[1985] OLRB Rep. March 433
2715-84-R Doris Wilson et al, Applicant, v. Technical, Office and Professional Employees Local Union 173-1, Respondent, v. Labatt's Ontario Breweries, Intervener, v. Group of Employees, Objectors
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members J. Wilson and L. Lenkinski.
APPEARANCES: S. J. Kay for the applicant; F. G. Posen, Joe Karai and Jim Walker for the respondent and objectors; Martin Addario and Susan Laberee for the intervener.
DECISION OF OWEN V. GRAY, VICE-CHAIRMAN, AND BOARD MEMBER J. WILSON; March 18, 1985
- This is an application brought pursuant to section 57 of the Labour Relations Act for a declaration terminating the bargaining rights of the respondent trade union with respect to a unit of office and clerical employees, nurses and nursing assistants employed by the intervener employer at its premises in Waterloo, Ontario. The application satisfies the timeliness requirements of subsection (2) of section 57. Subsection (3) of that section reads as follows:
(3) Upon an application under subsection (1) or (2), the Board shall ascertain the number of employees in the bargaining unit at the time the application was made and whether not less than 45 per cent of the employees in the bargaining unit have voluntarily signified in writing at such time as is determined under clause 103(2)(j) that they no longer wish to be represented by the trade union, and, if not less than 45 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.
The intervener employer filed a list indicating that there were thirteen employees in the bargaining unit as of the application date. One of those was not at work on the application date, however, and did not work at any time in the thirty day periods before and after the application date. In accordance with the Board's usual practice, the parties agreed that that person would not be considered an employee for the purpose of the count contemplated by subsection (3) of section 57. The respondent trade union challenged the inclusion in the bargaining unit of two other persons: Anna Kempkes and Louise Russell. The parties agreed that Kempkes had been a full-time employee until June, 1984, when her job was eliminated. She was told at that time that the employer would call her in for relief work when such work was available. Such work was, in fact, available, and Ms. Kempkes worked on a total of sixteen days from the beginning of June to the end of November. She was at work on December 14, 1984 and on January 11, 1985, but not on the date of this application. Ms. Russell was also employed as vacation and illness relief. Prior to December, 1984, she had worked a total of 23-1/2 days. From December, 1984, to the date of the hearing, February 15, 1985, she had been at work every day, filling in for the intervener's receptionist, who was receiving training for word processing and accounts payable duties. Ms. Russell was expected to continue as a replacement for the receptionist until sometime in March, when her employment would return to the pattern which existed prior to December 10, 1984.
The applicant filed with this application a document ("the petition") purporting to evidence the desire of six employees in the bargaining unit that they no longer wish to be represented by the respondent. The respondent has filed a document ("the counter-petition") signed by five persons and purporting to evidence their desire that they continue to be represented by the respondent in their relations with the intervener. None of the signatures on the counter-petition corresponds with any of the signatures on the petition. It is not necessary at this point to deal with the respondent's challenges to the employer's list, since the Board is satisfied that in any event of the outcome of those challenges, the written significations filed by the applicant are sufficient in number to cause the Board to order a representation vote if those people are found to have voluntarily signed the petition. In that connection, we heard evidence as to the circumstances concerning the origination of the petition and the manner in which each of the signatures on it was obtained.
The applicant, Doris Wilson has been employed in the accounting office at the intervener's Waterloo plant for the last twenty-four years. The intervener purchased that plant from Carling O'Keefe about seven years ago. Ms. Wilson's recollection is that the respondent union became the bargaining agent for the office, clerical and nursing employees about fifteen years ago, when Carling O'Keefe was their employer. She has never been actively involved in union activities. During the past fourteen years she has been a director, general manager and treasurer of a small employees' credit union which operates rent-free in premises on the property now owned by Labatt's. Membership in the credit union is open to all employees, whether or not they would be regarded as "managerial" for the purposes of the Labour Relations Act. Ms. Wilson gave up her position with the credit union at some time after October, 1984.
