Ontario Labour Relations Board
[1986] OLRB Rep. January 85
0750-85-R United Food and Commercial Workers International Union, Local 175, Applicant, v. Corporation of the Town of Dunnville, Respondent, v. The Canadian Union of Public Employees, Intervener
BEFORE: Robert D. Howe, Vice-Chairman, and Board Members J. A. Ronson and S. O 'Flynn.
APPEARANCES: D. A. McKee and Bruce Zufelt for the applicant; Thomas A. Stefanik, Frank
A. Marshall and Ronald T. Sparks for the respondent; Helen O'Regan and John Moszynski for the intervener.
DECISION OF ROBERT D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER S. O'FLYNN; January 10, 1986
The name of the respondent is amended to "Corporation of the Town of Dunnville".
This is an application for certification.
(Paragraphs 3-8 inclusive omitted)
- By the following letter dated July 16, 1985, counsel for the respondent notified the Board and the applicant of his client's intention to adduce evidence concerning certain allegations of improper membership solicitation by the applicant:
Please be advised that at the hearing of this matter the Respondent Employer intends to adduce evidence which has just come to its attention regarding improper membership solicitation by the Applicant Union. The particulars are as follows:
On or about the 24th day of June, 1985, one Betty Lambert, an employee of the Respondent in the proposed bargaining unit, approached three (3) bargaining unit employees of the Respondent. Ms. Lambert represented herself as assisting in organizing for the Applicant Union and indicated to the three (3) employees that if they signed membership cards now, it would only cost them one ($1.00) dollar, but if they waited, it could cost them twenty ($20.00) dollars at a future point in time. The Respondent Employer believes that as a result of those representations by Ms. Lambert, the three (3) bargaining unit employees in question signed membership cards in the Applicant Union.
On or about the 10th day of July, 1985, one Douglas Grey, an employee of the Respondent, approached an employee of the Respondent in the proposed bargaining unit of this Application. Mr. Grey represented that he was assisting in organizing for the Applicant Union and represented to the employee in question that if that employee signed before July 19th, it would only cost one ($1.00) dollar but after that date, it would cost twenty ($20.00) dollars if the Union was certified. In addition, Mr. Grey told the employee in question that if the Union was certified, the Union Members would get hired first for summer work and the Town would have to hire only Union Labour unless it was unable to find qualified Union Members to do all of its work.
The Respondent Employer submits that such conduct on the part of the Union Organizers amounts to misrepresentation/fraud and in the circumstances, asks that the Board dismiss the Application. In the alternative, the Respondent Employer will be seeking a representation vote even if the Applicant Union is in an apparent out right certification position.
At the continuation of hearing of this matter on October 11, 1985, the Board heard evidence from six witnesses concerning those allegations, and also heard oral argument by counsel for the respondent. On the agreement of the parties, the Board subsequently received written argument from counsel for the applicant, and written reply argument from counsel for the respondent.
The witnesses who testified before the Board were Patricia Forsey, who has worked for the respondent as a water safety instructor on a part-time basis for over twenty years; Chris Brownell, who worked for the respondent on a road crew during the summer of 1985 as a summer student; Tim Voakes, who worked for the respondent as a general labourer during the summer of 1985 as a summer student; Betty Lambert, who was at all material times employed by the respondent on a full-time basis as a public works clerk; Douglas Grey, who was at all material times employed by the respondent on a full-time basis as a cemetery attendant; and Bruce Zufelt, an organizer employed by the applicant's Ontario Retail Council.
The applicant's organizational activities in respect of the respondent's full-time employees commenced prior to the organizational activities which led to the instant application. The applicant's full-time application (File No 0055-85-R) was filed with the Board on April 9, 1985. The terminal date for that application was April 18, 1985. It came on for hearing (before another panel of the Board) on April 26, 1985. Some matters were resolved at that hearing, but a number of issues concerning the scope and composition of the bargaining unit remained in dispute. However, it was apparent that the applicant would ultimately be certified for some configuration of the respondent's full-time employees. (In an unreported decision dated May 27, 1985, that other panel of the Board appointed a Board Officer to enquire into the disagreement between the parties as to the description and composition of the bargaining unit. In doing so, the Board noted (at paragraph 5) "that regardless of how the bargaining unit questions are resolved, the trade union will be entitled to certification in respect of some bargaining unit".)
