Textile Processors, Service Trades, Health Care, Technical and Professional Employees International Union, Local 351 v. The Westin Hotel

[1986] OLRB Rep. October 1486

1431-86-R; 1432-86-R; 1505-86-U Textile Processors, Service Trades, Health Care, Technical and Professional Employees International Union, Local 351, Applicant, v. The Westin Hotel, Respondent, v. Group of Employees, Objectors; Textile Processors, Service Trades, Health Care, Professional and Technical Employees International Union, Local 351, Complainant, v. The Westin Hotel, Respondent

BEFORE: Patricia Hughes, Vice-Chairman, and Board Members G. 0. Shamanski and H. Kobryn.

APPEARANCES: L. Steinberg and F. DaSilva for the applicant/complainant; Mary Gleason, John Coleman and Francine Sau roil for the respondent; Wayne Tracey and Jacqueline Gilles for the objectors.

DECISION OF THE BOARD; October 15, 1986

1. The applicant union ("the union") in these matters has made an application for certifi­cation as the bargaining agent for the full-time employees of the respondent employer, The Westin Hotel ("The Westin" or "the hotel") (File No. 1431-86-R) and for the part-time employees of The Westin (File No. 1432-86-R). In addition, the union has filed a complaint under section 89 of the Labour Relations Act ("the Act") alleging that the hotel has unjustly dismissed one of the hotel's employees who was one of the union's chief organizers (File No. 1505-86-U). These matters were listed to be heard together.

The style of cause is hereby amended to change the name of the applicant to "Textile Processors, Service Trades, Health Care, Professional and Technical Employees International union, Local 351" and to add a "Group of Employees" as objectors. In addition, a representative of the intervener informed the Board that it desired to withdraw its intervention and the Board granted the intervener leave to do so; the style of cause is hereby amended to remove the interven­or.

3. The Board finds that the applicant is a trade union within the meaning of section l(l)(p) )f the Act.

4. The hearing into these matters began on September 5, 1986 before a differently consti­tuted panel of the Board and continued before us on September 19, 1986. Prior to the hearing scheduled for September 5, 1986, the parties met with a Labour Relations Officer and settled some of the matters in dispute in the applications for certification with respect to both full-time and part-t­ime employees. However, there remained certain matters outstanding to be addressed by the part­ies in a full hearing before a panel of the Board.

5. Before us, the parties addressed two preliminary matters. First, the objecting employ­ees request that the Board extend the terminal date for the filing of their statement of desire opposing certification of the union, because an original petition was stolen just prior to the termi­nal date. Second, the union objects, pursuant to Rule 71 of the Board's Rules of Procedure ("the Rules"), to the allegation by the hotel that the union's organizer, Andre Plouffe, had made "kick­backs" to hotel employees to encourage them to join the union on the basis that the allegation does not establish a prima facie case.

6. We gave oral rulings on both preliminary matters, accompanied by brief reasons. We declined to extend the terminal date, not being satisfied that the circumstances of the loss of the petition warrant an extension in light of the significance placed on the terminal date by the Board. We sustained the union's objection with respect to the hotel's allegation respecting "kickbacks" since, in our view, that allegation, which referred to the union's previous unsuccessful 1985 organ­izing campaign, can have no bearing on the way in which membership evidence in the 1986 cam­paign was gathered. We declined to apply the "taint" theory which the Board has applied in cases where petitions are filed in certification and termination cases to membership evidence filed by the union. Following the oral rulings, and in accordance with the agreement of the parties, we also announced the count in both certification applications.

7. We hereby confirm those oral rulings and provide written reasons.

8. We note that two statements of desire were filed with the Board. The first was filed on August 26, 1986 and was therefore timely. The second statement of desire was filed with the Board on August 28, 1986 and it is with respect to that document that the extension of the terminal date is an issue. It was agreed by the parties that the issue being addressed by the Board was whether the terminal date, August 27, 1986, should be extended to August 28, 1986, in order to permit the peti­tion sent to the Board by the objecting employees to be considered timely.

