Olga York v. Service Employees Union, Local 183
[1986] OLRB Rep. June 726
1705-85-R Olga York, Applicant, v. Service Employees Union, Local 183, Respondent, v. Gardiner's Supermarket Limited, Intervener
BEFORE: Robert J. Herman, Vice-Chairman, and Board Members F. W. Murray and P. J. O'Keeffe.
APPEARANCES: Olga York, Judy Dainard, Harry Williams, Melvin Kleinsteuber and Marjorie Tregarthen for the applicant; G. Charney, Don Burshaw, C. Wilkey and Dale Houlding for the respondent; Kees W. Kort and Gary Gardiner for the intervener.
DECISION OF ROBERT J. HERMAN, VICE-CHAIRMAN, AND BOARD MEMBER P. O'KEEFE; June 27, 1986
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 both full-time and part-time units of employees employed by the intervener employer, Gardiner's Supermarket Limited.
In a prior decision of this Board, differently constituted, issued on December 10, 1985, the Board held that this application was timely and satisfied the requirements of section 57 of the Act in that respect.
Based on the list of employees filed by the intervener employer with respect to both bargaining units, and based further on the several petitions filed in this proceeding purporting to evidence the desire of employees in the bargaining units in question that they no longer wish to be represented by the respondent, the Board would ordinarily order a representation vote if those individuals who signed the petitions are found to have voluntarily so signed. In order to ascertain whether the petitions as filed represented the voluntary wishes of the petitioners, the Board 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. Additionally, the respondent union filed extensive particulars of misconduct surrounding the origination and circulation of the petition and the Board heard evidence with respect to those matters as well.
The intervener employer, Gardiner's Supermarket Limited, has for many years been a family owned supermarket in the town of Picton, Ontario, owned and operated by members of the Gardiner family. The current general manager, and part owner, is Gary Gardiner. The intervener has a history and practice of hiring relatives of current employees, or their friends, and rehiring former employees who wish to return to the supermarket. Not surprising for a small town supermarket, the evidence suggested that employees, if not related to each other, were quite familiar with the relationships and social interactions amongst numerous employees and management or amongst employees themselves. In part it is these relationships that give rise to the respondent's concern that the petitions as filed do not represent the voluntary wishes of the employees.
The petitioner and five witnesses called by the petitioner all gave evidence as to the origination and circulation of the three filed petitions. We do not propose to review this evidence in any detail. Any discrepancies with respect to dates, or locations where particular signatures were obtained, in our view are the natural and expected discrepancies where several witnesses attempt to the best of their recollection to recall events which occurred many months earlier, and occurred at a time when the witnesses might not have reasonably anticipated that they would subsequently be asked to recount in explicit detail how each of the signatures was obtained.
All the signatures on the three petitions were obtained off the premises of the employer, by one of the several witnesses called by the petitioner. The signatures in the first petition were collected between September 11, 1985 and September 15, 1985; the signatures in the second petition were collected between October 16 and October 17, 1985; and the signatures on the third petition, circulated and obtained after a prior hearing before this Board during which the terminal date was extended, were collected between December 5 and December 6, 1985.
On September 11, 1985, at the initial meeting where employees signed the first petition, the applicant Mrs. York and others who were assisting her in the collection of signatures addressed the employees then present and explained the purpose of the meeting and afforded them an opportunity to sign the petition. One of those present at this first meeting was Margaret Gardiner, the wife of the owner and general manager Gary Gardiner, and from time to time, a part-time employee within the bargaining unit. However, at the time that this meeting of employees was held, Mrs. Gardiner had not worked as an employee of the intervener employer for over one year, since September 8, 1984. The evidence further disclosed that she was not recalled to work with the intervener, as a part-time employee, until September 17, 1985. At this employees' meeting, when as noted the first signatures on the first petition were obtained, Mrs. Gardiner herself signed the petition, and addressed those employees present. The applicant testified that Mrs. Gardiner expressed her opinion that employees might find it hard to find another job if they joined the union. In her own evidence Mrs. Gardiner testified that she probably had indicated to employees that if they had any problems, they ought to approach her husband directly as he had always been responsive to settling employees' problems. She further testified that she had indicated that, based on her experience and talking to people, if individuals joined the union they would have a tough time getting a job in Picton in a bank.