Ms. Wilson said her personal dissatisfaction with the trade union had existed for some time, and that she had even gone so far as to call the Labour Relations Board four years ago to inquire about the decertification. She did not proceed at that time, she says, because although she felt she had support among the women in the office, she did not feel there was sufficient support among the men. That changed in May, 1984, when the positions of two office employees were eliminated and they were forced to take early retirement. Ms. Wilson says she became quite concerned when she learned of the level of pension benefit these employees received. It was considerably less than she thought they would get. She worried about the level of her own pension benefits. She spoke, she says, to office workers at Labatt's unorganized offices in London and Toronto, who told her what benefits they were receiving. She regarded those benefits as superior. She became resentful of the union's having failed to secure adequate pension benefits in the last negotiations with the intervener, the more so because the union had concentrated, she thought, on getting maternity benefits which could be of no use to the vast majority of the employees in the unit. The level of pension benefits and the value of the union to the employees in the unit became a topic of conversation with and among other employees in the unit. In October, 1984, Ms. Wilson called the Board to find out what had to be done in order to apply for termination of the respondent's bargaining rights. She says she was told about the time frame in which the application had to be made, and understood from what she was told that an application had to be filed before the commencement of the last two months of the term of the collective agreement. There were only a few days left within which to meet that particular deadline. She turned, for assistance, to her solicitor, Mr. Kay. She had known Mr. Kay for about six years, during which time he had acted for her in connection with personal matters, and had also acted on occasion for the credit union while she was its general manager. Mr. Kay drew up a petition in substantially the same form as the one filed with this application. Ms. Wilson spoke to various of the employees who she believed would support a petition, and asked them to come to the credit union offices during their lunch hour one day near the end of October. Mr. Kay was at the credit union offices with the petition and he read it out to the employees who attended at the credit union office, and invited them to sign it only if they wished to do so. No member of management was present. After it was signed by those who wished to sign it, that petition was submitted to the Board along with Ms. Wilson's first application.
In mid-December, 1984, Ms. Wilson learned that her first application would not be entertained because it had been filed too early. She was leaving on a winter vacation in a matter of days. She spoke again to Mr. Kay, and asked that he prepare another petition and application. She also spoke to a co-worker, Brian Heimpel. Mr. Heimpel had been a supporter of the first petition. Ms. Wilson asked him if he would circulate the second petition for her while she was away. He said he would. Ms. Wilson went to Mr. Kay's office to sign the petition shortly before she left on vacation. On December 2 1st, Mr. Heimpel took a long lunch hour, something he had the authority to do without seeking prior permission of management. He drove to Mr. Kay's office, which is one or two miles away from the office, signed the petition himself, and brought it back with him to the office. The other four signatories to the petition were in their respective offices and were still on their lunch hour. Mr. Heimpel approached each individually and, in the absence of anyone other than Heimpel, each signed the document. Heimpel knew who would sign from the positions that had been taken earlier. Accordingly, there was no one he approached who refused to sign. Having obtained those four signatures, he put the petition in his desk, out of sight. After work, he returned the petition to Mr. Kay's office. That was the last Mr. Heimpel saw of it until it was shown to him in the course of the hearing. It arrived at this Board on December 28, 1984, together with the application before us, in a business envelope bearing Mr. Kay's name and address.
In its Reply, the respondent alleges:
that the petition was circulated among employees in the bargaining unit by Doris Wilson being the alter ego of Mr. Harvey Huribut, Plant Manager of the Employer and that the said Doris Wilson and the said Harvey Hurlbut together connived at and conspired in the preparation, circulation and execution of the said petition.
Harvey Hurlburt is the plant manager of the intervener's Waterloo plant. Ms. Wilson has been seeing Mr. Hurlbut socially since August 1983, several months after the death of her husband of fourteen years. Indeed, Mr. Hurlbut has travelled with Ms. Wilson on trips to visit her relatives in Florida. The vacation on which she left December 19, 1984 was taken with Mr. Hurlbut. Earlier that month, they had sat together at dinner at the employee Christmas party, at a table occupied by members of management.
