Craig Scurr v. Service Employees Union, Local 183
[1986] OLRB Rep. September 1179
2446-85-R Craig Scurr, Applicant, v. Service Employees Union, Local 183, Respondent, v. Belleville Plaza, Intervener, v. Group of Employees, Objectors
BEFORE: Ken Petryshen, Vice-Chairman, and Board Members D. A. Patterson and W. H. Wightman.
APPEARANCES: Robert J. Reynolds, Craig Scurr and Doug Jones for the applicant; Gerald Charney, Don Burshaw II, William Love and Cindy Wilkey for the respondent and for the group of employees; Stuart Ducoffe and Martin B. Allan for the intervener.
DECISION OF VICE-CHAIRMAN KEN PETRYSHEN AND BOARD MEMBER W. H. WIGHTMAN; September 30, 1986
This is an application made under section 57 of the Labour Relations Act for a declaration from the Board terminating the bargaining rights of the respondent trade union. In such cases, the Board is required by section 57(3) of the Act to ascertain "whether not less than forty-five per cent of the employees in the bargaining unit have voluntarily signified in writing ... that they no longer wish to be represented by a trade union." (emphasis added).
The Board heard evidence from five witnesses. Craig Scurr testified as to the circumstances surrounding the origination, preparation and circulation of the written statement of employee wishes (the petition) filed in support of the application. Doug Jones was called by the applicant and testified in support of the petition. Perry Thorn, Wayne Post and Don Burshaw gave evidence on behalf of the trade union. Given the small number of employees in the bargaining unit and the number of employees who testified, there was little mystery as to who supported the union and who supported the petition.
The application was filed with the Board on December 10, 1985. At the time of the application, the intervener and the respondent were bound by a collective agreement which had a term of operation from December 24, 1984 until December 31, 1985. This collective agreement was executed after a lock-out of approximately six weeks which began February 11, 1985. The collective agreement in force prior to the one referred to above expired on December 24, 1984.
Scurr is employed as a janitor and has occupied this position for approximately four and a half years. In the latter part of 1984, Scurr made his first attempt to ascertain the wishes of the employees in the bargaining unit with respect to their desire to have the respondent continue as their bargaining agent. Without obtaining legal advice, he approached all four employees who were in the bargaining unit at the time and asked each one of them to sign a paper which would indicate their desire to decertify the respondent. Since Scurr was able to obtain the support of only one employee, he temporarily abandoned his efforts to decertify the union. The employee who supported Scurr's efforts in late 1984 signed the petition filed in support of this termination application.
In late October, 1985, Scurr renewed his efforts to decertify the respondent. The bargaining unit now consisted of five individuals. Scurr first approached two employees informally and ascertained that they would be prepared to support him. Scurr then proceeded to obtain legal advice in November, 1985, and in the early part of December, 1985, received the petition which contained the appropriate preamble from his lawyer along with instructions as to how he should proceed to obtain signatures.
All of the signatures on the petition were obtained by Scurr on December 7, 1985. The petition was signed by three employees away from the work location. Scurr testified that no one from management had anything to do with the origination or circulation of the petition. Management personnel were not present when the petition was signed by the employees. Scurr had the petition in his possession at the relevant time and did not show it to anyone other than the two employees who signed it and his lawyer. After obtaining the signatures, Scurr returned the document to his lawyer who forwarded it to the Board along with the application.
These facts relating to the origination and circulation of the petition normally would lead us to conclude that the petition reflected the voluntary wishes of the employees who signed it. Counsel for the respondent essentially agreed that based on the facts as related above, it would be difficult to argue that the petition was not voluntary. However, counsel argued that certain events ,which for the most part took place prior to the actual origination and circulation of the petition, are relevant to the issue of voluntariness. Counsel maintains, in effect, that these events created an environment within which it would not be possible for employees to express their true wishes. We intend to deal with these events in chronological order.