The evidence discloses further involvement by Mrs. Gardiner in the employer's affairs, at times when she was not an employee. Mrs. Gardiner almost daily walked through the supermarket, looking at the various departments and seeing how the store was operating at the time. In part she testified she did so for social reasons, but additionally she would on occasion have meetings with her husband in his office at the supermarket, where they discussed operational matters. One of the witnesses called by the petitioner testified that when she heard Mrs. Gardiner addressing employees at the September 11, 1985 meeting, the witness felt that Mrs. Gardiner was speaking not as another employee but on behalf of management. The applicant herself testified that at a meeting of employees on September 17, 1985 at the Rickerton Hotel, when employees were about to be asked by those organizing the petition as to their wishes with respect to the union, another employee advised the petitioner that they ought not to openly ascertain employee wishes as Margaret Gardiner was present.
Again, at the time Mrs. Gardiner participated in the first meeting of employees who signed the first petition, on September 11, 1985, she was not an active employee working at the supermarket, nor had she been for over a year. It is also worth repeating that the petitioner led evidence which indicated that at least one employee felt that Mrs. Gardiner spoke on behalf of management and not merely on behalf of herself. Taken together and in context, the Board concludes that employees would reasonably have inferred that Mrs. Gardiner spoke on behalf of management, and therefore such employees would reasonably have perceived that management had a particular interest in the termination of bargaining rights of the respondent union. If nothing else, the fact that Mrs. Gardiner signed all three petitions would have suggested to employees that management would be made aware of whether a particular employee had or had not signed a petition.
The union based their objection to the voluntariness of the petition not only upon the involvement of Mrs. Gardiner, as outlined above, but on the additional bases that the intervener employer itself had become involved in the petition or at least created an atmosphere at work which would make clear to employees that it opposed the union. Alternatively, management was alleged to have been directly involved in supporting the petitioner, as the petitioner had received favourable employment conditions, including pay rates above the collective agreement scale, preferential scheduling in not having to work weekends, and management had been involved in the manner in which Mrs. York obtained her job in the first place. We need not base our decision upon any of these grounds, as in the Board's opinion the involvement of Mrs. Gardiner was alone sufficient to cast doubt upon the voluntariness of the petition. As we have noted, her involvement at the beginning of the first petition was such that employees would perceive management as having a vested interest in the petition, or at least, employees would reasonably have feared that their involvement in the petition would have been brought to the attention of management. Mrs. Gardiner signed all three petitions, and in the small closely-knit atmosphere of the intervener's supermarket it is a reasonable inference that Mrs. Gardiner's involvement and her comments would be known to virtually all employees in both bargaining units. In turn, employees' awareness of her participation and their perception of her vested interest would render involuntary the subsequent petitions, which petitions Mrs. Gardiner signed as well, and which petitions would have been signed after employees were aware of Mrs. Gardiner's participation in the proceedings, her comments rendered at the first petition meeting on September 11, 1985 and her participation at the meeting at the Rickerton Hotel on September 17, 1985.
Although unnecessary for us to rule upon these other allegations raised by the union, we would note that the evidence disclosed no improper conduct on the part of the company per se nor any involvement by the company in the petition that would suggest the company sought to intimidate or coerce employees to sign the petition. We also find that the company's treatment of Mrs. York, with respect to her wages, scheduling, and the manner in which she obtained her job does not support the union's contention that management was in an improper fashion preferentially treating Mrs. York, nor that because of this preferential treatment employees signing the petition would have perceived Mrs. York as aligned to management.
The Board was referred to numerous cases, many dealing with family relationships or other close relationships which have effected the voluntariness of a petition. In that regard we were referred to Pigott Motors (1961) Limited, 63 CLLC 1125, Morgan Adhesives of Canada Limited, [1975] OLRB Rep. November 813, Ontario Hospital Association, [1980] OLRB Rep. Dec. 1759, Patro d'Ottawa, [1984] OLRB Rep. May 741, Otto's Deli, [1980] OLRB Rep. Nov. 1673, Jean Marc Joanisse, [1983] OLRB Rep. Jan. 92, Domus Building Cleaning Co. Ltd., [1986] OLRB Rep. Mar. 319.