9. According to the witness called by the objecting employees, Carry Lamorie, she was waiting in her car for her boyfriend, Wayne Tracey, one of the chief organizers of the petition, out­side the employees' entrance to the hotel (a non-parking area), along with Tracey's three-year old son, Joshua, on the evening of August 26, 1986. While she was parked, two cars parked in front of her and one behind. Tracey came out with the petition which he subsequently left on the dash­board of Lamorie's car while he went back into the hotel to look for an employee he expected to sign the petition. Lamorie waited in the car, playing with Joshua. During a period of approxi­mately fifteen minutes, two men from the car in front of the one directly in front of her separately came to her car window and asked her questions. She did not recognize them, but knew they were together because she had seen them talking. Although the men wanted to know if she had seen employee friends of theirs, the first one declined to name the friend when Lamorie asked (she did not ask the second one). The second one asked her if she knew his friend who worked in the bar next door, named Christian Smith, with a French pronunciation of the first name; she admitted that was a "strange" name. She described the men as "strange" and "unkempt". Yet although it was dark and she had a three-year-old child in the back of the car, and the petition on the dash­board, she left the car doors unlocked and the windows rolled down. During this period, she did not see anyone coming in and out of the hotel or other pedestrian traffic. The second man who approached her asked her about the petition in a manner which indicated he knew at least gener­ally what it was; she told him it was in opposition to the union. While she was turned around, talk­ing to Joshua, the man grabbed the petition, reaching across her body to do so, and both men drove away. A third man saw the event and went with her to call the police; at that time, she left Joshua in the car on his own, with the doors unlocked and windows down. She did not have the name of the witness. When she came out, she saw Andre Plouffe standing beside the car parked behind hers, but did not know if he had driven up behind her prior to the incident, nor, at that time, whether it was his car.

10. The lost petition did not contain all the signatures gathered by the petitioners; some were in the possession of another of the objecting employees who had circulated the petition, Jac­queline Gilles. According to the petitioners, there were about one hundred signatures on the first petition, in total. The petitioners made an effort to replace the lost signatures and, having gathered about ninety-five signatures in total, sent the petition to the Board by Priority Post. It was received by the Board on August 28, 1986, beyond the terminal date, by virtue of Rule 75(1) which states:

Where a document is required to be filed by these Rules, filing shall be deemed to be made,

(a) at the time it is received by the Board; or

(b) where it is mailed by registered mail addressed to the Board at its office ... at the time it is mailed.

The requirement that a statement of desire be filed by the terminal date is established by Rule 73(1) which reads in relevant part as follows:

Evidence of membership in a trade union or of objection by employees to certification of a trade union or of signification by employees that they no longer wish to be represented by a trade union shall not be accepted by the Board on an application for certification for a declaration terminating bargaining rights unless the evidence

(b) is filed not later than the terminal date for the application.

11. Counsel for the union called no evidence on this issue, but reserved the right to call evi­dence with respect to the respondent's allegation that the union was involved in the alleged theft of the petition.

12. The Board has often emphasized the importance of the terminal date to certification proceedings, the need for "strict compliance" with Rule 73(1)(b) and its resulting reluctance to extend a terminal date: Addressograph-Multi graph of Canada Limited, [1968] OLRB Rep. March V 83; also see generally Famz Foods Limited, [1985] OLRB Rep. June 857 (although in that case if e Board refused to extend the terminal date because of the length of time required for the hear­ing and because the employees' wishes had changed, the principles expressed apply here). Counsel for the union referred us to cases in which the Board refused to extend the terminal date even tough solicitors' carelessness had been the cause of late filing. While we do not view the circum­stances of this case as completely analogous to cases involving solicitor carelessness, we are per­suaded that the petitioners must take some responsibility for the loss of the petition. Lamorie was not an originator of the petition; indeed, she testified she knew little about it. However, her reaction to the events of the evening of August 26th suggests a less than cautious response to an usual and potentially threatening situation: two strange men bothering her at night, few pedes­trians about, if any, at the operative time, and with a three-year-old child in the back of her car, never mind the petition on the dashboard. With respect to the petition, this is particularly so since the second of the men specifically and explicitly asked her questions about the petition; further­more, although Lamorie did not know this man, she gave him information, albeit minimal, about the petition. However, even if we accept that she feels safe in Ottawa (although she says she now will not trust anyone as she did before this incident) and saw no reason to roll up her windows and lock her door - or even, it appears, to warn off the men - we are concerned that Tracey entrusted the petition to someone who apparently did not appreciate its significance, nor the importance of maintaining the "secrecy" of the petition. Therefore, we decline to extend the terminal date and find that the petition is untimely. (We note that we informed the objecting employees later in the hearing that their petition was in any case not relevant since only thirteen persons signing the peti­t n had also signed membership cards and that number was not sufficient to cast doubt on the level of support received by the union.)

13. Two other aspects of this preliminary matter should be addressed. The objecting employees argued that the reason for the different treatment of registered mail in Rule 75(1) is that registered mail provides proof of when the document was mailed; accordingly, other forms of proof of date of mailing should have the same effect and in this case, proof of mailing on August 27, 1986, the terminal date, exists through slips filled out for Priority Post. While we have sympa­thy for the position of the objecting employees in this matter, we are bound by Rule 75(1) and are not prepared to interpret "registered mail" to encompass "Priority Post". Counsel for the employer directed us to Rule 84 which states that "[n]o proceeding under these Rules is invalid by reason of any defect in form or of any technical irregularity". It is our view that the terminal date, and Rules relating to it, are not technical matters. Furthermore, the need for clear rules and their consistent application requires the Board to make it clear to parties when their documents will be considered filed and when all evidence must reach the Board. The question of the appropriate ter­minal date is not equivalent to the failure to name the employer on a petition or the failure to des­ignate the section under which a complaint has been made, situations in which amendments are permitted; rather, as pointed out above, it addresses a matter of significance in labour relations: the date at which all parties can be satisfied all evidence must be filed if it is to be considered by the Board.