In November, 1984, Gary Stern had a conversation on the employer's premises with Perry Thorn, the union steward. The precise status of Stern is unclear. Stern signs employee cheques, negotiates for the employer and the evidence reveals conversations between Stern and other employees which would indicate that Stern is at least an agent of the respondent. Thorn could not recall the entire conversation with Stern which is not surprising given the lapse of time. Stern began the conversation by saying that whatever he said was off the record and he would deny having said anything. Stern asked Thorn to take a look at what the employees make at Quinte Mall, a non-union enterprise. Stern also advised Thorn that the respondent would like to have him there for the next ten years and that they have ways of getting rid of people. The discussion ended when Thorn advised Stern that he would talk to the other employees. Thorn discussed the incident with Post and sometime later with union representatives. The union maintained that through this conversation Stern attempted to convince Thorn in a threatening manner that the employees would be better off without a union.
The union placed considerable emphasis on events which occurred during the lock-out. The employer locked out the employees but still attempted to have individuals perform the necessary janitorial work. The employer asked a number of the employees to continue working. Scurr continued to work as well as another employee who signed the petition. The employer also hired new employees to work during the course of the lock-out, Doug Jones being one of them. When Scurr worked during the lock-out he was paid an additional fifty cents an hour which was precisely the increase the union was seeking in the first year of the new collective agreement. Scurr was 4dvised by Stern that he would receive the additional fifty cents per hour during the course of Scurr's first day of work after the lock-out commenced. Scurr denied any knowledge of the bargaining positions taken by the parties during the lock-out and he indicated that management advised him to consult with the union about such matters since the employer was not prepared to discuss such matters with him. During the lock-out, the employer made a proposal to the union to the effect that the bargaining unit be changed to exclude those individuals who were working during the lock-out. The union did file a section 89 complaint and alleged that the conduct set out above constituted violations of the Act. This complaint was adjourned sine die and never pursued once a collective agreement was agreed to by the parties. Counsel for the union asks us to find that the activities of the employer during the lock-out were designed to remove the union from the scene and were not merely attempts to apply legitimate economic sanctions. He argued that these activities contravened the Act and created the environment within which it would not be possible for the employees to voluntarily express their wishes some eight months later. We note that the evidence relating to the lock-out was accepted over the objections of counsel for both the applicant and the employer.
The union also asked us to review carefully the hiring of Doug Jones in September, 1985 which the union alleged contravened section 64 of the Act. Jones was hired to work during the lock-out and left the employ of the intervener when the lock-out ended. Up until September of 1985, the employer had a work force consisting of four individuals with the utilization of some additional help during the summer months. The evidence suggests that the work load had not changed in September nor had customers been complaining. The union maintains that the hiring of Jones occurred only for the purpose of facilitating the termination application and not for legitimate business reasons. Counsel for the union argued that since the hiring of Jones contravenes the Act, we should find the petition was not signed voluntarily.
Another matter raised by the union was the fact that Scurr received a one hundred dollar bonus in December, 1985 while the other employees received a smaller bonus. The two individuals supporting the union received a fifty dollar bonus and Doug Jones received a bonus of either twenty or twenty-five dollars.
The issue we have to decide is whether the employees who signed the petition did so voluntarily. In assessing whether those matters relied upon by the union impact on the voluntariness of the petition, it is important to recognize that we are dealing with a termination application. As the Board stated in Ontario Hospital Association (Blue Cross), [1980] OLRB Rep. Dec. 1759 at para. 31:
The sole issue before the Board in every case regarding a "petition" is the voluntariness of the acts of signing. The Board has often drawn a distinction between petitions which are filed in connection with an application for certification, and those which accompany an application for termination of bargaining rights. In the former case, the Board has said that it must be sensitive to the role which management influence, devious or otherwise, may have played in causing employees who have only recently signed a card in support of a union to subsequently sign a petition which opposes the union. In the case of a termination application, the Board is not less concerned about influence by the employer, but there may, as a practical matter, be any number of reasons, including the mere passage of time, to readily explain the employees' apparent change of hearts. As the Board commented 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 (now 57) of the Act does not represent a sudden change of heart by those who sign it. The operation of section 49 (now 57), 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 (now 57), the Board is less inclined to draw inferences adverse to the voluntariness of the statement filed in support of an application under section 49 (now 57) of the Act.