Ms. Wilson vigorously and categorically denied having any conversation with Mr. Hurlbut which any in way related to this or the previous application for termination of the respondent's bargaining rights. She denied even discussing with him the level of her pension benefits or of the benefits she might receive under the Labatts plan for "salaried" — that is, unorganized — office employees. She said Mr. Hurlbut would not discuss any of these things with her. When pressed in cross-examination, she admitted Mr. Hurlbut had commented on seeing her name on the bulletin board when the Board's notices were posted. We do not propose to review here the several other contradictions and inconsistencies to which she was driven during vigorous cross-examination by counsel for the respondent. We note that the answers she gave during that examination, as well as during the Board's examination and examination by her own counsel, were often unresponsive to the questions asked, and this was so whether the question were plainly innocent ones or obviously challenging ones.
Mr. Heimpel was a frank and forthright witness. He has worked for Labatt's since it purchased the Waterloo plant, and he worked for Carling O'Keefe at that same plant for a number of years prior to that purchase. He was the first president of the respondent local trade union when it was organized. He testified that the union was organized during the tenure of a Caning O'Keefe president who encouraged the practice of collective bargaining. Heimpel said the interest of bargaining unit employees in the locals' affairs had wained in recent years. He personally had come to the view that there was no longer any need for representation by this local. He also felt the early retirement of bargaining unit members in May, 1984, had triggered a general awareness of the level of pension benefits provided under the contract negotiated by the respondent. He said the employees had "kicked around" the question whether they should continue with the union from time to time. He seemed to think the early retirements in May or June had triggered the discussions which culminated, in October, in the first petition circulated by Ms. Wilson. He corroborated the evidence of Ms. Wilson with respect to the manner in which signatures were obtained on that first petition. He also corroborated Ms. Wilson's testimony with respect to the circumstances in which he had become involved in the circulation of the second petition. He testified that one other of the signatories to the petition is a former president of the respondent local.
The respondent trade union argues that the Board should refuse to act on the petition filed by the applicant for two reasons. The first has to do with the completeness of the evidence presented by the applicant. That evidence establishes that Mr. Kay, a lawyer retained by the applicant, was responsible for drafting the petition, that the petition remained in Mr. Kay's possession between the time the applicant signed it and the time Mr. Heimpel picked it up and that it was again in Mr. Kay's possession between the time Mr. Heimpel returned it to him and the time it was delivered to the Board in an envelope bearing Mr. Kay's name and address. The respondent trade union takes the position that the failure to call Mr. Kay to testify about the handling of the petition while it was in his possession must be fatal, and cites for that proposition Vered & Harvey Company Limited, [1971] OLRB Rep. Nov. 736.
Vered & Harvey Company Limited involved a certification application in which certain employees had filed a petition opposing the certification of the applicant. Witnesses were called to testify with respect to the origination of the petition and the manner in which the signatures on it were obtained. One of the witness testified that he had retained a lawyer, that the lawyer had prepared the petition, and that he and four other signatories had signed the petition in the lawyer's office. Another witness testified that he, too, had signed the petition in the lawyer's office. A third witness, however, testified that he had found the petition on a table at his place of work, and had signed the petition there. From that testimony, and from the relative position of that witness's signature on the petition, the Board concluded that the petition must have travelled from the lawyer's office to the employees' place of work and back to the lawyer's office again by means and in circumstances not revealed by the evidence. It was in those circumstances that the Board refused to give weight to the petition. It is quite apparent that what troubled the Board was, to use its words, the "hiatus in the evidence with respect to the question as to how the document was taken from the lawyer's office to the hotel and back again" as well as the "lack of evidence as to who it was that left the petition on the bar counter where Sheiffield found and signed it, and who later removed it." There is no suggestion that the Board had any concern about the custody of the petition while it remained in the possession of the petitioner's lawyer. In the case before us, there is no suggestion that Mr. Kay was acting on behalf of anyone other than Ms. Wilson, or that Mr. Kay in any way deviated from the instructions, express and implied, which he received from his client. In the absence of any challenge to the propriety of Mr. Kay's conduct or of any suggestion that something untoward occurred while the petition was in his office, we reject the contention that the applicant was obliged to call her lawyer as a witness or that the failure to do so prevents our treating it as a voluntary expression of the wishes of the employees who signed it.