On May 14, 1985, Mr. Zufelt held a meeting with a number of the respondent's full-time employees, including Ms. Lambert and Mr. Grey, to advise them of the status of the full-time application, and to answer any questions which they had. One of the questions that Mr. Zufelt was asked at that meeting was how much it would cost an employee to join the Union after a collective agreement was put into place. In response to that question, Mr. Zufelt stated that anyone who had not joined the Union would be able to do so for one dollar until a collective agreement had been ratified. After that, the cost would be $20.00. He also explained that all of the employees would be required to join the Union if the collective agreement provided for a "closed shop". Mr. Zufelt did not mention that the Union's initiation fee for part-time employees after ratification was only $5.00, because he was speaking only to full-time employees that evening. In confirming that fee structure in his evidence before the Board, Mr. Zufelt noted that different locals have different bylaws concerning initiation fees, and that the fee structure described above is the one delineated in the applicant's bylaws.
While the applicant was organizing the respondent's full-time employees, a number of part-time employees approached Mr. Zufelt to express interest in unionization. Accordingly, he met with half a dozen of the respondent's part-time employees to enquire if they would assist in organizing the respondent's part-time work force. Having received a favourable response, Mr. Zufelt met with them again in mid June, and also met with certain full-time employees who had expressed a willingness to assist him in signing part-time employees into the Union. Included in that group were Ms. Lambert and Mr. Grey. At that meeting, Mr. Zufelt distributed membership cards, explained the proper procedures for signing persons into membership, and warned the persons in attendance that they were "not allowed to promise anyone anything", or to threaten or coerce anyone into joining. He also provided them with a brief explanation of the Board's certification procedures, and advised them to give his (toll free) telephone number to any employees who had questions, or to arrange for him to meet with them to answer their questions. No mention was made at that meeting of the applicant's two-tiered fee structure because Mr. Zufelt had been involved in previous Board proceedings in which allegations had been raised (by another employer) concerning references to that structure, and was therefore desirous of avoiding the possibility of any such allegations in respect of this organizing drive.
Shortly after July 9, 1985, which as noted above was the terminal date set by the Registrar for this application, Mr. Grey telephoned Ms. Forsey, who was one of his neighbours, to tell her that the Union had applied for certification as bargaining agent for the respondent's part-time employees. Mr. Grey, whom we found to be a candid and reliable witness, told the Board that he had merely called her as an act of friendship since he was aware that no one had contacted her concerning the Union, and "didn't want her to walk into it without knowing it was coming". In her testimony before the Board, Ms. Forsey described Mr. Grey as "a very nice, conscientious man" whom she gets along with well. Mr. Grey was aware at the time of that call that it would make no difference to the outcome of the Union's certification application whether or not Ms. Forsey signed a Union card since the terminal date had already passed. He was also aware that the Union had signed up more than fifty-five per cent of the respondent's part-time employees, and thus expected that the Union would be certified to represent those employees. It was Mr. Grey's evidence that during the course of that conversation, he told Ms. Forsey that it would cost her one dollar to join the Union at that time, but that after the contract was signed it was going up to $20.00. Ms. Forsey' s evidence was that Mr. Grey told her that it would cost one dollar then or $20.00 after July 19th. When Mr. Grey was advised in cross-examination of the discrepancy between his evidence and that of Ms. Forsey on that point, he said, "As far as I can remember, I said 'after the contract'. I may have mixed up the dates. I don't know." Under the circumstances, we are unable to determine whether it was Mr. Grey who was mistaken concerning this point or Ms. Forsey, who may well have been told by Mr. Grey that July 19 was the date on which the Union's application was to be heard by the Board and may have mistakenly linked that date with Mr. Grey's statement concerning the cost of joining the Union. Whichever version is correct, it is clear that Mr. Grey did tell Ms. Forsey that she could join the Union for one dollar at that point but that it would cost $20.00 