1 4. With respect to the second preliminary matter, the respondent alleges in paragraphs 10 and 12 of its Reply that Andre Plouffe, the union's chief organizer in its 1986 campaign, offered and gave "kickbacks" to employees in exchange for their signing membership cards during the 1985 organizing campaign by the same union at the same hotel; Plouffe was a chief organizer dur­ing the 1985 campaign. The Westin contends that this alleged conduct by Plouffe is contrary to sec­tions 3 and 70 of the Act and, if found to be true, should be found by the Board to impugn the membership evidence gathered by the union during its current campaign. There is no similar alle­gation with regard to the membership evidence in the application now before the Board. Effective­ly, counsel for the hotel is asking us to treat membership evidence as we do petitions: just as the circumstances of a prior petition may "taint" a subsequent petition, rendering the signatures on the second petition involuntary, so, counsel argues, may the conduct of an organizer in one campaign "taint" the results of the second campaign in which the organizer is involved. Furthermore, coun­sel submits, the hotel has made other allegations that Plouffe's conduct in the 1986 campaign con­travenes sections 3 and 70 of the Act and that the 1985 and 1986 conduct can be held by the Board to evidence a line of conduct by Plouffe which offends the Act. Furthermore, counsel argues, once such conduct has been experienced by employees, they would expect similar conduct in another campaign.

15. Counsel for the union contends that the respondent's allegation does not establish a prima facie case and therefore, pursuant to Rule 71 of the Board's Rules of Procedure, the Board should dismiss this allegation without a hearing. He contends that the taint theory cannot realisti­cally apply to the gathering of membership evidence and that even if the Board were to find that Plouffe did offer kickbacks in the 1985 campaign (which the union does not concede), it could not apply that evidence to the current application before it (particularly since all the 1986 membership evidence is fresh evidence).

16. We are of the view that this allegation does not establish a prima facie case and there­fore dismiss it without a hearing. The "taint" theory is based on certain assumptions which cannot apply to membership evidence. Briefly, a previous petition which was originated, prepared and/or circulated in circumstances under which the employees may perceive that the employer has become aware of the petition and that the knowledge of whoever signs or does not sign the petition may reach the employer, whether directly or indirectly, may be held by the Board to "taint" a sub­sequent petition. This will not always be the result since the length of the period between the two petitions or the subsequent conduct of the employer, or other factors, may serve to satisfy the Board that the "involuntariness" of the first petition has not carried over to the subsequent peti­tion. However, where the Board finds that it has, its conclusion manifests a concern that once employees perceive the employer to be aware of which employees support the union, or are not prepared to sign a petition against the union, they may fear negative employment consequences (for supporting the union) or may anticipate benefits (for not supporting the union); in either case, the Board will not be satisfied that the employees are signing the petition voluntarily. In such cases, the employer retains a continuous control of the workplace and of the benefits and disadvan­tages which accrue to the employees; more importantly, the employer is in a position to impose such benefits and disadvantages. This is far different than the role of an organizer in a union certifi­cation campaign. It may be that an organizer may "bribe" employees to sign membership cards; but the effect of such a bribe ends there. The organizer does not exercise the control over the employees, through a bribe, as the employer does through its control of the workplace. According­ly, even if Plouffe had bribed employees in the 1985 campaign, the simple possibility of a bribe in the second could have no effect. An employee would not sign a card in anticipation of a bribe unless it had been directly promised to him or her at the time of signing a card. The basic premise of counsel for the hotel's submission with respect to the relevance of the "kickback" allegation cannot be sustained; furthermore, even if the Board were to find the allegation itself were sus­tained, we could not discount the 1986 membership evidence on the basis of conduct during the 1985 campaign.

17. Counsel for the hotel submitted that Rule 71(1) does not apply to allegations in a Reply. Rule 71(1) states as follows:

Where an application or complaint does not, in the opinion of the Board, make out a prima facie case for the remedy requested, the Board may dismiss the application or complaint without a hearing and it shall in its decision state the reason for the dismissal.

The wording of Rule 71(1) may be usefully compared to the wording in other Rules. For example, Rule 72, which requires that particulars be filed, refers to "application or complaint or, any doc­ument"; Rule 97 requires a party requesting a hearing to set out certain items "in the application, reply or intervention". Rule 71 refers only to "application or complaint". The hotel has made its allegation with respect to Plouffe's conduct in its reply and has not filed a complaint under section 89.