As the Board stated in Domus Building Cleaning Co. Ltd., supra, at para. 16:
The Board has indicated in a number of cases that a petitioner's personal relationship with a member of management and the awareness of this relationship by employees in the bargaining unit are factors to be considered in assessing whether or not the signatures expressed the true wishes of the employees who signed. See for example Labatts Ontario Breweries, [1985] OLRB Rep. March 433; International Beverage Dispensers and Bartenders Union, Local 280, [19811 OLRB Rep. June 690; Ottawa Commercial Realties Limited, [1983] OLRB Rep. Nov. 1877; Jean Marc Joanisse, [1983] OLRB Rep. Jan. 92. As the Board stated in the Ottawa Commercial Realties Limited case, supra, at paragraph 10:
Section 57(3) of the Labour Relations Act requires that we satisfy ourselves that the written statement of desire filed in support of a termination application represents the voluntary signification of the wishes of the employees who signed it. The approach taken to voluntariness is explained by the Board in Grove Park Lodge, [1980] OLRB Rep. Feb. 235 at p. 240 in the following terms:
The Board has always been sensitive to the particular vulnerability of employees arising out of the employer-employee relationship. As stated in the Pigott Motors (1961) Ltd. case, 62 CLLC 16,264:
There are certain facts of labour-management relations which this Board has, as a result of its experience in such matters, been compelled to take cognizance. One of those facts is that there are still some employers who, through ignorance or design, so conduct themselves as to deny, abridge or interfere in the rights of their employees to join trade unions of their own choice and to bargain collectively with their employer. In view of the responsive nature of his relationship with his employer, and of his natural desire to want to appear to identify himself with the interests and wishes of his employer, an employee is obviously vulnerable to influence, obvious or devious, which may operate to impair or destroy the free exercise of his rights under the Act. it is precisely for this reason, and because the Board has discovered in a not inconsiderable number of cases, that management has improperly inhibited or interfered with the free exercise by employees of their rights under the Act, that the Board has required evidence in a form and of a nature which will provide some reasonable assurance that a document such as petition, signed by employees purporting to express opposition to the certification of a trade union truly and accurately reflects the voluntary wishes of the signatories.
and in the Peel Block Co. Ltd. case, 63 CLLC 16,227:
It is a function and duty of this Board to be vigilant and scrupulous in its concern to protect the fundamental rights of employees to make their own choice as distinct from the choice of their employer, on the matter of selecting or rejecting a bargaining agent.
See also CCH Canadian Limited, [1975] OLRB Rep. Jan. 19, which involved an application for termination of bargaining rights.
The Board has before it, in the present case, a cogently-worded statement of desire signed by almost the tull complement of the bargaining unit. The Board must still be satisfied, however, that the motivation behind such a statement was of a truly voluntary nature; that is, as the above cases indicate, that the employees are not simply identifying themselves with the choice of their employer, out of fear of antagonizing their employer, or fear of reprisal, or for whatever reason. This is a fundamental duty which the Board owes to the employees themselves, and is made a pre-condition under section 49(3) of The Labour Relations Act to its power to direct the holding of a representation vote.
As the Pigott Motors case, supra, makes clear, so vulnerable are employees to employer influence that the influence need not even be created by employer design. The Board in a long line of cases has refused to accept as voluntary a statement of opposition to a trade union signed in circumstances where the employees could reasonably believe that their failure to sign would come to the attention of management. In the Morgan Adhesives of Canada Limited case, [1975] OLRB Rep. Nov. 813, for example, the Board stated at paragraphs 30 and 31:
The finding of the Board is not intended to imply collusion or other conscious or deliberate improprieties on the part of either the objectors and/or the respondent company. There is no evidence before the Board which would support such a finding.
The evidence taken as a whole however, supports the inference that the employees of the respondent company would logically have assumed that management supported the petition, albeit in a tacit manner and that the names of those refusing to sign the petition would become known to management.
In carrying out its statutory duty, the Board is at the same time conscious that it must not be overprotective of employees' interests to the point where its evidentiary requirements become an unwitting trap for those very employees trying to express themselves. At all times a balance must be struck.
In the instant proceeding we are not called upon to decide whether, if Mrs. Gardiner had been an active part-time employee during the times in question, her family relationship with the general manager would render the petition involuntary. In our view her active involvement, and the comments she made to employees at a time when she had not been a part-time employee for over a year, would clearly have suggested to employees that her husband, the owner and general manager, had a clear interest in the termination of bargaining rights of the union, and equally possible and important, whether or not the individual employee signed the petition would be disclosed to Mrs. Gardiner's husband. Under these circumstances, we are not satisfied that the petitions represent the voluntary wishes of the employees in the bargaining units in question and accordingly the Board cannot give them any weight.
In the result, the Board is not satisfied that not less than forty-five per cent of the employees of the intervener employer in the full-time and part-time 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 December 12, 1985, the terminal date fixed for this application. Accordingly, as the statutory requirement for the directing of the representation vote has not been met, this application must be dismissed.
DECISION OF F. W. MURRAY;
I dissent.
Having considered all of the evidence in this case, including the role played by Mrs. Gardiner, and the evidence adduced by the applicant concerning the hostility that developed between the petitioners and the Local Union representative as a result of the representative's behaviour at several union meetings, I would have found that the petition was a voluntary expression of opinion.
Accordingly, I would have ordered a representation vote.