The second ground advanced by the respondent for rejecting the petition rests on the relationship between the applicant, Ms. Wilson and the intervener's plant manager, Mr. Hurlbut. The respondent submits, and we are satisfied on the evidence, that Ms. Wilson's social relationship with Mr. Huribut would generally be known to the employees in the bargaining unit. On the basis of that, the respondent invites us to conclude that employees approached to sign the petition now before us would think that Mr. Hurlbut was behind it or, at least, believe that Mr. Hurlbut would learn whether or not they signed. The respondent cites Canparts Automotive International Limited, an unreported decision dated May 26, 1983, in Board File No. 2755-82-R for the proposition that a petitioner's friendship with a member of management can and should be fatal in the determination of the voluntariness of the petition.
The petition under consideration in Canparts Automotive International Limited, was a petition filed in opposition to a certification application. The context in which the petition originated and circulated included two meetings called by management at a time when management would have been aware of the trade union's organizing campaign. The Board accepted evidence that members of management present at those meetings had suggested that there was no need for an outside influence, that it would be a good idea if the employees organized themselves, and that the employee proponent of self-organization should discuss the idea with other employees and "get back to him — i.e., to the member of management —about it. The Board also found that management had offered the employees the opportunity to "vote for" one of two dental plans, and that dental plans had not been the subject of discussion before the trade union's organizing campaign had begun. The person that circulated the petition had some disciplinary responsibility and was a close friend of both the plant superintendent's daughter and one of the "charge hands" whose functions bordered on the sort of managerial functions contemplated by section l(3)(b). The employees' knowledge of these relationships was just one of the several factors the Board took into account in assessing whether to give any weight to the petition in exercising its discretion under section 7(2) to certify either with or without a vote. In all the circumstances, the majority concluded that the petition was not a sufficiently reliable indication of a voluntary change of heart by those of the signatories who had earlier signed applications for membership as to lead the Board to direct a representation vote when the membership evidence submitted by the applicant was sufficient to support certification (or, in that case, interim certification) without a vote. It is apparent from the decision that the overt behaviour of management played a significant role in that conclusion.
A petitioner's personal relationship with a member of management is a factor to be considered in assessing what would have been in the minds of those who signed the petition. The existence of such a relationship, however, does not lead inexorably to the conclusion that the petition does not reflect the voluntary expression of the wishes of those who signed. International Beverage Dispensers and Bartenders Union, Local 280, [1981] OLRB Rep. June 690 involved an application for termination brought by an employee who was the wife of one of the co-owners of the tavern at which she and the other affected employees were employed. The Board found that the petition was voluntary. In Ottawa Commercial Realties Limited, [1983] OLRB Rep. Nov. 1877, the Board found that a petition in support of a termination application was voluntary, even though the applicant was the sister of the immediate supervisor of the employees affected. A petition circulated by the son of the owner of the employer company was rejected in Jean Marc Joanisse, [1983] OLRB Rep. Jan. 92, when the Board concluded that the son would be regarded by employees as an arm or agent of his father and, hence, a member of management. It was not without significance in that case that the owner's son, applicant on the application, had served as manager of the store when his father was absent and, it was found, had made references to his father's ownership and management of the business in the course of circulating the petition.