The conversation between Stern and Thorn took place a little over a year prior to the circulation of the petition. Thorn testified he only relayed the event to Wayne Post, a union supporter, and the union. There is no evidence before us to suggest that Stern had a similar conversation with any of the other employees in the bargaining unit. Considering the evidence, we are not prepared to infer that Stern had a discussion with Scurr similar to the one Stern had with Thorn. Even if the conversation can be characterized in the manner suggested by the union, we are of the view that little weight can be put on it when assessing the voluntariness of a petition signed in December, 1985.
In our view as well, little weight can be placed on the events surrounding the lock-out. In refusing to entertain evidence relating to the environment created by a labour dispute, the Board in Ottawa Journal, [1978] OLRB Rep. March 291, had this to say:
Counsel for the respondent asks the Board to draw the inference that because of the climate generated by the protracted labour dispute the statement in support of the termination application is not a voluntary one. In so doing the respondent is asking the Board to draw the inference that free expression has been thwarted because of circumstances not directly related to the origination, preparation and circulation of the statement. Even if the Board assumes that the respondent can establish the material facts upon which it intends to rely - and indeed a number of these facts are a matter of record having been set out in the Board's decisions dealing with the section 79 (now 89) complaints brought by the parties - the Board would not be prepared to draw the inference which the respondent suggests.
[emphasis added]
In a similar context, the Board in Ontario Hospital Association (Blue Cross), supra, noted that "if the employers actions overstep the bounds of lawful conduct, or are considered to be something other than they appear, the trade union has its remedies."
The petition before us was circulated approximately eight months after the lock-out ended. The Board finds there is nothing in the evidence which suggests that the actions of the employer had as their objective the origination of a termination application, or prevented employees from making up their own minds on union representation. If anything, a close examination of the choice made by employees during the lock-out, is some evidence which suggests the petition which they eventually signed is a voluntary expression of their wishes. The employees who signed the petition are individuals who elected to work during the lock-out and two of them had previously revealed a desire to terminate the union's bargaining rights. The decision to work by these three employees was made prior to any knowledge of the matters of which the union complains.
The union's position with respect to the hiring of Jones appears to us to be irrelevant to the question of whether employees signed the petition voluntarily. Even if we were to assume that ones was hired by the employer in order to pave the way for this termination application, this fact in and of itself would not lead one to conclude the petition was tainted. The more natural inference draw, if the union is right, is that when Jones signed the petition he did so because he desired to terminate the union's bargaining rights and for no other reason.
In support of his argument that the hiring of Jones contravened the Act which in turn affected the voluntariness of the petition, counsel for the union referred us to April Waterproofing Limited, [1980] OLRB Rep. Nov. 1577. An examination of this decision indicates that the focus of the Board was not on the issue of voluntariness. In April Waterproofing Limited, the Board had before it a "displacement" certification application where the support for the raiding union came from some employees who were hired contrary to the terms of the incumbent union's collective agreement. The Board found that the hiring of these employees was improper and decided that since they were not lawfully in the bargaining unit, they should not be treated as employees in the unit for the purpose of section 7(1) of the Act.
We have no difficulty in accepting the principle enunciated in April Waterproofing Limited or the rationale in Custom Aggregates, [1978] OLRB Rep. March 215 wherein the Board directed a new vote after finding the employer had "padded the list of eligible voters" with a view to influencing the representation vote. Employer conduct in hiring certain individuals, if found to be contrary to the Labour Relations Act, may affect the Board's determination of the bargaining unit composition and of the voting constituency. But an alleged illegal hiring standing by itself is not relevant to the question of whether employees signed the petition voluntarily. We note that after reviewing the list of employees filed with the Board by the employer, the union did not challenge the name of Jones on the list.