later. Mr. Grey also told her that if the Union obtained a contract, she would have to pay dues whether she joined the Union or not. When she asked him if she would have to pay dues throughout the year or just when she was working (during the summer months), he told her that he would have to get back to her on that because he did not know. After they had discussed the pros and cons of unionization, Ms. Forsey asked Mr. Grey if declining to join the Union would have any effect on her being hired by the respondent the following year if the Union was certified. (Pool employees such as Ms. Forsey are terminated by the respondent at the end of each summer and then rehired the following spring.) It was Mr. Zufelt's evidence that he responded to that question by saying that as far as he knew the Union members would be the first ones to be hired, provided their qualifications were good enough. He further testified that he told Ms. Forsey that he was not sure of that. Ms. Forsey's response was something to the effect that it did not matter because no one else had her qualifications. It was Ms. Forsey's evidence that Mr. Grey went on to say that if the places were not filled by Union people from Dunnville, they would probably bring in Union people from Welland. However, Mr. Grey firmiy denied making any such statement and, having regard to all of the circumstances, we prefer his evidence on that point. In this regard, we are satisfied that Ms. Forsey was not attempting to mislead the Board, but rather was merely mistaken about that aspect of the telephone conversation (which is not mentioned in the brief contemporaneous notes which she made concerning that conversation). We further note that Ms. Forsey readily conceded that she did not have a "perfect recollection" of the call. During that conversation, Mr. Grey also suggested that since Ms. Forsey had worked at the pool for a long time, perhaps she could get the pool staff together to discuss the Union.
On or about June 11, 1985, Mr. Grey spoke to Mr. Zufelt and told him about his conversation with Ms. Forsey. When Mr. Zufelt learned that Mr. Grey had told Ms. Forsey that it would later cost her $20.00 to join the Union, he advised Mr. Grey that he had given Ms. Forsey incorrect information. After explaining that under the applicant's fee structure a part-time employee would have to pay only $5.00 to join the Union after a collective agreement was in place, he requested that Mr. Grey contact Ms. Forsey and correct the information which he had given her. He also asked Mr. Grey if he had told anyone else the same thing. Mr. Grey replied that he had not. In testifying before the Board in this matter, Mr. Grey confirmed that to the best of his recollection he had not mentioned the applicant's two-tiered fee structure to anyone except Ms. Forsey. In this regard, he told the Board that he did not approach any other employees about joining the Union; it was his evidence that each of the part-time employees whom he signed up came to him to get a card. It was also his evidence that he did not tell anyone else that Union members might be given hiring preference if the Union was certified as the bargaining agent for the respondent's part-time employees. He further testified that he was positive that Ms. Forsey was the only one who asked him about that matter.
Mr. Grey attempted to contact Ms. Forsey by telephone the same day that he spoke to Mr. Zufelt, but was unable to reach her. He did, however, speak with her in person on the following evening, at which time he told her that the $20.00 figure that he had given her was incorrect, and that it was only $5.00 for part-time employees. During that conversation, Ms. Forsey confirmed that she did not wish to join the Union and also advised that she could not get the pool staff together to meet concerning the Union.
Ms. Lambert was also involved in collecting in respect of the instant application. She approached Mark Derjugin, a summer student employed by the respondent as a labourer, who in turn spoke with Chris Brownell, Tim Voakes, and his brother, Jim Voakes (who was not called as a witness in these proceedings as he had become a member of the Canadian Armed Forces, stationed in Cornwallis, Nova Scotia). At the suggestion of Mr. Derjugin, those four summer students went to Ms. Lambert' s office (downstairs in the Municipal Building) after work on June 24, 1985 to discuss the Union with Ms. Lambert. There are some conflicts in the evidence concerning what was said at that meeting. In resolving those conflicts, we have generally given the greatest weight to the evidence of Tim Voakes. This is not to suggest that either Mr. Brownell or Ms. Lambert were attempting to mislead the Board. Rather, it simply reflects the fact that we are satisfied that Mr. Voakes was better able to recall what transpired than were Mr. Brownell and Ms. Lambert.