Although Ms. Wilson's relationship with Mr. Hurlbut was a matter of general knowledge, there is no suggestion that she or Mr. Heimpel traded on that relationship or emphasized it in any way in the circulation of the petition. There is no evidence of any behaviour by any member of management which might have improperly influenced employees' wishes with respect to representation by this trade union. This is not a case in which the relevant signatures reflect an abrupt reversal of a recent commitment of the trade union, as is necessarily the case when the petition is filed in response to a certification application. Mr. Heimpel testified that the vast majority of the employees in the unit have been with the company, and hence the union, for a number of years. The inferences one might draw in this context about employee perceptions and management involvement might well be different from those which one might draw in the context of a certification application. As the Board noted in N-J Spivak Limited, [1977] OLRB Rep. July 462:
In contrast to a statement filed in opposition to an application for certification a statement of desire filed in support of a termination application under section 49 of the Act does not represent a sudden change of heart by those who sign it. The operation of section 49. a section designed to give vent to employee desires, requires the passage of at least one year from the date of the union's certification before the Board will entertain an application for termination of bargaining rights. Because of the absence of an immediate change of heart, as happens when an employee signs himself into membership in a trade union and shortly thereafter signs a statement in opposition to the certification of the same union, and having regard to the purpose of section 49, the Board is less inclined to draw inferences adverse to the voluntariness of the statement filed in support of an application under section 49 of the Act.
Our colleague refers to the Board's oral decision in Patro d'Ottawa reported at [1984] OLRB Rep. May 741. Le Patro was a social service agency in Ottawa operated by the religious order of St. Vincent de Paul. Its executive officers were appointed by the Order, and were all members of the Order themselves. They all lived together in a house adjacent to Le Patro. In February, 1982, CUPE applied for certification for a unit of the agency's employees. Although CUPE was certified in April, 1982, and was later successful on a complaint that Le Patro had violated the freeze provisions of the Act (see Le Patro d'Ottawa, [1983] OLRB Feb. 244), it was unable to negotiate a collective agreement with the Order. The "leader and spearhead" of termination application under consideration in the second Le Patro d'Ottawa case was a member of the Order, a Mr. Deiwaide, who had been a member of management from September, 1982 to June, 1983 and was the only member of the Order employed in the bargaining unit. The first of the steps which culminated in the petition was a meeting at Deiwaide's home — the home where the entire management compliment of the employer resided. Thereafter, Delwaide "moderated" a meeting of employees on the premises of Le Patro, and made his views clearly known. He abstained from participating in a straw vote conducted before the petition was circulated among meeting participants because he did not want to be perceived as having "influenced" the expression of the other employees. The Board found that this demonstrated Deiwaide's own sensitivity to his unique position. At paragraphs 8 and 9 the Board held:
... 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 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.
In our view, and with the greatest respect to our colleague's contrary view, there can be few points of comparison between the circumstances of this and the Le Patro cases. Here collective bargaining has gone on for many years, and has resulted in more than one collective agreement. That results in a context and climate quite different from that in Le Patro. Ms. Wilson has never been a member of management. Her current social relationship with a senior manager cannot be compared with the religious commitment Delwaide shared with all members of management in Le Patro. While we agree with our colleague that Ms. Wilson's social relationship cannot be overlooked, we cannot agree that the grounds or facts in Le Patro are similar to those here. The outcome in each case depends on its particular facts, and the relative weight to be assigned, on those facts, to the considerations outlined in the Board's jurisprudence.