Counsel for the union did not place much emphasis in argument on the bonus paid to Scurr. It is unclear from the evidence when Scurr was paid the hundred dollar bonus. The payment was probably made subsequent to the signing of the petition since it was a Christmas bonus. The evidence does not reveal with any certainty whether any of the other employees were aware of the amount of the bonus paid to Scurr. Post, for instance, testified he knew Thorn received a fifty dollar bonus but not what other employees received. The Board, therefore, finds that the payment of a larger bonus to Scurr in December, 1985 is of no assistance to the union in this case.
Having regard to the evidence before it and the reasons set out above, the Board is satisfied that the petition submitted in support of this application is a voluntary expression of the true wishes of those who signed it. The Board is further satisfied that not less than forty-five per cent of the employees of Belleville Plaza in the bargaining unit at the time the application was made, have voluntarily signified in writing that they no longer wish to be represented by the respondent union as of January 23, 1986, the terminal date fixed for this application and the date which the Board determines under section 103(2)(j) of the 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 under section 57(3) of the Act.
Accordingly, the Board directs that a representation vote be taken. Those eligible to vote are all employees at the Belleville Plaza, Dundas Street East, Belleville, Ontario, save and except supervisors, foremen, persons above the rank of supervisor or foreman, and students employed during the school vacation period, on the date hereof, who do not voluntarily terminate their employment and who are not discharged for cause between the date hereof and the date the vote is taken.
Voters will be asked to indicate whether or not they wish to be represented by the respondent in their employment relations with Belleville Plaza.
The matter is referred to the Registrar.
DECISION OF BOARD MEMBER D. A. PATTERSON;
I dissent from the decision of the majority. On the basis of all of the evidence, I would have concluded that the petition cannot be accepted as a voluntary expression of employee wishes.
The majority appears to accept the petition on the basis that there was no evidence of employer involvement in it. I must concede that there was no evidence of direct or indirect employer involvement in the petition itself. However, a petition can be tainted otherwise than by employer involvement in its origination or circulation.
In my opinion, in assessing the voluntariness of a petition, whether in certification or termination proceedings, the Board must not examine the origination and circulation of the petition in isolation. The Board must look at the environment in which the petition was created. The evidence clearly indicates that the petition in this case was a result of the environment deliberately created by the employer.
It is the employer, not the employees' bargaining agent which establishes that relationship and atmosphere by its actions towards its employees and the bargaining agent. It is also reasonable to assume that generally employees would wish to be seen as being supportive of their employer rather than against the employer. As the Board has said in Radio Shack and the United Steelworkers of America, [1978] OLRB Rep. Nov. 1043 at paragraph 24 where the Board referred to the Pigott Motors, case 1963 CLLC 16,264:
In view of the responsive nature of his relationship with his employer and his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously peculiarly vulnerable to influences, obvious or devious which may operate or impair or destroy the free exercise of his rights under the Act.
[emphasis added]
The union does not enjoy any control over employees. It can only respond to the atmosphere created by the employer through the collective bargaining process. Therefore, it is clear that compared to the union, the employer is in an immensely powerful and influential position over the employees. The aforementioned cite from Pigott Motors establishes the Board's approach to petitions on applications for certification. I contend that the same principle must be applied similarly in applications for decertification. The Board must consider more than just the petition and how it was arrived at. To consider less than the overall picture, the Board would be remiss in addressing the seriousness a petition suggests in either certifications or decertifications.
- I note the following conduct of the employer which created an atmosphere which prevented any free expression by employees, and in my view paved the way for the petition.
(a) The employer locked out its employees and granted wage increases to replacement workers who crossed the picket line. After the lock-out was initiated by the employer, it chose to hire replacement workers and solicit employees to come back to work. The applicant testified Mr. Stern, for the employer, offered him fifty cents an hour increase if he crossed the picket line.
