLRB Rep. January 26. On all of the evidence here the Board does not find it probable that employees would have viewed Mr. Jones' concerns over having to negotiate to maintain the existing level of benefits as a veiled threat emanating from management, rather than an idea that Mr. Jones, and other employees, were capable of formulating on their own.
The Board might note finally that the company and petitioner representatives demonstrated a closeness at the hearing not normally considered appropriate for the context. Having heard the evidence, however, and assessed the demeanor of the witnesses, the Board has satisfied itself that the course of conduct displayed at the hearing was a reflection of no more than an uneducated lack of awareness of normal protocol before the Board, rather than of any connivance pre-dating the actual appearance at the hearing, and, if anything, re-inforced the impression that both groups were at least dealing openly with the Board.
The Board therefore finds nothing which would cause it to disregard the petition placed before it, and that petition on its face raises a question whether the applicant has continued to enjoy the support of a majority of the employees in the proposed unit. A secret-ballot vote will accordingly be taken of the employees of the respondent in the bargaining unit described above, so that the Board can satisfy itself of the present state of the majority's wishes, prior to requiring the applicant to endeavour to bargain a collective agreement with the respondent. 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 will be eligible to vote.
Voters will be asked to indicate whether 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 W. F. RUTHERFORD;
I dissent there were too many contradictions in Harvey Jones' testimony for him to be considered a credible witness. Jones' testimony was that he and Roy Watson both discussed the Union Act application during lunch time and they both felt they should send in an opposition letter to the application and including how to word it.
Jones was part of an employee committee of five people selected by employees to meet with the company on wages and benefits. At the recommendation of G.C. Fuller, the Production Manager, the committee was reduced to two.
Jones never mentioned any threats in his examination but was recalled to the stand by the Board when Roy Watson stated Jones had said there had been a threat to burn his house for circulating a petition and someone also tried to break into his locker.
Jones did admit under cross-examination that he mentioned to employees the union would have to bargain for the benefits they were now receiving, a statement that would suggest that the benefits could be lost in negotiations.
When Roy Watson was under examination he contradicted Jones' testimony on the origination of the petition. He said he didn't know who originated the petition, and didn't know who suggested the petition idea. That discussion on the petition had started in the group before he joined it and that when he signed it after several others had signed it was the first he saw of it.
Both Jones and Watson stated another person had informed Jones of what to do on the petitions but never revealed who that person was. It is my contention that because of Jones' and Watson's inconsistencies that Jones should not be believed. Jones was a member of the original employee committee that met the company on Wages and Benefits. Therefore, his statement while circulating the petition that the union would have to re-bargain the present benefit package could lead the employees to perceive that the Board of Management was behind the petition, thereby not reflecting the true wishes of the employees.
I would have rejected the petition and certified the union without a vote.