Those four students spent approximately ten minutes in Ms. Lambert's office that day. Although she was unable to recall doing so, we are satisfied from the evidence of Mr. Voakes and Mr. Brownell that Ms. Lambert told them (and the other two students who were present at that time) that they could join the Union by paying a dollar at that time and that it "could possibly" cost them more to join if they waited until later. In her evidence in chief, Ms. Lambert testified that she told them that she had a toll free number where they could contact Mr. Zufelt. However, neither Mr. Voakes nor Mr. Brownell had any recollection of being given that information, and in cross-examination Ms. Lambert expressed less certainty about that matter, ultimately conceding that she did not know whether she had given them that information or not. It is clear, however, that she had Mr. Zufelt's card in her purse and that she would have provided them with his toll free number if they had expressed interest in obtaining further information.
Following that discussion, each of the four students paid Ms. Lambert a dollar and signed a membership card. In explaining why he joined the Union at that time, Tim Voakes told the Board, "I figured I'd be able to save myself some money. I thought that if the Union got in, I'd probably have to join. So I joined then. It cost me a dollar." Mr. Brownell also testified that he joined then because Ms. Lambert led him to believe that it would cost him more later and he wanted to take the "cheapest way". However, the reliability of that evidence is cast in some doubt by the fact that he also testified that he signed the card before any discussion took place.
In addition to those four cards, Ms. Lambert served as the collector on two other membership cards submitted by the applicant in support of this application. It was Ms. Lambert's evidence that she did not say anything to those other two employees about the Union's two-tiered membership fee structure. When counsel for the respondent suggested to her in cross-examination that she might have made such a statement to them and then forgotten having done so, Ms. Lambert expressed strong disagreement and went on to state that she treated each person that she talked to individually. In this regard, it was her evidence that the others were quite willing to join and, unlike the aforementioned four students, asked her no questions whatsoever.
The Board's decision in Leon 's Furniture Limited, [1982] OLRB Rep. March 404, contains a thorough review of the Board's jurisprudence concerning two-tiered membership fee structures. Reference may also usefully be made to Haughton Graphics Limited, [1983] OLRB Rep. Sept. 1464, in which the Board wrote, in part, as follows:
The real issue in this cases centres around the applicant's use of the two-tiered fee structure in the campaign. Such usage was also the main focus in the Leon's Furniture Limited case, supra, and the Board noted, at paragraph 11:
... The Board has not attempted to lay down standards of conduct aimed at responding to confusion and misunderstanding. Rather, it has tried to strike a balance between competing interests by censuring conduct that could deter, coerce or mislead the reasonable employee. The reduced payment before certification has been viewed by the Board as a borderline tactic which has sometimes crossed the line of acceptability.
After reviewing its jurisprudence on the subject, and particularly the case of Alex Henry, [1977] OLRB Rep. May 288, the Board concluded:
- While [in Alex Henry] there had been no explicit linking of the higher initiation fee to an employee's job security, the Board found that an employee might reasonably see this link and therefore held that the full-time union organizer is under a duty to explain in detail how his statement might come to pass. Once having raised a topic that relates to job security and amounts to a significant financial enticement, there is an affirmative obligation on the organizer to be totally candid. Therefore, in Alex Henry the Board concluded that the bald statement "$2.00 now or $50.00 later" crosses the boundaries of acceptable salesmanship. However, instead of prohibiting a two tier initiation fee structure for the purposes of an organizing campaign, the Board has instead required complete disclosure on how it would impact on the employee who refuses to sign a membership card before the trade union is certified. This, it seems to us, is a reasonable approach given the reality that many trade unions customarily reduce their initiation fees for the purposes of organizing campaigns.
[emphasis added]
The basis of the Board's concern is set out in plain terms in an earlier portion of the decision:
The statute permits the Board to certify applicant trade unions to represent employees based upon written authorizations involving the payment of at least $1.00 where such "membership documents" are properly executed and witnessed and where the application is supported by a declaration made by a knowledgeable official, declaring that the monies were paid as the membership documents indicate. See for example Form 9 and sections l(1)(l) and l03(2)(j) of the Act. Thus, the Board relies on the execution of such membership evidence as an indication of the true wishes of employees and where more than 55 percent of the employees in the bargaining unit are members of the trade union, the Board will usually certify the applicant without a representation vote. However, because of the "hearsay" quality of membership cards, a fact demanded by the membership secrecy section of the Act (see section 111(1)), conduct by organizers that obscures the primary reason why an employee signed a membership card is of concern to the Board.