Here there is uncontradicted evidence that the desirability of continued representation by the respondent had been the subject of questions and discussion from time to time over a period which antedates the applicant's relationship with Mr. Hurlbut. Counsel for the respondent noted that such discussions had not borne fruit until that relationship was established, and we have considered what inference may be drawn from that observation. In all the circumstances, we are not prepared in this case to draw the inference that Mr. Hurlbut promoted the petition, nor can we conclude that employees asked to sign the petition would believe that Mr. Hurlbut had promoted it. Mr. Hurlbut and Ms. Wilson are not adolescents, nor are the employees who were asked to sign the petition. We do not suppose, and do not believe the employees would have supposed, that the existence of a social relationship between Mr. Hurlbut and Ms. Wilson would undermine the independence of judgement or action of either of them. We have considered the possibility of employee perception that Hurlburt would become aware of their decision whether or not to sign the petition. We had difficulty believing Ms. Wilson's evidence that neither the existence of petition nor even the concern for pension rights that led to it would even have been mentioned in her conversations with Mr. Hurlbut, and we think it would not have been difficult for employees to imagine that these matters might have been the subject of some discussion between them. We think it would have been much more difficult for them to imagine (and, therefore, unlikely they did imagine) that Ms. Wilson would go into the detail of who did or did not sign, and so betray the confidence of people with whom she had had a working relationship for much longer than either Mr. Hurlbut's comparatively short tenure at that plant or his social relationship with her.
In all the circumstances, we are satisfied that knowledge of Ms. Wilson's relationship with Mr. Huribut would not have so influenced the employees in this bargaining unit as to deprive their execution of the petition of its significance as a voluntary expression of the wishes of those employees.
Before turning to the consequences of that finding, we feel we should comment on the participation in this hearing of counsel for the intervener employer. After the evidence was in and the argument of the applicant and intervener had been made, counsel for the respondent trade union for the first time raised a concern about the approach taken by counsel for the intervener in his questioning of witnesses and in his submissions to the Board. Counsel for the respondent said he was surprised that the employer's counsel would take such an active role in what was essentially a contest between the union and certain objecting employees. He said he could understand the employer's taking that position if it was to protect Mr. Hurlbut, but submitted that there had been no allegation against Mr. Hurlbut that would justify active involvement by employer counsel. We found nothing improper in the extent and nature of participation by the employer's counsel in this hearing. The respondent's reply alleged that Harvey Hurlbut had "connived at and conspired in the preparation, circulation and execution" of the petition. That was a serious allegation of interference in trade union matters by a senior member of management. Although the respondent trade union was not seeking a remedy for that alleged unfair labour practice in these proceedings, it came as no surprise to us that counsel for the intervener would adopt the position that there had been no management interference, and would question witnesses and make submissions in such a way as to promote that position, and we find nothing improper in his doing so in response to the position taken by the respondent in its Reply.
In the result, we are satisfied that not less than forty-five per cent of the employees of the employees of Labatt's Ontario Breweries in the bargaining unit represented by the respondent at the time the application was made, had voluntarily signified in writing that they no longer wish to be represented by the respondent trade union as of January 17, 1985, the terminal date fixed for this application nd the date which the Board determines, under section 103(2 )(j) of the Labour Relations Act, to be the time for the purpose of ascertaining the number of persons who have voluntarily signified in writing that they no longer wish to be represented by the respondent trade union under section 57(3) of the said Act.
We direct that a representation vote be taken among the employees in the bargaining unit represented by the respondent, as described in its most recent agreement with the intervener, namely:
All employees in the Bargaining Unit employed by the Company at its premises in Waterloo, Ontario, being all office and clerical employees, nurses, and nursing assistants, save and except salesmen, foremen, supervisors, persons above the rank of foreman or supervisor, office manager, sales administrator, confidential secretary to the Plant Manager, confidential secretary to the Personnel Manager, laboratory technicians, students employed during the school vacation period and persons covered by subsisting collective agreements.
Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Labatt's Ontario Breweries.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER L. LENKINSKI;
Regretfully I cannot agree with the decision of the majority of the Board in this matter.
In the unanimous decision of the OLRB case of The Employees of Patro d'Ottawa (Patro Ottawa) v. Canadian Union of Public Employees, 2641-83-R of May 11, 1984, the Board dismissed the termination application on very similar grounds to the instant case.
The applicant Doris Wilson carried on a social relationship with the manager of the enterprise. Such a relationship cannot be overlooked in these circumstances.
I would have therefore concluded that the petition is tainted and would have dismissed this application.