(b) Paid the applicant employee a wage rate which was exactly what the union had demanded and was refused. The applicant as a member of the bargaining unit must have been aware of the last offer from the employer. The majority of four janitors voted against the employer's final offer. The applicant must also have been aware of the union's final demand proposal. The employer paid the applicant exactly what the union had demanded and what the employer had denied and refused the union. In retrospect the employer's bargaining posture was more than just a tough bargaining position. Up until the union filed section 89 charges against the employer, the evidence brought out by Mr. Burshaw II, President of Local 183, was that the employer's bargaining position was not designed for a settlement. The employer was offering a lower than demanded wage increase, a carve out of the applicant and another employee, a voluntary membership clause. The section 89 charges were withdrawn by the union because the new offer from the employer was subject to the charges being dropped.
(c) Mr. Stern, an agent of the employer, met an employee at the work place, and told him that "we'd like to see you around here for the next ten years but we've found ways to get rid of people." Thorn testified that he understood Stern to be asking him to get rid of the union. Mr. Stern also met Mr. William Max Post in his office at Crawford Metals and the Board heard evidence Mr. Stern also had a conversation with the applicant. Post, Thorn and Scurr all recognized Mr. Stern as Mr. Marty Allen's superior even though he works for Crawford Metals in Belleville. Mr. Post testified he saw Mr. Stern at the bargaining table for Belleville Plaza. Mr. Stern's comments to Mr. Thorn are the most disturbing. He made the comparison for Mr. Thorn between Crawford Metals and the Quinte Mall to the Belleville Plaza. Stern pointed out neither were unionized and they were all working and making good money.
(d) The employer hired a well-known union opponent to ensure that the petition would have the necessary support. The applicant testified Mr. Jones would make the majority on another petition to decertify the union. Mr. Thorn testified he did not know why Jones had been hired, their work had remained the same as always. Thorn testified when summer students had been hired they did odd jobs and general maintenance work. Thorn was adamant that Jones' employment did not lessen the work load of the four janitors and their work load had not increased. Mr. Jones testified that his feelings about the union were well known. The employer had used Jones as a replacement worker during the lockout. Jones was re-hired just prior to the open period and expiry date of the collective agreement.
(e) The applicant employee received a $100.00 Christmas bonus which was more than that received by any other employee and could not be explained in any rational way.
| Seniority | Christmas Bonus |
|---|---|
| Craig Scurr 4.5 years | $100.00 |
| Perry Thorn 4.0 years | $50.00 |
| William Max Post 3.0 years | $50.00 |
| Douglas Jones .25 years | $ 25.00 |
The Board heard no evidence from Mr. Marty Allen why the applicant received more Christmas bonus than any other employee. It is apparent that the employer chose to reward Scurr more than any other employee. Scurr also testified he used the money to pay his lawyer for representing him during the application for termination.
- The Board has in numerous cases recognized that due to the nature of an employee's relationship with the employer, the employee is peculiarly vulnerable to influences, obvious and devious, which may operate to impair or destroy the exercise of free wishes. (See for example Radio Shack, [1978] OLRB Rep. Nov. 1043). At page 1049 the Board said:
Having regard to the sensitive nature of the employer-employee relationship, the Board has consistently held that it must be governed by the overall environment in the work place in deciding whether or not the statement of desire represents a voluntary expression of those who signed it.
[emphasis added]
In a number of certification cases the Board has held petitions to be tainted indirectly because of employer conduct. (See, K-Mart Canada Limited, [1981] OLRB Rep. Jan. 60; Washington Mills Limited, [1982] OLRB Rep. May 783; Vogue Brassiere Incorporated, [1983] OLRB Rep. Oct. 1737).
While these cases dealt with petitions submitted in opposition to certification applications, the issue in termination applications is the same, namely, is the petition voluntary.
The Board in Irwin Toy Limited, [1983] OLRB Rep. July 1064 refused to give effect to a termination application on the ground that the employer through its conduct had deliberately created conditions for termination of the union's bargaining rights. The same reasoning should apply in this case and a finding should be made that the petition was not voluntary.
I would have dismissed the application.