I8. At the hearing, we reserved our decision with respect to the applicability of Rule 71 to allegations made in a reply and based our decision on Rule 86's direction that "[p]rocedure not prescribed is governed by analogy to these Rules". In our view, any allegation or charge made by a party against another party must establish a prima facie case; Rule 71 makes that clear with respect to complaints and applications; Rule 84 permits us to apply the same requirement to allegations made in a reply. Parties cannot avoid the basic requirements of establishing their case simply by employing the format of a reply to make allegations, thereby avoiding requirements applied to complaints or applications. In any case, the power of the Board under section 106 of the Act to determine its own procedure permits us to place the same requirement on an allegation made in a reply as is imposed on an allegation made in a complaint or application and to dismiss any allega­tion that is not relevant. In our view, conduct in the 1985 campaign is not relevant to the validity of membership evidence gathered in the 1986 campaign.

19. The parties were agreed that these two matters conclude the preliminary matters to be considered by the Board. The parties further agreed to the Board's revealing the count.

20. With respect to the certification application for the part-time employees of the respon­dent, the applicant and respondent were agreed on the bargaining unit. Having regard to the agreement of the parties, the Board finds that "all employees of the respondent in the City of Ottawa regularly employed for not more than twenty-four hours per week and students employed luring the school vacation period, save and except Assistant Supervisors, Security Staff, Front Desk Staff, Office and Sales Staff, Concierge, Bell Captain, persons employed as Maitre d', Head Greeter, Lead Captain, Captain, Lead Banquet Bartender, and employees in bargaining units for which any trade union held bargaining rights as of August 12, 1986", constitute a unit of employees if the respondent appropriate for collective bargaining. The Board notes the parties' agreement chat persons employed in Discoveries are not employees of the respondent.

21. On the basis of the evidence before us, we are satisfied that less than forty-five per cent of the employees of the respondent in the bargaining unit described in paragraph 20 above, at the time the application was made, were members of the applicant on August 27, 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 membership under section 7(1) of the Act.

22. The application for certification with respect to the part-time employees is accordingly dismissed.

23. The Board will not entertain an application for certification with respect to any of the employees of the respondent in the bargaining unit with respect to which this vote was directed within the period of six months from the date hereof.

24. With respect to the application for certification as bargaining agent of the full-time employees of the respondent, the applicant and respondent were agreed on the description of the bargaining unit. Having regard to the agreement of the parties, the Board finds that "all employees of the respondent in the City of Ottawa, save and except Assistant Supervisors, persons above the rank of Assistant Supervisor, Security Staff, Front Desk Staff, Office and Sales Staff, Concierge, Bell Captain, persons employed as Maitre d', Head Greeter, Lead Captain, Captain, Lead Ban­quet Bartender, persons regularly employed for not more than twenty-four hours per week, stu­dents employed during the school vacation period and employees in bargaining units for which any trade union held bargaining rights as of August 12, 1986", constitute a unit of employees of the res­pondent appropriate for collective bargaining. The Board notes the agreement of the parties that persons employed in Discoveries are not employees of the respondent.

25. The applicant has challenged the inclusion of the following three individuals in the bar­gaining unit under section 1(3)(b) on the basis that they perform managerial functions: D'Arcy McGuire, Nelly Tom-Kee and Wayne Tracey. The respondent takes the position they are properly included in the unit. The Board appoints a Labour Relations Officer to inquire and report back to the Board on the duties and responsibilities of the three disputed individuals.

26. Two hundred and ninety-eight employees were members of the bargaining unit at the time the application was made. The applicant filed one hundred and eighty one combined membership/receipt cards. The statement of desire filed August 28, 1986, is not timely. The state­ment of desire filed August 26, 1986 contains no signatures of employees who also signed member­ship cards and therefore is not relevant.

27. Regardless of the status of the three disputed individuals, on the basis of the evidence before us, we are satisfied that more than fifty-five per cent of the employees of the respondent at the time the application was made, were members of the applicant on August 27, 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 membership under section 7(1) of the Act.

28. However, this conclusion is subject to the allegations made by the employer with respect to the membership evidence. Where the resolution of the status of disputed individuals cannot affect the determination of membership support, the Board would normally grant interim certification to the applicant pending the resolution of the matters in dispute between the parties. In this case, since one of the matters in dispute relates to the validity of the membership evidence and therefore of the evidence required to determine the applicant's support, no certificate shall issue at this time.

29. The parties are agreed to continuation of this hearing on November 5, 6, 19, 20, 21 and 28, 1986 to deal with all outstanding matters.

30. This panel is not seized with these matters.

31. These matters are referred to the Registrar with respect to scheduling the continuation of this hearing to deal with all outstanding matters.