The Board accordingly sent a clear signal that a "special" initiation fee to eliminate the financial impediment to organizing would continue to be acceptable; but not to the point where the same device may be held out as a threat of a "penalty" to those employees who would refrain from joining prior to the union becoming certified. The union, in other words, must not use this organizing tool in such a way as to cause the Board to doubt whether employees have joined the union of their own free choice, or simply as insurance to avoid the risk of being required to pay the full amount of the initiation fee if the union is successful. The proper question is whether the employees wish to become part of the trade union or not, and organizing campaigns ought to be won or lost on this basis. Any two-level system of initiation fees causes a problem for the Board so long as the higher level is made to apply before or immediately upon certification of the trade union. In order to prevent this organizing device from being a distorting factor in assessing employees' true wishes, the two-tiered system must allow all employees employed at the time of the organizing campaign a reasonable opportunity to join for the lower fee after it has been determined whether the union will be certified. This is recognized to be already the practice of at least certain of the trade unions in the province, and conformity to it by others would seem to be no more than the Act requires ....
The Board's jurisprudence in this area has generally distinguished between statements made by full-time union organizers and statements made by rank and file employees. As indicated above, where reference is made to a two-tiered fee structure by a full-time union organizer, the Board has held that the organizer is under an affirmative obligation to make full disclosure. However, the Board has been careful to avoid imposing an unrealistic standard for accuracy and disclosure on rank and file organizers. For example, in Hancock Sand & Gravel Limited, [1978] OLRB Rep. Oct. 928, the then Chairman of the Board wrote:
The Board considers that it would be unrealistic to expect the same standard from the rank-and-file organizer as from the full-time union official. It is reasonable to assume that the ordinary employee is less conversant with the operation of union security provisions. If less than a full explanation is provided by him, moreover, its impact upon other employees is likely to be less than where the statements of a full-time union official suffer from the same defect. As the Board indicated in Crenmar Services Limited, [1978] OLRB Rep. Jan. 48, the rank-and-file organizer is not likely to be perceived by his fellow employee as being in a position to seek to achieve the consequences of any statements he may make during a union organizing campaign. Where employees discuss the merits of joining a union among themselves, it does not seem unreasonable to expect that a few misconceptions might arise, some lending support to the union and some working the other way. We consider that employees are quite capable of dealing with such misconceptions by seeking any necessary clarification, and then making an informed decision as to whether they wish to join a union.
(See also Bond Structural Steel (1965) Ltd., [19791 OLRB Rep. Dec. 1137.)
The present applicant's two-tiered membership fee structure conforms to the Board's requirements, as described in Haughton Graphics Limited, supra, in that it allows all persons employed at the time of the organizing campaign a reasonable opportunity to join for the lower fee after it has been determined whether the Union will be certified. What is in issue, however, is the manner in which Mr. Grey and Ms. Lambert have communicated that structure to some of the employees affected by this application.
Mr. Grey was the collector on nine of the thirty-one membership cards submitted by the Union in support of this application. Counsel for the respondent submitted that in the circumstances of the present case, the Board should direct that a representation vote be taken, or at least disallow all of the cards collected by Mr. Grey. However, we are not persuaded that either of those courses of action would be appropriate in this case. As indicated above, we found Mr. Grey to be a candid and credible witness. Thus, we accept his testimony that Ms. Forsey was the only person to whom he mentioned (what he understood to be) the Union's two-tiered fee structure. As noted above, Mr. Zufelt asked Mr. Grey if he had mentioned that to anyone else, and was told by Mr. Grey that he had not. If Mr. Grey had in fact done so, it seems probable to us that he would have told Mr. Zufelt about it at that time, and would then have contacted any such employee to correct the misinformation, as he did in the case of Ms. Forsey. The unlikelihood of his having made a similar statement to any of the part-time employees for whose cards he acted as collector is also confirmed by the fact that they approached him and asked for cards. Thus, he did not have to approach them or attempt to persuade them to join the Union. We are also satisfied that he did not tell any of them that Union membership might enhance their prospects of being rehired the following summer. In this regard, we accept his evidence that Ms. Forsey was the only person who asked him about that matter. Thus, he would have had no reason to mention that information to any of the aforementioned nine part-time employees who approached him and asked to sign membership cards. His statements to Ms. Forsey had no bearing on the applicant's membership position; they were not made until after the terminal date, and Ms. Forsey did not in any event sign a Union card. It is also significant that Mr. Grey was not a full-time organizer but rather was merely a rank and file employee who was speaking to Ms. Forsey as a friend and neighbour. That he was not the source of all wisdom concerning the Union was apparent to Ms. Forsey since he was unable to answer her question about the period during which Union dues would be payable by part-time employees. In this regard, it will be recalled that he had told her that he did not know the answer to that question and would have to get back to her on it.
For the foregoing reasons, we are not persuaded that a representation vote should be directed on the basis of Mr. Grey's words or actions, or that we should disregard any of the membership cards which he collected.
In the circumstances of the present case, it is unnecessary to determine whether Ms. Lambert's statement to the aforementioned four summer students (that they could join the Union for a dollar at that time and that it "could possibly" cost them more if they waited until later) would prompt the Board to discount any (or all) of the six membership cards collected by her, since even if all six of those cards were to be completely disregarded, that would not change the fact that the remainder of the membership cards submitted by the Union in support of the application constitutes unequivocal membership evidence in respect of more than fifty-five per cent of the employees in bargaining unit #1 at the pertinent time.
It is the applicant's position that Darren Glenney should be added to the employer's list, and that Tony Stratton (whose name appears on Schedule D of the employer's list) should also be included for purposes of the count. The respondent, on the other hand, contends that Mr. Glenney quit his employment prior to the date of this application, and that Mr. Stratton is properly excluded from the count under the Board's "thirty/thirty" or "one month" rule (as described in Brewers Nursing Home, [1981] OLRB Rep. July 852). However, it is unnecessary to resolve those disputed matters in the circumstances of the present case as they do not materially affect the count.
For the foregoing reasons, having regard to all of the evidence and the submissions of the parties, the Board finds that more than fifty-per cent of the employees of the respondent in bargaining unit #1 at the time the application was made, were members of the applicant on July 9, 1985, the aforementioned terminal date fixed for this application and the date which the Board has determines, under section 103(2)(j) of the Labour Relations Act, to be the time for the purpose of ascertaining membership under section 7(1) of the Act.
We further find that there are no circumstances in the present case which make it appropriate, in the exercise of our discretion under section 7(2) of the Act, to direct that a representation vote be taken in respect of that bargaining unit.
Accordingly, a certificate will issue to the applicant for bargaining unit #1.
DECISION OF BOARD MEMBER JAMES A. RONSON;
I approach the issues in this case with the same degree of credulity as the Board usually reserves for statements made by an employee who is perceived to be a manager or supervisor by other employees during a certification application.
It is clear that Mr. Grey and Ms. Lambert were "the Union" in the eyes of the employees whom they organized. There was no opportunity, (as in Haughton Graphics Limited, supra) for employees to ask questions of a union official and thus resolve any problems.
Both Mr. Grey and Ms. Lambert misled employees with their statements about the cost of joining the union. I feel that they used the misrepresentation as a selling point for all employees because:
Both of them made the statements as a matter of course in general conversation selling the benefits of the union; and
Mr. Grey made his statement to an employee after the terminal date of the certification application; - when her card was not needed to support the certification. If he made the statement at that time, it is more than probable that he made it previously to other employees whose cards were vital to the certification. In saying this I assume the same healthy skepticism as the Board usually reserves for its consideration of statements made by management or persons perceived to be acting on its behalf, and the self-serving testimony that usually follows.
I would order a vote to give the employees the opportunity to indicate their wishes free from any taint of misrepresentation.